[Title 40 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 1999 Edition]
[From the U.S. Government Printing Office]


          40



          Protection of Environment



[[Page i]]

          PARTS 87 to 135

                         Revised as of July 1, 1999

          CONTAINING
          A CODIFICATION OF DOCUMENTS
          OF GENERAL APPLICABILITY
          AND FUTURE EFFECT

          AS OF JULY 1, 1999
          With Ancillaries
          Published by
          the Office of the Federal Register
          National Archives and Records
          Administration

          as a Special Edition of
          the Federal Register



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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 1999



               For sale by U.S. Government Printing Office
 Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328



[[Page iii]]




                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 40:

          Chapter I--Environmental Protection Agency 
          (Continued).........................................       3

  Finding Aids:

      Material Incorporated by Reference......................    1057

      Table of CFR Titles and Chapters........................    1061

      Alphabetical List of Agencies Appearing in the CFR......    1079

      List of CFR Sections Affected...........................    1089



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

                     Cite this Code:  CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus,  40 CFR 87.1 refers 
                       to title 40, part 87, 
                       section 1.

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

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, July 1, 1999), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
the period beginning January 1, 1986, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
containing that incorporation. If, after contacting the agency, you find 
the material is not available, please notify the Director of the Federal 
Register, National Archives and Records Administration, Washington DC 
20408, or call (202) 523-4534.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
and parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

[[Page vii]]


REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-523-5227 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408.

SALES

    The Government Printing Office (GPO) processes all sales and 
distribution of the CFR. For payment by credit card, call 202-512-1800, 
M-F, 8 a.m. to 4 p.m. e.s.t. or fax your order to 202-512-2233, 24 hours 
a day. For payment by check, write to the Superintendent of Documents, 
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Customer Service call 202-512-1803.

ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, The United States 
Government Manual, the Federal Register, Public Laws, Weekly Compilation 
of Presidential Documents and the Privacy Act Compilation are available 
in electronic format at www.access.gpo.gov/nara (``GPO Access''). For 
more information, contact Electronic Information Dissemination Services, 
U.S. Government Printing Office. Phone 202-512-1530, or 888-293-6498 
(toll-free). E-mail, [email protected].
    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.nara.gov/fedreg. The NARA 
site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

July 1, 1999.



[[Page ix]]



                               THIS TITLE

    Title 40--Protection of Environment is composed of twenty-four 
volumes. The parts in these volumes are arranged in the following order: 
parts 1-49, parts 50-51, part 52 (52.01-52.1018), part 52 (52.1019-End), 
parts 53-59, part 60, parts 61-62, part 63 (63.1-63.1199), part 63 
(63.1200-End), parts 64-71, parts 72-80, parts 81-85, part 86, parts 87-
135, parts 136-149, parts 150-189, parts 190-259, parts 260-265, parts 
266-299, parts 300-399, parts 400-424, parts 425-699, parts 700-789, and 
part 790 to End. The contents of these volumes represent all current 
regulations codified under this title of the CFR as of July 1, 1999.

    Chapter I--Environmental Protection Agency appears in all twenty-
four volumes. A Pesticide Tolerance Commodity/Chemical Index appears in 
parts 150-189. A Toxic Substances Chemical--CAS Number Index appears in 
parts 700-789 and part 790 to End. Redesignation Tables appear in the 
volumes containing parts 50-51, parts 150-189, and parts 700-789. 
Regulations issued by the Council on Environmental Quality appear in the 
volume containing part 790 to End. The OMB control numbers for title 40 
appear in Sec. 9.1 of this chapter.

    For this volume, Linda L. Jones was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Alomha S. Morris.

[[Page x]]





[[Page 1]]




                   TITLE 40--PROTECTION OF ENVIRONMENT



                  (This book contains parts 87 to 135)

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

Chapter I--Environmental Protection Agency (Continued)......          87

[[Page 3]]




         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)        



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

                 SUBCHAPTER C--AIR PROGRAMS (CONTINUED)
Part                                                                Page
87              Control of air pollution from aircraft and 
                    aircraft engines........................           5
88              Clean-fuel vehicles.........................          12
89              Control of emissions from new and in-use 
                    nonroad compression-ignition engines....          39
90              Control of emissions from nonroad spark-
                    ignition engines........................         164
91              Control of emissions from marine spark-
                    ignition engines........................         285
92              Control of air pollution from locomotives 
                    and locomotive engines..................         392
93              Determining conformity of Federal actions to 
                    State or Federal implementation plans...         534
94              [Reserved]
95              Mandatory patent licenses...................         573
96              NOX Budget Trading Program for 
                    State Implementation Plans..............         575
97-99           [Reserved]

                      SUBCHAPTER D--WATER PROGRAMS

100             [Reserved]
104             Public hearings on effluent standards for 
                    toxic pollutants........................         617
108             Employee protection hearings................         623
109             Criteria for State, local and regional oil 
                    removal contingency plans...............         624
110             Discharge of oil............................         626
112             Oil pollution prevention....................         628
113             Liability limits for small onshore storage 
                    facilities..............................         698
116             Designation of hazardous substances.........         699
117             Determination of reportable quantities for 
                    hazardous substances....................         709

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121             State certification of activities requiring 
                    a Federal license or permit.............         718
122             EPA administered permit programs: The 
                    national pollutant discharge elimination 
                    system..................................         722
123             State program requirements..................         799
124             Procedures for decisionmaking...............         824
125             Criteria and standards for the national 
                    pollutant discharge elimination system..         880
129             Toxic pollutant effluent standards..........         913
130             Water quality planning and management.......         924
131             Water quality standards.....................         938
132             Water quality guidance for the Great Lakes 
                    System..................................         985
133             Secondary treatment regulation..............        1046
135             Prior notice of citizen suits...............        1050



  Editorial Note: Subchapter C--Air programs is contained in volumes 40 
CFR parts 50-51, part 52 (52.01-52.1018), part 52 (52.1019-End), parts 
53-59, part 60, parts 61-62, part 63 (63.1-63.1199), part 63 (63.12.-
End), parts 64-71, parts 72-80, parts 81-85, part 86, and parts 87-135.

[[Page 5]]



PART 87--CONTROL OF AIR POLLUTION FROM AIRCRAFT AND AIRCRAFT ENGINES--Table of Contents




                      Subpart A--General Provisions

Sec.
87.1  Definitions.
87.2  Abbreviations.
87.3  General requirements.
87.4  [Reserved]
87.5  Special test procedures.
87.6  Aircraft safety.
87.7  Exemptions.

 Subpart B--Engine Fuel Venting Emissions (New and In-Use Aircraft Gas 
                            Turbine Engines)

87.10  Applicability.
87.11  Standard for fuel venting emissions.

     Subpart C--Exhaust Emissions (New Aircraft Gas Turbine Engines)

87.20  Applicability.
87.21  Standards for exhaust emissions.

   Subpart D--Exhaust Emissions (In-Use Aircraft Gas Turbine Engines)

87.30  Applicability.
87.31  Standards for exhaust emissions.

Subparts E-F [Reserved]

    Subpart G--Test Procedures for Engine Exhaust Gaseous Emissions 
               (Aircraft and Aircraft Gas Turbine Engines)

87.60  Introduction.
87.61  Turbine fuel specifications.
87.62  Test procedure (propulsion engines).
87.63  [Reserved]
87.64  Sampling and analytical procedures for measuring gaseous exhaust 
          emissions.
87.65--87.70  [Reserved]
87.71  Compliance with gaseous emission standards.

  Subpart H--Test Procedures for Engine Smoke Emissions (Aircraft Gas 
                            Turbine Engines)

87.80  Introduction.
87.81  Fuel specifications.
87.82  Sampling and analytical procedures for measuring smoke exhaust 
          emissions.
87.83--87.88  [Reserved]
87.89  Compliance with smoke emission standards.

    Authority: Secs. 231, 301(a), Clean Air Act, as amended (42 U.S.C. 
7571, 7601(a)), unless otherwise noted.

    Source: 47 FR 58470, Dec. 30, 1982, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 87.1  Definitions.

    (a) As used in this part, all terms not defined herein shall have 
the meaning given them in the Act:
    Act means the Clean Air Act, as amended (42 U.S.C. 7401 et seq.).
    Administrator means the Administrator of the Environmental 
Protection Agency and any other officer or employee of the Environmental 
Protection Agency to whom authority involved may be delegated.
    Aircraft means any airplane for which a U.S. standard airworthiness 
certificate or equivalent foreign airworthiness certificate is issued.
    Aircraft engine means a propulsion engine which is installed in or 
which is manufactured for installation in an aircraft.
    Aircraft gas turbine engine means a turboprop, turbofan, or turbojet 
aircraft engine.
    Class TP means all aircraft turboprop engines.
    Class TF means all turbofan or turbojet aircraft engines or aircraft 
engines designed for applications that otherwise would have been 
fulfilled by turbojet and turbofan engines except engines of class T3, 
T8, and TSS.
    Class T3 means all aircraft gas turbine engines of the JT3D model 
family.
    Class T8 means all aircraft gas turbine engines of the JT8D model 
family.
    Class TSS means all aircraft gas turbine engines employed for 
propulsion of aircraft designed to operate at supersonic flight speeds.
    Commercial aircraft engine means any aircraft engine used or 
intended for use by an ``air carrier,'' (including those engaged in 
``intrastate air transportation'') or a ``commercial operator'' 
(including those engaged in ``intrastate air transportation'') as these 
terms are defined in the Federal Aviation Act and the Federal Aviation 
Regulations.
    Commercial aircraft gas turbine engine means a turboprop, turbofan, 
or turbojet commercial aircraft engine.
    Emission measurement system means all of the equipment necessary to 
transport and measure the level of

[[Page 6]]

emissions. This includes the sample system and the instrumentation 
system.
    Engine Model means all commercial aircraft turbine engines which are 
of the same general series, displacement, and design characteristics and 
are usually approved under the same type certificate.
    Exhaust emissions means substances emitted to the atmosphere from 
the exhaust discharge nozzle of an aircraft or aircraft engine.
    Fuel venting emissions means raw fuel, exclusive of hydrocarbons in 
the exhaust emissions, discharged from aircraft gas turbine engines 
during all normal ground and flight operations.
    In-use aircraft gas turbine engine means an aircraft gas turbine 
engine which is in service.
    New aircraft turbine engine means an aircraft gas turbine engine 
which has never been in service.
    Power setting means the power or thrust output of an engine in terms 
of kilonewtons thrust for turbojet and turbofan engines and shaft power 
in terms of kilowatts for turboprop engines.
    Rated output (rO) means the maximum power/thrust available for 
takeoff at standard day conditions as approved for the engine by the 
Federal Aviation Administration, including reheat contribution where 
applicable, but excluding any contribution due to water injection.
    Rated pressure ratio (rPR) means the ratio between the combustor 
inlet pressure and the engine inlet pressure achieved by an engine 
operating at rated output.
    Sample system means the system which provides for the transportation 
of the gaseous emission sample from the sample probe to the inlet of the 
instrumentation system.
    Secretary means the Secretary of Transportation and any other 
officer or employee of the Department of Transportation to whom the 
authority involved may be delegated.
    Shaft power means only the measured shaft power output of a 
turboprop engine.
    Smoke means the matter in exhaust emissions which obscures the 
transmission of light.
    Smoke number (SN) means the dimensionless term quantifying smoke 
emissions.
    Standard day conditions means standard ambient conditions as 
described in the United States Standard Atmosphere, 1976, (i.e., 
Temperature =15  deg.C, specific humidity =0.00 kg/ H2 O/kg 
dry air, and pressure =101325 Pa.)
    Taxi/idle (in) means those aircraft operations involving taxi and 
idle between the time of landing roll-out and final shutdown of all 
propulsion engines.
    Taxi/idle (out) means those aircraft operations involving taxi and 
idle between the time of initial starting of the propulsion engine(s) 
used for the taxi and turn on to duty runway.

[47 FR 58470, Dec. 30, 1982, as amended at 49 FR 31875, Aug. 9, 1984; 62 
FR 25365, May 8, 1997]



Sec. 87.2  Abbreviations.

    The abbreviations used in this part have the following meanings in 
both upper and lower case:

CO  Carbon Monoxide
FAA  Federal Aviation Administration, Department of Transportation
HC  Hydrocarbon(s)
hr.  Hour(s)
LTO  Landing takeoff
min.  Minute(s)
NOX  Oxides of nitrogen
rO  Rated output
rPR  Rated pressure ratio
sec.  Seconds
SP  Shaft power
SN  Smoke number
T  Temperature, degrees Kelvin
TIM  Time in mode
W  Watt(s)
 deg.  Degree
%  Percent

[47 FR 58470, Dec. 30, 1982, as amended at 49 FR 31875, Aug. 9, 1984; 62 
FR 25365, May 8, 1997]



Sec. 87.3  General requirements.

    (a) This part provides for the approval or acceptance by the 
Administrator or the Secretary of testing and sampling methods, 
analytical, techniques, and related equipment not identical to those 
specified in this part. Before either approves or accepts any

[[Page 7]]

such alternate, equivalent, or otherwise nonidentical procedures or 
equipment, the Administrator or the Secretary shall consult with the 
other in determining whether or not the action requires rulemaking under 
sections 231 and 232 of the Clean Air Act, as amended, consistent with 
the Administrator's and the Secretary's responsibilities under sections 
231 and 232 of the Act. (42 U.S.C. 7571, 7572).
    (b) Under section 232 of the Act, the Secretary issues regulations 
to insure compliance with this part.
    (c) With respect to aircraft of foreign registry, these regulations 
shall apply in a manner consistent with any obligation assumed by the 
United States in any treaty, convention or agreement between the United 
States and any foreign country or foreign countries.



Sec. 87.4  [Reserved]



Sec. 87.5  Special test procedures.

    The Administrator or the Secretary may, upon written application by 
a manufacturer or operator of aircraft or aircraft engines, approve test 
procedures for any aircraft or aircraft engine that is not susceptible 
to satisfactory testing by the procedures set forth herein. Prior to 
taking action on any such application, the Administrator or the 
Secretary shall consult with the other.



Sec. 87.6  Aircraft safety.

    The provisions of this part will be revised if at any time the 
Secretary determines that an emission standard cannot be met within the 
specified time without creating a safety hazard.



Sec. 87.7  Exemptions.

    (a) Exemptions based on flights for short durations at infrequent 
intervals. The emission standards of this part do not apply to engines 
which power aircraft operated in the United States for short durations 
at infrequent intervals. Such operations are limited to:
    (1) Flights of an aircraft for the purpose of export to a foreign 
country, including any flights essential to demonstrate the integrity of 
an aircraft prior to its flight to a point outside the United States.
    (2) Flights to a base where repairs, alterations or maintenance are 
to be performed, or to a point of storage, and flights for the purpose 
of returning an aircraft to service.
    (3) Official visits by representatives of foreign governments.
    (4) Other flights the Secretary determines, after consultation with 
the Administrator, to be for short durations at infrequent intervals. A 
request for such a determination shall be made before the flight takes 
place.
    (b) Exemptions for very low production models. The emissions 
standards of this part do not apply to engines of very low total 
production after the date of applicability. For the purpose of this 
part, ``very low production'' is limited to a maximum total production 
for United States civil aviation applications of no more than 200 units 
covered by the same type certificate after January 1, 1984.
    (1) A maximum annual production rate after January 1, 1984 of 20 
units covered by the same type certificate; and
    (2) A maximum total production after January 1, 1984 of 200 units 
covered by the same type certificate.
    (c) Exemptions for New Engines in Other Categories. The emissions 
standards of this part do not apply to engines for which the Secretary 
determines, with the concurrence of the Administrator, that application 
of any standard under Sec. 87.21 is not justified, based upon 
consideration of:
    (1) Adverse economic impact on the manufacturer.
    (2) Adverse economic impact on the aircraft and airline industries 
at large.
    (3) Equity in administering the standards among all economically 
competing parties.
    (4) Public health and welfare effects.
    (5) Other factors which the Secretary, after consultation with the 
Administrator, may deem relevant to the case in question.
    (d) Time Limited Exemptions for In Use Engines. The emissions 
standards of this part do not apply to aircraft or aircraft engines for 
time periods which the Secretary determines, with the concurrence of the 
Administrator, that any applicable standard under Sec. 87.11(a),

[[Page 8]]

Sec. 87.31(a), or Sec. 87.31(c), should not be applied based upon 
consideration of the following:
    (1) Documentation demonstrating that all good faith efforts to 
achieve compliance with such standard have been made.
    (2) Documentation demonstrating that the inability to comply with 
such standard is due to circumstances beyond the control of the owner or 
operator of the aircraft.
    (3) A plan in which the owner or operator of the aircraft shows that 
he will achieve compliance in the shortest time which is feasible.
    (4) Applications for a determination that any requirements of 
Sec. 87.11(a), Sec. 87.31(a) or Sec. 87.31(c) do not apply shall be 
submitted in duplicate to the Secretary in accordance with procedures 
established by the Secretary.
    (e) The Secretary shall publish in the Federal Register the name of 
the organization to whom exemptions are granted and the period of such 
exemptions.
    (f) No state or political subdivision thereof may attempt to enforce 
a standard respecting emissions from an aircraft or engine if such 
aircraft or engine has been exempted from such standard under this part.

[47 FR 58470, Dec. 30, 1982, as amended at 49 FR 31875, Aug. 9, 1984; 49 
FR 41002, Oct. 18, 1984]



 Subpart B--Engine Fuel Venting Emissions (New and In-Use Aircraft Gas 
                            Turbine Engines)



Sec. 87.10  Applicability.

    (a) The provisions of this subpart are applicable to all new 
aircraft gas turbines of classes T3, T8, TSS and TF equal to or greater 
than 36 kilonewton rated output, manufactured on or after January 1, 
1974, and to all in-use aircraft gas turbine engines of classes T3, T8, 
TSS and TF equal to or greater than 36 kilonewton rated output 
manufactured after February 1, 1974.
    (b) The provisions of this subpart are also applicable to all new 
aircraft gas turbines of class TF less than 36 kilonewton rated output 
and class TP manufactured on or after January 1, 1975 and to all in-use 
aircraft gas turbines of class TF less than 36 kilonewton rated output 
and class TP manufactured after January 1, 1975.

[49 FR 41002, Oct. 18, 1984]



Sec. 87.11  Standard for fuel venting emissions.

    (a) No fuel venting emissions shall be discharged into the 
atmosphere from any new or in-use aircraft gas turbine engine subject to 
the subpart. This paragraph is directed at the elimination of 
intentional discharge to the atmosphere of fuel drained from fuel nozzle 
manifolds after engines are shut down and does not apply to normal fuel 
seepage from shaft seals, joints, and fittings.
    (b) Conformity with the standard set forth in paragraph (a) of this 
section shall be determined by inspection of the method designed to 
eliminate these emissions.



     Subpart C--Exhaust Emissions (New Aircraft Gas Turbine Engines)



Sec. 87.20  Applicability.

    The provisions of this subpart are applicable to all aircraft gas 
turbine engines of the classes specified beginning on the dates 
specified.



Sec. 87.21  Standards for exhaust emissions.

    (a) Exhaust emissions of smoke from each new aircraft gas turbine 
engine of class T8 manufactured on or after February 1, 1974, shall not 
exceed: Smoke number of 30.
    (b) Exhaust emissions of smoke from each new aircraft gas turbine 
engine of class TF and of rated output of 129 kilonewtons thrust or 
greater, manufactured on or after January 1, 1976, shall not exceed:

SN=83.6(r0)-0.274 (r0 is in kilonewtons).

    (c) Exhaust emission of smoke from each new aircraft gas turbine 
engine of class T3 manufactured on or after January 1, 1978, shall not 
exceed: Smoke number of 25.
    (d) Gaseous exhaust emissions from each new commercial aircraft gas 
turbine engine shall not exceed:

[[Page 9]]

    (1) Classes TF, T3, T8 engines greater than 26.7 kilonewtons rated 
output:
    (i) Engines manufactured on or after January 1, 1984:

Hydrocarbons: 19.6 grams/kilonewton rO.

    (ii) Engines manufactured on or after July 7, 1997.

Carbon Monoxide: 118 grams/kilonewton rO.

    (iii) Engines of a type or model of which the date of manufacture of 
the first individual production model was on or before December 31, 1995 
and for which the date of manufacture of the individual engine was on or 
before December 31, 1999.

Oxides of Nitrogen: (40 + 2(rPR)) grams/kilonewtons rO.

    (iv) Engines of a type or model of which the date of manufacture of 
the first individual production model was after December 31, 1995 or for 
which the date of manufacture of the individual engine was after 
December 31, 1999:

Oxides of Nitrogen: (32 + 1.6(rPR)) grams/kilonewtons rO.

    (v) The emission standards prescribed in paragraphs (d)(1) (iii) and 
(iv) of this section apply as prescribed beginning July 7, 1997.
    (2) Class TSS: Engines manufactured on or after January 1, 1984:

Hydrocarbons=140(0.92) rPR grams/kilonewtons rO.

    (e) Smoke exhaust emissions from each gas turbine engine of the 
classes specified below shall not exceed:
    (1) Class TF of rated output less than 26.7 kilonewtons manufactured 
on or after (one year from date of publication):

SN=83.6(ro)-0.274 (ro is in kilonewtons) not to exceed a 
    maximum of SN=50.

    (2) Classes T3, T8, TSS and TF of rated output equal to or greater 
than 26.7 kilonewtons manufactured on or after January 1, 1984:

SN=83.6(ro)-0.274 (ro is in kilonewtons) not to exceed a 
    maximum of SN=50.

    (3) Class TP of rated output equal to or greater than 1,000 
kilowatts manufactured on or after January 1, 1984:

SN=187(ro) -0.168 (ro is in kilowatts)

    (f) The standards set forth in paragraphs (a), (b), (c), (d), and 
(e) of this section refer to a composite gaseous emission sample 
representing the operating cycles set forth in the applicable sections 
of subpart G of this part, and exhaust smoke emissions emitted during 
operations of the engine as specified in the applicable sections of 
subpart H of this part, measured and calculated in accordance with the 
procedures set forth in those subparts.

[47 FR 58470, Dec. 30, 1982, as amended at 49 FR 31875, Aug. 9, 1984; 62 
FR 25365, May 8, 1997]



   Subpart D--Exhaust Emissions (In-Use Aircraft Gas Turbine Engines)



Sec. 87.30  Applicability.

    The provisions of this subpart are applicable to all in-use aircraft 
gas turbine engines certified for operation within the United States of 
the classes specified beginning on the dates specified.



Sec. 87.31  Standards for exhaust emissions.

    (a) Exhaust emissions of smoke from each in-use aircraft gas turbine 
engine of Class T8, beginning February 1, 1974, shall not exceed: Smoke 
number of 30.
    (b) Exhaust emissions of smoke from each in-use aircraft gas turbine 
engine of class TF and of rated output of 129 kilonewtons thrust or 
greater, beginning January 1, 1976, shall not exceed:

SN=83.6(r0)-0.274(r0 is in kilonewtons).

    (c) The standards set forth in paragraphs (a) and (b) of this 
section refer to exhaust smoke emissions emitted during operations of 
the engine as specified in the applicable section of subpart H of this 
part, and measured and calculated in accordance with the procedures set 
forth in this subpart.

[47 FR 58470, Dec. 30, 1982, as amended at 48 FR 2718, Jan. 20, 1983]

Subparts E-F [Reserved]

[[Page 10]]



    Subpart G--Test Procedures for Engine Exhaust Gaseous Emissions 
               (Aircraft and Aircraft Gas Turbine Engines)



Sec. 87.60  Introduction.

    (a) Except as provided under Sec. 87.5, the procedures described in 
this subpart shall be the test program to determine the conformity of 
new aircraft gas turbine engines with the applicable standards set forth 
in this part.
    (b) The test consists of operating the engine at prescribed power 
settings on an engine dynamometer (for engines producing primarily shaft 
power) or thrust measuring test stand (for engines producing primarily 
thrust). The exhaust gases generated during engine operation are sampled 
continuously for specific component analysis through the analytical 
train.
    (c) The exhaust emission test is designed to measure hydrocarbons, 
carbon monoxide, carbon dioxide, and oxides of nitrogen concentrations, 
and to determine mass emissions through calculations during a simulated 
aircraft landing-takeoff cycle (LTO). The LTO cycle is based on time in 
mode data during high activity periods at major airports. The test for 
propulsion engines consists of at least the following four modes of 
engine operation: taxi/idle, takeoff, climbout, and approach. The mass 
emission for the modes are combined to yield the reported values.
    (d) When an engine is tested for exhaust emissions on an engine 
dynamometer or test stand, the complete engine shall be used with all 
accessories which might reasonably be expected to influence emissions to 
the atmosphere installed and functioning, if not otherwise prohibited by 
Sec. 87.62(a)(2). Use of service air bleed and shaft power extraction to 
power auxiliary gearbox-mounted components required to drive aircraft 
systems is not permitted.
    (e) Other gaseous emissions measurement systems may be used if shown 
to yield equivalent results and if approved in advance by the 
Administrator or the Secretary.

[47 FR 58470, Dec. 30, 1982, as amended at 49 FR 31875, Aug. 9, 1984; 62 
FR 25366, May 8, 1997]



Sec. 87.61  Turbine fuel specifications.

    For exhaust emission testing, fuel meeting the specifications listed 
in this section shall be used. Additives used for the purpose of smoke 
suppression (such as organometallic compounds) shall not be present.

                 Property and Allowable Range of Values

Density kg/m\3\ at 15  deg.C: 780-820.
Distillation temperature,  deg.C: 10% boiling point, 155-201; final 
boiling point, 235-285.
Net heat of combustion, MJ/kg: 42.86-43.50.
Aromatics, volume %: 15-23.
Naphthalenes, volume %: 1.0-3.5.
Smoke point, mm: 20-28.
Hydrogen, mass %: 13.4-14.1.
Sulfur, mass %: less than 0.3%.
Kinematic viscosity at -20  deg.C, mm\2\/s: 2.5-6.5.

[62 FR 25366, May 8, 1997]



Sec. 87.62  Test procedure (propulsion engines).

    (a)(1) The engine shall be tested in each of the following engine 
operating modes which simulate aircraft operation to determine its mass 
emission rates. The actual power setting, when corrected to standard day 
conditions, should correspond to the following percentages of rated 
output. Analytical correction for variations from reference day 
conditions and minor variations in actual power setting should be 
specified and/or approved by the Secretary:

------------------------------------------------------------------------
                                                         Class
                                              --------------------------
                     Mode                               TF, T3,
                                                  TP       T8      TSS
------------------------------------------------------------------------
Taxi/idle....................................   (\1\ )   (\1\ )   (\1\ )
Takeoff......................................      100      100      100
Climbout.....................................       90       85       65
Descent......................................       NA       NA       15
Approach.....................................       30       30       34
------------------------------------------------------------------------
\1\ See paragraph (a)(2) of this section.

    (2) The taxi/idle operating modes shall be carried out at a power 
setting of 7% rated thrust unless the Secretary determines that the 
unique characteristics of an engine model undergoing certification 
testing at 7% would result in substantially different HC and CO 
emissions than if the engine model were tested at the manufacturers 
recommended idle power setting. In such cases the Secretary shall 
specify an alternative test condition.
    (3) The times in mode (TIM) shall be as specified below:

[[Page 11]]



------------------------------------------------------------------------
                                                         Class
                                              --------------------------
                     Mode                                TF, T3
                                                  TP     or T8     TSS
------------------------------------------------------------------------
Taxi/idle (minutes)..........................     26.0     26.0     26.0
Takeoff......................................      0.5      0.7      1.2
Climbout.....................................      2.5      2.2      2.0
Descent......................................      N/A      N/A      1.2
Approach.....................................      4.5      4.0      2.3
------------------------------------------------------------------------

    (b) Emissions testing shall be conducted on warmed-up engines which 
have achieved a steady operating temperature.

[47 FR 58470, Dec. 30, 1982, as amended at 62 FR 25366, May 8, 1997]



Sec. 87.63  [Reserved]



Sec. 87.64  Sampling and analytical procedures for measuring gaseous exhaust emissions.

    The system and procedures for sampling and measurement of gaseous 
emissions shall be as specified by Appendices 3 and 5 to International 
Civil Aviation Organization (ICAO) Annex 16, Environmental Protection, 
Volume II, Aircraft Engine Emissions, Second Edition, July 1993, which 
are incorporated herein by reference. 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. These materials are incorporated as 
they exist on the date of the approval and a notice of any change in 
these materials will be published in the Federal Register. Frequent 
changes are not anticipated. Copies may be inspected at U.S. EPA, OAR, 
401 M Street, Southwest, Washington, DC 20460, or at the Office of the 
Federal Register, 800 North Capitol Street, NW., suite 700, Washington 
DC. Copies of this document can be obtained from the International Civil 
Aviation Organization (ICAO), Document Sales Unit, P.O. Box 400, 
Succursale: Place de L'Aviation Internationale, 1000 Sherbrooke Street 
West, Suite 400, Montreal, Quebec, Canada H3A 2R2.

[62 FR 25366, May 8, 1997]



Secs. 87.65-87.70  [Reserved]



Sec. 87.71  Compliance with gaseous emission standards.

    Compliance with each gaseous emission standard by an aircraft engine 
shall be determined by comparing the pollutant level in grams/
kilonewton/thrust/cycle or grams/kilowatt/cycle as calculated in 
Sec. 87.64 with the applicable emission standard under this part. An 
acceptable alternative to testing every engine is described in Appendix 
6 to International Civil Aviation Organization (ICAO) Annex 16, 
Environmental Protection, Volume II, Aircraft Engine Emissions, Second 
Edition, July 1993, which is incorporated herein by reference. 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. These 
materials are incorporated as they exist on the date of the approval and 
a notice of any change in these materials will be published in the 
Federal Register. Frequent changes are not anticipated. Copies may be 
inspected at U.S. EPA, OAR, 401 M Street, Southwest, Washington, DC 
20460, or at the Office of the Federal Register, 800 North Capitol 
Street, NW., suite 700, Washington, DC. Copies of this document can be 
obtained from the International Civil Aviation Organization (ICAO), 
Document Sales Unit, P.O. Box 400, Succursale: Place de L'Aviation 
Internationale, 1000 Sherbrooke Street West, Suite 400, Montreal, 
Quebec, Canada H3A 2R2. Other methods of demonstrating compliance may be 
approved by the Secretary with the concurrence of the Administrator.

[62 FR 25366, May 8, 1997]



  Subpart H--Test Procedures for Engine Smoke Emissions (Aircraft Gas 
                            Turbine Engines)



Sec. 87.80  Introduction.

    Except as provided under Sec. 87.5, the procedures described in this 
subpart shall be the test program to determine the conformity of new and 
in-use gas turbine engines with the applicable standards set forth in 
this part. The test is essentially the same as that described in 
Secs. 87.60 through 87.62, except that the test is designed to determine 
the smoke emission level at various operating points representative of 
engine usage in aircraft. Other smoke measurement systems may be used if 
shown

[[Page 12]]

to yield equivalent results and if approved in advance by the 
Administrator or the Secretary.



Sec. 87.81  Fuel specifications.

    Fuel having specifications as provided in Sec. 87.61 shall be used 
in smoke emission testing.



Sec. 87.82  Sampling and analytical procedures for measuring smoke exhaust emissions.

    The system and procedures for sampling and measurement of smoke 
emissions shall be as specified by Appendix 2 to International Civil 
Aviation Organization (ICAO) Annex 16, Volume II, Environmental 
Protection, Aircraft Engine Emissions, Second Edition, July 1993, which 
are incorporated herein by reference. 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. These materials are incorporated as 
they exist on the date of the approval and a notice of any change in 
these materials will be published in the Federal Register. Frequent 
changes are not anticipated. Copies may be inspected at U.S. EPA, OAR, 
401 M Street, SW., Washington, DC 20460, or at the Office of the Federal 
Register, 800 North Capitol Street, NW., suite 700, Washington, DC. 
Copies of this document can be obtained from the International Civil 
Aviation Organization (ICAO), Document Sales Unit, P.O. Box 400, 
Succursale: Place de L'Aviation Internationale, 1000 Sherbrooke Street 
West, Suite 400, Montreal, Quebec, Canada H3A 2R2.

[62 FR 25366, May 8, 1997]



Secs. 87.83-87.88  [Reserved]



Sec. 87.89  Compliance with smoke emission standards.

    Compliance with each smoke emission standard shall be determined by 
comparing the plot of SN as a function of power setting with the 
applicable emission standard under this part. The SN at every power 
setting must be such that there is a high degree of confidence that the 
standard will not be exceeded by any engine of the model being tested. 
An acceptable alternative to testing every engine is described in 
Appendix 6 to International Civil Aviation Organization (ICAO) Annex 16, 
Environmental Protection, Volume II, Aircraft Engine Emissions, Second 
Edition, July 1993, which is incorporated herein by reference. 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. These 
materials are incorporated as they exist on the date of the approval and 
a notice of any change in these materials will be published in the 
Federal Register. Frequent changes are not anticipated. Copies may be 
inspected at U.S. EPA, OAR, 401 M Street, Southwest, Washington, DC 
20460, or at the Office of the Federal Register, 800 North Capitol 
Street, NW., suite 700, Washington, DC. Copies of this document can be 
obtained from the International Civil Aviation Organization (ICAO), 
Document Sales Unit, P.O. Box 400, Succursale: Place de L'Aviation 
Internationale, 1000 Sherbrooke Street West, Suite 400, Montreal, 
Quebec, Canada H3A 2R2.

[62 FR 25366, May 8, 1997]



PART 88--CLEAN-FUEL VEHICLES--Table of Contents




          Subpart A--Emission Standards for Clean-Fuel Vehicles

Sec.
88.101-94  General applicability.
88.102-94  Definitions.
88.103-94  Abbreviations.
88.104-94  Clean-fuel vehicle tailpipe emission standards for light-duty 
          vehicles and light-duty trucks.
88.105-94  Clean-fuel fleet emission standards for heavy-duty engines.

                Subpart B--California Pilot Test Program

88.201-94  Scope.
88.202-94  Definitions.
88.203-94  Abbreviations.
88.204-94  Sales requirements for the California Pilot Test Program.
88.205-94  California Pilot Test Program Credits Program.
88.206-94  State opt-in for the California Pilot Test Program.
Tables to Subpart B of Part 88

                   Subpart C--Clean-Fuel Fleet Program

88.301-93  General applicability.
88.302-93  Definitions.
88.302-94  Definitions.
88.303-93  Abbreviations.

[[Page 13]]

88.304-94  Clean-fuel Fleet Vehicle Credit Program.
88.305-94  Clean-fuel fleet vehicle labeling requirements for heavy-duty 
          vehicles.
88.306-94  Requirements for a converted vehicle to qualify as a clean-
          fuel fleet vehicle.
88.307-94  Exemption from temporal transporation control measures for 
          CFFVs.
88.308-94  Programmatic requirements for clean-fuel fleet vehicles.
88.309  [Reserved]
88.310-94  Applicability to covered Federal fleets.
88.311-93  Emissions standards for Inherently Low-Emission Vehicles.
88.311-98  Emissions standards for Inherently Low-Emission Vehicles.
88.312-93  Inherently Low-Emission Vehicle labeling.
88.313-93  Incentives for the purchase of Inherently Low-Emission 
          Vehicles.
Tables to Subpart C of Part 88

    Authority: 42 U.S.C. 7410, 7418, 7581, 7582, 7583, 7584, 7586, 7588, 
7589, 7601(a).

    Source: 57 FR 60046, Dec. 17, 1992, unless otherwise noted.



          Subpart A--Emission Standards for Clean-Fuel Vehicles



Sec. 88.101-94  General applicability.

    The clean-fuel vehicle standards and provisions of this subpart are 
applicable to vehicles used in subpart B of this part (the Clean Fuel 
Fleet Program) and subpart C of this part (the California Pilot Test 
Program).

[59 FR 50074, Sept. 30, 1994]



Sec. 88.102-94  Definitions.

    Any terms defined in 40 CFR part 86 and not defined in this part 
shall have the meaning given them in 40 CFR part 86, subpart A.
    Adjusted Loaded Vehicle Weight is defined as the numerical average 
of the vehicle curb weight and the GVWR.
    Dual Fuel Vehicle (or Engine) means any motor vehicle (or motor 
vehicle engine) engineered and designed to be operated on two different 
fuels, but not on a mixture of the fuels.
    Flexible Fuel Vehicle (or Engine) means any motor vehicle (or motor 
vehicle engine) engineered and designed to be operated on any mixture of 
two or more different fuels.
    Heavy Light-Duty Truck means any light-duty truck rated greater than 
6000 lbs. GVWR.
    Light Light-Duty Truck means any light-duty truck rated through 6000 
lbs GVWR.
    Loaded Vehicle Weight is defined as the curb weight plus 300 lbs.
    Low-Emission Vehicle means any light-duty vehicle or light-duty 
truck conforming to the applicable Low-Emission Vehicle standard, or any 
heavy-duty vehicle with an engine conforming to the applicable Low-
Emission Vehicle standard.
    Non-methane Hydrocarbon Equivalent means the sum of the carbon mass 
emissions of non-oxygenated non-methane hydrocarbons plus the carbon 
mass emissions of alcohols, aldehydes, or other organic compounds which 
are separately measured in accordance with the applicable test 
procedures of 40 CFR part 86, expressed as gasoline-fueled vehicle non-
methane hydrocarbons. In the case of exhaust emissions, the hydrogen-to-
carbon ratio of the equivalent hydrocarbon is 1.85:1. In the case of 
diurnal and hot soak emissions, the hydrogen-to-carbon ratios of the 
equivalent hydrocarbons are 2.33:1 and 2.2:1 respectively.
    Non-methane Organic Gas is defined as in section 241(3) Clean Air 
Act as amended (42 U.S.C. 7581(3)).
    Test Weight is defined as the average of the curb weight and the 
GVWR.
    Transitional Low-Emission Vehicle means any light-duty vehicle or 
light-duty truck conforming to the applicable Transitional Low-Emission 
Vehicle standard.
    Ultra Low-Emission Vehicle means any light-duty vehicle or light-
duty truck conforming to the applicable Ultra Low-Emission Vehicle 
standard, or any heavy-duty vehicle with an engine conforming to the 
applicable Ultra Low-Emission Vehicle standard.
    Zero-Emission Vehicle means any light-duty vehicle or light-
dutytruck conforming to the applicable Zero-Emission Vehicle standard, 
or any heavy-duty vehicle conforming to the applicable Zero-Emission 
Vehicle standard.

[57 FR 60046, Dec. 17, 1992. Redesignated and amended at 59 FR 50074, 
Sept. 30, 1994]

[[Page 14]]



Sec. 88.103-94  Abbreviations.

    The abbreviations of part 86 also apply to this subpart. The 
abbreviations in this section apply to all of part 88.

ALVW--Adjusted Loaded Vehicle Weight
CO--Carbon Monoxide
HCHO--Formaldehyde
HC--Hydrocarbon
HDV--Heavy-Duty Vehicle
LDT--Light-Duty Truck
LDV--Light-Duty Vehicle
NMHC--Non-Methane Hydrocarbon
NMHCE--Non-Methane Hydrocarbon Equivalent
NMOG--Non-Methane Organic Gas
NOx--Nitrogen Oxides
PM--Particulate Matter
GVWR--Gross Vehicle Weight Rating
LVW--Loaded Vehicle Weight
TW--Test Weight
TLEV--Transitional Low-Emission Vehicle
LEV--Low-Emission Vehicle
ULEV--Ultra Low-Emission Vehicle
ZEV--Zero-Emission Vehicle

[57 FR 60046, Dec. 17, 1992. Redesignated and amended at 59 FR 50074, 
Sept. 30, 1994]



Sec. 88.104-94  Clean-fuel vehicle tailpipe emission standards for light-duty vehicles and light-duty trucks.

    (a) A light-duty vehicle or light-duty truck will be considered as a 
TLEV, LEV, ULEV, or ZEV if it meets the applicable requirements of this 
section.
    (b) Light-duty vehicles certified to the exhaust emission standards 
for TLEVs, LEVs, and ULEVs in Tables A104-1 and A104-2 shall be 
considered as meeting the requirements of this section for that 
particular vehicle emission category for model years 1994-2000 for the 
California Pilot Program.
    (c) Light-duty vehicles certified to the exhaust emission standards 
for LEVs and ULEVs in Tables A104-1 and A104-2 shall be considered as 
meeting the requirements of this section for that particular vehicle 
emission category for model years 2001 and later for the California 
Pilot Program, and for model years 1998 and later for the Clean Fuel 
Fleet Program.
    (d) Light light-duty trucks certified to the exhaust emission 
standards for a specific weight category for TLEVs, LEVs, and ULEVs in 
Tables A104-3 and A104-4 shall be considered as meeting the requirements 
of this section for that particular vehicle emission category. For model 
years 1994-2000 for the California Pilot Program.
    (e) Light Light-duty trucks certified to the exhaust emission 
standards for a specific weight category for LEVs and ULEVs in Tables 
A104-3 and A104-4 shall be considered as meeting the requirements of 
this section for that particular vehicle emission category. For model 
years 2001 and later for the California Pilot Program, and for model 
years 1998 and later for the Clean Fuel Fleet Program.
    (f) Heavy light-duty trucks certified to the exhaust emission 
standards for a specific weight category of LEVs and ULEVs in Tables 
A104-5 and A104-6 for model years 1998 and later shall be considered as 
meeting the requirements of this section for that particular vehicle 
emission category.
    (g) A light-duty vehicle or light-duty truck shall be certified as a 
ZEV if it is determined by engineering analysis that the vehicle 
satisfies the following conditions:
    (1) The vehicle fuel system(s) must not contain either carbon or 
nitrogen compounds (including air) which, when burned, form any of the 
pollutants listed in Table A104-1 as exhaust emissions.
    (2) All primary and auxiliary equipment and engines must have no 
emissions of any of the pollutants listed in Table A104-1.
    (3) The vehicle fuel system(s) and any auxiliary engine(s) must have 
no evaporative emissions in use.
    (4) Any auxiliary heater must not operate at ambient temperatures 
above 40 degrees Fahrenheit.
    (h) NMOG standards for flexible- and dual-fueled vehicles when 
operating on clean alternative fuel--(1) Light-duty vehicles, and light 
light-duty trucks. Flexible- and dual-fueled LDVs and light LDTs of 1996 
model year and later shall meet all standards in Table A104-7 for 
vehicles of the applicable model year, loaded vehicle weight, and 
vehicle emission category.
    (2) Light-duty trucks above 6,000 lbs GVWR. Flexible- and dual-
fueled LDTs above 6,000 lbs. GVWR of 1998 model year and later shall 
meet all standards in Table A104-8 for vehicles of the applicable test 
weight and vehicle emission category.

[[Page 15]]

    (i) NMOG standards for flexible- and dual-fueled vehicles when 
operating on conventional fuel--(1) Light-duty vehicles, and light 
light-duty trucks. Flexible- and dual-fueled LDVs and light LDTs of 1996 
model year and later shall meet all standards in Table A104-9 for 
vehicles of the applicable model year, loaded vehicle weight, and 
vehicle emission category.
    (2) Light-duty trucks above 6,000 lbs GVWR. Flexible- and dual-
fueled LDTs of 1998 model year and later shall meet all standards in 
Table A104-10 for vehicles of the applicable test weight and vehicle 
emission category.
    (j) Other standards for flexible- and dual-fueled vehicles. When 
operating on clean alternative fuel, flexible- and dual- fueled light-
duty vehicles and light light-duty trucks must also meet the appropriate 
standards for carbon monoxide, oxides of nitrogen, formaldehyde, and 
particulate matter as designated in paragraphs (a) through (f) of this 
section as well as all other applicable standards and requirements. When 
operating on conventional fuel, flexible- and dual-fueled vehicles must 
also meet all other applicable standards and requirements in 40 CFR part 
86.
    (k) Motor vehicles subject to standards and requirements of this 
section shall also comply with all applicable standards and requirements 
of 40 CFR part 86, except that any exhaust emission standards in 40 CFR 
part 86 pertaining to pollutants for which standards are established in 
this section shall not apply. For converted vehicles, the applicable 
standards and requirements of 40 CFR part 86 and this part 88 shall 
apply based on the model year in which the conversion is performed, 
regardless of the model year in which the base vehicle was originally 
manufactured prior to conversion.
    (1) Gaseous-fueled, diesel-fueled, and electric clean-fuel vehicles 
are waived from cold CO test requirements of subpart C of this part if 
compliance is demonstrated by engineering analysis or test data.
    (2) The standards in this section shall be administered and enforced 
in accordance with the California Regulatory Requirements Applicable to 
the Clean Fuel Fleet and California Pilot Programs, April 1, 1994, which 
are incorporated by reference.
    (i) 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.
    (ii) Copies may be inspected at U.S. EPA, OAR, 401 M Street, 
Southwest, Washington, DC 20460, or at the Office of the Federal 
Register, 800 North Capitol Street, NW., suite 700, Washington, DC. 
Copies of these materials may be obtained from Barclay's Law Publishers, 
400 Oyster Point Boulevard, P.O. Box 3066, South San Francisco, CA 
94080, phone (415) 244-6611.

                        Tables to Sec. 88.104-94

 Table A104-1--Intermediate Useful Life Standards (g/mi) for Light-Duty Vehicles for HCs, CO, NOX, HCHO, and PM
----------------------------------------------------------------------------------------------------------------
                  Vehicle emission category          NMOG          CO          NOX          HCHO         PM 1
----------------------------------------------------------------------------------------------------------------
             TLEV..............................        0.125          3.4          0.4        0.015  ...........
             LEV...............................     \2\ .075      \2\ 3.4           .2     \2\ .015  ...........
             ULEV..............................         .040          1.7       \2\ .2         .008  ...........
----------------------------------------------------------------------------------------------------------------
\1\ Applies to diesel vehicles only.
\2\ Applies to ILEVs.


     Table A104-2--Full Useful Life Standards (g/mi) for Light-Duty Vehicles for HCs, CO, NOX, HCHO, and PM
----------------------------------------------------------------------------------------------------------------
                  Vehicle emission category          NMOG          CO          NOX          HCHO         PM 1
----------------------------------------------------------------------------------------------------------------
             TLEV..............................        0.156          4.2          0.6        0.018         0.08
             LEV...............................    \2\ 0.090      \2\ 4.2           .3     \2\ .018      \2\ .08
             ULEV..............................         .055          2.1       \2\ .3         .011          .04
----------------------------------------------------------------------------------------------------------------
\1\ Applies to diesel vehicles only.

[[Page 16]]

 
\2\ Applies to ILEVs.


 Table A104-3--Intermediate Useful Life Standards (g/mi) for Light Light-Duty Trucks for HCs, CO, NOX, HCHO, and
                                                       PM
----------------------------------------------------------------------------------------------------------------
                            Vehicle emission
       LVW (lbs)                category             NMOG          CO          NOX          HCHO         PM 1
----------------------------------------------------------------------------------------------------------------
0-3750.................  TLEV..................         .125          3.4           .4         .015  ...........
                         LEV...................     \2\ .075      \2\ 3.4           .2     \2\ .015  ...........
                         ULEV..................         .040          1.7       \2\ .2         .008  ...........
3751-5750..............  TLEV..................        0.160          4.4           .7         .018  ...........
                         LEV...................     \2\ .100      \2\ 4.4           .4     \2\ .018  ...........
                         ULEV..................         .050          2.2       \2\ .4         .009  ...........
----------------------------------------------------------------------------------------------------------------
\1\ Applies to diesel vehicles only.
\2\ Applies to ILEVs.


   Table A104-4--Full Useful Life Standards (g/mi) for Light Light-Duty Trucks for HCs, CO, NOX, HCHO, and PM
----------------------------------------------------------------------------------------------------------------
                            Vehicle emission
       LVW (lbs)                category             NMOG          CO          NOX          HCHO        PM\1\
----------------------------------------------------------------------------------------------------------------
0-3750.................  TLEV..................        0.156          4.2          0.6        0.018         0.08
                         LEV...................    \2\ 0.090      \2\ 4.2          0.3      \2\.018       \2\.08
                         ULEV..................         .055          2.1        \2\.3         .011          .04
3751-5750..............  TLEV..................         .200          5.5           .9         .023          .08
                         LEV...................      \2\.130       \2\5.5           .5      \2\.023       \2\.08
                         ULEV..................         .070          2.8        \2\.5         .013          .04
----------------------------------------------------------------------------------------------------------------
\1\ Applies to diesel vehicles only.
\2\ Applies to ILEVs.


 Table A104-5--Intermediate Useful Life Standards (g/mi) for Heavy Light-Duty Trucks for HCs, CO, NOX, HCHO, and
                                                       PM
----------------------------------------------------------------------------------------------------------------
                            Vehicle emission
       ALVW (lbs)               category             NMOG          CO         NOX\2\        HCHO        PM\1\
----------------------------------------------------------------------------------------------------------------
0-3750.................  LEV...................    \3\ 0.125      \3\ 3.4          0.4    \3\ 0.015
                         ULEV..................         .075          1.7        \3\.2         .008
3751-5750..............  LEV...................      \3\.160      \3\ 4.4           .7      \3\.018
                         ULEV..................         .100          2.2        \3\.4         .009
5751-..................  LEV...................      \3\.195      \3\ 5.0          1.1      \3\.022
                         ULEV..................         .117          2.5        \3\.6         .011
----------------------------------------------------------------------------------------------------------------
\1\ Applies to diesel vehicles only.
\2\ Does not apply to diesel vehicles.
\3\ Applies to ILEVs.


   Table A104-6--Full Useful Life Standards (g/mi) for Heavy Light-Duty Trucks for HCs, CO, NOX, HCHO, and PM
----------------------------------------------------------------------------------------------------------------
                            Vehicle emission
       ALVW (lbs)               category             NMOG          CO          NOX          HCHO        PM\1\
----------------------------------------------------------------------------------------------------------------
0-3750.................  LEV...................    \2\ 0.180      \2\ 5.0          0.6    \2\ 0.022     \2\ 0.08
                         ULEV..................         .107          2.5        \2\.3         .012          .04
3751-5750..............  LEV...................      \2\.230      \2\ 6.4          1.0      \2\.027       \2\.10
                         ULEV..................         .143          3.2        \2\.5         .013          .05
5751-..................  LEV...................      \2\.280      \2\ 7.3          1.5      \2\.032       \2\.12
                         ULEV..................         .167          3.7        \2\.8         .016          .06
----------------------------------------------------------------------------------------------------------------
\1\ Applies to diesel vehicles only.
\2\ Applies to ILEVs.


    Table A104-7--NMOG Standards (g/mi) for Flexible- and Dual-Fueled
 Vehicles When Operating on Clean Alternative Fuel for Light Light-Duty
                     Trucks and Light-Duty Vehicles
------------------------------------------------------------------------
                                                50,000 mile    100,000
                 Vehicle type                       NMOG      mile NMOG
                                                  standard     standard
------------------------------------------------------------------------
MY 1996 and later:
    LDTs (0-3,750 lbs. LVW) and LDVs..........        0.125        0.156
    LDTs (3,751-5,750 lbs. LVW)...............         .160         .200
Beginning MY 2001:
    LDTs (0-3,750 lbs. LVW) and LDVs..........         .075         .090

[[Page 17]]

 
    LDTs (3,751-5,750 lbs. LVW)...............         .100         .130
------------------------------------------------------------------------


    Table A104-8--NMOG Standards (g/mi) for Flexible- and Dual-Fueled
 Vehicles When Operating on Clean Alternative Fuel for Heavy Light-Duty
                                 Trucks
------------------------------------------------------------------------
                                                50,000 mile    120,000
                 Vehicle type                       NMOG      mile NMOG
                                                  standard     standard
------------------------------------------------------------------------
Beginning MY 1998:
    LDTs (0-3,750 lbs. ALVW)..................        0.125        0.180
    LDTs (3,751-5,750 lbs. ALVW)..............         .160         .230
    LDTs (5,751-8,500 lbs. ALVW)..............         .195         .280
------------------------------------------------------------------------


    Table A104-9--NMOG Standards (g/mi) for Flexible- and Dual-Fueled
Vehicles When Operating on Conventional Fuel for Light Light-Duty Trucks
                         and Light-Duty Vehicles
------------------------------------------------------------------------
                                                50,000 mile    100,000
                 Vehicle type                       NMOG      mile NMOG
                                                  standard     standard
------------------------------------------------------------------------
Beginning MY 1996:
    LDTs (0-3,750 lbs. LVW) and LDVs..........         0.25         0.31
    LDTs (3,751-5,750 lbs. LVW)...............          .32          .40
Beginning MY 2001:
    LDTs (0-3,750 lbs. LVW) and LDVs..........         .125         .156
    LDTs (3,751-5,750 lbs. LVW)...............         .160         .200
------------------------------------------------------------------------


   Table A104-10--NMOG Standards (g/mi) for Flexible- and Dual-Fueled
Vehicles When Operating on Conventional Fuel for Light Light-Duty Trucks
------------------------------------------------------------------------
                                                50,000 mile    120,000
                 Vehicle type                       NMOG      mile NMOG
                                                  standard     standard
------------------------------------------------------------------------
Beginning MY 1998:
    LDTs (0-3,750 lbs. ALVW)..................         0.25         0.36
    LDTs (3,751-5,750 lbs. ALVW)..............          .32          .46
    LDTs (5,751-8,500 lbs. ALVW)..............          .39          .56
------------------------------------------------------------------------

[59 FR 50074, Sept. 30, 1994, as amended at 61 FR 127, Jan. 3, 1996]



Sec. 88.105-94  Clean-fuel fleet emission standards for heavy-duty engines.

    (a) Exhaust emissions from engines used in heavy-duty low emission 
vehicles shall meet one of the following standards:
    (1) Combined emissions of oxides of nitrogen and nonmethane 
hydrocarbons (or nonmethane hydrocarbon equivalent) shall not exceed 3.8 
grams per brake horsepower-hour.
    (2) Combined emissions of oxides of nitrogen and nonmethane 
hydrocarbons (or nonmethane hydrocarbon equivalent) shall not exceed 3.5 
grams per brake horsepower-hour when tested (certified) on fuel meeting 
the specifications of California certification fuel.
    (b) Exhaust emissions from engines used in heavy-duty low emission 
vehicles shall meet conventional vehicle standards set forth in Part 86 
for total hydrocarbon, carbon monoxide, particulate, and organic 
material hydrocarbon equivalent.
    (c) Exhaust emissions from engines used in ultra-low emission heavy-
duty vehicles shall meet each of the following standards:

[[Page 18]]

    (1) The combined emissions of oxides of nitrogen and nonmethane 
hydrocarbons (or nonmethane hydrocarbon equivalent) shall not exceed 2.5 
grams per brake horsepower-hour.
    (2) Carbon monoxide emissions shall not exceed 7.2 grams per brake 
horsepower-hour.
    (3) Particulate emissions shall not exceed 0.05 grams per brake 
horsepower-hour.
    (4) Formaldehyde emissions shall not exceed 0.025 grams per brake 
horsepower-hour.
    (d) Exhaust emissions from engines used in inherently-low emission 
heavy-duty vehicles shall meet each of the following standards:
    (1) The combined emissions of oxides of nitrogen and nonmethane 
hydrocarbons (or nonmethane hydrocarbon equivalent) shall not exceed 2.5 
grams per brake horsepower-hour.
    (2) Carbon monoxide emissions shall not exceed 14.4 grams per brake 
horsepower-hour.
    (3) Particulate emissions shall not exceed 0.10 grams per brake 
horsepower-hour.
    (4) Formaldehyde emissions shall not exceed 0.05 grams per brake 
horsepower-hour.
    (e) The standards set forth in paragraphs (a), (b), (c), and (d) of 
this section refer to the exhaust emitted while the vehicle is being 
tested in accordance with the applicable test procedures set forth in 40 
CFR part 86, subpart N.
    (f)(1) A heavy-duty zero-emission vehicle (ZEV) has a standard of 
zero emissions for nonmethane hydrocarbons, oxides of nitrogen, carbon 
monoxide, formaldehyde, and particulates.
    (2) A heavy-duty vehicle shall be certified as a ZEV if it is 
determined by engineering analysis that the vehicle satisfies the 
following conditions:
    (i) The vehicle fuel system(s) must not contain either carbon or 
nitrogen compounds (including air) which, when burned, form nonmethane 
hydrocarbons, oxides of nitrogen, carbon monoxide, formaldehyde, or 
particulates as exhaust emissions.
    (ii) All primary and auxiliary equipment and engines must have no 
emissions of nonmethane hydrocarbons, oxides of nitrogen, carbon 
monoxide, formaldehyde, and particulates.
    (iii) The vehicle fuel system(s) and any auxiliary engine(s) must 
have no evaporative emissions.
    (iv) Any auxiliary heater must not operate at ambient temperatures 
above 40 degrees Fahrenheit.
    (g) All heavy-duty engines used in low emission, ultra-low emission, 
or zero emission vehicles shall also comply with all applicable 
standards and requirements of 40 CFR part 86, except that any exhaust 
emission standards in 40 CFR part 86 pertaining to pollutants for which 
standards are established in this section shall not apply.

[59 FR 50077, Sept. 30, 1994]



                Subpart B--California Pilot Test Program



Sec. 88.201-94  Scope.

    Applicability. The requirements of this subpart shall apply to the 
following:
    (a) State Implementation Plan revisions for the State of California 
and other states pursuant to compliance with section 249 of the Clean 
Air Act, as amended in 1990.
    (b) Vehicle manufacturers with sales in the State of California.

[57 FR 60046, Dec. 17, 1992, as amended at 59 FR 50077, Sept. 30, 1994]



Sec. 88.202-94  Definitions.

    (a) The definitions in subpart A also apply to this subpart.
    (b) The definitions in this subpart shall apply beginning with the 
1992 model year.
    Averaging for clean-fuel vehicles means the sale of clean-fuel 
vehicles that meet more stringent standards than required, which allows 
the manufacturer to sell fewer clean-fuel vehicles than would otherwise 
be required.
    Banking means the retention of credits, by the manufacturer 
generating the emissions credits, for use in future model-year 
certification as permitted by regulation.
    Sales means vehicles that are produced, sold, and distributed (in 
accordance with normal business practices and applicable franchise 
agreements) in the State of California, including

[[Page 19]]

owners of covered fleets under subpart C of part 86 of this chapter. The 
manufacturer can choose at their option from one of the following three 
methods for determining sales:
    (i) Sales is defined as sales to the ultimate purchaser.
    (ii) Sales is defined as vehicle sales by a manufacturer to a 
dealer, distributer, fleet operator, broker, or any other entity which 
comprises the first point of sale.
    (iii) Sales is defined as equivalent to the production of vehicles 
for the state of California. This option can be revoked if it is 
determined that the production and actual sales numbers do not exhibit a 
functional equivalence per the language of Sec. 86.708-94(b)(1) of this 
chapter.
    Trading means the exchange of credits between manufacturers.



Sec. 88.203-94  Abbreviations.

    The abbreviations in subpart A of this part and in 40 CFR part 86 
apply to this subpart.



Sec. 88.204-94  Sales requirements for the California Pilot Test Program.

    (a) The total annual required minimum sales volume of new clean fuel 
vehicles in California for this program shall correspond to Table B204.
    (b) (1) When manufacturers of vehicles subject to the regulations of 
this section file a report pursuant to 40 CFR 86.085-37(b), such report 
shall include the following information: the number of light-duty 
vehicles and light-duty trucks sold only in California, and the number 
of clean-fuel vehicles sold for the Pilot program beginning with model 
year 1996.
    (2) For model years 1996 and 1997, manufacturers may exclude heavy 
light-duty trucks from the reporting required by this section.
    (c) (1) Except as provided in paragraph (d) of this section, each 
vehicle manufacturer must sell clean-fuel vehicles in California in an 
amount equal to the required annual sales volume calculated in paragraph 
(c)(2) of this section.
    (2) The required annual clean fuel vehicle sales volume for a given 
manufacturer is expressed in the following equation rounded to the 
nearest whole number:
[GRAPHIC] [TIFF OMITTED] TR03JA96.003

Where:

RMS = a manufacturer's required sales in a given model year.
MS = the average of a manufacturer's total LDV and light LDT sales in 
California three and four model years earlier than year in question (for 
MY 1996 and 1997 RMS calculations).
  = the average of a manufacturer's total LDV and LDT sales in 
California three and four model years earlier than year in question (for 
MY 1998 and later RMS calculations).
TS = the average of total LDV and light LDT sales in California of all 
manufacturers three and four model years earlier than the year in 
question (for MY 1996 and 1997 RMS calculations). Sales of manufacturers 
which meet the criteria of (d) of this paragraph will not be included.
  = the average of total LDV and LDT sales in California of all 
manufacturers three and four model years earlier than the year in 
question (for MY 1998 and later RMS calculations). Sales of 
manufacturers which meet the criteria of (d) of this paragraph will not 
be included.
TCPPS = Pilot program annual CFV sales requirement (either 150,000 or 
300,000) for the model year in question.

    (i) A manufacturer's share of required annual sales for model years 
1996 and 1997 will be based on LDV and light LDT sales only. Once the 
heavy LDT standards are effective beginning with model year 1998, a 
manufacturer's required sales share will be based on all LDV and LDT 
sales.
    (ii) A manufacturer certifying for the first time in California 
shall calculate annual required sales share based on projected 
California sales for the model year in question. In the second year, the 
manufacturer shall use actual sales from the previous year. In the third 
year, the manufacturer will use sales from two model years prior to the 
year in question. In the fourth year, the manufacturer will use sales 
from three years prior to the year in question. In the fifth year and 
subsequent years, the manufacturer will use average sales from three and 
four years prior to the year in question.
    (d) (1) Small volume manufacturer is defined in the Pilot program as 
one

[[Page 20]]

whose average annual LDV and LDT sales in California are less than or 
equal to 3,000 units during a consecutive three-year period beginning no 
earlier than model year 1993.
    (i) A manufacturer with less than three consecutive years of sales 
in California shall use a single year of sales or, if available, the 
average of two years of sales in California to determine whether they 
fall at or below the threshold of 3,000 units.
    (ii) A manufacturer certifying for the first time in California 
shall be considered a small volume manufacturer if their projected 
California sales level is at or below 3,000 units for a given year. Once 
the manufacturer has actual sales data for one year, this actual sales 
data shall be used to determine whether the manufacturer qualifies as a 
small volume manufacturer.
    (iii) A manufacturer which does not qualify as a small volume 
manufacturer in model year 1996 but whose average annual LDV and LDT 
sales fall to or below the 3,000 unit threshold between 1996 and 2001 
shall be treated as a small volume manufacturer and shall be subject to 
requirements for small volume manufacturers as specified in paragraph 
(d)(2) of this section beginning with the next model year.
    (2) A manufacturer which qualifies as a small volume manufacturer 
prior to model year 2001 is not required to comply with the sales 
requirements of this section until model year 2001.

            Table B204--Pilot Program Vehicle Sales Schedule
------------------------------------------------------------------------
                                                                Required
             Model years                   Vehicle types         annual
                                                                 sales
------------------------------------------------------------------------
1996 and 1997.......................  LDTs ( 6000 GVWR and       150,000
                                       5750 LVW);
                                       and LDVs.
1998................................  All Applicable Vehicle     150,000
                                       Types.
1999+...............................  All Applicable Vehicle     300,000
                                       Types.
------------------------------------------------------------------------


[59 FR 50078, Sept. 30, 1994, as amended at 61 FR 127, Jan. 3, 1996]



Sec. 88.205-94  California Pilot Test Program Credits Program.

    (a) General. (1) The Administrator shall administer this credit 
program to enable vehicle manufacturers who are required to participate 
in the California Pilot Test Program to meet the clean-fuel vehicle 
sales requirements through the use of credits. Participation in this 
credit program is voluntary.
    (2) All credit-generating vehicles must meet the applicable emission 
standards and other requirements contained in subpart A of this part.
    (b) Credit generation. (1) Credits may be generated by any of the 
following means:
    (i) Sale of qualifying clean-fuel vehicles earlier than required. 
Manufacturers may earn these credits starting with the 1992 model year, 
contingent upon the requirements of paragraph (g) of this section.
    (ii) Sale of a greater number of qualifying clean-fuel vehicles than 
required.
    (iii) Sale of qualifying clean-fuel vehicles that meet more 
stringent emission standards than those required.
    (2) For light-duty vehicles and light-duty trucks, credit values 
shall be determined in accordance with the following:
    (i) For model-years through 2000, credit values shall be determined 
in accordance with table B-1 of this subpart.
    (ii) For the 2001 and subsequent model-years, credit values shall be 
determined according to table B-2 of this subpart. The sale of light-
duty vehicles classified as Transitional Low-Emission Vehicles shall not 
receive credits starting in model year 2001.
    (iii) For the calculation of credits for the sale of more clean-fuel 
vehicles than required, the manufacturer shall designate which sold 
vehicles count toward compliance with the sales requirement. The 
remaining balance of vehicles will be considered as sold beyond the 
sales requirement for credit calculations.
    (3) Vehicles greater than 8500 lbs gvwr may not generate credits.
    (c) Credit use. (1) All credits generated in accordance with these 
provisions may be freely averaged, traded, or banked for later use. 
Credits may not be used to remedy any nonconformity determined by 
enforcement testing.
    (2) There is one averaging and trading group containing all light-
duty vehicles and light-duty trucks.
    (3) A vehicle manufacturer desiring to demonstrate full or partial 
compliance with the sales requirements by

[[Page 21]]

the redemption of credits, shall surrender sufficient credits, as 
established in this paragraph (c). In lieu of selling a clean-fuel 
vehicle, a manufacturer shall surrender credits equal to the credit 
value for the corresponding vehicle class and model year found in table 
B-1.3 or table B-2.3 of this subpart.
    (d) Participation in the credit program. (1) During certification, 
the manufacturer shall calculate the projected credits, if any, based on 
required sales projections.
    (2) Based on information from paragraph (d)(1) of this section, each 
manufacturer's certification application under this section must 
demonstrate:
    (i) That at the end of the model-year production, there is a net 
vehicle credit balance of zero or more with any credits obtained from 
averaging, trading, or banking.
    (ii) It is recommended but not required that the source of the 
credits to be used to comply with the minimum sales requirements be 
stated. All such reports should include all credits involved in 
averaging, trading, or banking.
    (3) During the model year, manufacturers must:
    (i) Monitor projected versus actual production to be certain that 
compliance with the sales requirement is achieved at the end of the 
model year.
    (ii) Provide the end of model year reports required under this 
subpart.
    (iii) Maintain the records required under this subpart.
    (4) Projected credits based on information supplied in the 
certification application may be used to obtain a certificate of 
conformity. However, any such credits may be revoked based on review of 
end-of-model year reports, follow-up audits, and any other verification 
steps deemed appropriate by the Administrator.
    (5) Compliance under averaging, banking, and trading will be 
determined at the end of the model year.
    (6) If EPA or the manufacturer determines that a reporting error 
occurred on an end-of-year report previously submitted to EPA under this 
section, the manufacturer's credits and credit calculations will be 
recalculated.
    (i) If EPA review of a manufacturer's end-of-year report indicates 
an inadvertent credit shortfall, the manufacturer will be permitted to 
purchase the necessary credits to bring the credit balance to zero.
    (ii) If within 90 days of receipt of the manufacturer's end-of-year 
report, EPA review determines a reporting error in the manufacturer's 
favor (i.e., resulting in a positive credit balance) or if the 
manufacturer discovers such an error within 90 days of EPA receipt of 
the end-of-year report, the credits will be restored for use by the 
manufacturer.
    (e) Averaging. Averaging will only be allowed between clean-fuel 
vehicles under 8500 lbs gvwr.
    (f) Banking. (1) Credit deposits. (i) Under this program, credits 
can be banked starting in the 1992 model year.
    (ii) A manufacturer may bank credits only after the end of the model 
year and after EPA has reviewed its end-of-year report. During the model 
year and before submittal of the end-of-year report, credits originally 
designated in the certification process for banking will be considered 
reserved and may be redesignated for trading or averaging.
    (2) Credit withdraws. (i) After being generated, banked/reserved 
credits shall be available for use and shall maintain their original 
value for an infinite period of time.
    (ii) A manufacturer withdrawing banked credits shall indicate so 
during certification and in its credit reports.
    (3) Banked credits may be used in averaging, trading, or in any 
combination thereof, during the certification period. Credits declared 
for banking from the previous model year but unreviewed by EPA may also 
be used. However, they may be revoked at a later time following EPA 
review of the end-of-year report or any subsequent audit actions.
    (g) Early credits. Beginning in model year 1992 appropriate credits, 
as determined from the given credit table, will be given for the sale of 
vehicles certified to the clean-fuel vehicle standards for TLEVs, LEVs, 
ULEVs, and ZEVs, where appropriate. For LDVs and light LDTs (6000 lbs 
GVWR), early credits can be earned from model year 1992 to the beginning 
of the Pilot Program sales requirements in 1996. For heavy LDTs (>6000 
lbs GVWR), early

[[Page 22]]

credits can be earned from model years 1992 through 1997. The actual 
calculation of early credits shall not begin until model year 1996.

[57 FR 60046, Dec. 17, 1992, as amended at 61 FR 127, Jan. 3, 1996]



Sec. 88.206-94  State opt-in for the California Pilot Test Program.

    (a) A state may opt into the Pilot program if it contains all or 
part of an ozone nonattainment area classified as serious, severe, or 
extreme under subpart D of Title I.
    (b) A state may opt into the program by submitting SIP revisions 
that meet the requirements of this section.
    (c) For a state that chooses to opt in, SIP provisions can not take 
effect until one year after the state has provided notice to of such 
provisions to motor vehicle manufacturers and fuel suppliers.
    (d) A state that chooses to opt into the program can not require a 
sales or production mandate for CFVs or clean alternative fuels. States 
may not subject fuel or vehicle suppliers to penalties or sanctions for 
failing to produce or sell CFVs or clean alternative fuels.
    (e) (1) A state's SIP may include incentives for the sale or use in 
such state of CFVs required in California by the Clean Fuel Fleet 
Program, and the use of clean alternative fuels required to be made 
available in California by the California Pilot Program.
    (2) Incentives may include:
    (i) A registration fee on non-CFVs of at least 1 percent of the 
total cost of the vehicle. These fees shall be used to:
    (A) Provide financial incentives to purchasers of CFVs and vehicle 
dealers who sell high volumes or high percentages of CFVs.
    (B) Defray administrative costs of the incentive program.
    (ii) Exemptions for CFVs from high occupancy vehicle or trip 
reduction requirements.
    (iii) Preferences for CFVs in the use of existing parking places.

[59 FR 50078, Sept. 30, 1994]

                     Tables to Subpart B of Part 88

                          Table B-1--Credit Table for Phase I Vehicle Equivalents for Light-Duty Vehicles and Light-Duty Trucks
                                     Table B-1.1--Credit Generation: Selling More Clean-Fuel Vehicles Than Required
                                                      [Phase I: Effective Through 2000 Model-Year]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                         LDT  6000 gvwr
                                                                      LDV & LDT 3750 alvw     LDT  6000 gvwr
                                                                       thn-eq>6000      eq>6000 gvwr      >3750 alvw       >5750 alvw       >5750 alvw
                     Vehicle emission  category                       gvwr 3750 lvw
                                                                       eq>3750 lvw       >5750 lvw
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
TLEV...............................................................           1.00             1.28            (\1\)            (\1\)            (\1\)
LEV................................................................           1.40             1.76             1.00             1.28             1.56
ULEV...............................................................           1.68             2.16             1.40             1.76             2.18
ZEV................................................................           2.00             2.56             2.00             2.56             3.12
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                       Table B-1.2--Credit Generation: Selling More Stringent Clean Fuel Vehicles
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                       LDT  6000 gvwr    LDT  6000 gvwr  LDT  >6000 gvwr   LDT  6000    3750 lvw  >5750     >3750 alvw        3750 alvw      eq>6000 gvwr
                     Vehicle emission  category                       gvwr  5750 alvw       5750 alvw
                                                                       eq>3750 lvw
 
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
TLEV...............................................................           0.00             0.00            (\1\)            (\1\)            (\1\)
LEV................................................................            .40              .48             0.00             0.00             0.00
ULEV...............................................................            .68              .88              .40              .48              .62
ZEV................................................................           1.00             1.28             1.00             1.28             1.56
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 23]]


                                                                Table B-1.3--Credit Needed in Lieu of Selling Clean-Fuel Vehicle
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       LDV & LDT  6000                             LDT  >6000 gvwr  >3750
                     Vehicle emission  category                       eq>6000 gvwr  5750    LDT  >6000 gvwr  >3750      alvw  >5750 alvw      LDT  >6000 gvwr  >5750
                                                                           eq>3750 lvw                  lvw                      alvw                                              alvw
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
TLEV...............................................................                     1.00                     1.28                    (\1\)                    (\1\)                    (\1\)
LEV................................................................  .......................  .......................                     1.00                     1.28                    1.56
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ There is no TLEV category for this vehicle class.


                                             Table B-2--Credit Table for Phase II: Vehicle Equivalents for Light-Duty Vehicles and Light-Duty Trucks
                                                         Table B-2.1--Credit Generation: Selling More Clean-Fuel Vehicles Than Required
                                                                      [Phase II: effective 2001 and subsequent model-years]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       LDV & LDT  6000    LDT  6000 gvwr  >3750    LDT  >6000 gvwr  3750
                     Vehicle emission  category                       eq>6000 gvwr  5750             alvw               alvw  >5750 alvw      LDT  >6000 gvwr  5750
                                                                           eq>3750 lvw                  lvw                                                                        alvw
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
LEV................................................................                     1.00                     1.26                     0.71                     0.91                     1.11
ULEV...............................................................                     1.20                     1.54                     1.00                     1.26                     1.56
ZEV................................................................                     1.43                     1.83                     1.43                     1.83                     2.23
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


                                                           Table B-2.2--Credit Generation: Selling More Stringent Clean-Fuel Vehicles
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       LDV & LDT  6000    LDT  6000 gvwr  >3750    LDT  >6000 gvwr  3750
                     Vehicle emission  category                       eq>6000 gvwr  5750             alvw               alvw  >5750 alvw      LDT  >6000 gvwr  >5750
                                                                           eq>3750 lvw                  lvw                                                                        alvw
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
LEV................................................................                     0.00                     0.00                     0.00                     0.00                     0.00
ULEV...............................................................                      .20                      .28                      .29                      .34                      .45
ZEV................................................................                      .43                      .57                      .71                      .91                     1.11
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


                                                                Table B-2.3--Credit Needed in Lieu of Selling Clean-Fuel Vehicles
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       LDV & LDT  6000                             LDT  >6000 gvwr  >3750
                     Vehicle emission category                        eq>6000 gvwr  3750 lvw  >5750   LDT  >6000 gvwr  >3750      alvw  >5750 alvw      LDT  >6000 gvwr  >5750
                                                                           eq>3750 lvw                  lvw                      alvw                                              alvw
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
LEV................................................................                     1.00                     1.26                     0.71                     0.91                     1.11
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


[59 FR 50079, Sept. 30, 1994]



                   Subpart C--Clean-Fuel Fleet Program

    Source: 58 FR 11901, Mar. 1, 1993, unless otherwise noted.



Sec. 88.301-93  General applicability.

    (a) The requirements of this subpart apply to the following:
    (1) State Implementation Plan revisions at 40 CFR part 52 made 
pursuant to sections 110 and 246 of the CAA (42 U.S.C. 7410 and 7586) 
hereafter referred to as the ``SIP revision''.
    (2) All agencies, departments and instrumentalities of the United 
States that are subject to the fleet programs established by a state's 
SIP revision.
    (b) The requirements of Secs. 88.302-93, 88.303-93, 88.311-93, 
88.312-93, and 88.313-93 of this part apply to fleets which voluntarily 
purchase and operate Inherently Low-Emission Vehicles (ILEVs).
    (c) References in this subpart to engine families and emission 
control systems shall be deemed to refer to durability groups and test 
groups as applicable for manufacturers certifying new light-duty 
vehicles and light-duty trucks under the provisions of 40 CFR part 86, 
subpart S.

[58 FR 11901, Mar. 1, 1993, as amended at 64 FR 23973, May 4, 1999]

[[Page 24]]



Sec. 88.302-93  Definitions.

    The definitions in 40 CFR part 86 of this chapter also apply to this 
subpart. The definitions in this section apply to this subpart.
    Combination heavy-duty vehicle means a vehicle with a GVWR greater 
than 8,500 pounds (3,900 kilograms) which is comprised of a truck-
tractor and one or more pieces of trailered equipment. The truck-tractor 
is a self-propelled motor vehicle built on one chassis which encompasses 
the engine, passenger compartment, and a means of coupling to a cargo 
carrying trailer(s). The truck-tractor itself is not designed to carry 
cargo.
    Inherently Low-Emission Vehicle means any LDV or LDT conforming to 
the applicable Inherently Low-Emission Vehicle standard, or any HDV with 
an engine conforming to the applicable Inherently Low-Emission Vehicle 
standard. No dual-fuel or flexible-fuel vehicles shall be considered 
Inherently Low-Emission Vehicles unless they are certified to the 
applicable standard(s) on all fuel types for which they are designed to 
operate.
    Partially-Covered Fleet pertains to a vehicle fleet in a covered 
area which contains both covered fleet vehicles and non-covered fleet 
vehicles, i.e., exempt from covered fleet purchase requirements.
    Single-unit heavy-duty vehicle means a self-propelled motor vehicle 
with a GVWR greater than 8,500 pounds (3,900 kilograms) built on one 
chassis which encompasses the engine, passenger compartment, and cargo 
carrying function, and not coupled to trailered equipment. All buses, 
whether or not they are articulated, are considered single-unit 
vehicles.



Sec. 88.302-94  Definitions.

    The definitions in Sec. 88.302-93 and 40 CFR part 86 also apply to 
this part. All terms used in this part, but not defined in this section 
or in Sec. 88.302-93 and 40 CFR part 86 shall have the meaning assigned 
to them in the Clean Air Act.
    Can be centrally fueled means the sum of those vehicles that are 
centrally fueled and those vehicles that are capable of being centrally 
fueled.
    (1) Capable of being centrally fueled means a fleet, or that part of 
a fleet, consisting of vehicles that could be refueled 100 percent of 
the time at a location that is owned, operated, or controlled by the 
covered fleet operator, or is under contract with the covered fleet 
operator. The fact that one or more vehicles in a fleet is/are not 
capable of being centrally fueled does not exempt an entire fleet from 
the program.
    (2) Centrally fueled means a fleet, or that part of a fleet, 
consisting of vehicles that are fueled 100 percent of the time at a 
location that is owned, operated, or controlled by the covered fleet 
operator, or is under contract with the covered fleet operator. Any 
vehicle that is under normal operations garaged at home at night but 
that is, in fact, centrally fueled 100 percent of the time shall be 
considered to be centrally fueled for the purpose of this definition. 
The fact that one or more vehicles in a fleet is/are not centrally 
fueled does not exempt an entire fleet from the program. The fact that a 
vehicle is not centrally fueled does not mean it could not be centrally 
fueled in accordance with the definition of ``capable of being centrally 
fueled.''
    (3) Location means any building, structure, facility, or 
installation which; is owned or operated by a person, or is under the 
control of a person; is located on one or more contiguous properties and 
contains or could contain a fueling pump or pumps for the use of the 
vehicles owned or controlled by that person.
    Clean-fuel vehicle aftermarket conversion certifier means the 
business or entity that obtains a certificate of conformity with the 
clean-fuel vehicle standards and requirements for a vehicle/engine 
conversion configuration pursuant to the requirements of 40 CFR part 86 
and this part 88.
    Control means: (1) When it is used to join all entities under common 
management, means any one or a combination of the following:
    (i) A third person or firm has equity ownership of 51 percent or 
more in each of two or more firms;
    (ii) Two or more firms have common corporate officers, in whole or 
in substantial part, who are responsible for the day-to-day operation of 
the companies.

[[Page 25]]

    (iii) One firm leases, operates, supervises, or in 51 percent or 
greater part owns equipment and/or facilities used by another person or 
firm, or has equity ownership of 51 percent or more of another firm.
    (2) When it is used to refer to the management of vehicles, means a 
person has the authority to decide who can operate a particular vehicle, 
and the purposes for which the vehicle can be operated.
    (3) When it is used to refer to the management of people, means a 
person has the authority to direct the activities of another person or 
employee in a precise situation, such as at the workplace.
    Conversion configuration means any combination of vehicle/engine 
conversion hardware and a base vehicle of a specific engine family.
    Covered fleet operator means a person who operates a fleet of at 
least ten covered fleet vehicles (as defined in section 241(6) of the 
Act) and that fleet is operated in a single covered area (even if the 
covered fleet vehicles are garaged outside of it). For purposes of this 
definition, the vehicle types described in the definition of covered 
fleet (section 241(5) of the Act) as exempt from the program will not be 
counted toward the ten-vehicle criterion.
    Dealer demonstration vehicle means any vehicle that is operated by a 
motor vehicle dealer (as defined in section 216(4) of the Act) solely 
for the purpose of promoting motor vehicle sales, either on the sales 
lot or through other marketing or sales promotions, or for permitting 
potential purchasers to drive the vehicle for pre-purchase or pre-lease 
evaluation.
    Emergency vehicle means any vehicle that is legally authorized by a 
governmental authority to exceed the speed limit to transport people and 
equipment to and from situations in which speed is required to save 
lives or property, such as a rescue vehicle, fire truck, or ambulance.
    Law enforcement vehicle means any vehicle which is primarily 
operated by a civilian or military police officer or sheriff, or by 
personnel of the Federal Bureau of Investigation, the Drug Enforcement 
Administration, or other agencies of the federal government, or by state 
highway patrols, municipal law enforcement, or other similar law 
enforcement agencies, and which is used for the purpose of law 
enforcement activities including, but not limited to, chase, 
apprehension, surveillance, or patrol of people engaged in or 
potentially engaged in unlawful activities. For federal law enforcement 
vehicles, the definition contained in Executive Order 12759, Section 11: 
Alternative Fueled Vehicle for the Federal Fleet, Guidance Document for 
Federal Agencies, shall apply.
    Model year, as it applies to the clean fuel vehicle fleet purchase 
requirements, means September 1 through August 31.
    Motor vehicles held for lease or rental to the general public means 
a vehicle that is owned or controlled primarily for the purpose of 
short-term rental or extended-term leasing (with or without 
maintenance), without a driver, pursuant to a contract.
    New covered fleet vehicle means a vehicle that has not been 
previously controlled by the current purchaser, regardless of the model 
year, except as follows: Vehicles that were manufactured before the 
start of the fleet program for such vehicle's weight class, vehicles 
transferred due to the purchase of a company not previously controlled 
by the purchaser or due to a consolidation of business operations, 
vehicles transferred as part of an employee transfer, or vehicles 
transferred for seasonal requirements (i.e., for less than 120 days) are 
not considered new. States are permitted to discontinue the use of the 
fourth exception for fleet operators who abuse the discretion afforded 
them. This definition of new covered fleet vehicle is distinct from the 
definition of new vehicle as it applies to manufacturer certification, 
including the certification of vehicles to the clean fuel standards.
    Owned or operated, leased or otherwise controlled by such person 
means either of the following:
    (1) Such person holds the beneficial title to such vehicle; or
    (2) Such person uses the vehicle for transportation purposes 
pursuant to a contract or similar arrangement, the term of such contract 
or similar arrangement is for a period of 120 days or

[[Page 26]]

more, and such person has control over the vehicle pursuant to the 
definition of control of this section.
    Person includes an individual, corporation, partnership, 
association, State, municipality, political subdivision of a State, and 
any agency, department, or instrumentality of the United States and any 
officer, agent, or employee thereof.
    Under normal circumstances garaged at personal residence means a 
vehicle that, when it is not in use, is normally parked at the personal 
residence of the individual who usually operates it, rather than at a 
central refueling, maintenance, and/or business location. Such vehicles 
are not considered to be capable of being central fueled (as defined in 
this subpart) and are exempt from the program unless they are, in fact, 
centrally fueled.
    Vehicle used for motor vehicle manufacturer product evaluations and 
tests means a vehicle that is owned and operated by a motor vehicle 
manufacturer (as defined in section 216(1) of the Act), or motor vehicle 
component manufacturer, or owned or held by a university research 
department, independent testing laboratory, or other such evaluation 
facility, solely for the purpose of evaluating the performance of such 
vehicle for engineering, research and development, or quality control 
reasons.

[58 FR 64691, Dec. 9, 1993, as amended at 59 FR 50080, Sept. 30, 1994]



Sec. 88.303-93  Abbreviations.

    The abbreviations in subpart A of this part and in 40 CFR part 86 
apply to this subpart. The abbreviations in this section apply to this 
subpart.

    ILEV--Inherently Low-Emission Vehicle.



Sec. 88.304-94  Clean-fuel Fleet Vehicle Credit Program.

    (a) General. (1) The SIP revision shall provide for a CFFV credit 
program to enable covered fleet owners/operators to meet the fleet 
vehicle purchase requirements of the CAA both by purchasing clean-fuel 
vehicles (CFVs) directly and by trading and banking CFFV credits for 
vehicle purchases.
    (2) All credit-generating vehicles must meet the applicable emission 
standards and other requirements contained in 40 CFR part 88, subpart A.
    (b) Program administration. (1)(i) Each state in which there is all 
or part of a covered area, as defined in CAA section 246(a)(2), shall 
promulgate regulations as necessary for implementing this requirement.
    (ii) The state shall submit a SIP revision before May 15, 1994 to 
the Administrator stipulating the specific mechanism by which the CFFV 
program is to be administered and enforced. The credit program shall 
commence upon EPA approval of the SIP in accordance with CAA section 
246(f)(5).
    (2) A fleet owner who purchases/leases a CFFV only to generate CFFV 
credit shall be subject to the same requirements of the state's CFFV 
program as a covered fleet owner who purchases/leases a CFFV to 
demonstrate compliance with covered fleet purchase requirements.
    (3) While in the covered area, a dual-fuel/flexible-fuel vehicle 
which a fleet owner purchases to comply with covered fleet purchase 
requirements must be operated at all times on the fuel(s) on which it 
was certified as a CFFV. If the fleet owner receives credit for a dual-
fuel/flexible-fuel vehicle purchase, the vehicle must be operated at the 
same emission level for which the vehicle generated CFFV credit.
    (c) Credit generation. (1) States shall grant CFFV credits to a 
covered fleet owner for any of the following qualifying CFFV purchases:
    (i) Purchase of a CFFV during any period subsequent to the approval 
of the SIP revision but prior to the effective date for commencement of 
a state's CFFV purchase requirement if the purchase meets all other CFFV 
requirements applicable to such purchases, including the statutory 
requirement to use only the fuel on which the vehicle was certified as a 
CFFV;
    (ii) Purchase of a greater number of CFFVs than is required under 
the SIP revision;
    (iii) Purchase of a CFFV which meets more stringent emission 
standards than required under the SIP revision; or
    (iv) Purchase of a CFFV in an exempt or non-covered vehicle category 
by the

[[Page 27]]

owner/operator of a covered or partially-covered fleet.
    (2) A state may retroactively grant CFFV credit(s) to a fleet owner 
for the purchase of a CFFV prior to the approval of the state's SIP 
revision if the purchase met all CFFV credit program requirements 
applicable to such purchases, including:
    (i) The vehicle purchased would have to have been certified to CFFV 
emission standards;
    (ii) The vehicle purchased would have to have been a dedicated-fuel 
vehicle;
    (iii) If the vehicle purchased was not a dedicated-fuel vehicle, 
then the fleet owner would have to show that the vehicle had been 
operated only on the clean alternative fuel on which the vehicle had 
been certified as a CFFV.
    (3) For LDVs and LDTs, credit values shall be determined in 
accordance with Table C94-1. The state shall use Table C94-1 exclusively 
in determining LDV and LDT CFFV credit values. Table C94-1.1 applies to 
paragraphs (c)(1) (i), (ii) and (iv) of this section; Table C94-1.2 
applies to paragraph (c)(1)(iii) of this section.
    (4) In lieu of determining credit values in accordance with Table 
C94-1, a state may specify in its SIP revision that Table C94-2 will be 
used to determine LDV and LDT CFFV credit values in one or more affected 
nonattainment areas. Any state choosing to do so must provide adequate 
justification, based on air quality benefits, at the time the SIP 
revision is submitted. If the use of Table C94-2 is approved by EPA, the 
State shall use Table C94-2 exclusively in determining LDV and LDT CFFV 
credit values for vehicles in the subject area or areas. Table C94-2.1 
applies to paragraphs (b)(1) (i), (ii) and (iv) of this section; Table 
C94-2.2 applies to paragraph (b)(1)(iii) of this section.
    (5) In lieu of determining credit values in accordance with Table 
C94-1, a state containing a carbon monoxide nonattainment area(s) having 
a design value above 16.0 parts per million may specify in its SIP 
revision that Table C94-3 will be used to determine LDV and LDT CFFV 
credit values in one or more affected nonattainment areas. Any state 
choosing to do so must provide adequate justification, based on air 
quality benefits, at the time the SIP revision is submitted. If the use 
of Table C94-3 is approved by EPA, the state shall use Table C94-3 
exclusively in determining LDV and LDT CFFV credit values for vehicles 
in the subject area or areas. Table C94-3.1 applies to paragraphs (b)(1) 
(i), (ii) and (iv) of this section; Table C94-3.2 applies to paragraph 
(b)(1)(iii) of this section.
    (6) For HDVs, credit values shall be determined in accordance with 
Table C94-4. The state shall use Table C94-4 exclusively in determining 
heavy-duty vehicle CFFV credit values. Table C94-4.1 applies to 
paragraphs (c)(1) (i), (ii) and (iv) of this section, and Table C94-4.2 
applies to paragraph (c)(1)(iii) of this section.
    (7) In lieu of determining credit values in accordance with Table 
C94-4, a state containing a carbon monoxide nonattainment area(s) having 
a design value above 16 parts per million may specify in its SIP 
revision that Table C94-5 will be used to determine heavy-duty vehicle 
CFFV credit values in one or more affected nonattainment areas. Any 
state choosing to do so must provide adequate justification, based on 
air quality benefits, at the time the SIP revision is submitted. If the 
use of Table C94-5 is approved by EPA, the State shall use Table C94-5 
exclusively in determining heavy-duty vehicle CFFV credit values for 
vehicles in the subject area or areas. Table C94-5.1 applies to 
paragraphs (b)(1) (i), (ii) and (iv) of this section; Table C94-5.2 
applies to paragraph (b)(1)(iii) of this section.
    (8) Credit values shall be rounded to two decimal places.
    (9) Heavy heavy-duty vehicles. (i) States must allow purchase of any 
clean-fuel single-unit or combination HDV with a GVWR greater than 
26,000 pounds (11,800 kilograms) to generate CFFV credit for the fleet 
vehicle purchaser.
    (ii) States must exclude from generating CFFV credit the purchase of 
any combination HDV with a GVWR greater than 26,000 pounds (11,800 
kilograms) which pays all or a portion of its fuel taxes, as evidenced 
by fuel tax stickers on the combination HDV, to a state(s) which is not 
part of that covered nonattainment area.

[[Page 28]]

    (10) Light-duty CFFV credits. Credits generated by the purchase of a 
qualifying clean-fuel fleet LDV or a LDT shall be designated at the time 
of issuance as light-duty CFFV credits.
    (11) Heavy-duty CFFV credits. Credits generated by the purchase of a 
qualifying clean-fuel fleet HDV shall be designated at the time of 
issuance as heavy-duty CFFV credits. Further, credits generated by the 
purchase of a light heavy-duty or a medium heavy-duty qualifying CFFV 
shall be designated at the time of issuance as light heavy-duty and 
medium heavy-duty CFFV credits, respectively.
    (d) Credit use. (1) All credits generated in accordance with these 
provisions may be freely traded or banked for later use, subject to the 
provisions contained in this subpart, without discount or depreciation 
of such credits.
    (2) A covered fleet owner or operator desiring to demonstrate full 
or partial compliance with covered fleet purchase requirements by the 
redemption of credits shall surrender sufficient credits as established 
in this paragraph. In lieu of purchasing a CFFV, a fleet owner or 
operator shall surrender credits equal to the credit value for the 
corresponding vehicle class and credit calculation method used in that 
area from either Table C94-1.3, C94-2.3, C94-3.3, C94-4.3, or C94-5.3 of 
this subpart.
    (3) Credits earned within the boundaries of a covered nonattainment 
area may be traded within those boundaries whether or not that area 
encompasses parts of more than one state.
    (4) Credits issued as a result of CFFV purchase requirements in one 
nonattainment area may not be used to demonstrate compliance in another 
nonattainment area, even if a state contains more than one covered 
nonattainment area.
    (5) Credit allocation. (i) Credits generated by the purchase of LDVs 
and LDTs of 8,500 pounds (3,900 kilograms) GVWR or less may be used to 
demonstrate compliance with covered fleet purchase requirements 
applicable to LDVs or LDTs of 8,500 pounds (3,900 kilograms) GVWR or 
less.
    (ii) Credits generated by the purchase of vehicles of more than 
8,500 pounds (3,900 kilograms) GVWR may not be used to demonstrate 
compliance with the covered fleet purchase requirements for vehicles 
weighing 8,500 pounds (3,900 kilograms) GVWR or less.
    (iii) Credits generated by the purchase of vehicles of 8,500 pounds 
(3,900 kilograms) GVWR or less may not be used to demonstrate compliance 
with requirements for vehicles of more than 8,500 pounds (3,900 
kilograms) GVWR.
    (iv) Credits generated by the purchase of a HDV of a particular 
weight subclass may be used to demonstrate compliance with required 
heavy-duty vehicle purchases for the same or lighter weight subclasses. 
These credits may not be used to demonstrate compliance with required 
HDV purchases for vehicles of heavier weight subclasses than the weight 
subclass of the vehicle which generated the credits.



Sec. 88.305-94  Clean-fuel fleet vehicle labeling requirements for heavy-duty vehicles.

    (a) All clean-fuel heavy-duty engines and vehicles used as LEVs, 
ULEVs, and ZEVs that are also regulated under 40 CFR part 86 shall 
comply with the labeling requirements of 40 CFR 86.095-35 (or later 
applicable sections), and shall also include an unconditional statement 
on the label indicating that the engine or vehicle is a LEV, ULEV, or 
ZEV, and meets all of the applicable requirements of this part 88.
    (b) All heavy-duty clean-fuel fleet vehicles not regulated under 40 
CFR part 86 shall have a permanent legible label affixed to the engine 
or vehicle in a readily visible location, which contains the following 
information:
    (1) The label heading: vehicle emissions classification information 
(e.g., ``This is a Low Emission Vehicle'');
    (2) Full corporate name and trademark of the manufacturer;
    (3) A statement that this engine or vehicle meets all applicable 
requirements of the U.S. Environmental Protection Agency clean-fuel 
fleet vehicle program, as described in this part 88, but not necessarily 
those requirements found in 40 CFR part 86.

[59 FR 50080, Sept. 30, 1994]

[[Page 29]]



Sec. 88.306-94  Requirements for a converted vehicle to qualify as a clean-fuel fleet vehicle.

    (a) For purposes of meeting the requirements of section 246 of the 
Clean Air Act or the SIP revisions, conversions of engines or vehicles 
which satisfy the requirements of this section shall be treated as a 
purchase of a clean-fuel vehicle under subpart C of this part.
    (b) The engine or vehicle must be converted using a conversion 
configuration which has been certified according to the provisions of 40 
CFR part 86 using applicable emission standards and other provisions 
from part 88 for clean-fuel engines and vehicles. The following 
requirements will also apply:
    (1) If the installation of the certified conversion configuration is 
performed by an entity other than aftermarket conversion certifier, the 
aftermarket conversion certifier shall submit a list of such installers 
to the Administrator. Additional installers must be added to this list 
and the revised list submitted to the Administrator within 5 working 
days from the time they are authorized to perform conversion 
installations by the clean-fuel vehicle aftermarket conversion 
certifier.
    (2) If the installation of the certified conversion configuration is 
performed by an entity other than the certificate holder, the 
certificate holder shall provide instructions for installation of the 
aftermarket conversion system to installers listed on the certificate, 
and ensure that the systems are properly installed.
    (3) For the purpose of determining whether certification under the 
Small-Volume Manufacturers Certification Program pursuant to the 
requirements of 40 CFR 86.094-14 is permitted, the 10,000 sales volume 
limit in 40 CFR 86.094-14(b)(1) is waived for a certifier of a clean-
fuel vehicle aftermarket conversion.
    (4) Clean-fuel vehicle aftermarket conversion certifiers that are 
subject to the post-installation emissions testing requirements in 
paragraph (c) of this section and who will satisfy these requirements by 
using the two speed idle test procedure detailed in paragraph (c)(2)(ii) 
of this section must conduct the following testing at the time of 
certification in order to generate the required certification CO 
emissions reference values. The certification CO emissions reference 
values generated must be submitted to the Administrator at the time of 
application for certification.
    (i) For dual and flexible fuel vehicles, certification reference 
values must be generated for each certification test fuel required for 
exhaust emissions testing pursuant to 40 CFR 86.113 or 40 CFR 86.1313.
    (ii) For light-duty vehicles and light-duty trucks the test fuels 
used during the emissions testing required by paragraph (b)(3) of this 
section must comply with the fuel specifications for exhaust emissions 
testing found in 40 CFR 86.113. For heavy-duty engines the test fuels 
used during the emissions testing required by paragraph (b)(3) of this 
section must comply with the fuel specifications for exhaust emissions 
testing found in 40 CFR 86.1313.
    (iii) Single, consecutive idle mode and high-speed mode segments of 
the two speed idle test must be conducted pursuant to the requirements 
of 40 CFR 85.2215 and as modified by the provisions of paragraph 
(c)(4)(ii)(D) of this section and this paragraph to determine the 
required certification CO emission reference values.
    (A) The certification CO emission reference value for the idle mode 
of the test will be the simple average of all emissions measurements 
taken during an idle mode of 90 seconds duration pursuant to the 
requirements in 40 CFR 85.2215(a).
    (B) The certification CO emission reference value for the high-speed 
mode of the test will be the simple average of all emissions 
measurements taken during a high-speed mode of 180 seconds duration 
pursuant to the requirements in 40 CFR 85.2215(a).
    (c) Except as provided in paragraph (c)(1) of this section, each 
converted vehicle manufactured by a clean-fuel vehicle aftermarket 
conversion certifier with aggregate sales of less than 10,000 converted 
vehicles within a given calendar year must satisfy the post-installation 
emissions testing requirements of paragraph (c)(2) of this section. If a 
vehicle fails to satisfy the emissions testing requirements such

[[Page 30]]

vehicle may not be considered a clean- fuel vehicle until such 
noncompliance is rectified and compliance is demonstrated.
    (1) A clean-fuel vehicle aftermarket conversion certifier with 
estimated sales of 300 or fewer engines and vehicles in a calendar year 
and which sells or converts vehicles outside of a non-attainment area 
(as classified under subpart D of Title I) which has an inspection and 
maintenance program that includes a test of carbon monoxide emissions 
may submit a request to the Administrator for an exemption from the 
post-installation emission test requirements of paragraph (c) of this 
section. If granted, such an exemption would apply to converted vehicles 
that have the conversion installation performed outside of a 
nonattainment area which has an inspection and maintenance program that 
includes a test of carbon monoxide emissions.
    (i) The request for exemption submitted to the Administrator must 
include the following:
    (A) The estimated number of engines and vehicles that will be 
converted in the calendar year.
    (B) Sufficient information to demonstrate that complying with the 
post-installation emission test requirement represents a severe 
financial hardship.
    (C) A description of any emission related quality control procedures 
used.
    (ii) Within 120 days of receipt of the application for exemption, 
the Administrator will notify the applicant either that an exemption is 
granted or that sufficient cause for an exemption has not been 
demonstrated and that all of the clean-fuel vehicle aftermarket 
conversion certifier's vehicles are subject to the post-installation 
test requirement of paragraph (c)(2) of this section.
    (iii) If the clean-fuel vehicle aftermarket conversion certifier 
granted an exemption originally estimates that 300 or fewer conversions 
would be performed in the calendar year, and then later revises the 
estimate to more than 300 for the year, the certifier shall inform the 
Administrator of such revision. A post-installation emissions test for 
each conversion performed after the estimate is revised is required 
pursuant to the requirements of paragraph (c)(2) of this section. The 
estimated number of conversions from such a clean-fuel vehicle 
aftermarket conversion certifier must be greater than 300 in the 
following calendar year.
    (2) A clean-fuel vehicle aftermarket conversion certifier with 
aggregate sales less than 10,000 converted vehicles within a given 
calendar year shall conduct post-installation emissions testing using 
either of the following test methods:
    (i) The carbon monoxide (CO) emissions of the converted vehicle must 
be determined in the manner in which CO emissions are determined 
according to the inspection and maintenance requirements applicable in 
the area in which the vehicle is converted or is expected to be 
operated.
    (A) For dual-fuel vehicles, a separate test is required for each 
fuel on which the vehicle is capable of operating. For flexible fuel 
vehicles, a single test is required on a fuel that falls within the 
range of fuel mixtures for which the vehicle was designed. The test 
fuel(s) used must be commercially available.
    (B) A converted vehicle shall be considered to meet the requirements 
of this paragraph if the vehicle's measured exhaust CO concentration(s) 
is lower than the cutpoint(s) used to determine CO pass/fail under the 
inspection and maintenance program in the area in which the conversion 
is expected to be operated.
    (1) If CO pass/fail criteria are not available for a vehicle fuel 
type then pass/fail criteria specific to gasoline use are to be used for 
vehicles of that fuel type.
    (2) [Reserved]
    (ii) The carbon monoxide (CO) emissions of the converted vehicle 
must be determined in the manner specified in the two speed idle test-
EPA 91 found in 40 CFR 85.2215. All provisions in the two speed idle 
test must be observed except as detailed in paragraph (c)(2)(ii)(D) of 
this section.
    (A) For dual and flexible fuel vehicles, a separate test is required 
for each certification test fuel required for exhaust emissions testing 
pursuant to 40 CFR 86.113 or 40 CFR 86.1313.
    (B) For light-duty vehicles and light-duty trucks the test fuels 
used during

[[Page 31]]

the emissions testing required by paragraph (c)(4) of this section must 
comply with the fuel specifications for exhaust emissions testing found 
in 40 CFR 86.113. For heavy-duty engines the test fuels used during the 
emissions testing required by paragraph (c)(2) of this section must 
comply with the fuel specifications for exhaust emissions testing found 
in 40 CFR 86.1313.
    (C) A converted vehicle shall be considered to meet the requirements 
of this paragraph if the following criteria are satisfied:
    (1) The vehicle's measured idle mode exhaust CO concentration(s) 
must be lower than the sum of 0.4 percent CO plus the idle mode 
certification CO emissions reference value as determined according to 
the requirements of paragraph (b)(3) of this section.
    (2) The vehicle's measured high-speed mode exhaust CO 
concentration(s) must be lower than the sum of 0.4 percent CO plus the 
high-speed certification CO emissions reference value as determined 
according to the requirements of paragraph (b)(3) of this section.
    (D) For the purposes of the post-installation emissions testing 
required by paragraph (c) of this section, the following adjustments to 
the two speed idle test-EPA 91 in 40 CFR 85.2215 are necessary.
    (1) Testing of hydrocarbon emissions and equipment associated solely 
with hydrocarbon emissions testing is not required.
    (2) The CO emissions pass/fail criteria in 40 CFR 85.2215(a)(2), 
(c)(1)(ii)(A), (c)(2)(ii)(A)(1), (c)(2)(iii)(A)(1), and (d)(3)(i) are to 
be replaced with the pass/fail criteria detailed in paragraph 
(c)(2)(ii)(C) of this section. All HC pass/fail criteria in 40 CFR 
85.2215 do not apply.
    (3) The void test criteria in 40 CFR 85.2215(a)(3) and (b)(2)(iv) 
associated with maintaining the measured concentration of CO plus 
CO2 above six percent does not apply. However, the 
Administrator may reconsider requiring that the void test criteria in 40 
CFR 85.2215(a)(3) and (b)(2)(iv) be applied, and may issue an advisory 
memorandum to this effect in the future.
    (4) The ambient temperature levels encountered by the vehicle during 
testing must comply with the specifications in 40 CFR 86.130 or 40 CFR 
86.1330.
    (d) The clean-fuel vehicle aftermarket conversion certifier shall be 
considered a manufacturer for purposes of Clean Air Act sections 206 and 
207 and related enforcement provisions, and must accept liability for 
in-use performance of all the vehicles produced under the certificate of 
conformity as outlined in 40 CFR part 85.
    (1) The useful life period for the purposes of determining the in-
use liability of the clean-fuel vehicle aftermarket conversion certifier 
shall be the original useful life of the vehicle prior to conversion.
    (2) [Reserved]
    (e) Tampering. (1) The conversion from an engine or vehicle capable 
of operating on gasoline or diesel fuel only to a clean-fuel engine or 
vehicle shall not be considered a violation of the tampering provisions 
of Clean Air Act section 203(a)(3), if such conversion is done pursuant 
to a conversion configuration certificate by the aftermarket conversion 
certifier or by an installer listed on the certificate.
    (2) In order to comply with the provisions of this subpart, an 
aftermarket conversion installer must:
    (i) Install a certified aftermarket conversion system for which the 
installer is listed by the certifier; and
    (ii) Perform such installation according to instructions provided by 
the aftermarket conversion certifier.
    (f) Data collection. The clean-fuel vehicle aftermarket conversion 
certifier is responsible for maintaining records of each engine and 
vehicle converted for use in the Clean Fuel Fleets program for a period 
of 5 years. The records are to include the engine or vehicle make, 
engine or vehicle model, engine or vehicle model year, and engine or 
vehicle identification number of converted engines and vehicles; the 
certification number of the conversion configuration; the brand names 
and part numbers of the parts included in the conversion configuration; 
the date of the conversion and the facility at which the conversion was 
performed; and the results of post-installation

[[Page 32]]

emissions testing if required pursuant to paragraph (c) of this section.

[59 FR 50080, Sept. 30, 1994, as amended at 61 FR 129, Jan. 3, 1996]



Sec. 88.307-94  Exemption from temporal transportation control measures for CFFVs.

    (a) States with covered areas shall exempt any CFFV required by law 
to participate in the clean-fuel fleet program or any vehicle generating 
credits under Sec. 88.304-94(c) from transportation control measures 
(TCMs) existing wholly or partially for air quality reasons included in 
an approved state implementation plan which restrict vehicle usage based 
primarily on temporal considerations, such as time-of-day and day-of-
week exemptions. However, CFFVs shall not qualify for TCMs where the 
temporal element is secondary to some other control element and, in no 
case, shall such exemptions apply if they create a clear and direct 
safety hazard. This exemption does not include access to high occupancy 
vehicle (HOV) lanes, except as provided in Sec. 88.313-93.
    (b) States shall also grant temporal TCM exemptions to qualifying 
CFFVs being operated after SIP approval, but prior to the effective date 
for commencement of a state's CFFV credit program.
    (c) Temporal TCM exemptions provided for in paragraph (a) of this 
section are not effective outside of the areas for which states can be 
required to establish CFFV credit programs.
    (1) Such exemptions shall remain effective only while the subject 
vehicle remains in compliance with applicable CFFV emissions standards 
and other CFFV credit program requirements.
    (2) CFFV TCM exemptions shall not be transferred between vehicles 
within the same fleet nor shall they be sold or traded.



Sec. 88.308-94  Programmatic requirements for clean-fuel fleet vehicles.

    (a) Multi-State nonattainment areas. The states comprising a multi-
State nonattainment area shall, to the greatest extent possible, 
promulgate consistent clean-fuel fleet vehicle programs.
    (b) Program start date. The SIP revision shall provide that the 
clean fuel vehicle purchase requirements begin to apply no later than 
model year 1999.

[59 FR 50082, Sept. 30, 1994, as amended at 63 FR 20107, Apr. 23, 1998]



Sec. 88.309  [Reserved]



Sec. 88.310-94  Applicability to covered Federal fleets.

    (a) Compliance by Federal vehicles. As per section 258(a) of the 
Act, fleets owned or operated by any agency, department, or 
instrumentality of the United States shall comply with the applicable 
state regulations concerning CFFVs established in the SIP revision. Such 
fleets shall be treated in the same manner as private or other 
government fleets under the applicable state regulations.
    (1) Federal agencies shall obtain CFFVs from original equipment 
manufacturers, to the extent possible, as required under section 248 of 
the CAA.
    (2) The Secretary of Defense may exempt any vehicle(s) from the 
provisions of any CFFV credit program established in the SIP revision by 
certifying to the Administrator in writing that inclusion of the 
specified vehicle(s) in such a program could have an adverse impact on 
the national security. The Secretary of Defense shall also provide a 
copy of this statement of exemption to the state agency administering 
the CFFV credit program in the covered area in which the specified 
vehicle(s) is registered/operated.
    (b) [Reserved]



Sec. 88.311-93  Emissions standards for Inherently Low-Emission Vehicles.

    (a) Certification. (1) Emissions Testing Procedures. A vehicle shall 
be certified as an ILEV if that vehicle satisfies the following 
conditions:
    (i) The vehicle shall be certified under the appropriate exhaust 
emissions standards from paragraph (c) or (d) of this section depending 
on the vehicle's weight classification.
    (ii) The vehicle shall be certified as having fuel vapor emissions 
which are five or less total grams per test as measured by the current 
Federal Test Procedure (FTP), modified for ILEV

[[Page 33]]

certification, from 40 CFR part 86, subpart B for LDVs and LDTs and from 
40 CFR part 86, subpart M for HDVs.
    (A) After disabling any and all auxiliary emission control devices 
(canister, purge system, etc.) related to control of evaporative 
emissions, the fuel vapor emissions shall be measured using the FTP 
regulations in effect at the time the vehicle is to be certified as an 
ILEV. For purposes of this section, the vehicle's fuel vapor emissions 
shall consist of the total grams of diurnal, hot soak, running loss, and 
resting loss emissions, as appropriate, for the particular fuel/vehicle/
engine combination to be tested. In determining ILEV evaporative 
emissions, the diurnal emissions measurement procedure shall consist of 
a single diurnal heat build using an ambient or fuel temperature range 
of 72 deg.-96  deg.F (22 deg.-36  deg.C), as appropriate for the 
applicable FTP regulations (40 CFR part 86).
    (B) Conventional Federal Test Procedure. A vehicle with no 
evaporative emissions control system components may have its evaporative 
emissions certified for its particular GVWR weight class/subclass if it 
passes the conventional evaporative emissions FTP from 40 CFR part 86, 
subpart B for LDVs and LDTs or from 40 CFR part 86, subpart M for HDVs, 
as applicable.
    (iii) The vehicle must meet other special requirements applicable to 
conventional or clean-fuel vehicles and their fuels as described in any 
other parts of this chapter, including 40 CFR parts 86 and 88.
    (2) Vehicles which have a closed or sealed fuel system may be 
certified at the administrator's option by engineering evaluation in 
lieu of testing. These vehicles will be certified as ILEVs only if a 
leak in the fuel system would result in the vehicle becoming inoperative 
due to loss of fuel supply, or if half the fuel escapes within 24 hours.
    (b) Identification. In the application for a vehicle's certification 
as an ILEV, the manufacturer or the manufacturer's agent shall provide 
for positive identification of the vehicle's status as an ILEV in the 
vehicle's Vehicle Emission Control Information (VECI) label in 
accordance with 40 CFR 86.094-35 and 86.095-35. The label shall contain 
a highlighted statement (e.g., underscored or boldface letters) that the 
vehicle is certified to applicable emission standards for ILEV exhaust 
and evaporative emission standards.
    (c) Light-duty vehicles and light-duty trucks. ILEVs in LDV and LDT 
classes shall have exhaust emissions which do not exceed the LEV exhaust 
emission standards for NMOG, CO, HCHO, and PM and the ULEV exhaust 
emission standards for NOx listed in Tables A104-1 through 
A104-6 for light-duty CFVs. Exhaust emissions shall be measured in 
accordance with the test procedures specified in Sec. 88.104-94(k). An 
ILEV must be able to operate on only one fuel, or must be certified as 
an ILEV on all fuels on which it can operate. These vehicles shall also 
comply with all requirements of 40 CFR part 86 which are applicable to 
conventional gasoline-fueled, methanol-fueled, diesel-fueled, natural 
gas-fueled or liquified petroleum gas-fueled LDVs/LDTs of the same 
vehicle class and model year.
    (d) Heavy-duty vehicles. ILEVs in the HDV class shall have exhaust 
emissions which do not exceed the exhaust emission standards in grams 
per brake horsepower-hour listed in Sec. 88.105-94(d). Exhaust emissions 
shall be measured in accordance with the test procedures specified in 
Sec. 88.105-94(e). An ILEV must be able to operate on only one fuel, or 
must be certified as an ILEV on all fuels on which it can operate. These 
vehicles shall also comply with all requirements of 40 CFR part 86 which 
are applicable in the case of conventional gasoline-fueled, methanol-
fueled, diesel-fueled, natural gas-fueled or liquified petroleum gas-
fueled HDVs of the same weight class and model year.
    (e) Applicability. State actions to opt out of the clean-fuel fleet 
program under section 182(c) of the Act do not affect the applicability 
of the ILEV program in the affected states.

[57 FR 60046, Dec. 17, 1992, as amended at 59 FR 48536, Sept. 21, 1994; 
59 FR 50082, Sept. 30, 1994, 61 FR 127, Jan. 3, 1996]



Sec. 88.311-98  Emissions standards for Inherently Low-Emission Vehicles.

    Section 88.311-98 includes text that specifies requirements that 
differ from Sec. 88.311-93. Where a paragraph in Sec. 88.311-93 is 
identical and applicable to Sec. 88.311-98, this may be indicated by

[[Page 34]]

specifying the corresponding paragraph and the statement ``[Reserved]. 
For guidance see Sec. 88.311-93.''
    (a) heading through (a)(1)(ii) [Reserved]. For guidance see 
Sec. 88.311-93.
    (iii) The vehicle must meet other special requirements applicable to 
conventional or clean-fuel vehicles and their fuels as described in any 
other regulations in 40 CFR chapter I, subchapter C, including 40 CFR 
parts 86 and 88 (e.g., onboard refueling provisions).
    (b) through (e) [Reserved]. For guidance see Sec. 88.311-93.

[59 FR 16309, Apr. 6, 1994]

    Effective Date Note: The new information collection requirements for 
Sec. 88.311-98 published in the Federal Register at 59 FR 16309, Apr. 6, 
1994, which apply to 1998 and later model year vehicles, have not been 
approved by the Office of Management and Budget (OMB) and are not 
effective.



Sec. 88.312-93  Inherently Low-Emission Vehicle labeling.

    (a) Label design. (1) Label design shall consist of either of the 
following specifications:
    (i) The label shall consist of a white rectangular background, 
approximately 12 inches (30 centimeters) high by 18 inches (45 
centimeters) wide, with ``CLEAN AIR VEHICLE'' printed in contrasting 
block capital letters at least 4.3 inches (10.6 centimeters) tall and 
1.8 inches (4.4 centimeters) wide with a stroke width not less than 0.5 
inches (1.3 centimeters). In addition, the words ``INHERENTLY LOW-
EMISSION VEHICLE'' must be present in lettering no smaller than 1 inch 
(2.5 centimeters) high. Nothing shall be added to the label which 
impairs readability. Labels shall include a serialized identification 
number; or
    (ii) The label shall consist of a white truncated-circular 
background, approximately 10 inches (25 centimeters) in diameter by 7 
inches (17.5 centimeters) in height. The bottom edge of the truncated-
circular background shall be approximately 2 inches (5 centimeters) from 
the center. The acronym ``ILEV'' shall be printed on the label in 
contrasting block capital letters at least 2 inches (5 centimeters) tall 
and 1.5 inches (3.8 centimeters) wide with a stroke width not less than 
0.4 inches (1.0 centimeter). In addition, the words ``CLEAN AIR 
VEHICLE'' must be present in lettering no smaller than 0.8 inches (2.0 
centimeters) high. Nothing shall be added to the label which impairs 
readability. Labels shall include a serialized identification number.
    (2) The ILEV label shall be fabricated or affixed to a vehicle in 
such a manner that its removal from the vehicle cannot be accomplished 
without defacing or destroying the label in whole or in part.
    (3) Along with the manufacturer's application to certify a 
particular ILEV engine class, the manufacturer or the manufacturer's 
agent shall submit to EPA ILEV labels or reasonable facsimiles of the 
types which may be mounted on a certified ILEV vehicle of that class.
    (b) Eligibility. Vehicle manufacturers or their agents must install 
ILEV labels on a certified ILEV vehicle at the time of its sale to an 
eligible fleet owner if the vehicle is to be eligible for expanded TCM 
exemptions. An eligible fleet owner is one who is in a covered area and 
owns a total of at least ten motor vehicles (including the ILEV(s) being 
purchased) which operate in the owner's fleet. All of the following 
shall be provided to demonstrate eligibility: Photocopies of no less 
than nine motor vehicle registrations indicating registration in the 
ILEV purchaser's name, a signed statement by the ILEV purchaser that 
these vehicles are operational in the purchaser's fleet and that the 
ILEV being purchased will also be operated in this fleet, and a signed 
statement by the ILEV purchaser that the ILEV labels will be removed and 
disposed of when the vehicle is sold, given, leased (except as part of a 
daily rental fleet), or offered for long-term loan to someone who has 
not demonstrated eligibility for expanded TCMs available to ILEVs 
according to these criteria.
    (c) ILEV Label installation. (1) Except as provided for in this 
paragraph (c), no person shall attach an ILEV label or any facsimile of 
an ILEV label to any vehicle.
    (2)(i) The manufacturer or the manufacturer's agent shall attach 
three labels on the vehicle in plain sight: One on the rear of the 
vehicle and one on

[[Page 35]]

each of two sides of the vehicle. Each label shall conform to the 
specifications of paragraph (a) of this section.
    (ii) In the case that an ILEV label of the proportions specified in 
paragraph (a)(1) of this section cannot be attached to the rear of the 
ILEV, the manufacturer or the manufacturer's agent shall attach to the 
rear of the vehicle an ILEV label of either of the following 
proportions:
    (A) The label shall consist of a white rectangular background, 
approximately 4 inches (10 centimeters) high by 24 inches (60 
centimeters) wide, with ``CLEAN AIR VEHICLE'' printed in contrasting 
block capital letters at least 2.8 inches (7 centimeters) tall and 1.3 
inches (3.3 centimeters) wide with a stroke width not less than 0.3 
inches (0.8 centimeter). In addition, the words ``INHERENTLY LOW-
EMISSION VEHICLE'' must be present in lettering no smaller than 0.6 
inches (1.5 centimeters) high. Nothing shall be added to the label which 
impairs readability. Labels shall include a serialized identification 
number; or
    (B) The label shall consist of a white truncated-circular 
background, approximately 5 inches (12.5 centimeters) in diameter by 3.5 
inches (8.8 centimeters) in height. The bottom edge of the truncated-
circular background shall be approximately 1 inch (2.5 centimeters) from 
the center. The acronym ``ILEV'' shall be printed on the label in 
contrasting block capital letters at least 1 inch (2.5 centimeters) tall 
and 0.8 inches (2.0 centimeters) wide with a stroke width not less than 
0.3 inches (0.8 centimeters). In addition, the words ``CLEAN AIR 
VEHICLE'' must be present in lettering no smaller than 0.4 inches (1.0 
centimeter) high. Nothing shall be added to the label which impairs 
readability. Labels shall include a serialized identification number.
    (d) Label removal. Fleet ILEV owners shall remove and dispose of the 
ILEV labels on a vehicle before selling or transferring ownership of an 
ILEV or offering it for lease (unless the ILEV is part of a daily rental 
fleet) or long-term loan. This provision shall not apply if the person 
who is receiving the vehicle demonstrates eligibility for expanded TCM 
exemptions under the federal ILEV program as described in paragraph (b) 
of this section, or is otherwise qualified under state regulations which 
expressly expand ILEV label eligibility.
    (e) Label replacement. (1) The manufacturer shall make replacement 
ILEV labels available to the fleet owner of a qualifying ILEV to replace 
any ILEV label which has been lost or removed due to vehicle damage, 
repair, sale, or lease. The fleet owner's request shall include proof of 
ownership of the ILEV in question and proof of the fleet owner's 
eligibility for ILEV TCM exemptions, as outlined in paragraph (c) of 
this section. Each label shall be imprinted with the same serial number 
as initially assigned to the damaged/missing ILEV label(s) for that 
vehicle. Any portion of a damaged label remaining on the ILEV shall be 
removed from the vehicle and submitted with the request as proof of 
loss.
    (2) Upon receipt of the replacement ILEV label(s), the fleet owner 
shall attach the new ILEV label(s) only to the vehicle for which 
replacement ILEV label(s) were requested.

[58 FR 11901, Mar. 1, 1993, as amended at 61 FR 128, Jan. 3, 1996]



Sec. 88.313-93  Incentives for the purchase of Inherently Low-Emission Vehicles.

    (a) Administration. (1) The incentives granted to ILEVs provided in 
this section are not effective outside of nonattainment areas for which 
states are required to establish CFFV programs under section 246 of the 
CAA, unless specifically added by states for qualifying vehicles.
    (2) Incentives for purchasing ILEVs shall not be transferred between 
vehicles within the same fleet nor shall they be sold or traded.
    (3) No vehicle over 26,000 pounds (11,800 kilograms) GVWR shall be 
eligible for the following ILEV incentives.
    (b) Exemption from temporal TCMs. A fleet vehicle which has been 
certified and labeled as an ILEV according to the provisions of this 
section and which continues to be in compliance with applicable 
emissions standards and other ILEV program requirements shall be 
exempted from TCMs existing

[[Page 36]]

for air quality reasons included in approved state implementation plans 
which restrict vehicle usage based primarily on temporal considerations, 
such as time-of-day and day-of-week exemptions.
    (c) Exemption from high-occupancy vehicle lane restrictions. (1) A 
fleet vehicle which has been certified and labeled as an ILEV according 
to the provisions of Secs. 88.311 and 88.312 and which continues to be 
in compliance with applicable emissions standards and other ILEV program 
requirements shall be exempt from TCMs which restrict a vehicle's access 
to certain roadway lanes based on the number of occupants in that 
vehicle, usually known as high-occupancy vehicle (HOV) lanes. These 
exemptions shall not apply if they would create a clear and direct 
safety hazard.
    (2) In a state containing a covered area, or areas, the governor may 
petition the Administrator for a waiver from the exemption from HOV lane 
restrictions for ILEVs for any section of HOV lane in the covered 
area(s) that can be shown to be congested primarily due to the operation 
or projected operation of ILEVs. The waiver application shall 
demonstrate the infeasibility of other means of alleviating HOV/CAV lane 
congestion, such as adding an additional HOV/CAV lane, further 
increasing vehicle occupancy requirements and reducing the use of the 
lane by noneligible vehicles.

                     Tables to Subpart C of Part 88

   Table C94-1--Fleet Credit Table Based on Reduction in NMOG. Vehicle Equivalents for Light-Duty Vehicles and
                                                Light-Duty Trucks
       Table C94-1.1--Credit Generation: Purchasing More Clean-Fuel Vehicles Than Required by the Mandate
----------------------------------------------------------------------------------------------------------------
                                  LDV, LDT 6000     eq>6000 GVWR,   LDT >6000 GVWR,  LDT >6000 GVWR,   LDT >6000
              NMOG                GVWR, 3750 LVW 3750  >3750 ALVW 5750
                                   eq>3750 LVW    thn-eq>5750 LVW        ALVW         thn-eq>5750        ALVW
                                                                                          ALVW
----------------------------------------------------------------------------------------------------------------
LEV............................           1.00             1.26             0.71             0.91           1.11
ULEV...........................           1.20             1.54             1.00             1.26           1.56
ZEV............................           1.43             1.83             1.43             1.83           2.23
----------------------------------------------------------------------------------------------------------------


                 Table C94-1.2--Credit Generation: Purchasing a ULEV or ZEV To Meet the Mandate
----------------------------------------------------------------------------------------------------------------
                                 LDV, LDT  6000
                                  thn-eq>6000      eq>6000 GVWR,      LDT  >6000      GVWR,  >3750    LDT  >6000
             NMOG               GVWR,  3750 LVW  3750 LVW     thn-eq>5750 LVW    eq>3750 ALVW     eq>5750 ALVW    >5750 ALVW
 
----------------------------------------------------------------------------------------------------------------
LEV...........................           0.00              0.00             0.00             0.00           0.00
ULEV..........................           0.20              0.29             0.29             0.34           0.45
ZEV...........................           0.43              0.57             0.71             0.91           1.11
----------------------------------------------------------------------------------------------------------------


                                      Table C94-1.3--Credit Needed in Lieu of Purchasing a LEV To Meet the Mandate
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                       LDT  6000 GVWR,      LDT  >6000       LDT  >6000       LDT  >6000
                                                                       thn-eq>6000    >3750 LVW  3750   GVWR,  5750 LVW    eq>3750 ALVW    ALVW  5750 ALVW
                                                                       eq>3750 LVW                                        eq>5750 ALVW
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
LEV................................................................           1.00             1.26             0.71             0.91             1.11
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 37]]


 Table C94-2--Fleet Credit Table Based on Reduction in NMOG+NOx. Vehicle Equivalents for Light-Duty Vehicles and
                                                Light-Duty Trucks
       Table C94-2.1--Credit Generation: Purchasing More Clean-Fuel Vehicles Than Required by the Mandate
----------------------------------------------------------------------------------------------------------------
                                                   LDT  6000 GVWR,      LDT  >6000       LDT  >6000
                                   thn-eq>6000    >3750 LVW  3750    LDT  >6000
            NMOG+NOX             GVWR,  5750 LVW    eq>3750 ALVW    ALVW  3750 LVW                                        eq>5750 ALVW    >5750 ALVW
 
----------------------------------------------------------------------------------------------------------------
LEV............................           1.00             1.39             0.33             0.43           0.52
ULEV...........................           1.09             1.52             1.00             1.39           2.06
ZEV............................           1.73             2.72             1.73             2.72           3.97
----------------------------------------------------------------------------------------------------------------


                 Table C94-2.2--Credit Generation: Purchasing a ULEV or ZEV To Meet the Mandate
----------------------------------------------------------------------------------------------------------------
                                                   LDT  6000 GVWR,      LDT  >6000       LDT  >6000
                                   thn-eq>6000    >3750 LVW  3750    LDT  >6000
            NMOG+NOX             GVWR,  5750 LVW    eq>3750 ALVW    ALVW  3750 LVW                                        eq>5750 ALVW    >5750 ALVW
 
----------------------------------------------------------------------------------------------------------------
LEV............................           0.00             0.00             0.00             0.00           0.00
ULEV...........................           0.09             0.13             0.67             0.96           1.54
ZEV............................           0.73             1.34             1.40             2.29           3.45
----------------------------------------------------------------------------------------------------------------


                  Table C94-2.3--Credit Needed in Lieu of Purchasing a LEV To Meet the Mandate
----------------------------------------------------------------------------------------------------------------
                                                   LDT  6000 GVWR,    LDT  6000
                                   thn-eq>6000    >3750 LVW  6000 GVWR,     GVWR,  >3750    LDT  >6000
            NMOG+NOX             GVWR,  5750 LVW  3750   ALVW  3750 LVW                           ALVW         eq>5750 ALVW    >5750 ALVW
 
----------------------------------------------------------------------------------------------------------------
LEV............................           1.00             1.39             0.33             0.43           0.52
----------------------------------------------------------------------------------------------------------------


    Table C94-3--Fleet Credit Table Based on Reduction in Carbon Monoxide. Vehicle Equivalents for Light-Duty
                                         Vehicles and Light-Duty Trucks
       Table C94-3.1--Credit Generation: Purchasing More Clean-Fuel Vehicles Than Required by the Mandate
----------------------------------------------------------------------------------------------------------------
                                                   LDT  6000 GVWR,    LDT  6000
                                   thn-eq>6000    >3750 LVW  6000 GVWR,     GVWR,  >3750    LDT  >6000
               CO                GVWR,  5750 LVW  3750   ALVW  3750 LVW                           ALVW         eq>5750 ALVW    >5750 ALVW
 
----------------------------------------------------------------------------------------------------------------
LEV............................           1.00             1.00             1.00             1.00           1.00
ULEV...........................           2.00             2.29             2.00             2.29           2.47
ZEV............................           3.00             3.59             3.00             3.59           3.94
----------------------------------------------------------------------------------------------------------------


                 Table C94-3.2--Credit Generation: Purchasing a ULEV or ZEV To Meet the Mandate
----------------------------------------------------------------------------------------------------------------
                                                   LDT  6000 GVWR,      LDT  >6000       LDT  >6000
                                   thn-eq>6000    >3750 LVW  3750    LDT  >6000
               CO                GVWR,  5750 LVW    eq>3750 ALVW    ALVW  3750 LVW                                        eq>5750 ALVW    >5750 ALVW
 
----------------------------------------------------------------------------------------------------------------
LEV............................           0.00             0.00             0.00             0.00           0.00
ULEV...........................           1.00             1.00             1.00             1.00           1.00

[[Page 38]]

 
ZEV............................           2.00             2.29             2.00             2.29           2.47
----------------------------------------------------------------------------------------------------------------


                  Table C94-3.3--Credit Needed in Lieu of Purchasing a LEV To Meet The Mandate
----------------------------------------------------------------------------------------------------------------
                                                   LDT  6000 GVWR,      LDT  >6000       LDT  >6000
                                   thn-eq>6000    >3750 LVW  3750    LDT  >6000
               CO                GVWR,  5750 LVW    eq>3750 ALVW    ALVW  3750 LVW                                        eq>5750 ALVW    >5750 ALVW
 
----------------------------------------------------------------------------------------------------------------
LEV............................           1.00             1.00             1.00             1.00           1.00
----------------------------------------------------------------------------------------------------------------


 Table C94-4--Fleet Credit Table Based on Reduction in NMHC+NOX. Vehicle
 Equivalents for Heavy-Duty Vehicles--Table C94-4.1--Credit Generation:
    Purchasing More Clean-Fuel Vehicles Than Required by the Mandate
------------------------------------------------------------------------
                                              Light    Medium     Heavy
                 NMHC+NOX                      HDV       HDV       HDV
------------------------------------------------------------------------
LEV.......................................      1.00      1.00      1.00
ULEV......................................      1.87      1.87      1.87
ZEV.......................................      3.53      3.53      3.53
------------------------------------------------------------------------


 Table C94-4.2--Credit Generation: Purchasing a ULEV or ZEV to Meet the
                                 Mandate
------------------------------------------------------------------------
                                                        Light    Medium
                      NMHC+NOX                           HDV       HDV
------------------------------------------------------------------------
LEV.................................................      0.00      0.00
ULEV................................................      0.87      0.87
ZEV.................................................      2.53      2.53
------------------------------------------------------------------------


  Table C94-4.3--Credit Needed in Lieu of Purchasing a LEV to Meet the
                                 Mandate
------------------------------------------------------------------------
                                                        Light    Medium
                      NMHC+NOX                           HDV       HDV
------------------------------------------------------------------------
LEV.................................................      1.00      1.00
------------------------------------------------------------------------


    Table C94-5--Fleet Credit Table Based on Reduction in Co. Vehicle
 Equivalents for Heavy-Duty Vehicles--Table C94-5.1--Credit Generation:
    Purchasing More Clean-Fuel Vehicles Than Required by the Mandate
------------------------------------------------------------------------
                                              Light    Medium     Heavy
                    CO                         HDV       HDV       HDV
------------------------------------------------------------------------
LEV.......................................      1.00      1.00      1.00
ULEV......................................      2.00      2.00      2.00
ZEV.......................................      3.00      3.00      3.00
------------------------------------------------------------------------


 Table C94-5.2--Credit Generation: Purchasing a ULEV or ZEV to Meet the
                                 Mandate
------------------------------------------------------------------------
                                                        Light    Medium
                         CO                              HDV       HDV
------------------------------------------------------------------------
LEV.................................................      0.00      0.00
ULEV................................................      1.00      1.00
ZEV.................................................      2.00      2.00
------------------------------------------------------------------------


  Table C94-5.3--Credit Needed in Lieu of Purchasing a LEV to Meet the
                                 Mandate
------------------------------------------------------------------------
                                                        Light    Medium
                         CO                              HDV       HDV
------------------------------------------------------------------------
LEV.................................................      1.00      1.00
------------------------------------------------------------------------


[58 FR 11901, Mar. 1, 1993, as amended at 59 FR 50082, Sept. 30, 1994, 
61 FR 128, Jan. 3, 1996]

[[Page 39]]



PART 89--CONTROL OF EMISSIONS FROM NEW AND IN-USE NONROAD COMPRESSION-IGNITION ENGINES--Table of Contents




                           Subpart A--General

Sec.
89.1  Applicability.
89.2  Definitions.
89.3  Acronyms and abbreviations.
89.4  [Reserved]
89.5  Table and figure numbering; position.
89.6  Reference materials.
89.7  Treatment of confidential information.

Appendix A to Subpart A--State Regulation of Nonroad Internal Combustion 
          Engines

       Subpart B--Emission Standards and Certification Provisions

89.101  Applicability.
89.102  Effective dates, optional inclusion, flexibility for equipment 
          manufacturers.
89.103  Definitions.
89.104  Useful life, recall, and warranty periods.
89.105  Certificate of conformity.
89.106  Prohibited controls.
89.107  Defeat devices.
89.108  Adjustable parameters, requirements.
89.109  Maintenance instructions and minimum allowable maintenance 
          intervals.
89.110  Emission control information label.
89.111  Averaging, banking, and trading of exhaust emissions.
89.112  Oxides of nitrogen, carbon monoxide, hydrocarbon, and 
          particulate matter exhaust emission standards.
89.113  Smoke emission standard.
89.114  Special and alternate test procedures.
89.115  Application for certificate.
89.116  Engine families.
89.117  Test fleet selection.
89.118  Deterioration factors and service accumulation.
89.119  Emission tests.
89.120  Compliance with emission standards.
89.121  Certificate of conformity effective dates.
89.122  Certification.
89.123  Amending the application and certificate of conformity.
89.124  Record retention, maintenance, and submission.
89.125  Production engines, annual report.
89.126  Denial, revocation of certificate of conformity.
89.127  Request for hearing.
89.128  Hearing procedures.
89.129  Right of entry.
89.130  Rebuild practices.

          Subpart C--Averaging, Banking, and Trading Provisions

89.201  Applicability.
89.202  Definitions.
89.203  General provisions.
89.204  Averaging.
89.205  Banking.
89.206  Trading.
89.207  Credit calculation.
89.208  Labeling.
89.209  Certification.
89.210  Maintenance of records.
89.211  End-of-year and final reports.
89.212  Notice of opportunity for hearing.

              Subpart D--Emission Test Equipment Provisions

89.301  Scope; applicability.
89.302  Definitions.
89.303  Symbols/abbreviations.
89.304  Equipment required for gaseous emissions; overview.
89.305  Equipment measurement accuracy/calibration frequency.
89.306  Dynamometer specifications and calibration weights.
89.307  Dynamometer calibration.
89.308  Sampling system requirements for gaseous emissions.
89.309  Analyzers required for gaseous emissions.
89.310  Analyzer accuracy and specifications.
89.311  Analyzer calibration frequency.
89.312  Analytical gases.
89.313  Initial calibration of analyzers.
89.314  Pre- and post-test calibration of analyzers.
89.315  Analyzer bench checks.
89.316  Analyzer leakage and response time.
89.317  NOX converter check.
89.318  Analyzer interference checks.
89.319  Hydrocarbon analyzer calibration.
89.320  Carbon monoxide analyzer calibration.
89.321  Oxides of nitrogen analyzer calibration.
89.322  Carbon dioxide analyzer calibration.
89.323  NDIR analyzer calibration.
89.324  Calibration of other equipment.
89.325  Engine intake air temperature measurement.
89.326  Engine intake air humidity measurement.
89.327  Charge cooling.
89.328  Inlet and exhaust restrictions.
89.329  Engine cooling system.
89.330  Lubricating oil and test fuels.
89.331  Test conditions.

Appendix A to Subpart D--Tables
Appendix B to Subpart D--Figures

               Subpart E--Exhaust Emission Test Procedures

89.401  Scope; applicability.

[[Page 40]]

89.402  Definitions.
89.403  Symbols/abbreviations.
89.404  Test procedure overview.
89.405  Recorded information.
89.406  Pre-test procedures.
89.407  Engine dynamometer test run.
89.408  Post-test procedures.
89.409  Data logging.
89.410  Engine test cycle.
89.411  Exhaust sample procedure--gaseous components.
89.412  Raw gaseous exhaust sampling and analytical system description.
89.413  Raw sampling procedures.
89.414  Air flow measurement specifications.
89.415  Fuel flow measurement specifications.
89.416  Raw exhaust gas flow.
89.417  Data evaluation for gaseous emissions.
89.418  Raw emission sampling calculations.
89.419  Dilute gaseous exhaust sampling and analytical system 
          description.
89.420  Background sample.
89.421  Exhaust gas analytical system; CVS bag sample.
89.422  Dilute sampling procedures--CVS calibration.
89.423  [Reserved]
89.424  Dilute emission sampling calculations.
89.425  [Reserved]

Appendix A to Subpart E--Figures
Appendix B to Subpart E--Tables 1

                Subpart F--Selective Enforcement Auditing

89.501  Applicability.
89.502  Definitions.
89.503  Test orders.
89.504  Testing by the Administrator.
89.505  Maintenance of records; submittal of information.
89.506  Right of entry and access.
89.507  Sample selection.
89.508  Test procedures.
89.509  Calculation and reporting of test results.
89.510  Compliance with acceptable quality level and passing and failing 
          criteria for selective enforcement audits.
89.511  Suspension and revocation of certificates of conformity.
89.512  Request for public hearing.
89.513  Administrative procedures for public hearing.
89.514  Hearing procedures.
89.515  Appeal of hearing decision.
89.516  Treatment of confidential information.

Appendix A to Subpart F--Sampling Plans for Selective Enforcement 
          Auditing of Nonroad Engines

         Subpart G--Importation of Nonconforming Nonroad Engines

89.601  Applicability.
89.602  Definitions.
89.603  General requirements for importation of nonconforming nonroad 
          engines.
89.604  Conditional admission.
89.605  Final admission of certified nonroad engines.
89.606  Inspection and testing of imported nonroad engines.
89.607  Maintenance of independent commercial importer's records.
89.608  ``In Use'' inspections and recall requirements.
89.609  Final admission of modification nonroad engines and test nonroad 
          engines.
89.610  Maintenance instructions, warranties, emission labeling.
89.611  Exemptions and exclusions.
89.612  Prohibited acts; penalties.
89.613  Treatment of confidential information.

                      Subpart H--Recall Regulations

89.701  Applicability.
89.702  Definitions.
89.703  Applicability of part 85, subpart S.

            Subpart I--Emission Defect Reporting Requirements

89.801  Applicability.
89.802  Definitions.
89.803  Applicability of part 85, subpart T.

                     Subpart J--Exemption Provisions

89.901  Applicability.
89.902  Definitions.
89.903  Application of section 216(10) of the Act.
89.904  Who may request an exemption.
89.905  Testing exemption.
89.906  Manufacturer-owned exemption and precertification exemption.
89.907  Display exemption.
89.908  National security exemption.
89.909  Export exemptions.
89.910  Granting of exemptions.
89.911  Submission of exemption requests.
89.912  Treatment of confidential information.

      Subpart K--General Enforcement Provisions and Prohibited Acts

89.1001  Applicability.
89.1002  Definitions.
89.1003  Prohibited acts.
89.1004  General enforcement provisions.
89.1005  Injunction proceedings for prohibited acts.
89.1006  Penalties.
89.1007  Warranty provisions.

[[Page 41]]

89.1008  In-use compliance provisions.

    Authority: Sections 202, 203, 204, 205, 206, 207, 208, 209, 213, 
215, 216, and 301(a) of the Clean Air Act, as amended (42 U.S.C. 7521, 
7522, 7523, 7524, 7525, 7541, 7542, 7543, 7547, 7549, 7550, and 
7601(a)).

    Source: 59 FR 31335, June 17, 1994, unless otherwise noted.



                           Subpart A--General



Sec. 89.1  Applicability.

    (a) This part applies to nonroad compression-ignition engines.
    (b) The following nonroad engines are not subject to the provisions 
of this part:
    (1) Engines used in aircraft as defined in Sec. 87.1(a) of this 
chapter;
    (2) Engines used in underground mining or engines used in 
underground mining equipment and regulated by the Mining Safety and 
Health Administration (MSHA) in 30 CFR parts 7, 31, 32, 36, 56, 57, 70, 
and 75;
    (3) Engines subject to the standards of 40 CFR part 92 (engines 
exempted from the requirements of 40 CFR part 92 under 40 CFR 92.907 are 
subject to the requirements of this part 89);
    (4) Engines used in marine vessels as defined in the General 
Provisions of the United States Code, 1 U.S.C. 3, if those engines have 
a rated power at or above 37 kW; and
    (5) Engines with a per cylinder displacement of less than 50 cubic 
centimeters.

[59 FR 31335, June 17, 1994, as amended at 63 FR 18998, Apr. 16, 1998; 
63 FR 56996, Oct. 23, 1998]



Sec. 89.2  Definitions.

    The following definitions apply to part 89. All terms not defined 
herein have the meaning given them in the Act.
    Act means the Clean Air Act, as amended, 42 U.S.C. 7401 et seq.
    Adjustable parameter means any device, system, or element of design 
which is physically capable of being adjusted (including those which are 
difficult to access) and which, if adjusted, may affect emissions or 
engine performance during emission testing.
    Administrator means the Administrator of the Environmental 
Protection Agency or his or her authorized representative.
    Auxiliary emission control device (AECD) means any element of design 
that senses temperature, vehicle speed, engine RPM, transmission gear, 
or any other parameter for the purpose of activating, modulating, 
delaying, or deactivating the operation of any part of the emission 
control system.
    Auxiliary marine diesel engine means a marine diesel engine that is 
not a propulsion marine diesel engine.
    Blue Sky Series engine means a nonroad engine meeting the 
requirements of Sec. 89.112(f).
    Certification means, with respect to new nonroad engines, obtaining 
a certificate of conformity for an engine family complying with the 
nonroad engine emission standards and requirements specified in this 
part.
    Compression-ignition means relating to a type of engine with 
operating characteristics significantly similar to the theoretical 
Diesel combustion cycle. The non-use of a throttle to regulate intake 
air flow for controlling power during normal operation is indicative of 
a compression-ignition engine. This definition is applicable beginning 
January 1, 2000.
    Constant-speed engine means an engine that is governed to operate 
only at rated speed.
    Crankcase emissions means airborne substances emitted to the 
atmosphere from any portion of the engine crankcase ventilation or 
lubrication systems.
    Emission control system means any device, system, or element of 
design which controls or reduces the emission of substances from an 
engine.
    Engine, as used in this part, refers to nonroad engine.
    Engine manufacturer means any person engaged in the manufacturing or 
assembling of new nonroad engines or importing such engines for resale, 
or who acts for and is under the control of any such person in 
connection with the distribution of such engines. Engine manufacturer 
does not include any dealer with respect to new nonroad engines received 
by such person in commerce.

[[Page 42]]

    Engine used in a locomotive means either an engine placed in the 
locomotive to move other equipment, freight, or passenger traffic, or an 
engine mounted on the locomotive to provide auxiliary power.
    EPA enforcement officer means any officer or employee of the 
Environmental Protection Agency so designated in writing by the 
Administrator (or by his or her designee).
    Exhaust gas recirculation means an emission control technology that 
reduces emissions by routing exhaust gases that had been exhausted from 
the combustion chamber(s) back into the engine to be mixed with incoming 
air prior to or during combustion. The use of valve timing to increase 
the amount of residual exhaust gas in the combustion chamber(s) that is 
mixed with incoming air prior to or during combustion is not considered 
to be exhaust gas recirculation for the purposes of this part.
    Family emission limit (FEL) means an emission level that is declared 
by the manufacturer to serve in lieu of an emission standard for 
certification purposes and for the averaging, banking, and trading 
program. A FEL must be expressed to the same number of decimal places as 
the applicable emission standard.
    Full load governed speed is the maximum full load speed as specified 
by the manufacturer in the sales and service literature and 
certification application. This speed is the highest engine speed with 
an advertised power greater than zero.
    Gross power means the power measured at the crankshaft or its 
equivalent, the engine being equipped only with the standard accessories 
(such as oil pumps, coolant pumps, and so forth) necessary for its 
operation on the test bed. Alternators must be used, if necessary, to 
run the engine. Fans, air conditioners, and other accessories may be 
used at the discretion of the manufacturer, but no power adjustments for 
these accessories may be made.
    Identification number means a specification (for example, model 
number/serial number combination) which allows a particular nonroad 
engine to be distinguished from other similar engines.
    Intermediate speed means peak torque speed if peak torque speed 
occurs from 60 to 75 percent of rated speed. If peak torque speed is 
less than 60 percent of rated speed, intermediate speed means 60 percent 
of rated speed. If peak torque speed is greater than 75 percent of rated 
speed, intermediate speed means 75 percent of rated speed.
    Marine diesel engine means a compression-ignition engine that is 
intended to be installed on a vessel.
    Model year (MY) means the manufacturer's annual new model production 
period which includes January 1 of the calendar year, ends no later than 
December 31 of the calendar year, and does not begin earlier than 
January 2 of the previous calendar year. Where a manufacturer has no 
annual new model production period, model year means calendar year.
    New, for purposes of this part, means a nonroad engine, nonroad 
vehicle, or nonroad equipment the equitable or legal title to which has 
never been transferred to an ultimate purchaser until after the engine, 
vehicle, or equipment is placed into service, then the engine, vehicle, 
or equipment will no longer be new after it is placed into service. A 
nonroad engine, vehicle, or equipment is placed into service when it is 
used for its functional purposes. With respect to imported nonroad 
engines, nonroad vehicles, or nonroad equipment, the term ``new'' means 
an engine, vehicle, or piece of equipment that is not covered by a 
certificate of conformity issued under this part at the time of 
importation, and that is manufactured after the effective date of a 
regulation issued under this part which is applicable to such engine, 
vehicle, or equipment (or which would be applicable to such engine, 
vehicle, or equipment had it been manufactured for importation into the 
United States.
    Nonroad engine means:
    (1) Except as discussed in paragraph (2) of this definition, a 
nonroad engine is any internal combustion engine:

[[Page 43]]

    (i) In or on a piece of equipment that is self-propelled or serves a 
dual purpose by both propelling itself and performing another function 
(such as garden tractors, off-highway mobile cranes and bulldozers); or
    (ii) In or on a piece of equipment that is intended to be propelled 
while performing its function (such as lawnmowers and string trimmers); 
or
    (iii) That, by itself or in or on a piece of equipment, is portable 
or transportable, meaning designed to be and capable of being carried or 
moved from one location to another. Indicia of transportability include, 
but are not limited to, wheels, skids, carrying handles, dolly, trailer, 
or platform.
    (2) An internal combustion engine is not a nonroad engine if:
    (i) the engine is used to propel a motor vehicle or a vehicle used 
solely for competition, or is subject to standards promulgated under 
section 202 of the Act; or
    (ii) the engine is regulated by a federal New Source Performance 
Standard promulgated under section 111 of the Act; or
    (iii) the engine otherwise included in paragraph (1)(iii) of this 
definition remains or will remain at a location for more than 12 
consecutive months or a shorter period of time for an engine located at 
a seasonal source. A location is any single site at a building, 
structure, facility, or installation. Any engine (or engines) that 
replaces an engine at a location and that is intended to perform the 
same or similar function as the engine replaced will be included in 
calculating the consecutive time period. An engine located at a seasonal 
source is an engine that remains at a seasonal source during the full 
annual operating period of the seasonal source. A seasonal source is a 
stationary source that remains in a single location on a permanent basis 
(i.e., at least two years) and that operates at that single location 
approximately three months (or more) each year. This paragraph does not 
apply to an engine after the engine is removed from the location.
    Nonroad equipment means equipment that is powered by nonroad 
engines.
    Nonroad vehicle means a vehicle that is powered by a nonroad engine 
as defined in this section and that is not a motor vehicle or a vehicle 
used solely for competition.
    Nonroad vehicle or nonroad equipment manufacturer means any person 
engaged in the manufacturing or assembling of new nonroad vehicles or 
equipment r importing such vehicles or equipment for resale, or who acts 
for and is under the control of any such person in connection with the 
distribution of such vehicles or equipment. A nonroad vehicle or 
equipment manufacturer does not include any dealer with respect to new 
nonroad vehicles or equipment received by such person in commerce. A 
nonroad vehicle or equipment manufacturer does not include any person 
engaged in the manufacturing or assembling of new nonroad vehicles or 
equipment who does not install an engine as part of that manufacturing 
or assembling process. All nonroad vehicle or equipment manufacturing 
entities that are under the control of the same person are considered to 
be a single nonroad vehicle or nonroad equipment manufacturer.
    Opacity means the fraction of a beam of light, expressed in percent, 
which fails to penetrate a plume of smoke.
    Operating hours means:
    (1) For engine storage areas or facilities, all times during which 
personnel other than custodial personnel are at work in the vicinity of 
the storage area or facility and have access to it.
    (2) For all other areas or facilities, all times during which an 
assembly line is in operation or all times during which testing, 
maintenance, service accumulation, production or compilation of records, 
or any other procedure or activity related to certification testing, to 
translation of designs from the test stage to the production stage, or 
to engine manufacture or assembly is being carried out in a facility.
    Post-manufacture marinizer means a person who produces a marine 
diesel engine by substantially modifying a certified or uncertified 
complete or partially complete engine, and is not controlled by the 
manufacturer of the base engine or by an entity that also controls the 
manufacturer of the base engine. For the purpose of this definition, 
``substantially modify'' means changing an engine in a way that could

[[Page 44]]

change engine emission characteristics.
    Presentation of credentials means the display of the document 
designating a person as an EPA enforcement officer or EPA authorized 
representative.
    Propulsion marine diesel engine means a marine diesel engine that is 
intended to move a vessel through the water or direct the movement of a 
vessel.
    Rated speed is the maximum full load governed speed for governed 
engines and the speed of maximum horsepower for ungoverned engines.
    Specific emissions means emissions expressed on the basis of 
observed brake power, using units of g/kW-hr. Observed brake power 
measurement includes accessories on the engine if these accessories are 
required for running an emission test (except for the cooling fan). When 
it is not possible to test the engine in the gross conditions, for 
example, if the engine and transmission form a single integral unit, the 
engine may be tested in the net condition. Power corrections from net to 
gross conditions will be allowed with prior approval of the 
Administrator.
    Test fleet means the engine or group of engines that a manufacturer 
uses during certification to determine compliance with emission 
standards.
    Tier 1 engine means an engine subject to the Tier 1 emission 
standards listed in Sec. 89.112(a).
    Tier 2 engine means an engine subject to the Tier 2 emission 
standards listed in Sec. 89.112(a).
    Tier 3 engine means an engine subject to the Tier 3 emission 
standards listed in Sec. 89.112(a).
    Ultimate purchaser means, with respect to any new nonroad engine, 
new nonroad vehicle, or new nonroad equipment, the first person who in 
good faith purchases such new nonroad engine, nonroad vehicle, or 
nonroad equipment for purposes other than resale.
    Used solely for competition means exhibiting features that are not 
easily removed and that would render its use other than in competition 
unsafe, impractical, or highly unlikely.
    U.S.-directed production volume means the number of nonroad 
equipment, vehicle, or marine diesel engine units produced by a 
manufacturer for which the manufacturer has reasonable assurance that 
sale was or will be made to ultimate purchasers in the United States.
    Vessel has the meaning given to it in 1 U.S.C. 3.

[59 FR 31335, June 17, 1994, as amended at 61 FR 52102, Oct. 4, 1996; 63 
FR 18998, Apr. 16, 1998; 63 FR 56996, Oct. 23, 1998]



Sec. 89.3  Acronyms and abbreviations.

    The following acronyms and abbreviations apply to part 89.

AECD Auxiliary emission control device
ASME American Society of Mechanical Engineers
ASTM American Society for Testing and Materials
CAA Clean Air Act
CAAA Clean Air Act Amendments of 1990
CI Compression-ignition
CO Carbon monoxide
CO2 Carbon dioxide
EGR Exhaust gas recirculation
EPA Environmental Protection Agency
FEL Family emission limit
FTP Federal Test Procedure
g/kW-hr Grams per kilowatt hour
HC Hydrocarbons
ICI Independent Commercial Importer
kW Kilowatt
NIST National Institute for Standards and Testing
NMHC Nonmethane hydrocarbon
NTIS National Technical Information Service
NO Nitric oxide
NO2 Nitrogen dioxide
NOX Oxides of nitrogen
O2 Oxygen
OEM Original equipment manufacturer
PM Particulate matter
SAE Society of Automotive Engineers
SEA Selective Enforcement Auditing
SI Spark-ignition
THC Total hydrocarbon
U.S.C. United States Code
VOC Volatile organic compounds

[59 FR 31335, June 17, 1994, as amended at 63 FR 56997, Oct. 23, 1998]



Sec. 89.4  [Reserved]



Sec. 89.5  Table and figure numbering; position.

    (a) Tables for each subpart appear in an appendix at the end of the 
subpart. Tables are numbered consecutively by order of appearance in the 
appendix. The table title will indicate the model year (if applicable) 
and the topic.
    (b) Figures for each subpart appear in an appendix at the end of the 
subpart.

[[Page 45]]

Figures are numbered consecutively by order of appearance in the 
appendix. The figure title will indicate the model year (if applicable) 
and the topic.



Sec. 89.6  Reference materials.

    (a) Incorporation by reference. The documents in paragraph (b) of 
this section have been incorporated by reference. The 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 
inspected at US EPA, OAR, 401 M Street SW., Washington, DC 20460, or at 
the Office of the Federal Register, 800 N. Capitol Street NW., Suite 
700, Washington, DC.
    (b) The following paragraphs and tables set forth the material that 
has been incorporated by reference in this part.
    (1) ASTM material. The following table sets forth material from the 
American Society for Testing and Materials which has been incorporated 
by reference. The first column lists the number and name of the 
material. The second column lists the section(s) of this part, other 
than Sec. 89.6, in which the matter is referenced. The second column is 
presented for information only and may not be all inclusive. Copies of 
these materials may be obtained from American Society for Testing and 
Materials, 100 Barr Harbor Drive, West Conshohocken, PA 19428-2959.

------------------------------------------------------------------------
           Document number and name             40 CFR part 89 reference
------------------------------------------------------------------------
ASTM D86-97:
    ``Standard Test Method for Distillation    Appendix A to Subpart D.
     of Petroleum Products at Atmospheric
     Pressure''.
ASTM D93-97:
    ``Standard Test Methods for Flash Point    Appendix A to Subpart D.
     by Pensky-Martens Closed Cup Tester''.
ASTM D129-95:
    ``Standard Test Method for Sulfur in       Appendix A to Subpart D.
     Petroleum Products (General Bomb
     Method)''.
ASTM D287-92:
    ``Standard Test Method for API Gravity of  Appendix A to Subpart D
     Crude Petroleum and Petroleum Products''
     (Hydrometer Method).
ASTM D445-97:
    ``Standard Test Method for Kinematic       Appendix A to Subpart D.
     Viscosity of Transparent and Opaque
     Liquids (the Calculation of Dynamic
     Viscosity)''.
ASTM D613-95:
    ``Standard Test Method for Cetane Number   Appendix A to Subpart D.
     of Diesel Fuel Oil''.
ASTM D1319-98:
    ``Standard Test Method for Hydrocarbon     Appendix A to Subpart D.
     Types in Liquid Petroleum Products by
     Fluorescent Indicator Adsorption''.
ASTM D2622-98:
    ``Standard Test Method for Sulfur in       Appendix A to Subpart D.
     Petroleum Products by Wavelength
     Dispersive X-ray Fluorescence
     Spectrometry''.
ASTM D5186-96:
    ``Standard Test Method for                 Appendix A to Subpart D.
     ``Determination of the Aromatic Content
     and Polynuclear Aromatic Content of
     Diesel Fuels and Aviation Tubine Fuels
     By Supercritical Fluid Chromatography''.
ASTM E29-93a:
    ``Standard Practice for Using Significant  89.120; 89.207; 89.509.
     Digits in Test Data to Determine
     Conformance with Specifications''.
------------------------------------------------------------------------


[59 FR 31335, June 17, 1994, as amended at 63 FR 56997, Oct. 23, 1998]



Sec. 89.7  Treatment of confidential information.

    (a) Any manufacturer may assert that some or all of the information 
submitted pursuant to this part is entitled to confidential treatment as 
provided by part 2, subpart B of this chapter.
    (b) Any claim of confidentiality must accompany the information at 
the time it is submitted to EPA.
    (c) To assert that information submitted pursuant to this part is 
confidential, a manufacturer must indicate clearly the items of 
information claimed confidential by marking, circling, bracketing, 
stamping, or otherwise specifying the confidential information. 
Furthermore, EPA requests, but does not require, that the submitter also 
provide a second copy of its submittal from which all confidential 
information has been deleted. If a need arises to publicly release 
nonconfidential information, EPA will assume that the submitter has 
accurately deleted

[[Page 46]]

the confidential information from this second copy.
    (d) If a claim is made that some or all of the information submitted 
pursuant to this part is entitled to confidential treatment, the 
information covered by that confidentiality claim will be disclosed by 
the Administrator only to the extent and by means of the procedures set 
forth in part 2, subpart B of this chapter.
    (e) Information provided without a claim of confidentiality at the 
time of submission may be made available to the public by EPA without 
further notice to the submitter, in accordance with 
Sec. 2.204(c)(2)(i)(A) of this chapter.

Appendix A to Subpart A--State Regulation of Nonroad Internal Combustion 
                                 Engines

    This appendix sets forth the Environmental Protection Agency's 
(EPA's) interpretation of the Clean Air Act regarding the authority of 
states to regulate the use and operation of nonroad engines.
    EPA believes that states are not precluded under section 209 from 
regulating the use and operation of nonroad engines, such as regulations 
on hours of usage, daily mass emission limits, or sulfur limits on fuel; 
nor are permits regulating such operations precluded, once the engine is 
no longer new. EPA believes that states are precluded from requiring 
retrofitting of used nonroad engines except that states are permitted to 
adopt and enforce any such retrofitting requirements identical to 
California requirements which have been authorized by EPA under section 
209 of the Clean Air Act.

[62 FR 67736, Dec. 30, 1997]



       Subpart B--Emission Standards and Certification Provisions



Sec. 89.101  Applicability.

    The requirements of subpart B are applicable to all new nonroad 
compression-ignition engines subject to the provisions of subpart A of 
part 89, pursuant to the schedule delineated in Sec. 89.102.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.102  Effective dates, optional inclusion, flexibility for equipment manufacturers.

    (a) This subpart applies to all engines described in Sec. 89.101 
with the following power rating and manufactured after the following 
dates:
    (1) Less than 19 kW and manufactured on or after January 1, 2000;
    (2) Greater than or equal to 19 kW but less than 37 kW and 
manufactured on or after January 1, 1999;
    (3) Greater than or equal to 37 kW but less than 75 kW and 
manufactured on or after January 1, 1998;
    (4) Greater than or equal to 75 kW but less than 130 kW and 
manufactured on or after January 1, 1997;
    (5) Greater than or equal to 130 kW but less than or equal to 560 kW 
and manufactured on or after January 1, 1996;
    (6) Greater than 560 kW and manufactured on or after January 1, 
2000.
    (b) A manufacturer can optionally certify engines manufactured up to 
one calendar year prior to the effective date of mandatory certification 
to earn emission credits under the averaging, banking, and trading 
program. Such optionally certified engines are subject to all provisions 
relating to mandatory certification and enforcement described in this 
part.
    (c) Engines meeting the voluntary standards described in 
Sec. 89.112(f) may be designated as Blue Sky Series engines through the 
2004 model year.
    (d) Implementation flexibility for equipment and vehicle 
manufacturers and post-manufacture marinizers. Nonroad equipment and 
vehicle manufacturers and post-manufacture marinizers may take any of 
the otherwise prohibited actions identified in Sec. 89.1003(a)(1) with 
respect to nonroad equipment and vehicles and marine diesel engines, 
subject to the requirements of paragraph (e) of this section. The 
following allowances apply separately to each engine power category 
subject to standards under Sec. 89.112:
    (1) Percent-of-production allowances. (i) Equipment rated at or 
above 37 kW. For nonroad equipment and vehicles with engines rated at or 
above 37 kW, a manufacturer may take any of the actions identified in 
Sec. 89.1003(a)(1) for a portion of its U.S.-directed production volume 
of such equipment and vehicles during the seven years immediately 
following the date on which Tier 2 engine standards first apply to 
engines used in such equipment and vehicles,

[[Page 47]]

provided that the seven-year sum of these portions in each year, as 
expressed as a percentage for each year, does not exceed 80, and 
provided that all such equipment and vehicles or equipment contain Tier 
1 engines;
    (ii) Equipment rated under 37 kW. For nonroad equipment and vehicles 
and marine diesel engines with engines rated under 37 kW, a manufacturer 
may take any of the actions identified in Sec. 89.1003(a)(1) for a 
portion of its U.S.-directed production volume of such equipment and 
vehicles during the seven years immediately following the date on which 
Tier 1 engine standards first apply to engines used in such equipment 
and vehicles, provided that the seven-year sum of these portions in each 
year, as expressed as a percentage for each year, does not exceed 80.
    (2) Small volume allowances. A nonroad equipment or vehicle 
manufacturer or post-manufacture marinizer may exceed the production 
percentages in paragraph (d)(1) of this section, provided that in each 
regulated power category the manufacturer's total of excepted nonroad 
equipment and vehicles and marine diesel engines:
    (i) Over the years in which the percent-of-production allowance 
applies does not exceed 100 units times the number of years in which the 
percent-of-production allowance applies; and
    (ii) Does not exceed 200 units in any year; and
    (iii) Does not use engines from more than one engine family, or, for 
excepted equipment vehicles, and marine diesel engines using engines not 
belonging to any engine family, from more than one engine manufacturer.
    (3) Inclusion of previous-tier engines. Nonroad equipment and 
vehicles and marine diesel engines built with previous tier or 
noncertified engines under the existing inventory provisions of 
Sec. 89.1003(b)(4) need not be included in determining compliance with 
paragraphs (d)(1) and (d)(2) of this section.
    (e) Recordkeeping and calculation to verify compliance. The 
following shall apply to nonroad equipment or vehicle manufacturers and 
post-manufacture marinizers who produce excepted equipment or vehicles 
or marine diesel engines under the provisions of paragraph (d) of this 
section:
    (1) For each power category in which excepted nonroad equipment or 
vehicles or marine diesel engines are produced, a calculation to verify 
compliance with the requirements of paragraph (d) of this section shall 
be made by the nonroad equipment or vehicle manufacturer or post-
manufacture marinizer. This calculation shall be made no later than 
December 31 of the year following the last year in which allowances are 
used, and shall be based on actual production information from the 
subject years. If both the percent-of-production and small volume 
allowances have been exceeded, then the manufacturer is in violation of 
section 203 of the Act and Sec. 89.1003, except as provided under 
paragraphs (f) and (h) of this section.
    (2) A nonroad equipment or vehicle manufacturer or post-manufacture 
marinizer shall keep records of all nonroad equipment and vehicles and 
marine diesel engines excepted under the provisions of paragraph (d) of 
this section, for each power category in which exceptions are taken. 
These records shall include equipment and engine model numbers, serial 
numbers, and dates of manufacture, and engine rated power. In addition, 
the manufacturer shall keep records sufficient to demonstrate the 
verifications of compliance required in paragraph (e)(1) of this 
section. All records shall be kept until at least two full years after 
the final year in which allowances are available for each power 
category, and shall be made available to EPA upon request.
    (f) Hardship relief. Nonroad equipment and vehicle manufacturers and 
post-manufacture marinizers may take any of the otherwise prohibited 
actions identified in Sec. 89.1003(a)(1) if approved by the 
Administrator, and subject to the following requirements:
    (1) Application for relief must be submitted to the Engine Programs 
and Compliance Division of the EPA in writing prior to the earliest date 
in which the applying manufacturer would be in violation of 
Sec. 89.1003. The manufacturer must submit evidence showing that the 
requirements for approval have been met.
    (2) The applying manufacturer must not be the manufacturer of the 
engines

[[Page 48]]

used in the equipment for which relief is sought. This requirement does 
not apply to post-manufacture marinizers.
    (3) The conditions causing the impending violation must not be 
substantially the fault of the applying manufacturer.
    (4) The conditions causing the impending violation must be such that 
the applying manufacturer will experience serious economic hardship if 
relief is not granted.
    (5) The applying manufacturer must demonstrate that no allowances 
under paragraph (d) of this section will be available to avoid the 
impending violation.
    (6) Any relief granted must begin within one year after the 
implementation date of the standard applying to the engines being used 
in the equipment, or to the marine diesel engines, for which relief is 
requested, and may not exceed one year in duration.
    (7) The Administrator may impose other conditions on the granting of 
relief including provisions to recover the lost environmental benefit.
    (g) Allowance for the production of engines. Engine manufacturers 
may take any of the otherwise prohibited actions identified in 
Sec. 89.1003(a)(1) with regard to uncertified engines or Tier 1 engines, 
as appropriate, if the engine manufacturer has received written 
assurance from the equipment manufacturer that the engine is required to 
meet the demand for engines created under paragraph (d), (f), or (h) of 
this section.
    (h) Alternative Flexibility for Post-Manufacture Marinizers. Post-
manufacture marinizers may elect to delay the effective date of the Tier 
1 standards in Sec. 89.112 for marine diesel engines rated under 37 kW 
by one year, instead of using the provisions of paragraphs (d) and (f) 
of this section. Post-manufacture marinizers wishing to take advantage 
of this provision must inform the Director of the Engine Programs and 
Compliance Division of their intent to do so in writing before the date 
that the standards would otherwise take effect.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
56997, Oct. 23, 1998]



Sec. 89.103  Definitions.

    The definitions in subpart A of part 89 apply to this subpart. All 
terms not defined herein or in subpart A have the meaning given them in 
the Act.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.104  Useful life, recall, and warranty periods.

    (a) The useful life is based on the rated power and rated speed of 
the engine.
    (1) For all engines rated under 19 kW, and for constant speed 
engines rated under 37 kW with rated speeds greater than or equal to 
3,000 rpm, the useful life is a period of 3,000 hours or five years of 
use, whichever first occurs.
    (2) For all other engines rated at or above 19 kW and under 37 kW, 
the useful life is a period of 5,000 hours or seven years of use, 
whichever first occurs.
    (3) For all engines rated at or above 37 kW, the useful life is a 
period of 8,000 hours of operation or ten years of use, whichever first 
occurs.
    (b) Engines are subject to recall testing for a period based on the 
rated power and rated speed of the engines. However, in a recall, 
engines in the subject class or category would be subject to recall 
regardless of actual years or hours of operation.
    (1) For all engines rated under 19 kW, and for constant speed 
engines rated under 37 kW with rated speeds greater than or equal to 
3,000 rpm, the engines are subject to recall testing for a period of 
2,250 hours or four years of use, whichever first occurs.
    (2) For all other engines rated at or above 19 kW and under 37 kW, 
the engines are subject to recall for a period of 3,750 hours or five 
years of use, whichever first occurs.
    (3) For all engines rated at or above 37 kW, the engines are subject 
to recall for a period of 6,000 hours of operation or seven years of 
use, whichever first occurs.
    (c) The warranty periods for warranties imposed by the Clean Air Act 
and Sec. 89.1007 for all engines rated under 19 kW, and for constant 
speed engines rated under 37 kW with rated speeds greater than or equal 
to 3,000 rpm, are

[[Page 49]]

1,500 hours of operation or two years of use, whichever first occurs. 
For all other engines, the warranty periods for warranties imposed by 
the Clean Air Act and Sec. 89.1007 are 3,000 hours of operation or five 
years of use, whichever first occurs.
    (d) Manufacturers may apply to the Administrator for approval for a 
shorter useful life period for engines that are subject to severe 
service in seasonal equipment, or are designed specifically for lower 
useful life hours to match equipment life. Such an application must be 
made prior to certification.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
56998, Oct. 23, 1998]



Sec. 89.105  Certificate of conformity.

    Every manufacturer of a new nonroad compression-ignition engine must 
obtain a certificate of conformity covering the engine family, as 
described in Sec. 89.116. The certificate of conformity must be obtained 
from the Administrator prior to selling, offering for sale, introducing 
into commerce, or importing into the United States the new nonroad 
compression-ignition engine for each model year.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.106  Prohibited controls.

    (a) An engine may not be equipped with an emission control system 
for the purpose of complying with emission standards if such system will 
cause or contribute to an unreasonable risk to public health, welfare, 
or safety in its operation or function.
    (b) An engine with an emission control system may not emit any 
noxious or toxic substance which would not be emitted in the operation 
of such engine in the absence of such system except as specifically 
permitted by regulation.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.107  Defeat devices.

    (a) An engine may not be equipped with a defeat device.
    (b) For purposes of this section, ``defeat device'' means any 
device, system, or element of design which senses operation outside 
normal emission test conditions and reduces emission control 
effectiveness.
    (1) Defeat device includes any auxiliary emission control device 
(AECD) that reduces the effectiveness of the emission control system 
under conditions which may reasonably be expected to be encountered in 
normal operation and use unless such conditions are included in the test 
procedure.
    (2) Defeat device does not include such items which either operate 
only during engine starting or are necessary to protect the engine (or 
equipment in which it is installed) against damage or accident during 
its operation.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.108  Adjustable parameters, requirements.

    (a) Nonroad engines equipped with adjustable parameters must comply 
with all requirements of this subpart for any adjustment in the 
physically adjustable range.
    (b) An operating parameter is not considered adjustable if it is 
permanently sealed or otherwise not normally accessible using ordinary 
tools.
    (c) The Administrator may require that adjustable parameters be set 
to any specification within its adjustable range for certification, 
selective enforcement audit, or in-use testing to determine compliance 
with the requirements of this subpart.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.109  Maintenance instructions and minimum allowable maintenance intervals.

    (a) The manufacturer must furnish or cause to be furnished to the 
ultimate purchaser of each new nonroad engine subject to standards under 
this part written instructions for the maintenance needed to ensure 
proper functioning of the emission control system. Paragraphs (b) 
through (h) of this section do not apply to Tier 1 engines with rated 
power at or above 37 kW.
    (b) Maintenance performed on equipment, engines, subsystems or 
components used to determine exhaust emission deterioration factors is 
classified as either emission-related or nonemission-related and each of 
these can be

[[Page 50]]

classified as either scheduled or unscheduled. Further, some emission-
related maintenance is also classified as critical emission-related 
maintenance.
    (c) This paragraph (c) specifies emission-related scheduled 
maintenance for purposes of obtaining durability data for nonroad 
engines. The maintenance intervals specified below are minimum 
intervals:
    (1) All emission-related scheduled maintenance for purposes of 
obtaining durability data must occur at the same or longer hours of use 
intervals as those specified in the manufacturer's maintenance 
instructions furnished to the ultimate purchaser of the engine under 
paragraph (a) of this section. This maintenance schedule may be updated 
as necessary throughout the testing of the engine, provided that no 
maintenance operation is deleted from the maintenance schedule after the 
operation has been performed on the test equipment or engine.
    (2) Any emission-related maintenance which is performed on 
equipment, engines, subsystems, or components must be technologically 
necessary to ensure in-use compliance with the emission standards. The 
manufacturer must submit data which demonstrate to the Administrator 
that all of the emission-related scheduled maintenance which is to be 
performed is technologically necessary. Scheduled maintenance must be 
approved by the Administrator prior to being performed or being included 
in the maintenance instructions provided to the purchasers under 
paragraph (a) of this section.
    (i) The Administrator may require longer maintenance intervals than 
those listed in paragraphs (c)(3) and (c)(4) of this section where the 
listed intervals are not technologically necessary.
    (ii) The Administrator may allow manufacturers to specify shorter 
maintenance intervals than those listed in paragraphs (c)(3) and (c)(4) 
of this section where technologically necessary for engines rated under 
19 kW, or for constant speed engines rated under 37 kW with rated speeds 
greater than or equal to 3,000 rpm.
    (3) The adjustment, cleaning, repair, or replacement of items listed 
in paragraphs (c)(3)(i) through (c)(3)(iii) of this section shall occur 
at 1,500 hours of use and at 1,500-hour intervals thereafter.
    (i) Exhaust gas recirculation system-related filters and coolers.
    (ii) Positive crankcase ventilation valve.
    (iii) Fuel injector tips (cleaning only).
    (4) The adjustment, cleaning and repair of items in paragraphs 
(c)(4)(i) through (c)(4)(vii) of this section shall occur at 3,000 hours 
of use and at 3,000-hour intervals thereafter for nonroad compression-
ignition engines rated under 130 kW, or at 4,500-hour intervals 
thereafter for nonroad compression-ignition engines rated at or above 
130 kW.
    (i) Fuel injectors.
    (ii) Turbocharger.
    (iii) Electronic engine control unit and its associated sensors and 
actuators.
    (iv) Particulate trap or trap-oxidizer system (including related 
components).
    (v) Exhaust gas recirculation system (including all related control 
valves and tubing) except as otherwise provided in paragraph (c)(3)(i) 
of this section.
    (vi) Catalytic convertor.
    (vii) Any other add-on emission-related component (i.e., a component 
whose sole or primary purpose is to reduce emissions or whose failure 
will significantly degrade emission control and whose function is not 
integral to the design and performance of the engine).
    (d) Scheduled maintenance not related to emissions which is 
reasonable and technologically necessary (e.g., oil change, oil filter 
change, fuel filter change, air filter change, cooling system 
maintenance, adjustment of idle speed, governor, engine bolt torque, 
valve lash, injector lash, timing, lubrication of the exhaust manifold 
heat control valve, etc.) may be performed on durability vehicles at the 
least frequent intervals recommended by the manufacturer to the ultimate 
purchaser, (e.g., not the intervals recommended for severe service).
    (e) Adjustment of engine idle speed on emission data engines may be 
performed once before the low-hour emission test point. Any other 
engine,

[[Page 51]]

emission control system, or fuel system adjustment, repair, removal, 
disassembly, cleaning, or replacement on emission data vehicles shall be 
performed only with advance approval of the Administrator.
    (f) Equipment, instruments, or tools may not be used to identify 
malfunctioning, maladjusted, or defective engine components unless the 
same or equivalent equipment, instruments, or tools will be available to 
dealerships and other service outlets and:
    (1) Are used in conjunction with scheduled maintenance on such 
components; or
    (2) Are used subsequent to the identification of a vehicle or engine 
malfunction, as provided in paragraph (e) of this section for emission 
data engines; or
    (3) Specifically authorized by the Administrator.
    (g) All test data, maintenance reports, and required engineering 
reports shall be compiled and provided to the Administrator in 
accordance with Sec. 89.124.
    (h)(1) The components listed in paragraphs (h)(1)(i) through 
(h)(1)(vi) of this section are defined as critical emission-related 
components.
    (i) Catalytic converter.
    (ii) Electronic engine control unit and its associated sensors and 
actuators.
    (iii) Exhaust gas recirculation system (including all related 
filters, coolers, control valves, and tubing).
    (iv) Positive crankcase ventilation valve.
    (v) Particulate trap or trap-oxidizer system.
    (vi) Any other add-on emission-related component (i.e., a component 
whose sole or primary purpose is to reduce emissions or whose failure 
will significantly degrade emission control and whose function is not 
integral to the design and performance of the engine).
    (2) All critical emission-related scheduled maintenance must have a 
reasonable likelihood of being performed in use. The manufacturer must 
show the reasonable likelihood of such maintenance being performed in-
use. Critical emission-related scheduled maintenance items which satisfy 
one of the conditions defined in paragraphs (h)(2)(i) through (h)(2)(vi) 
of this section will be accepted as having a reasonable likelihood of 
being performed in use.
    (i) Data are presented which establish for the Administrator a 
connection between emissions and vehicle performance such that as 
emissions increase due to lack of maintenance, vehicle performance will 
simultaneously deteriorate to a point unacceptable for typical 
operation.
    (ii) Survey data are submitted which adequately demonstrate to the 
Administrator with an 80 percent confidence level that 80 percent of 
such engines already have this critical maintenance item performed in-
use at the recommended interval(s).
    (iii) A clearly displayed visible signal system approved by the 
Administrator is installed to alert the equipment operator that 
maintenance is due. A signal bearing the message ``maintenance needed'' 
or ``check engine,'' or a similar message approved by the Administrator, 
shall be actuated at the appropriate usage point or by component 
failure. This signal must be continuous while the engine is in operation 
and not be easily eliminated without performance of the required 
maintenance. Resetting the signal shall be a required step in the 
maintenance operation. The method for resetting the signal system shall 
be approved by the Administrator. The system must not be designed to 
deactivate upon the end of the useful life of the engine or thereafter.
    (iv) A manufacturer may desire to demonstrate through a survey that 
a critical maintenance item is likely to be performed without a visible 
signal on a maintenance item for which there is no prior in-use 
experience without the signal. To that end, the manufacturer may in a 
given model year market up to 200 randomly selected vehicles per 
critical emission-related maintenance item without such visible signals, 
and monitor the performance of the critical maintenance item by the 
owners to show compliance with paragraph (h)(2)(ii) of this section. 
This option is restricted to two consecutive model years and may not be 
repeated until any previous survey has been

[[Page 52]]

completed. If the critical maintenance involves more than one engine 
family, the sample will be sales weighted to ensure that it is 
representative of all the families in question.
    (v) The manufacturer provides the maintenance free of charge, and 
clearly informs the customer that the maintenance is free in the 
instructions provided under paragraph (a) of this section.
    (vi) The manufacturer uses any other method which the Administrator 
approves as establishing a reasonable likelihood that the critical 
maintenance will be performed in-use.
    (3) Visible signal systems used under paragraph (h)(2)(iii) of this 
section are considered an element of design of the emission control 
system. Therefore, disabling, resetting, or otherwise rendering such 
signals inoperative without also performing the indicated maintenance 
procedure is a prohibited act.

[63 FR 56999, Oct. 23, 1998]



Sec. 89.110  Emission control information label.

    (a) The manufacturer must affix at the time of manufacture a 
permanent and legible label identifying each nonroad engine. The label 
must meet the following requirements:
    (1) Be attached in such a manner that it cannot be removed without 
destroying or defacing the label;
    (2) Be durable and readable for the entire engine life;
    (3) Be secured to an engine part necessary for normal engine 
operation and not normally requiring replacement during engine life;
    (4) Be written in English; and
    (5) Be located so as to be readily visible to the average person 
after the engine is installed in the equipment. A supplemental label 
meeting all the requirements of this section may be attached to a 
location other than the engine, in cases where the required label must 
be obscured after the engine is installed in the equipment.
    (b) The label must contain the following information:
    (1) The heading ``Important Engine Information;''
    (2) The full corporate name and trademark of the manufacturer;
    (3) EPA standardized engine family designation;
    (4) Engine displacement;
    (5) Advertised power;
    (6) Engine tuneup specifications and adjustments. These should 
indicate the proper transmission position during tuneup, and accessories 
(for example, air conditioner), if any, that should be in operation;
    (7) Fuel requirements;
    (8) Date of manufacture (month and year). The manufacturer may, in 
lieu of including the date of manufacture on the engine label, maintain 
a record of the engine manufacture dates. The manufacturer shall provide 
the date of manufacture records to the Administrator upon request;
    (9) Family emission limits (FELs) if applicable;
    (10) The statement: ``This engine conforms to [model year] U.S. EPA 
regulations large nonroad compression- ignition engines;''
    (11) Engines belonging to an engine family that has been certified 
as a constant-speed engine using the test cycle specified in Table 2 of 
appendix B to subpart E of this part must contain the statement on the 
label: ``constant-speed only''; and
    (12) Engines meeting the voluntary standards described in 
Sec. 89.112(f)(1) to be designated as Blue Sky Series engines must 
contain the statement on the label: ``Blue Sky Series''.
    (c) Other information concerning proper maintenance and use or 
indicating compliance or noncompliance with other standards may be 
indicated on the label.
    (d) Each engine must have a legible unique engine identification 
number permanently affixed to or engraved on the engine.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57000, Oct. 23, 1998]



Sec. 89.111  Averaging, banking, and trading of exhaust emissions.

    Regulations regarding the availability of an averaging, banking, and 
trading program along with applicable record- keeping requirements are 
found in subpart C of this part. Participation

[[Page 53]]

in the averaging, banking, and trading program is optional.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.112  Oxides of nitrogen, carbon monoxide, hydrocarbon, and particulate matter exhaust emission standards.

    (a) Exhaust emission from nonroad engines to which this subpart is 
applicable shall not exceed the applicable exhaust emission standards 
contained in Table 1, as follows:


[[Page 54]]


[GRAPHIC] [TIFF OMITTED] TR23OC98.001


    (b) Exhaust emissions of oxides of nitrogen, carbon monoxide, 
hydrocarbon, and nonmethane hydrocarbon are measured using the 
procedures set forth in subpart E of this part.

[[Page 55]]

    (c) Exhaust emission of particulate matter is measured using the 
California Regulations for New 1996 and Later Heavy-Duty Off-Road Diesel 
Cycle Engines. This procedure is incorporated by reference. See 
Sec. 89.6.
    (d) In lieu of the NOX standards, NMHC + NOX 
standards, and PM standards specified in paragraph (a) of this section, 
manufacturers may elect to include engine families in the averaging, 
banking, and trading program, the provisions of which are specified in 
subpart C of this part. The manufacturer must set a family emission 
limit (FEL) not to exceed the levels contained in Table 2. The FEL 
established by the manufacturer serves as the standard for that engine 
family. Table 2 follows:


[[Page 56]]


[GRAPHIC] [TIFF OMITTED] TR23OC98.002


    (e) Naturally aspirated nonroad engines to which this subpart is 
applicable shall not discharge crankcase emissions into the ambient 
atmosphere, unless such crankcase emissions are permanently routed into 
the exhaust and included in all exhaust emission measurements. This 
provision applies to all

[[Page 57]]

Tier 2 engines and later models. This provision does not apply to 
engines using turbochargers, pumps, blowers, or superchargers for air 
induction.
    (f) The following paragraphs define the requirements for low-
emitting Blue Sky Series engines:
    (1) Voluntary standards. Engines may be designated ``Blue Sky 
Series'' engines through the 2004 model year by meeting the voluntary 
standards listed in Table 3, which apply to all certification and in-use 
testing, as follows:

            Table 3.--Voluntary Emission Standards (g/kW-hr)
------------------------------------------------------------------------
              Rated Brake  Power (kW)                 NMHC+NOX      PM
------------------------------------------------------------------------
kW8...............................................          4.6     0.48
8kW19..................................          4.5     0.48
19kW37.................................          4.5     0.36
37kW75.................................          4.7     0.24
75kW130................................          4.0     0.18
130kW560....................          4.0     0.12
kW>560............................................          3.8     0.12
------------------------------------------------------------------------

    (2) Additional standards. Blue Sky Series engines are subject to all 
provisions that would otherwise apply under this part, except as 
specified in paragraph (f)(3) of this section.
    (3) Test procedures. NOX, NMHC, and PM emissions are 
measured using the procedures set forth in 40 CFR part 86, subpart N, in 
lieu of the procedures set forth in subpart E of this part. CO emissions 
may be measured using the procedures set forth either in 40 CFR part 86, 
subpart N, or in Subpart E of this part. Manufacturers may use an 
alternate procedure to demonstrate the desired level of emission control 
if approved in advance by the Administrator. Engines meeting the 
requirements to qualify as Blue Sky Series engines must be capable of 
maintaining a comparable level of emission control when tested using the 
procedures set forth in paragraph (c) of this section and subpart E of 
this part. The numerical emission levels measured using the procedures 
from subpart E of this part may be up to 20 percent higher than those 
measured using the procedures from 40 CFR part 86, subpart N, and still 
be considered comparable.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57000, Oct. 23, 1998]



Sec. 89.113  Smoke emission standard.

    (a) Exhaust opacity from compression-ignition nonroad engines for 
which this subpart is applicable must not exceed:
    (1) 20 percent during the acceleration mode;
    (2) 15 percent during the lugging mode; and
    (3) 50 percent during the peaks in either the acceleration or 
lugging modes.
    (b) Opacity levels are to be measured and calculated as set forth in 
40 CFR part 86, subpart I. Notwithstanding the provisions of 40 CFR part 
86, subpart I, two-cylinder nonroad engines may be tested using an 
exhaust muffler that is representative of exhaust mufflers used with the 
engines in use.
    (c) The following engines are exempt from the requirements of this 
section:
    (1) Single-cylinder engines;
    (2) Propulsion marine diesel engines; and
    (3) Constant-speed engines.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57003, Oct. 23, 1998]



Sec. 89.114  Special and alternate test procedures.

    (a) Special test procedures. The Administrator may, on the basis of 
written application by a manufacturer, establish special test procedures 
other than those set forth in this part, for any nonroad engine that the 
Administrator determines is not susceptible to satisfactory testing 
under the specified test procedures set forth in subpart E of this part 
or 40 CFR part 86, subpart I.
    (b) Alternate test procedures. (1) A manufacturer may elect to use 
an alternate test procedure provided that it yields equivalent results 
to the specified procedures, its use is approved in advance by the 
Administrator, and the basis for equivalent results with the specified 
test procedures is fully described in the manufacturer's application.
    (2) The Administrator may reject data generated under alternate test 
procedures which do not correlate with data generated under the 
specified procedures.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57003, Oct. 23, 1998]

[[Page 58]]



Sec. 89.115  Application for certificate.

    (a) For each engine family that complies with all applicable 
standards and requirements, the engine manufacturer must submit to the 
Administrator a completed application for a certificate of conformity.
    (b) The application must be approved and signed by the authorized 
representative of the manufacturer.
    (c) The application will be updated and corrected by amendment as 
provided for in Sec. 89.123 to accurately reflect the manufacturer's 
production.
    (d) Required content. Each application must include the following 
information:
    (1) A description of the basic engine design including, but not 
limited to, the engine family specifications, the provisions of which 
are contained in Sec. 89.116;
    (2) An explanation of how the emission control system operates, 
including a detailed description of all emission control system 
components, each auxiliary emission control device (AECD), and all fuel 
system components to be installed on any production or test engine(s);
    (3) Proposed test fleet selection and the rationale for the test 
fleet selection;
    (4) Special or alternate test procedures, if applicable;
    (5) The period of operation necessary to accumulate service hours on 
test engines and stabilize emission levels;
    (6) A description of all adjustable operating parameters (including, 
but not limited to, injection timing and fuel rate), including the 
following:
    (i) The nominal or recommended setting and the associated production 
tolerances;
    (ii) The intended physically adjustable range;
    (iii) The limits or stops used to establish adjustable ranges;
    (iv) Production tolerances of the limits or stops used to establish 
each physically adjustable range; and
    (v) Information relating to why the physical limits or stops used to 
establish the physically adjustable range of each parameter, or any 
other means used to inhibit adjustment, are effective in preventing 
adjustment of parameters to settings outside the manufacturer's intended 
physically adjustable ranges on in-use engines;
    (7) For families participating in the averaging, banking, and 
trading program, the information specified in subpart C of this part;
    (8) A description of the test equipment and fuel proposed to be 
used;
    (9) All test data obtained by the manufacturer on each test engine;
    (10) An unconditional statement certifying that all engines in the 
engine family comply with all requirements of this part and the Clean 
Air Act.
    (e) At the Administrator's request, the manufacturer must supply 
such additional information as may be required to evaluate the 
application including, but not limited to, projected nonroad engine 
production.
    (f)(1) The Administrator may modify the information submission 
requirements of paragraph (d) of this section, provided that all of the 
information specified therein is maintained by the engine manufacturer 
as required by Sec. 89.124, and amended, updated, or corrected as 
necessary.
    (2) For the purposes of this paragraph, Sec. 89.124(a)(1) includes 
all information specified in paragraph (d) of this section whether or 
not such information is actually submitted to the Administrator for any 
particular model year.
    (3) The Administrator may review an engine manufacturer's records at 
any time. At the Administrator's discretion, this review may take place 
either at the manufacturer's facility or at another facility designated 
by the Administrator.

[59 FR 31335, June 17, 1994, as amended at 61 FR 20741, May 8, 1996. 
Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.116  Engine families.

    (a) A manufacturer's product line is divided into engine families 
that are comprised of engines expected to have similar emission 
characteristics throughout their useful life periods.
    (b) The following characteristics distinguish engine families:
    (1) Fuel;
    (2) Cooling medium;
    (3) Method of air aspiration;

[[Page 59]]

    (4) Method of exhaust aftertreatment (for example, catalytic 
converter or particulate trap);
    (5) Combustion chamber design;
    (6) Bore;
    (7) Stroke;
    (8) Number of cylinders, (engines with aftertreatment devices only); 
and
    (9) Cylinder arrangement (engines with aftertreatment devices only).
    (c) Upon a showing by the manufacturer that the useful life period 
emission characteristics are expected to be similar, engines differing 
in one or more of the characteristics in paragraph (b) of this section 
may be grouped in the same engine family.
    (d) Upon a showing by the manufacturer that the expected useful life 
period emission characteristics will be different, engines identical in 
all the characteristics of paragraph (b) of this section may be divided 
into separate engine families.
    (e)(1) This paragraph (e) applies only to the placement of Tier 1 
engines with power ratings under 37 kW into engine families. The 
provisions of paragraphs (a) through (d) of this section also apply to 
these engines. The power categories referred to in this paragraph (e) 
are those for which separate standards or implementation dates are 
described in Sec. 89.112.
    (2) A manufacturer may place engines with power ratings in one power 
category into an engine family comprised of engines with power ratings 
in another power category, and consider all engines in the engine family 
as being in the latter power category for the purpose of determining 
compliance with the standards and other requirements of this part, 
subject to approval in advance by the Administrator and the following 
restrictions:
    (i) The engines that have power ratings outside the engine family's 
power category must constitute less than half of the engine family's 
sales in each model year for which the engine family grouping is made; 
and
    (ii) The engines that have power ratings outside the engine family's 
power category must have power ratings that are within ten percent of 
either of the two power levels that define the engine family's power 
category.
    (3) The restrictions described in paragraphs (e)(2)(i) and 
(e)(2)(ii) of this section do not apply if the emissions standards and 
other requirements of this part are at least as stringent for the engine 
family's power category as those of the other power categories 
containing engines in the engine family.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57003, Oct. 23, 1998]



Sec. 89.117  Test fleet selection.

    (a) The manufacturer must select for testing, from each engine 
family, the engine with the most fuel injected per stroke of an 
injector, primarily at the speed of maximum torque and secondarily at 
rated speed.
    (b) Each engine in the test fleet must be constructed to be 
representative of production engines.
    (c) After review of the manufacturer's test fleet, the Administrator 
may select from the available fleet one additional test engine from each 
engine family.
    (d) For establishing deterioration factors, the manufacturer shall 
select the engines, subsystems, or components to be used to determine 
exhaust emission deterioration factors for each engine-family control 
system combination. Engines, subsystems, or components shall be selected 
so that their emission deterioration characteristics are expected to 
represent those of in-use engines, based on good engineering judgment.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57003, Oct. 23, 1998]



Sec. 89.118  Deterioration factors and service accumulation.

    This section applies to service accumulation used to determine 
deterioration factors and service accumulation used to condition test 
engines. Paragraphs (a) and (b) of this section apply only for service 
accumulation used to condition test engines. Paragraph (e) of this 
section applies only for service accumulation used to determine 
deterioration factors. Paragraphs (c) and (d) of this section apply for 
all service accumulation required by this part.

[[Page 60]]

    (a)(1) Each test engine in the test fleet must be operated with all 
emission control systems operating properly for a period sufficient to 
stabilize emissions.
    (2) A manufacturer may elect to consider as stabilized emission 
levels from engines with no more than 125 hours of service.
    (b) No maintenance, other than recommended lubrication and filter 
changes, may be performed during service accumulation without the 
Administrator's approval.
    (c) Service accumulation should be performed in a manner using good 
engineering judgment to ensure that emissions are representative of in-
use engines.
    (d) The manufacturer must maintain, and provide to the Administrator 
if requested, records stating the rationale for selecting the service 
accumulation period and records describing the method used to accumulate 
service hours on the test engine(s).
    (e) This paragraph (e) describes service accumulation and 
alternative requirements for the purpose of developing deterioration 
factor.
    (1) Service accumulation on engines, subsystems, or components 
selected by the manufacturer under Sec. 89.117(d). The manufacturer 
shall describe the form and extent of this service accumulation in the 
application for certification.
    (2) Determination of exhaust emission deterioration factors. The 
manufacturer shall determine the deterioration factors in accordance 
with the applicable provisions of this part based on service 
accumulation and related testing, according to the manufacturer's 
procedures, except as provided in paragraph (e)(3) of this section.
    (3) Alternatives to service accumulation and testing for the 
determination of a deterioration factor. A written explanation of the 
appropriateness of using an alternative must be included in the 
application for certification.
    (i) Carryover and carryacross of durability emission data. In lieu 
of testing an emission data or durability data engine selected under 
Sec. 89.117(d), a manufacturer may, with Administrator approval, use 
exhaust emission deterioration data on a similar engine for which 
certification to the same standard has previously been obtained or for 
which all applicable data required under Sec. 89.124 has previously been 
submitted. This data must be submitted in the application for 
certification.
    (ii) Use of on-highway deterioration data. In the case where a 
manufacturer produces a certified on-highway engine that is similar to 
the nonroad engine to be certified, deterioration data from the on-
highway engine may be applied to the nonroad engine. This application of 
deterioration data from an on-highway engine to a nonroad engine is 
subject to Administrator approval, and the determination of whether the 
engines are similar must be based on good engineering judgment.
    (iii) Engineering analysis for established technologies. (A) In the 
case where an engine family uses established technology, an analysis 
based on good engineering practices may be used in lieu of testing to 
determine a deterioration factor for that engine family, subject to 
Administrator approval.
    (B) Engines for which the certification levels are not at or below 
the Tier 3 NMHC+NOX standards described in Sec. 89.112 are 
considered established technology, except as provided in paragraph 
(e)(3)(iii)(D) of this section.
    (C) Manufacturers may petition the Administrator to consider an 
engine with a certification level below the Tier 3 NMHC+NOX 
standards as established technology. This petition must be based on 
proof that the technology used is not significantly different than that 
used on engines that have certification levels that are not below the 
Tier 3 NMHC+NOX levels.
    (D) Engines using exhaust gas recirculation or aftertreatment are 
excluded from the provision set forth in paragraphs (e)(3)(iii)(A) 
through (e)(3)(iii)(C) of this section.
    (E) The manufacturer shall provide a written statement to the 
Administrator that all data, analyses, test procedures, evaluations, and 
other documents, on which the deterioration factor is based, are 
available to the Administrator upon request.
    (iv) Interim provision for engines rated under 37 kW. For model year 
1999 and 2000 engines rated under 37 kW, manufacturers may determine 
deterioration factors based on good engineering

[[Page 61]]

judgement and reasonably available information. The manufacturer must 
maintain and provide to the Administrator, if requested, all information 
used to determine deterioration factors for these engines.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57003, Oct. 23, 1998]



Sec. 89.119  Emission tests.

    (a) Manufacturer testing. (1) Upon completion of service 
accumulation, the manufacturer must test each test engine using the 
specified test procedures, except as provided in Sec. 89.114. The 
procedures to be used are set forth in:
    (i) Subpart E of this part;
    (ii) The California Regulations for New 1996 and Later Heavy-Duty 
Off-Road Diesel Cycle Engines. This procedure has been incorporated by 
reference. See Sec. 89.6; and
    (iii) Part 86, subpart I of this chapter.
    (2) Each test engine must be configured to be representative of 
actual in-use operation. The Administrator may specify the adjustment of 
any adjustable parameter. All test results must be reported to the 
Administrator.
    (b) Confirmatory testing. The Administrator may conduct confirmatory 
testing or other testing on any test engine. The manufacturer must 
deliver test engines as directed by the Administrator. When the 
Administrator conducts confirmatory testing or other testing, those test 
results are used to determine compliance with emission standards.
    (c) Use of carryover test data. In lieu of testing to certify an 
engine family for a given model year, the manufacturer may submit, with 
the Administrator's approval, emission test data used to certify that 
engine family in previous years. This ``carryover'' data is only 
allowable if the submitted test data show that the test engine would 
comply with the emission standard(s) for the model year for which 
certification is being sought.
    (d) The provisions of this paragraph (d) apply only to Tier 1 
nonroad engines without exhaust aftertreatment rated at or above 37 kW.
    (1) Particulate emission measurements from Tier 1 nonroad engines 
without exhaust aftertreatment rated at or above 37 kW may be adjusted 
to a sulfur content of 0.05 weight percent.
    (2) Adjustments to the particulate measurement shall be made using 
the following equation:

    PMadj=PM-[BSFC  x  0.0917  x  (FSF-0.0005)]

Where:

PMadj=adjusted measured PM level [g/Kw-hr].
PM=measured weighted PM level [g/Kw-hr].
BSFC=measured brake specific fuel consumption [G/Kw-hr].
FSF=fuel sulfur weight fraction.

    (3) Where a manufacturer certifies using test fuel with a sulfur 
content less than or equal to 0.050 weight percent, EPA shall not use 
emission data collected using test fuel with a sulfur content greater 
than 0.050 weight percent to determine compliance with the Tier 1 PM 
standards.
    (4) Where a manufacturer certifies using test fuel with a sulfur 
content greater than 0.050 weight percent, EPA shall not use emission 
data collected using test fuel with a sulfur content greater than 0.050 
weight percent to determine compliance with the Tier 1 PM standards, 
unless EPA adjusts the PM measurement using the equation specified in 
paragraph (d)(2) of this section.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57004, Oct. 23, 1998]



Sec. 89.120  Compliance with emission standards.

    (a) If all test engines representing an engine family have emissions 
less than or equal to each emission standard, that family complies with 
the emission standards.
    (b) If any test engine representing an engine family has emissions 
greater than each emission standard, that family will be deemed not in 
compliance with the emission standard(s).
    (c) For each nonroad engine family, except Tier 1 engine families 
with rated power at or above 37 kW that do not employ aftertreatment, a 
deterioration factor must be determined and applied.
    (1) The applicable exhaust emission standards (or family emission 
limits, as appropriate) for nonroad compression-ignition engines apply 
to the

[[Page 62]]

emissions of engines for their useful life.
    (2) [Reserved]
    (3)(i) This paragraph (c)(3) describes the procedure for determining 
compliance of an engine with emission standards (or family emission 
limits, as appropriate), based on deterioration factors supplied by the 
manufacturer. The NMHC + NOX deterioration factors shall be 
established based on the sum of the pollutants, except as provided in 
paragraph (c)(3)(iv) of this section. When establishing deterioration 
factors for NMHC + NOX, a negative deterioration (emissions 
decrease from the official emissions test result) for one pollutant may 
not offset deterioration of the other pollutant.
    (ii) Separate emission deterioration factors, determined by the 
manufacturer according to the requirements of Sec. 89.118, shall be 
provided in the certification application for each engine-system 
combination. Separate deterioration factors shall be established for 
each regulated pollutant, except that a combined NMHC + NOX 
deterioration factor shall be established for compression-ignition 
nonroad engines not utilizing aftertreatment technology. For smoke 
testing, separate deterioration factors shall also be established for 
the acceleration mode (designated as ``A''), the lugging mode 
(designated as ``B''), and peak opacity (designated as ``C'').
    (iii) Compression-ignition nonroad engines not utilizing 
aftertreatment technology (e.g., particulate traps). For CO, NMHC + 
NOX, and particulate, the official exhaust emission results 
for each emission data engine at the selected test point shall be 
adjusted by addition of the appropriate deterioration factor. However, 
if the deterioration factor supplied by the manufacturer is less than 
zero, it shall be zero for the purposes of this paragraph (c)(3)(iii).
    (iv) Compression-ignition nonroad engines utilizing aftertreatment 
technology (e.g., particulate traps). For CO, NMHC + NOX, and 
particulate, the official exhaust emission results for each emission 
data engine at the selected test point shall be adjusted by 
multiplication by the appropriate deterioration factor. Separate NMHC 
and NOX deterioration factors shall be applied to the results 
for these pollutants prior to combining the results. If the 
deterioration factor supplied by the manufacturer is less than one, it 
shall be one for the purposes of this paragraph (c)(3)(iv).
    (v) For acceleration smoke (``A''), lugging smoke (``B''), and peak 
opacity (``C''), the official exhaust emission results for each emission 
data engine at the selected test point shall be adjusted by the addition 
of the appropriate deterioration factor. However if the deterioration 
supplied by the manufacturer is less than zero, it shall be zero for the 
purposes of this paragraph (c)(3)(v).
    (vi) The emission values to compare with the standards (or family 
emission limits, as appropriate) shall be the adjusted emission values 
of paragraphs (c)(3)(iii) through (v) of this section, rounded to the 
same number of significant figures as contained in the applicable 
standard in accordance with ASTM E29-93a, for each emission data engine. 
This procedure has been incorporated by reference at Sec. 89.6.
    (4) Every test engine of an engine family must comply with all 
applicable standards (or family emission limits, as appropriate), as 
determined in paragraph (c)(3)(vi) of this section, before any engine in 
that family will be certified.
    (d) For engine families included in the averaging, banking, and 
trading program, the families' emission limits (FELs) are used in lieu 
of the applicable federal emission standard.
    (e) For the purposes of setting an NMHC + NOX 
certification level or FEL, one of the following options shall be used 
for the determination of NMHC for an engine family. The manufacturer 
must declare which option is used in its application for certification 
of that engine family.
    (1) The manufacturer may assume that up to two percent of the 
measured THC is methane (NMHC = 0.98  x  THC).
    (2) The manufacturer may measure NMHC emissions using a method 
approved by the Administrator prior to the start of testing. This option 
allows the determination of NMHC emissions by subtracting measured 
methane

[[Page 63]]

emissions from measured THC emissions.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57004, Oct. 23, 1998]



Sec. 89.121  Certificate of conformity effective dates.

    The certificate of conformity is valid from the date of issuance by 
EPA until 31 December of the model year or calendar year for which it is 
issued.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.122  Certification.

    (a) If, after a review of the manufacturer's application, request 
for certificate, information obtained from any inspection, and such 
other information as the Administrator may require, the Administrator 
determines that the application is complete and that the engine family 
meets the requirements of this part and the Clean Air Act, the 
Administrator shall issue a certificate of conformity.
    (b) If, after a review of the information described in paragraph (a) 
of this section, the Administrator determines that the requirements of 
this part and the Clean Air Act have not been met, the Administrator 
will deny certification. The Administrator must give a written 
explanation when certification is denied. The manufacturer may request a 
hearing on a denial.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.123  Amending the application and certificate of conformity.

    (a) The manufacturer of nonroad compression-ignition engines must 
notify the Administrator when changes to information required to be 
described in the application for certification are to be made to a 
product line covered by a certificate of conformity. This notification 
must include a request to amend the application or the existing 
certificate of conformity. Except as provided in paragraph (e) of this 
section, the manufacturer shall not make said changes or produce said 
engines prior to receiving approval from EPA.
    (b) A manufacturer's request to amend the application or the 
existing certificate of conformity shall include the following 
information:
    (1) A full description of the change to be made in production or of 
the engine to be added;
    (2) Engineering evaluations or data showing that engines as modified 
or added will comply with all applicable emission standards; and
    (3) A determination whether the manufacturer's original test fleet 
selection is still appropriate, and if the original test fleet selection 
is determined not to be appropriate, proposed test fleet selection(s) 
representing the engines changed or added which would have been required 
if the engines had been included in the original application for 
certification.
    (c) The Administrator may require the manufacturer to perform tests 
on the engine representing the engine to be added or changed.
    (d) Decision by Administrator. (1) Based on the description of the 
proposed amendment and data derived from such testing as the 
Administrator may require or conduct, the Administrator will determine 
whether the proposed change or addition would still be covered by the 
certificate of conformity then in effect.
    (2) If the Administrator determines that the change or new engine(s) 
meets the requirements of this subpart and the Act, the appropriate 
certificate of conformity is amended.
    (3) If the Administrator determines that the changed or new 
engine(s) does not meet the requirements of this subpart and the Act, 
the certificate of conformity will not be amended. The Administrator 
shall provide a written explanation to the manufacturer of the decision 
not to amend the certificate. The manufacturer may request a hearing on 
a denial.
    (e) A manufacturer may make changes in or additions to production 
engines concurrently with notifying the Administrator as required by 
paragraph (a) of this section, if the manufacturer complies with the 
following requirements:
    (1) In addition to the information required in paragraph (b) of this 
section, the manufacturer must supply supporting documentation, test 
data, and engineering evaluations as appropriate

[[Page 64]]

to demonstrate that all affected engines will still meet applicable 
emission standards.
    (2) If, after a review, the Administrator determines additional 
testing is required, the manufacturer must provide required test data 
within 30 days or cease production of the affected engines.
    (3) If the Administrator determines that the affected engines do not 
meet applicable requirements, the Administrator will notify the 
manufacturer to cease production of the affected engines and to recall 
and correct at no expense to the owner all affected engines previously 
produced.
    (4) Election to produce engines under this paragraph will be deemed 
to be a consent to recall all engines which the Administrator determines 
do not meet applicable standards and to cause such nonconformity to be 
remedied at no expense to the owner.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.124  Record retention, maintenance, and submission.

    (a) The manufacturer of any nonroad compression-ignition engine must 
maintain the following adequately organized records:
    (1) Copies of all applications filed with the Administrator.
    (2) A detailed history of each test engine used for certification 
including the following:
    (i) A description of the test engine's construction, including a 
general description of the origin and buildup of the engine, steps taken 
to ensure that it is representative of production engines, description 
of components specially built for the test engine, and the origin and 
description of all emission-related components;
    (ii) A description of the method used for service accumulation, 
including date(s) and the number of hours accumulated;
    (iii) A description of all maintenance, including modifications, 
parts changes, and other servicing performed, and the date(s) and 
reason(s) for such maintenance;
    (iv) A description of all emission tests performed (except tests 
performed by the EPA directly) including routine and standard test 
documentation, as specified in subpart E of this part, date(s) and the 
purpose of each test;
    (v) A description of all tests performed to diagnose engine or 
emission control performance, giving the date and time of each and the 
reason(s) for the test; and
    (vi) A description of any significant event(s) affecting the engine 
during the period covered by the history of the test engine but not 
described by an entry under one of the previous paragraphs of this 
section.
    (3) Information required to be kept by the manufacturer in 
Sec. 89.118(e)(3) for alternatives to service accumulation and testing 
for the determination of a deterioration factor.
    (b) Routine emission test data, such as those reporting test cell 
temperature and relative humidity at start and finish of test and raw 
emission results from each mode or test phase, must be retained for a 
period of one year after issuance of all certificates of conformity to 
which they relate. All other information specified in paragraph (a) of 
this section must be retained for a period of eight years after issuance 
of all certificates of conformity to which they relate.
    (c) Records may be kept in any format and on any media, provided 
that at the Administrator's request, organized, written records in 
English are promptly supplied by the manufacturer.
    (d) The manufacturer must supply, at the Administrator's request, 
copies of any engine maintenance instructions or explanations issued by 
the manufacturer.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57005, Oct. 23, 1998]



Sec. 89.125  Production engines, annual report.

    (a) Upon the Administrator's request, the manufacturer must supply a 
reasonable number of production engines for testing and evaluation. 
These engines must be representative of typical production and must be 
supplied for testing at such time and place and for such reasonable 
periods as the Administrator may require.

[[Page 65]]

    (b) The manufacturer must annually, within 30 days after the end of 
the model year, notify the Administrator of the number of engines 
produced by engine family, by gross power, by displacement, by fuel 
system, and, for engines produced under the provision of Sec. 89.102(g), 
by engine model and purchaser (or shipping destination for engines used 
by the engine manufacturer), or by other categories as the Administrator 
may require.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57005, Oct. 23, 1998]



Sec. 89.126  Denial, revocation of certificate of conformity.

    (a) If, after review of the manufacturer's application, request for 
certification, information obtained from any inspection, and any other 
information the Administrator may require, the Administrator determines 
that one or more test engines do not meet applicable standards (or 
family emission limits, as appropriate), then the Administrator will 
notify the manufacturer in writing, setting forth the basis for this 
determination.
    (b) Notwithstanding the fact that engines described in the 
application may comply with all other requirements of this subpart, the 
Administrator may deny the issuance of, suspend, or revoke a previously 
issued certificate of conformity if the Administrator finds any one of 
the following infractions to be substantial:
    (1) The manufacturer submits false or incomplete information;
    (2) The manufacturer denies an EPA enforcement officer or EPA 
authorized representative the opportunity to conduct authorized 
inspections;
    (3) The manufacturer fails to supply requested information or amend 
its application to include all engines being produced;
    (4) The manufacturer renders inaccurate any test data which it 
submits or otherwise circumvents the intent of the Act or this part;
    (5) The manufacturer denies an EPA enforcement officer or EPA 
authorized representative reasonable assistance (as defined in 
Sec. 89.129(e)).
    (c) If a manufacturer knowingly commits an infraction specified in 
paragraph (b)(1) or (b)(4) of this section, knowingly commits any other 
fraudulent act which results in the issuance of a certificate of 
conformity, or fails to comply with the conditions specified in 
Sec. 89.203(d), Sec. 89.206(c), Sec. 89.209(c) or Sec. 89.210(g), the 
Administrator may deem such certificate void ab initio.
    (d) When the Administrator denies, suspends, revokes, or voids ab 
initio a certificate of conformity the manufacturer will be provided a 
written determination. The manufacturer may request a hearing under 
Sec. 89.127 on the Administrator's decision.
    (e) Any suspension or revocation of a certificate of conformity 
shall extend no further than to forbid the introduction into commerce of 
engines previously covered by the certification which are still in the 
hands of the manufacturer, except in cases of such fraud or other 
misconduct that makes the certification invalid ab initio.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57005, Oct. 23, 1998]



Sec. 89.127  Request for hearing.

    (a) A manufacturer may request a hearing on the Administrator's 
denial, suspension, voiding ab initio or revocation of a certificate of 
conformity.
    (b) The manufacturer's request must be filed within 30 days of the 
Administrator's decision, be in writing, and set forth the 
manufacturer's objections to the Administrator's decision and data to 
support the objections.
    (c) If, after review of the request and supporting data, the 
Administrator finds that the request raises a substantial and factual 
issue, the Administrator will grant the manufacturer's request for a 
hearing.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.128  Hearing procedures.

    (a)(1) After granting a request for a hearing the Administrator 
shall designate a Presiding Officer for the hearing.
    (2) The hearing will be held as soon as practicable at a time and 
place determined by the Administrator or by the Presiding Officer.
    (3) The Administrator may, at his or her discretion, direct that all 
argument

[[Page 66]]

and presentation of evidence be concluded within a specified period 
established by the Administrator. Said period may be no less than 30 
days from the date that the first written offer of a hearing is made to 
the manufacturer. To expedite proceedings, the Administrator may direct 
that the decision of the Presiding Officer (who may, but need not, be 
the Administrator) shall be the final EPA decision.
    (b)(1) Upon appointment pursuant to paragraph (a) of this section, 
the Presiding Officer will establish a hearing file. The file shall 
consist of the following:
    (i) The determination issued by the Administrator under 
Sec. 89.126(d);
    (ii) The request for a hearing and the supporting data submitted 
therewith;
    (iii) All documents relating to the request for certification and 
all documents submitted therewith; and
    (iv) Correspondence and other data material to the hearing.
    (2) The hearing file will be available for inspection by the 
applicant at the office of the Presiding Officer.
    (c) An applicant may appear in person or may be represented by 
counsel or by any other duly authorized representative.
    (d)(1) The Presiding Officer, upon the request of any party or at 
his or her discretion, may arrange for a prehearing conference at a time 
and place he/she specifies. Such prehearing conference will consider the 
following:
    (i) Simplification of the issues;
    (ii) Stipulations, admissions of fact, and the introduction of 
documents;
    (iii) Limitation of the number of expert witnesses;
    (iv) Possibility of agreement disposing of any or all of the issues 
in dispute; and
    (v) Such other matters as may aid in the disposition of the hearing, 
including such additional tests as may be agreed upon by the parties.
    (2) The results of the conference shall be reduced to writing by the 
Presiding Officer and made part of the record.
    (e)(1) Hearings shall be conducted by the Presiding Officer in an 
informal but orderly and expeditious manner. The parties may offer oral 
or written evidence, subject to the exclusion by the Presiding Officer 
of irrelevant, immaterial, and repetitious evidence.
    (2) Witnesses will not be required to testify under oath. However, 
the Presiding Officer shall call to the attention of witnesses that 
their statements may be subject to the provisions of 18 U.S.C. 1001 
which imposes penalties for knowingly making false statements or 
representations or using false documents in any matter within the 
jurisdiction of any department or agency of the United States.
    (3) Any witness may be examined or cross-examined by the Presiding 
Officer, the parties, or their representatives.
    (4) Hearings shall be reported verbatim. Copies of transcripts of 
proceedings may be purchased by the applicant from the reporter.
    (5) All written statements, charts, tabulations, and similar data 
offered in evidence at the hearings shall, upon a showing satisfactory 
to the Presiding Officer of their authenticity, relevancy, and 
materiality, be received in evidence and shall constitute a part of the 
record.
    (6) Oral argument may be permitted at the discretion of the 
Presiding Officer and shall be reported as part of the record unless 
otherwise ordered by the Presiding Officer.
    (f)(1) The Presiding Officer shall make an initial decision which 
shall include written findings and conclusions and the reasons or basis 
regarding all the material issues of fact, law, or discretion presented 
on the record. The findings, conclusions, and written decision shall be 
provided to the parties and made a part of the record. The initial 
decision shall become the decision of the Administrator without further 
proceedings, unless there is an appeal to the Administrator or motion 
for review by the Administrator within 20 days of the date the initial 
decision was filed. If the Administrator has determined under paragraph 
(a) of this section that the decision of the Presiding Officer is final, 
there is no right of appeal to the Administrator.
    (2) On appeal from or review of the initial decision, the 
Administrator shall have all the powers which he or she would have in 
making the initial

[[Page 67]]

decision, including the discretion to require or allow briefs, oral 
argument, the taking of additional evidence, or the remanding to the 
Presiding Officer for additional proceedings. The decision by the 
Administrator may adopt the original decision or shall include written 
findings and conclusions and the reasons or basis therefor on all the 
material issues of fact, law, or discretion presented on the appeal or 
considered in the review.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.129  Right of entry.

    (a) Any manufacturer who has applied for certification of a new 
engine or engine family subject to certification testing under this 
subpart shall admit or cause to be admitted to any of the following 
facilities during operating hours any EPA enforcement officer or EPA 
authorized representative on presentation of credentials.
    (1) Any facility where any such certification testing or any 
procedures or activities connected with such certification testing are 
or were performed;
    (2) Any facility where any new engine which is being, was, or is to 
be tested is present;
    (3) Any facility where any construction process or assembly process 
used in the modification or buildup of such an engine into a 
certification engine is taking place or has taken place; and
    (4) Any facility where any record or other document relating to any 
of the above is located.
    (b) Upon admission to any facility referred to in paragraph (a)(1) 
of this section, any EPA enforcement officer or EPA authorized 
representative shall be allowed:
    (1) To inspect and monitor any part or aspect of such procedures, 
activities, and testing facilities, including, but not limited to, 
monitoring engine preconditioning, emission tests and service 
accumulation, maintenance, and engine storage procedures, and to verify 
correlation or calibration of test equipment;
    (2) To inspect and make copies of any such records, designs, or 
other documents; and
    (3) To inspect and photograph any part or aspect of any such 
certification engine and any components to be used in the construction 
thereof.
    (c) To allow the Administrator to determine whether production 
engines conform in all material respects to the design specifications 
applicable to those engines, as described in the application for 
certification for which a certificate of conformity has been issued, any 
manufacturer shall admit any EPA enforcement officer or EPA authorized 
representative on presentation of credentials to:
    (1) Any facility where any document, design, or procedure relating 
to the translation of the design and construction of engines and 
emission-related components described in the application for 
certification or used for certification testing into production engines 
is located or carried on; and
    (2) Any facility where any engines to be introduced into commerce 
are manufactured or assembled.
    (d) On admission to any such facility referred to in paragraph (c) 
of this section, any EPA enforcement officer or EPA authorized 
representative shall be allowed:
    (1) To inspect and monitor any aspects of such manufacture or 
assembly and other procedures;
    (2) To inspect and make copies of any such records, documents or 
designs; and
    (3) To inspect and photograph any part or aspect of any such new 
engines and any component used in the assembly thereof that are 
reasonably related to the purpose of his or her entry.
    (e) Any EPA enforcement officer or EPA authorized representative 
shall be furnished by those in charge of a facility being inspected with 
such reasonable assistance as he or she may request to help the 
enforcement officer or authorized representative discharge any function 
listed in this paragraph. Each applicant for or recipient of 
certification is required to cause those in charge of a facility 
operated for its benefit to furnish such reasonable assistance without 
charge to EPA whether or not the applicant controls the facility.
    (1) Reasonable assistance includes, but is not limited to, clerical, 
copying, interpretation and translation services;

[[Page 68]]

the making available on request of personnel of the facility being 
inspected during their working hours to inform the EPA enforcement 
officer or EPA authorized representative of how the facility operates 
and to answer the officer's questions; and the performance on request of 
emission tests on any engine which is being, has been, or will be used 
for certification testing. Such tests shall be nondestructive, but may 
require appropriate service accumulation.
    (2) A manufacturer may be compelled to cause any employee at a 
facility being inspected to appear before an EPA enforcement officer or 
EPA authorized representative. The request for the employee's appearance 
shall be in writing, signed by the Assistant Administrator for Air and 
Radiation, and served on the manufacturer. Any employee who has been 
instructed by the manufacturer to appear will be entitled to be 
accompanied, represented, and advised by counsel.
    (f) The duty to admit or cause to be admitted any EPA enforcement 
officer or EPA authorized representative applies whether or not the 
applicant owns or controls the facility in question and applies both to 
domestic and to foreign manufacturers and facilities. EPA will not 
attempt to make any inspections which it has been informed that local 
law forbids. However, if local law makes it impossible to do what is 
necessary to ensure the accuracy of data generated at a facility, no 
informed judgment that an engine is certifiable or is covered by a 
certificate can properly be based on those data. It is the 
responsibility of the manufacturer to locate its testing and 
manufacturing facilities in jurisdictions where this situation will not 
arise.
    (g) Any entry without 24 hours prior written or oral notification to 
the affected manufacturer shall be authorized in writing by the 
Assistant Administrator for Enforcement.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.130  Rebuild practices.

    (a) The provisions of this section are applicable to engines subject 
to the standards prescribed in Sec. 89.112 and are applicable to the 
process of engine rebuilding (or rebuilding a portion of an engine or 
engine system). This section does not apply to Tier 1 engines rated at 
or above 37 kW. The process of engine rebuilding generally includes 
disassembly, replacement of multiple parts due to wear, and reassembly, 
and also may include the removal of the engine from the vehicle and 
other acts associated with rebuilding an engine.
    (b) When rebuilding an engine, portions of an engine, or an engine 
system, there must be a reasonable technical basis for knowing that the 
resultant engine is equivalent, from an emissions standpoint, to a 
certified configuration (i.e., tolerances, calibrations, 
specifications), and the model year(s) of the resulting engine 
configuration must be identified. A reasonable basis would exist if:
    (1) Parts installed, whether the parts are new, used, or rebuilt, 
are such that a person familiar with the design and function of motor 
vehicle engines would reasonably believe that the parts perform the same 
function with respect to emission control as the original parts; and
    (2) Any parameter adjustment or design element change is made only:
    (i) In accordance with the original engine manufacturer's 
instructions; or
    (ii) Where data or other reasonable technical basis exists that such 
parameter adjustment or design element change, when performed on the 
engine or similar engines, is not expected to adversely affect in-use 
emissions.
    (c) When an engine is being rebuilt and remains installed or is 
reinstalled in the same equipment, it must be rebuilt to a configuration 
of the same or later model year as the original engine. When an engine 
is being replaced, the replacement engine must be an engine of (or 
rebuilt to) a certified configuration that is equivalent, from an 
emissions standpoint, to the engine being replaced.
    (d) At time of rebuild, emission-related codes or signals from on-
board monitoring systems may not be erased or reset without diagnosing 
and responding appropriately to the diagnostic codes, regardless of 
whether the

[[Page 69]]

systems are installed to satisfy requirements in Sec. 89.109 or for 
other reasons and regardless of form or interface. Diagnostic systems 
must be free of all such codes when the rebuilt engine is returned to 
service. Such signals may not be rendered inoperative during the 
rebuilding process.
    (e) When conducting a rebuild without removing the engine from the 
equipment, or during the installation of a rebuilt engine, all critical 
emission-related components listed in 40 CFR part 86, subpart B, not 
otherwise addressed by paragraphs (b) through (d) of this section must 
be checked and cleaned, adjusted, repaired, or replaced as necessary, 
following manufacturer recommended practices.
    (f) Records shall be kept by parties conducting activities included 
in paragraphs (b) through (e) of this section. The records shall include 
at minimum the hours of operation at time of rebuild, a listing of work 
performed on the engine, and emission-related control components 
including a listing of parts and components used, engine parameter 
adjustments, emission-related codes or signals responded to and reset, 
and work performed under paragraph (e) of this section.
    (1) Parties may keep records in whatever format or system they 
choose as long as the records are understandable to an EPA enforcement 
officer or can be otherwise provided to an EPA enforcement officer in an 
understandable format when requested.
    (2) Parties are not required to keep records of information that is 
not reasonably available through normal business practices including 
information on activities not conducted by themselves or information 
that they cannot reasonably access.
    (3) Parties may keep records of their rebuilding practices for an 
engine family rather than on each individual engine rebuilt in cases 
where those rebuild practices are followed routinely.
    (4) Records must be kept for a minimum of two years after the engine 
is rebuilt.

[63 FR 57005, Oct. 23, 1998]



          Subpart C--Averaging, Banking, and Trading Provisions



Sec. 89.201  Applicability.

    Nonroad compression-ignition engines subject to the provisions of 
subpart A of this part are eligible to participate in the averaging, 
banking, and trading program described in this subpart.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.202  Definitions.

    The definitions in subpart A of this part apply to this subpart. The 
following definitions also apply to this subpart:
    Averaging for nonroad engines means the exchange of emission credits 
among engine families within a given manufacturer's product line.
    Banking means the retention of nonroad engine emission credits by 
the manufacturer generating the emission credits for use in future model 
year averaging or trading as permitted by these regulations.
    Emission credits represent the amount of emission reduction or 
exceedance, by a nonroad engine family, below or above the emission 
standard, respectively. Emission reductions below the standard are 
considered as ``positive credits,'' while emission exceedances above the 
standard are considered as ``negative credits.'' In addition, 
``projected credits'' refer to emission credits based on the projected 
applicable production/sales volume of the engine family. ``Reserved 
credits'' are emission credits generated within a model year waiting to 
be reported to EPA at the end of the model year. ``Actual credits'' 
refer to emission credits based on actual applicable production/sales 
volume as contained in the end-of-year reports submitted to EPA. Some or 
all of these credits may be revoked if EPA review of the end-of-year 
reports or any subsequent audit action(s) uncovers problems or errors.
    Trading means the exchange of nonroad engine emission credits 
between manufacturers.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]

[[Page 70]]



Sec. 89.203  General provisions.

    (a) The averaging, banking, and trading programs for NOX, 
NMHC+NOX, and PM emissions from eligible nonroad engines are 
described in this subpart. Participation in these programs is voluntary.
    (b) Requirements for Tier 1 engines rated at or above 37 kW. (1) A 
nonroad engine family is eligible to participate in the averaging, 
banking, and trading program for NOX emissions and the 
banking and trading program for PM emissions if it is subject to 
regulation under subpart B of this part with certain exceptions 
specified in paragraph (b)(2) of this section. No averaging, banking, 
and trading program is available for meeting the Tier 1 HC, CO, or smoke 
emission standards specified in subpart B of this part. No averaging 
program is available for meeting the Tier 1 PM emission standards 
specified in subpart B of this part.
    (2) Nonroad engines may not participate in the averaging, banking, 
and trading programs if they are exported or are sold as Blue Sky Series 
engines as described in Sec. 89.112(f). Nonroad engines certified on a 
special test procedure under Sec. 89.114(a), may not participate in the 
averaging, banking and trading programs unless the manufacturer has 
requested that the engines be included in the averaging, banking, and 
trading programs at the time the request for the special test procedure 
is made and has been granted approval by the Administrator for inclusion 
in the averaging, banking, and trading programs.
    (3) A manufacturer may certify one or more nonroad engine families 
at NOX family emission limits (FELs) above or below the Tier 
1 NOX emission standard, provided the summation of the 
manufacturer's projected balance of all NOX credit 
transactions in a given model year is greater than or equal to zero, as 
determined under Sec. 89.207(a). A manufacturer may certify one or more 
nonroad engine families at PM FELs below the Tier 2 PM emission standard 
that will be applicable to those engine families.
    (i) FELs for NOX may not exceed the Tier 1 upper limit 
specified in Sec. 89.112(d).
    (ii) An engine family certified to an FEL is subject to all 
provisions specified in this part, except that the applicable FEL 
replaces the emission standard for the family participating in the 
averaging, banking, and trading program.
    (iii) A manufacturer of an engine family with a NOX FEL 
exceeding the Tier 1 NOX emission standard must obtain 
NOX emission credits sufficient to address the associated 
credit shortfall via averaging, banking, or trading.
    (iv) An engine family with a NOX FEL below the applicable 
Tier 1 standard may generate emission credits for averaging, banking, 
trading, or a combination thereof. An engine family with a PM FEL below 
the Tier 2 standard that will be applicable to that engine family may 
generate emission credits for banking, trading, or a combination 
thereof. Emission credits may not be used to offset an engine family's 
emissions that exceed its applicable FEL. Credits may not be used to 
remedy nonconformity determined by a Selective Enforcement Audit (SEA) 
or by recall (in-use) testing. However, in the case of an SEA failure, 
credits may be used to allow subsequent production of engines for the 
family in question if the manufacturer elects to recertify to a higher 
FEL.
    (4) NOX credits generated in a given model year may be 
used to address credit shortfalls with other engines during that model 
year or in any subsequent model year except as noted under paragraph 
(b)(5)(ii) of this section. PM credits may be used to address credit 
shortfalls with Tier 2 and later engines greater than or equal to 37 kW 
and Tier 1 and later engines less than 37 kW and greater than or equal 
to 19 kW. Credits generated in one model year may not be used for prior 
model years.
    (5) The following provisions apply to the use of Tier 1 
NOX credits for showing compliance with the Tier 2 or Tier 3 
NMHC+NOX standards.
    (i) A manufacturer may use NOX credits from engines 
subject to the Tier 1 NOX standard to address 
NMHC+NOX credit shortfalls with engines in the same averaging 
set subject to Tier 1 NMHC+NOX or Tier 2 NMHC+NOX 
emission standards.

[[Page 71]]

    (ii) A manufacturer may not use NOX credits from engines 
subject to the Tier 1 standards to address NMHC+NOX credit 
shortfalls with engines subject to the Tier 3 NMHC+NOX 
emission standards.
    (c) Requirements for Tier 2 and later engines rated at or above 37 
kW and Tier 1 and later engines rated under 37 kW. (1) A nonroad engine 
family is eligible to participate in the averaging, banking, and trading 
programs for NMHC+NOX emissions and PM emissions if it is 
subject to regulation under subpart B of this part with certain 
exceptions specified in paragraph (c)(2) of this section. No averaging, 
banking, and trading program is available for meeting the CO or smoke 
emission standards specified in subpart B of this part.
    (2) Nonroad engines may not participate in the averaging, banking, 
and trading programs if they are exported or are sold as Blue Sky Series 
engines as described in Sec. 89.112(f). Nonroad engines certified on a 
special test procedure under Sec. 89.114(a), may not participate in the 
averaging, banking and trading programs unless the manufacturer has 
requested that the engines be included in the averaging, banking, and 
trading programs at the time the request for the special test procedure 
is made and has been granted approval by the Administrator for inclusion 
in the averaging, banking, and trading programs.
    (3)(i) A manufacturer may certify one or more nonroad engine 
families at FELs above or below the applicable NMHC+NOX 
emission standard and PM emission standard, provided the summation of 
the manufacturer's projected balance of all NMHC+NOX credit 
transactions and the summation of the manufacturer's projected balance 
of all PM credit transactions in a given model year in a given averaging 
set is greater than or equal to zero, as determined under 
Sec. 89.207(b).
    (A) FELs for NMHC+NOX and FELs for PM may not exceed the 
upper limits specified in Sec. 89.112(d).
    (B) An engine family certified to an FEL is subject to all 
provisions specified in this part, except that the applicable FEL 
replaces the emission standard for the family participating in the 
averaging, banking, and trading program.
    (C) A manufacturer of an engine family with an FEL exceeding the 
applicable emission standard must obtain emission credits sufficient to 
address the associated credit shortfall via averaging, banking, or 
trading, within the restrictions described in Sec. 89.204(c) and 
Sec. 89.206(b)(4).
    (D) An engine family with an FEL below the applicable standard may 
generate emission credits for averaging, banking, trading, or a 
combination thereof. Emission credits may not be used to offset an 
engine family's emissions that exceed its applicable FEL. Credits may 
not be used to remedy nonconformity determined by a Selective 
Enforcement Audit (SEA) or by recall (in-use) testing. However, in the 
case of an SEA failure, credits may be used to allow subsequent 
production of engines for the family in question if the manufacturer 
elects to recertify to a higher FEL.
    (ii)(A) In lieu of generating credits under paragraph (c)(3)(i) of 
this section, a manufacturer may certify one or more nonroad engine 
families rated under 37 kW at family emission limits (FELs) above or 
below the applicable NMHC+NOX emission standard and PM 
emission standard. The summation of the manufacturer's projected balance 
of all NMHC+NOX credit transactions and the summation of the 
manufacturer's projected balance of all PM credit transactions in a 
given model year, as determined under Sec. 89.207(b), are each allowed 
to be less than zero. Separate calculations shall be required for the 
following two categories of engines: engines rated under 19 kW and 
engines rated at or above 19 kW and under 37 kW.
    (B) For each calendar year a negative credit balance exists as of 
December 31, a penalty equal to ten percent of the negative credit 
balance as of December 31 of the calendar year shall be added to the 
negative credit balance. The resulting negative credit balance shall be 
carried into the next calendar year.
    (C) For engines rated under 19 kW, a manufacturer will be allowed to 
carry over a negative credit balance until December 31, 2003. For 
engines rated at or above 19 kW and under 37 kW, a

[[Page 72]]

manufacturer will be allowed to carry over a negative credit balance 
until December 31, 2002. As of these dates, the summation of the 
manufacturer's projected balance of all NMHC+NOX credit 
transactions and the summation of the manufacturer's projected balance 
of all PM credit transactions must each be greater than or equal to 
zero.
    (D) FELs for NMHC+NOX and FELs for PM may not exceed the 
upper limits specified in Sec. 89.112(d).
    (E) An engine family certified to an FEL is subject to all 
provisions specified in this part, except that the applicable 
NMHC+NOX FEL or PM FEL replaces the NMHC+NOX 
emission standard or PM emission standard for the family participating 
in the averaging and banking program.
    (F) A manufacturer of an engine family with an FEL exceeding the 
applicable emission standard must obtain emission credits sufficient to 
address the associated credit shortfall via averaging or banking. The 
exchange of emission credits generated under this program with other 
nonroad engine manufacturers in trading is not allowed.
    (G) An engine family with an FEL below the applicable standard may 
generate emission credits for averaging, banking, or a combination 
thereof. Emission credits may not be used to offset an engine family's 
emissions that exceed its applicable FEL. Credits may not be used to 
remedy nonconformity determined by a Selective Enforcement Audit (SEA) 
or by recall (in-use) testing. However, in the case of an SEA failure, 
credits may be used to allow subsequent production of engines for the 
family in question if the manufacturer elects to recertify to a higher 
FEL.
    (4)(i) Except as noted in paragraphs (c)(4)(ii), (c)(4)(iii), and 
(c)(4)(iv) of this section, credits generated in a given model year may 
be used during that model year or used in any subsequent model year. 
Except as allowed under paragraph (c)(3)(ii) of this section, credits 
generated in one model year may not be used for prior model years.
    (ii) Credits generated from engines rated under 19 kW prior to the 
implementation date of the applicable Tier 2 standards, shall expire on 
December 31, 2007.
    (iii) Credits generated from engines rated under 19 kW under the 
provisions of paragraph (c)(3)(ii) shall expire on December 31, 2003.
    (iv) Credits generated from engines rated at or above 19 kW and 
under 37 kW under the provisions of paragraph (c)(3)(ii) of this section 
shall expire on December 31, 2002.
    (5) Except as provided in paragraph (b)(3) of this section, engine 
families may not generate credits for one pollutant while also using 
credits for another pollutant in the same model year.
    (d) Manufacturers must demonstrate compliance under the averaging, 
banking, and trading programs for a particular model year within 270 
days of the end of the model year. Except as allowed under paragraph 
(c)(3)(ii) of this section, manufacturers that have certified engine 
families to FELs above the applicable emission standards and do not have 
sufficient emission credits to offset the difference between the 
emission standards and the FEL for such engine families will be in 
violation of the conditions of the certificate of conformity for such 
engine families. The certificates of conformity may be voided ab initio 
under Sec. 89.126(c) for those engine families.

[63 FR 57006, Oct. 23, 1998]



Sec. 89.204  Averaging.

    (a) Requirements for Tier 1 engines rated at or above 37 kW. A 
manufacturer may use averaging to offset an emission exceedance of a 
nonroad engine family caused by a NOX FEL above the 
applicable emission standard. NOX credits used in averaging 
may be obtained from credits generated by another engine family in the 
same model year, credits banked in a previous model year, or credits 
obtained through trading.
    (b) Requirements for Tier 2 and later engines rated at or above 37 
kW and Tier 1 and later engines rated under 37 kW. A manufacturer may 
use averaging to offset an emission exceedance of a nonroad engine 
family caused by an NMHC+NOX FEL or a PM FEL above the 
applicable emission standard. Credits used in averaging may be obtained

[[Page 73]]

from credits generated by another engine family in the same model year, 
credits banked in previous model years that have not expired, or credits 
obtained through trading. The use of credits shall be within the 
restrictions described in paragraph (c) of this section, 
Sec. 89.206(b)(4) and Sec. 89.203(b)(5)(ii).
    (c) Averaging sets for emission credits. The averaging and trading 
of NOX emission credits, NMHC + NOX emission 
credits, and PM emissions credits will only be allowed between engine 
families in the same averaging set. The averaging sets for the averaging 
and trading of NOX emission credits, NMHC + NOX 
emission credits, and PM emission credits for nonroad engines are 
defined as follows:
    (1) Eligible engines rated at or above 19 kW, other than marine 
diesel engines, constitute an averaging set.
    (2) Eligible engines rated under 19 kW, other than marine diesel 
engines, constitute an averaging set.
    (3) Marine diesel engines rated at or above 19 kW constitute an 
averaging set. Emission credits generated from marine diesel engines 
rated at or above 19 kW may be used to address credit shortfalls for 
eligible engines rated at or above 19 kW other than marine diesel 
engines.
    (4) Marine diesel engines rated under 19 kW constitute an averaging 
set. Emission credits generated from marine diesel engines rated under 
19 kW may be used to address credit shortfalls for eligible engines 
rated under 19 kW other than marine diesel engines.

[63 FR 57007, Oct. 23, 1998]



Sec. 89.205  Banking.

    (a) Requirements for Tier 1 engines rated at or above 37 kW. (1) A 
manufacturer of a nonroad engine family with a NOX FEL below 
the applicable standard for a given model year may bank credits in that 
model year for use in averaging and trading in any subsequent model 
year.
    (2) A manufacturer of a nonroad engine family may bank 
NOX credits up to one calendar year prior to the effective 
date of mandatory certification. Such engines must meet the requirements 
of subparts A, B, D, E, F, G, H, I, J, and K of this part.
    (3)(i) A manufacturer of a nonroad engine family may bank PM credits 
from Tier 1 engines under the provisions specified in Sec. 89.207(b) for 
use in averaging and trading in the Tier 2 or later timeframe.
    (ii) Such engine families are subject to all provisions specified in 
subparts A, B, D, E, F, G, H, I, J, and K of this part, except that the 
applicable PM FEL replaces the PM emission standard for the family 
participating in the banking and trading program.
    (b) Requirements for Tier 2 and later engines rated at or above 37 
kW and Tier 1 and later engines rated under 37 kW. (1) A manufacturer of 
a nonroad engine family with an NMHC + NOX FEL or a PM FEL 
below the applicable standard for a given model year may bank credits in 
that model year for use in averaging and trading in any following model 
year.
    (2) For engine rated under 37 kW, a manufacturer of a nonroad engine 
family may bank credits prior to the effective date of mandatory 
certification. Such engines must meet the requirements of subparts A, B, 
D, E, F, G, H, I, J, and K of this part.
    (c) A manufacturer may bank actual credits only after the end of the 
model year and after EPA has reviewed the manufacturer's end-of-year 
reports. During the model year and before submittal of the end-of-year 
report, credits originally designated in the certification process for 
banking will be considered reserved and may be redesignated for trading 
or averaging in the end-of-year report and final report.
    (d) Credits declared for banking from the previous model year that 
have not been reviewed by EPA may be used in averaging or trading 
transactions. However, such credits may be revoked at a later time 
following EPA review of the end-of-year report or any subsequent audit 
actions.

[63 FR 57008, Oct. 23, 1998]



Sec. 89.206  Trading.

    (a) Requirements for Tier 1 engines rated at or above 37 kW. (1) A 
nonroad engine manufacturer may exchange emission credits with other 
nonroad engine manufacturers within the same averaging set in trading.

[[Page 74]]

    (2) Credits for trading can be obtained from credits banked in a 
previous model year or credits generated during the model year of the 
trading transaction.
    (3) Traded credits can be used for averaging, banking, or further 
trading transactions within the restrictions described in 
Sec. 89.204(c).
    (b) Requirements for Tier 2 and later engines rated at or above 37 
kW and Tier 1 and later engines rated under 37 kW. (1) A nonroad engine 
manufacturer may exchange emission credits with other nonroad engine 
manufacturers within the same averaging set in trading.
    (2) Credits for trading can be obtained from credits banked in 
previous model years that have not expired or credits generated during 
the model year of the trading transaction.
    (3) Traded credits can be used for averaging, banking, or further 
trading transactions within the restrictions described in Sec. 89.204(c) 
and paragraph (b)(4) of this section.
    (4) Emission credits generated from engines rated at or above 19 kW 
utilizing indirect fuel injection may not be traded to other 
manufacturers.
    (c) In the event of a negative credit balance resulting from a 
transaction, both the buyer and the seller are liable, except in cases 
deemed involving fraud. Certificates of all engine families 
participating in a negative trade may be voided ab initio under 
Sec. 89.126(c).

[63 FR 57008, Oct. 23, 1998]



Sec. 89.207  Credit calculation.

    (a) Requirements for calculating NOX credits from Tier 1 
engines rated at or above 37 kW. (1) For each participating engine 
family, emission credits (positive or negative) are to be calculated 
according to one of the following equations and rounded, in accordance 
with ASTM E29-93a, to the nearest one-hundredth of a megagram (Mg). This 
ASTM procedure has been incorporated by reference (see Sec. 89.6). 
Consistent units are to be used throughout the equation.
    (i) For determining credit availability from all engine families 
generating credits: Emission credits = (Std-FEL)  x  (Volume)  x  
(AvgPR)  x  (UL)  x  (Adjustment)  x  (10-6)
    (ii) For determining credit usage for all engine families requiring 
credits to offset emissions in excess of the standard:

Emission credits = (Std-FEL)  x  (Volume)  x  (AvgPR)  x  (UL)  x  
    (10-6)

Where:

Std = the applicable Tier 1 NOX nonroad engine emission 
standard, in grams per kilowatt-hour.
FEL = the NOX family emission limit for the engine family in 
grams per kilowatt-hour.
Volume = the number of nonroad engines eligible to participate in the 
averaging, banking, and trading program within the given engine family 
during the model year. Engines sold to equipment or vehicle 
manufacturers under the provisions of Sec. 89.102(g) shall not be 
included in this number. Quarterly production projections are used for 
initial certification. Actual applicable production/sales volume is used 
for end-of-year compliance determination.
AvgPR = the average power rating of all of the configurations within an 
engine family, calculated on a sales-weighted basis, in kilowatts.
UL = the useful life for the engine family, in hours.
Adjustment = a one-time adjustment, as specified in paragraph (a)(2) of 
this section, to be applied to Tier 1 NOX credits to be 
banked or traded for determining compliance with the Tier 1 
NOX standards or Tier 2 NOX+NMHC standards 
specified in subpart B of this part. Banked credits traded in a 
subsequent model year will not be subject to an additional adjustment. 
Banked credits used in a subsequent model year's averaging program will 
not have the adjustment restored.

    (2) If an engine family is certified to a NOX FEL of 8.0 
g/kW-hr or less, an Adjustment value of 1.0 shall be used in the credit 
generation calculation described in paragraph (a)(1)(i) of this section. 
If an engine family is certified to a NOX FEL above 8.0 g/kW-
hr, an Adjustment value of 0.65 shall be used in the credit generation 
calculation described in paragraph (a)(1)(i) of this section. If the 
credits are to be used by the credit-generating manufacturer for 
averaging purposes in the same model year in which they are generated, 
an Adjustment value of 1.0 shall be used for all engines regardless of 
the level of the NOX FEL. If the credits are to be banked by 
the credit-generating manufacturer and used in a subsequent model year 
for another Tier 1 engine family, an Adjustment value of 1.0

[[Page 75]]

shall be used for all engines regardless of the level of the 
NOX FEL.
    (b) Requirements for calculating NMHC + NOX Credits from 
Tier 2 and later engines rated at or above 37 kW and Tier 1 and later 
engines rated under 37 kW and PM credits from all engines. (1) For each 
participating engine family, NOX + NMHC emission credits and 
PM emission credits (positive or negative) are to be calculated 
according to one of the following equations and rounded, in accordance 
with ASTM E29-93a, to the nearest one-hundredth of a megagram (Mg). This 
procedure has been incorporated by reference (see Sec. 89.6). Consistent 
units are to be used throughout the equation.
    (i) For determining credit availability from all engine families 
generating credits:

Emission credits = (Std-FEL)  x  (Volume)  x  (AvgPR)  x  (UL)  x  
    (10-6)

    (ii) For determining credit usage for all engine families requiring 
credits to offset emissions in excess of the standard:

Emission credits = (Std-FEL)  x  (Volume)  x  (AvgPR)  x  (UL)  x  
    (10-6)

Where:

Std = the current and applicable nonroad engine emission standard, in 
grams per kilowatt-hour, except for PM calculations where it is the 
applicable nonroad engine Tier 2 PM emission standard, and except for 
engines rated under 19 kW where it is the applicable nonroad engine Tier 
2 emission standard, in grams per kilowatt-hour. (Engines rated under 19 
kW participating in the averaging and banking program provisions of 
Sec. 89.203(c)(3)(ii) shall use the Tier 1 standard for credit 
calculations.)
FEL = the family emission limit for the engine family in grams per 
kilowatt-hour.
Volume = the number of nonroad engines eligible to participate in the 
averaging, banking, and trading program within the given engine family 
during the model year. Engines sold to equipment or vehicle 
manufacturers under the provisions of Sec. 89.102(g) shall not be 
included in this number. Quarterly production projections are used for 
initial certification. Actual applicable production/sales volume is used 
for end-of-year compliance determination.
AvgPR = the average power rating of all of the configurations within an 
engine family, calculated on a sales-weighted basis, in kilowatts.
UL = the useful life for the given engine family, in hours.

[63 FR 57008, Oct. 23, 1998]



Sec. 89.208  Labeling.

    For all nonroad engines included in the averaging, banking, and 
trading programs, the family emission limits to which the engine is 
certified must be included on the label required in Sec. 89.110.

[63 FR 57009, Oct. 23, 1998]



Sec. 89.209  Certification.

    (a) In the application for certification a manufacturer must:
    (1) Declare its intent to include specific engine families in the 
averaging, banking, and trading programs.
    (2) Submit a statement that the engines for which certification is 
requested will not, to the best of the manufacturer's belief, cause the 
manufacturer to have a negative credit balance when all credits are 
calculated for all the manufacturer's engine families participating in 
the averaging, banking, and trading programs, except as allowed under 
Sec. 89.203(c)(3)(ii).
    (3) Declare the applicable FELs for each engine family participating 
in averaging, banking, and trading.
    (i) The FELs must be to the same number of significant digits as the 
emission standard for the applicable pollutant.
    (ii) In no case may the FEL exceed the upper limits prescribed in 
Sec. 89.112(d).
    (4) Indicate the projected number of credits generated/needed for 
this family; the projected applicable production/sales volume, by 
quarter; and the values required to calculate credits as given in 
Sec. 89.207.
    (5) Submit calculations in accordance with Sec. 89.207 of projected 
emission credits (positive or negative) based on quarterly production 
projections for each participating family.
    (6)(i) If the engine family is projected to have negative emission 
credits, state specifically the source (manufacturer/engine family or 
reserved) of the credits necessary to offset the credit deficit 
according to quarterly projected production, or, if the engine family is 
to be included in the provisions of Sec. 89.203(c)(3)(ii), state that 
the engine

[[Page 76]]

family will be subject to those provisions.
    (ii) If the engine family is projected to generate credits, state 
specifically (manufacturer/engine family or reserved) where the 
quarterly projected credits will be applied.
    (b) All certificates issued are conditional upon manufacturer 
compliance with the provisions of this subpart both during and after the 
model year of production.
    (c) Failure to comply with all provisions of this subpart will be 
considered to be a failure to satisfy the conditions upon which the 
certificate was issued, and the certificate may be deemed void ab 
initio.
    (d) The manufacturer bears the burden of establishing to the 
satisfaction of the Administrator that the conditions upon which the 
certificate was issued were satisfied or waived.
    (e) Projected credits based on information supplied in the 
certification application may be used to obtain a certificate of 
conformity. However, any such credits may be revoked based on review of 
end-of-year reports, follow-up audits, and any other verification steps 
deemed appropriate by the Administrator.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57009, Oct. 23, 1998]



Sec. 89.210  Maintenance of records.

    (a) The manufacturer of any nonroad engine that is certified under 
the averaging, banking, and trading program must establish, maintain, 
and retain the following adequately organized and indexed records for 
each such engine produced:
    (1) EPA engine family;
    (2) Engine identification number;
    (3) Engine model year and build date,
    (4) Power rating;
    (5) Purchaser and destination; and
    (6) Assembly plant.
    (b) The manufacturer of any nonroad engine family that is certified 
under the averaging, banking, and trading programs must establish, 
maintain, and retain the following adequately organized and indexed 
records for each such family:
    (1) EPA engine family;
    (2) Family emission limits (FEL);
    (3) Power rating for each configuration tested;
    (4) Projected applicable production/sales volume for the model year; 
and
    (5) Actual applicable production/sales volume for the model year.
    (c) Any manufacturer producing an engine family participating in 
trading reserved credits must maintain the following records on a 
quarterly basis for each engine family in the trading program:
    (1) The engine family;
    (2) The actual quarterly and cumulative applicable production/sales 
volume;
    (3) The values required to calculate credits as given in 
Sec. 89.207;
    (4) The resulting type and number of credits generated/required;
    (5) How and where credit surpluses are dispersed; and
    (6) How and through what means credit deficits are met.
    (d) The manufacturer must retain all records required to be 
maintained under this section for a period of eight years from the due 
date for the end-of-model-year report. Records may be retained as hard 
copy or reduced to microfilm, ADP diskettes, and so forth, depending on 
the manufacturer's record retention procedure; provided, that in every 
case all information contained in the hard copy is retained.
    (e) Nothing in this section limits the Administrator's discretion in 
requiring the manufacturer to retain additional records or submit 
information not specifically required by this section.
    (f) Pursuant to a request made by the Administrator, the 
manufacturer must submit to the Administrator the information that the 
manufacturer is required to retain.
    (g) EPA may void ab initio under Sec. 89.126(c) a certificate of 
conformity for an engine family for which the manufacturer fails to 
retain the records required in this section or to provide such 
information to the Administrator upon request.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57009, Oct. 23, 1998]



Sec. 89.211  End-of-year and final reports.

    (a) End-of-year and final reports must indicate the engine family, 
the

[[Page 77]]

actual applicable production/sales volume, the values required to 
calculate credits as given in Sec. 89.207, and the number of credits 
generated/required. Manufacturers must also submit how and where credit 
surpluses were dispersed (or are to be banked) and/or how and through 
what means credit deficits were met. Copies of contracts related to 
credit trading must be included or supplied by the broker, if 
applicable. The report shall include a calculation of credit balances to 
show that the summation of the manufacturer's use of credits results in 
a credit balance equal to or greater than zero, except as allowed under 
Sec. 89.203(c)(3)(ii). Manufacturers participating under the program 
described in Sec. 89.203(c)(3)(ii) shall include the NMHC + 
NOX credit balance and the PM credit balance as of December 
31 of that calendar year.
    (b) The applicable production/sales volume for end-of-year and final 
reports must be based on the location of the point of first retail sale 
(for example, retail customer, dealer, secondary manufacturer) also 
called the final product purchase location.
    (c)(1) End-of-year reports must be submitted within 90 days of the 
end of the model year to: Director, Engine Programs and Compliance 
Division (6405-J), U.S. Environmental Protection Agency, 401 M Street 
S.W., Washington, DC 20460.
    (2) Final reports must be submitted within 270 days of the end of 
the model year to: Director, Engine Programs and Compliance Division 
(6405-J), U.S. Environmental Protection Agency, 401 M Street S.W., 
Washington, DC 20460.
    (d) Failure by a manufacturer participating in the averaging, 
banking, or trading program to submit any end-of-year or final reports 
in the specified time for all engines is a violation of sections 
203(a)(1) and 213 of the Clean Air Act for each engine.
    (e) A manufacturer generating credits for deposit only who fails to 
submit end-of-year reports in the applicable specified time period (90 
days after the end of the model year) may not use the credits until such 
reports are received and reviewed by EPA. Use of projected credits 
pending EPA review is not permitted in these circumstances.
    (f) Errors discovered by EPA or the manufacturer in the end-of-year 
report, including errors in credit calculation, may be corrected in the 
final report up to 270 days from the end of the model year.
    (g) If EPA or the manufacturer determines that a reporting error 
occurred on an end-of-year or final report previously submitted to EPA 
under this section, the manufacturer's credits and credit calculations 
will be recalculated. Erroneous positive credits will be void except as 
provided in paragraph (h) of this section. Erroneous negative credit 
balances may be adjusted by EPA.
    (h) If within 270 days of the end of the model year, EPA review 
determines a reporting error in the manufacturer's favor (that is, 
resulting in an increased credit balance) or if the manufacturer 
discovers such an error within 270 days of the end of the model year, 
the credits shall be restored for use by the manufacturer.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57009, Oct. 23, 1998]



Sec. 89.212  Notice of opportunity for hearing.

    Any voiding of the certificate under Secs. 89.203(d), 89.206(c), 
89.209(c) or 89.210(g) will be made only after the manufacturer 
concerned has been offered an opportunity for a hearing conducted in 
accordance with Secs. 89.512 and 89.513 and, if a manufacturer requests 
such a hearing, will be made only after an initial decision by the 
Presiding Officer.

[63 FR 57010, Oct. 23, 1998]



              Subpart D--Emission Test Equipment Provisions



Sec. 89.301  Scope; applicability.

    (a) This subpart describes the equipment required in order to 
perform exhaust emission tests on new nonroad compression-ignition 
engines subject to the provisions of subpart B of part 89.
    (b) Exhaust gases, either raw or dilute, are sampled while the test 
engine is operated using an 8-mode test cycle on an engine dynamometer. 
The exhaust gases receive specific component

[[Page 78]]

analysis determining concentration of pollutant, exhaust volume, the 
fuel flow, and the power output during each mode. Emission is reported 
as grams per kilowatt hour (g/kw-hr). See subpart E of this part for a 
complete description of the test procedure.
    (c) General equipment and calibration requirements are given in 
Sec. 89.304 through 89.324. Sections 89.325 through 89.331 set forth 
general test specifications.
    (d) Additional information about system design, calibration 
methodologies, and so forth, for raw gas sampling can be found in part 
86, subpart D of this chapter. Examples for system design, calibration 
methodologies, and so forth, for dilute exhaust gas sampling can be 
found in part 86, subpart N of this chapter.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.302  Definitions.

    The definitions in subpart A of this part apply to this subpart. For 
terms not defined in this part, the definitions in 40 CFR part 86, 
subparts A, D, I, and N, apply to this subpart.

[63 FR 57010, Oct. 23, 1998]



Sec. 89.303  Symbols/abbreviations.

    (a) The abbreviations in Sec. 86.094-3 or part 89.3 of this chapter 
apply to this subpart.
    (b) The abbreviations in Table 1 in appendix A of this subpart apply 
to this subpart. Some abbreviations from Sec. 89.3 have been included 
for the convenience of the reader.
    (c) The symbols in Table 2 in appendix A of this subpart apply to 
this subpart.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.304  Equipment required for gaseous emissions; overview.

    (a) All engines subject to this subpart are tested for exhaust 
emissions. Engines are operated on dynamometers meeting the 
specification given in Sec. 89.306.
    (b) The exhaust is tested for gaseous emissions using a raw gas 
sampling system as described in Sec. 89.412 or a constant volume 
sampling (CVS) system as described in Sec. 89.419. Both systems require 
analyzers (see paragraph (c) of this section) specific to the pollutant 
being measured.
    (c) Analyzers used are a non-dispersive infrared (NDIR) absorption 
type for carbon monoxide and carbon dioxide analysis; a heated flame 
ionization (HFID) type for hydrocarbon analysis; and a chemiluminescent 
detector (CLD) or heated chemiluminescent detector (HCLD) for oxides of 
nitrogen analysis. Sections 89.309 through 89.324 set forth a full 
description of analyzer requirements and specifications.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57010, Oct. 23, 1998]



Sec. 89.305  Equipment measurement accuracy/calibration frequency.

    The accuracy of measurements must be such that the maximum 
tolerances shown in Table 3 in appendix A of this subpart are not 
exceeded. Calibrate all equipment and analyzers according to the 
frequencies shown in Table 3 in appendix A of this subpart.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.306  Dynamometer specifications and calibration weights.

    (a) Dynamometer specifications. The dynamometer test stand and other 
instruments for measurement of power output must meet the accuracy and 
calibration frequency requirements shown in Table 3 in appendix A of 
this subpart. The dynamometer must be capable of performing the test 
cycle described in Sec. 89.410.
    (b) Dynamometer calibration weights. A minimum of six calibration 
weights for each range used are required. The weights must be spaced to 
reflect good engineering judgement such that they cover the range of 
weights required and must be traceable to within 0.5 percent of NIST 
weights. Laboratories located in foreign countries may certify 
calibration weights to local government bureau standards.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.307  Dynamometer calibration.

    (a) If necessary, follow the dynamometer manufacturer's instructions 
for

[[Page 79]]

initial start-up and basic operating adjustments.
    (b) Check the dynamometer torque measurement for each range used by 
the following method:
    (1) Warm up the dynamometer following the dynamometer manufacturer's 
specifications.
    (2) Determine the dynamometer calibration moment arm (a distance/
weight measurement). Dynamometer manufacturer's data, actual 
measurement, or the value recorded from the previous calibration used 
for this subpart may be used.
    (3) When calibrating the engine flywheel torque transducer, any 
lever arm used to convert a weight or a force through a distance into a 
torque must be in a horizontal position (5 degrees).
    (4) Calculate the indicated torque (IT) for each calibration weight 
to be used by:

IT = calibration weight (N)  x  calibration moment arm (m)

    (5) Attach each calibration weight specified in Sec. 89.306 to the 
moment arm at the calibration distance determined in paragraph (b)(2) of 
this section. Record the power measurement equipment response (N-m) to 
each weight.
    (6) For each calibration weight, compare the torque value measured 
in paragraph (b)(5) of this section to the calculated torque determined 
in paragraph (b)(4) of this section.
    (7) The measured torque must be within either 2 percent of point or 
1 percent of the engine maximum torque of the calculated torque.
    (8) If the measured torque is not within the above requirements, 
adjust or repair the system. Repeat steps in paragraphs (b)(1) through 
(b)(6) of this section with the adjusted or repaired system.
    (c) Optional. A master load-cell or transfer standard may be used to 
verify the torque measurement system.
    (1) The master load-cell and read out system must be calibrated with 
weights at each test weight specified in Sec. 89.306. The calibration 
weights must be traceable to within 0.1 percent of applicable national 
standards.
    (2) Warm up the dynamometer following the equipment manufacturer's 
specifications.
    (3) Attach the master load-cell and loading system.
    (4) Load the dynamometer to a minimum of 6 equally spaced torque 
values as indicated by the master load-cell for each in-use range used.
    (5) The in-use torque measurement must be within 2 percent of the 
torque measured by the master system for each load used.
    (6) If the in-use torque is not within 2 percent of the master 
torque, adjust or repair the system. Repeat steps in paragraphs (c)(2) 
through (c)(5) of this section with the adjusted or repaired system.
    (d) Calibrated resistors may not be used for engine flywheel torque 
transducer calibration, but may be used to span the transducer prior to 
engine testing.
    (e) Perform other engine dynamometer system calibrations as dictated 
by good engineering practice.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57010, Oct. 23, 1998]



Sec. 89.308  Sampling system requirements for gaseous emissions.

    (a) For each component (pump, sample line section, filters, and so 
forth) in the heated portion of the sampling system that has a separate 
source of power or heating element, use engineering judgment to locate 
the coolest portion of that component and monitor the temperature at 
that location. If several components are within an oven, then only the 
surface temperature of the component with the largest thermal mass and 
the oven temperature need be measured.
    (b) If water is removed by condensation, the sample gas temperature 
shall be monitored within the water trap or the sample dewpoint shall be 
monitored downstream. In either case, the indicated temperature shall 
not exceed 7  deg.C.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57010, Oct. 23, 1998]



Sec. 89.309  Analyzers required for gaseous emissions.

    (a) Analyzers. The following instruments are required for analyzing 
the measured gases:
    (1) Carbon Monoxide (CO) analysis. (i) The carbon monoxide analyzer 
must be

[[Page 80]]

of the non-dispersive infrared (NDIR) absorption type.
    (ii) The use of linearizing circuits is permitted.
    (2) Carbon Dioxide (CO2) analysis. (i) The carbon dioxide 
analyzer must be of the non-dispersive infrared (NDIR) absorption type.
    (ii) The use of linearizing circuits is permitted.
    (3) [Reserved]
    (4) Hydrocarbon (HC) analysis. (i) The hydrocarbon analyzer must be 
of the heated flame ionization (HFID) type.
    (ii) If the temperature of the exhaust gas at the sample probe is 
below 190  deg.C, the temperature of the valves, pipework, and so forth, 
must be controlled so as to maintain a wall temperature of 190  deg.C 
 11  deg.C. If the temperature of the exhaust gas at the 
sample probe is above 190  deg.C, the temperature of the valves, 
pipework, and so forth, must be controlled so as to maintain a wall 
temperature greater than 180  deg.C.
    (iii) The FID oven must be capable of maintaining temperature within 
5.5  deg.C of the set point.
    (iv) Fuel and burner air must conform to the specifications in 
Sec. 89.312.
    (v) The percent of oxygen interference must be less than 3 percent, 
as specified in Sec. 89.319(d).
    (5) Oxides of nitrogen (NOX) analysis. (i) This analysis 
device must consist of the subsequent items, following the sample probe, 
in the given order:
    (A) Pipework, valves, and so forth, controlled so as to maintain a 
wall temperature above 60  deg.C.
    (B) A NO2 to NO converter. The NO2 to NO 
converter efficiency must be at least 90 percent.
    (C) For raw analysis, an ice bath or other cooling device located 
after the NOX converter (optional for dilute analysis).
    (D) A chemiluminescent detector (CLD or HCLD).
    (ii) The quench interference must be less than 3.0 percent as 
measured in Sec. 89.318.
    (b) Other gas analyzers yielding equivalent results may be used with 
advance approval of the Administrator.
    (c) The following requirements must be incorporated in each system 
used for testing under this subpart.
    (1) Carbon monoxide and carbon dioxide measurements must be made on 
a dry basis (for raw exhaust measurement only). Specific requirements 
for the means of drying the sample can be found in Sec. 89.309(e).
    (2) Calibration or span gases for the NOX measurement 
system must pass through the NO2 to NO converter.
    (d) The electromagnetic compatibility (EMC) of the equipment must be 
on a level as to minimize additional errors.
    (e) Gas drying. Chemical dryers are not an acceptable method of 
removing water from the sample. Water removal by condensation is 
acceptable. A water trap performing this function and meeting the 
specifications in Sec. 89.308(b) is an acceptable method. Means other 
than condensation may be used only with prior approval from the 
Administrator.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57010, Oct. 23, 1998]



Sec. 89.310  Analyzer accuracy and specifications.

    (a) Measurement accuracy--general. The analyzers must have a 
measuring range which allows them to measure the concentrations of the 
exhaust gas sample pollutants with the accuracies shown in Table 3 in 
Appendix A of this subpart.
    (1) Response time. As necessary, measure and account for the 
response time of the analyzer.
    (2) Precision. The precision of the analyzer must be, at worst, 
1 percent of full-scale concentration for each range used at 
or above 100 ppm (or ppmC) or 2 percent for each range used 
below 100 ppm (or ppmC). The precision is defined as 2.5 times the 
standard deviation(s) of 10 repetitive responses to a given calibration 
or span gas.
    (3) Noise. The analyzer peak-to-peak response to zero and 
calibration or span gases over any 10-second period must not exceed 2 
percent of full-scale chart deflection on all ranges used.
    (4) Zero drift. The analyzer zero-response drift during a 1-hour 
period must be less than 2 percent of full-scale chart deflection on the 
lowest range used. The zero-response is defined as the mean response 
including noise to a

[[Page 81]]

zero-gas during a 30-second time interval.
    (5) Span drift. The analyzer span drift during a 1-hour period must 
be less than 2 percent of full-scale chart deflection on the lowest 
range used. The analyzer span is defined as the difference between the 
span-response and the zero-response. The span-response is defined as the 
mean response including noise to a span gas during a 30-second time 
interval.
    (b) Operating procedure for analyzers and sampling system. Follow 
the start-up and operating instructions of the instrument manufacturer. 
Adhere to the minimum requirements given in Sec. 89.314 to Sec. 89.323.
    (c) Emission measurement accuracy--Bag sampling. (1) Good 
engineering practice dictates that exhaust emission sample analyzer 
readings below 15 percent of full-scale chart deflection should 
generally not be used.
    (2) Some high resolution read-out systems, such as computers, data 
loggers, and so forth, can provide sufficient accuracy and resolution 
below 15 percent of full scale. Such systems may be used provided that 
additional calibrations of at least 4 non-zero nominally equally spaced 
points, using good engineering judgement, below 15 percent of full scale 
are made to ensure the accuracy of the calibration curves. If a gas 
divider is used, the gas divider must conform to the accuracy 
requirements specified in Sec. 89.312(c). The procedure in paragraph 
(c)(3) of this section may be used for calibration below 15 percent of 
full scale.
    (3) The following procedure shall be followed:
    (i) Span the analyzer using a calibration gas meeting the accuracy 
requirements of Sec. 89.312(c), within the operating range of the 
analyzer, and at least 90% of full scale.
    (ii) Generate a calibration over the full concentration range at a 
minimum of 6, approximately equally spaced, points (e.g. 15, 30, 45, 60, 
75, and 90 percent of the range of concentrations provided by the gas 
divider). If a gas divider or blender is being used to calibrate the 
analyzer and the requirements of paragraph (c)(2) of this section are 
met, verify that a second calibration gas between 10 and 20 percent of 
full scale can be named within 2 percent of its certified concentration.
    (iii) If a gas divider or blender is being used to calibrate the 
analyzer, input the value of a second calibration gas (a span gas may be 
used for the CO2 analyzer) having a named concentration between 10 and 
20 percent of full scale. This gas shall be included on the calibration 
curve. Continue adding calibration points by dividing this gas until the 
requirements of paragraph (c)(2) of this section are met.
    (iv) Fit a calibration curve per Sec. 89.319 through Sec. 89.322 for 
the full scale range of the analyzer using the calibration data obtained 
with both calibration gases.
    (d) Emission measurement accuracy--continuous sampling. Analyzers 
used for continuous analysis must be operated such that the measured 
concentration falls between 15 and 100 percent of full-scale chart 
deflection. Exceptions to these limits are:
    (1) The analyzer's response may be less than 15 percent or more than 
100 percent of full scale if automatic range change circuitry is used 
and the limits for range changes are between 15 and 100 percent of full-
scale chart deflection;
    (2) The analyzer's response may be less than 15 percent of full 
scale if:
    (i) Alternative (c)(2) of this section is used to ensure that the 
accuracy of the calibration curve is maintained below 15 percent; or
    (ii) The full-scale value of the range is 155 ppm (or ppmC) or less.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57010, Oct. 23, 1998]



Sec. 89.311  Analyzer calibration frequency.

    (a) Prior to initial use and after major repairs, bench check each 
analyzer (see Sec. 89.315).
    (b) Calibrations are performed as specified in Secs. 89.319 through 
89.324.
    (c) At least monthly, or after any maintenance which could alter 
calibration, the following calibrations and checks are performed.
    (1) Leak check the vacuum side of the system (see Sec. 89.316).
    (2) Check that the analysis system response time has been measured 
and accounted for.

[[Page 82]]

    (3) Verify that the automatic data collection system (if used) meets 
the requirements found in Table 3 in appendix A of this subpart.
    (4) Check the fuel flow measurement instrument to insure that the 
specifications in Table 3 in appendix A of this subpart are met.
    (d) Verify that all NDIR analyzers meet the water rejection ratio 
and the CO2 rejection ratio as specified in Sec. 89.318.
    (e) Verify that the dynamometer test stand and power output 
instrumentation meet the specifications in Table 3 in appendix A of this 
subpart.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.312  Analytical gases.

    (a) The shelf life of all calibration gases must not be exceeded. 
The expiration date of the calibration gases stated by the gas 
manufacturer shall be recorded.
    (b) Pure gases. The required purity of the gases is defined by the 
contamination limits given below. The following gases must be available 
for operation:
    (1) Purified nitrogen (Contamination  1 ppm C, 
 1 ppm CO,  400 ppm CO2,  
0.1 ppm NO)
    (2) [Reserved]
    (3) Hydrogen-helium mixture (40  2 percent hydrogen, 
balance helium) (Contamination  31 ppm C,  400 ppm 
CO)
    (4) Purified synthetic air (Contamination  1 ppm C, 
 1 ppm CO,  400 ppm CO2,  
0.1 ppm NO) (Oxygen content between 18-21 percent vol.)
    (c) Calibration and span gases. (1) Calibration gas values are to be 
derived from NIST Standard Reference Materials (SRM's) or other 
standardized gas samples and are to be single blends as listed in the 
following paragraph.
    (2) Mixtures of gases having the following chemical compositions 
shall be available:
    (i) C3H8 and purified synthetic air ;
    (ii) C3H8 and purified nitrogen (optional for 
raw measurements);
    (iii) CO and purified nitrogen;
    (iv) NOX and purified nitrogen (the amount of 
NO2 contained in this calibration gas must not exceed 5 
percent of the NO content);
    (v) CO2 and purified nitrogen.
    (3) The true concentration of a span gas must be within 
2 percent of the NIST gas standard. The true concentration 
of a calibration gas must be within 1 percent of the NIST 
gas standard. The use of precision blending devices (gas dividers) to 
obtain the required calibration gas concentrations is acceptable, 
provided that the blended gases are accurate to within 1.5 
percent of NIST gas standards, or other gas standards which have been 
approved by the Administrator. This accuracy implies that primary gases 
used (or blending) must be ``named'' to an accuracy of at least 
1 percent, traceable to NIST or other approved gas 
standards. All concentrations of calibration gas shall be given on a 
volume basis (volume percent or volume ppm).
    (4) The gas concentrations used for calibration and span may also be 
obtained by means of a gas divider, either diluting with purified 
N2 or diluting with purified synthetic air. The accuracy of 
the mixing device must be such that the concentration of the diluted 
gases may be determined to within 2 percent.
    (d) Oxygen interference check gases shall contain propane with 350 
ppmC 75 ppmC hydrocarbon. The three oxygen interference 
gases shall contain 21%  1% O2, 10%  
1% O2, and 5%  1% O2. The 
concentration value shall be determined to calibration gas tolerances by 
chromatographic analysis of total hydrocarbons plus impurities or by 
dynamic blending. Nitrogen shall be the predominant diluent with the 
balance oxygen.
    (e) Fuel for the FID shall be a blend of 40 percent 2 
percent hydrogen with the balance being helium. The mixture shall 
contain less than 1 ppm equivalent carbon response; 98 to 100 percent 
hydrogen fuel may be used with advance approval of the Administrator.
    (f) Hydrocarbon analyzer burner air. The concentration of oxygen for 
raw sampling must be within 1 mole percent of the oxygen concentration 
of the burner air used in the latest oxygen interference check 
(%O2I). If the difference in oxygen concentration is greater 
than 1 mole percent, then the oxygen interference must be checked and, 
if necessary, the analyzer adjusted to meet the %O2I 
requirements. The

[[Page 83]]

burner air must contain less than 2 ppmC hydrocarbon.
    (g) Gases for the methane analyzer shall be single blends of methane 
using air as the diluent.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57010, Oct. 23, 1998]



Sec. 89.313  Initial calibration of analyzers.

    (a) Warming-up time. The warming-up time should be according to the 
recommendations of the manufacturer. If not specified, a minimum of two 
hours shall be allowed for warming up the analyzers.
    (b) NDIR and HFID analyzer. The NDIR analyzer shall be tuned and 
maintained according to the instrument manufacturer's instructions. The 
combustion flame of the HFID analyzer shall be optimized in order to 
meet the specifications in Sec. 89.319(b)(2).
    (c) Zero setting and calibration. (1) Using purified synthetic air 
(or nitrogen), the CO, CO2, NOX, and HC analyzers 
shall be set at zero.
    (2) Introduce the appropriate calibration gases to the analyzers and 
the values recorded. The same gas flow rates shall be used as when 
sampling exhaust.
    (d) Rechecking of zero setting. The zero setting shall be rechecked 
and the procedure described in paragraph (c) of this section repeated, 
if necessary.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.314  Pre- and post-test calibration of analyzers.

    Each operating range used during the test shall be checked prior to 
and after each test in accordance with the following procedure. (A 
chronic need for parameter adjustment can indicate a need for instrument 
maintenance.):
    (a) The calibration is checked by using a zero gas and a span gas 
whose nominal value is between 75 percent and 100 percent of full-scale, 
inclusive, of the measuring range.
    (b) After the end of the final mode, a zero gas and the same span 
gas will be used for rechecking. As an option, the zero and span may be 
rechecked at the end of each mode or each test segment. The analysis 
will be considered acceptable if the difference between the two 
measuring results is less than 2 percent of full scale.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57011, Oct. 23, 1998]



Sec. 89.315  Analyzer bench checks.

    (a) Prior to initial use and after major repairs verify that each 
analyzer complies with the specifications given in Table 3 in appendix A 
of this subpart.
    (b) If a stainless steel NO2 to NO converter is used, 
condition all new or replacement converters. The conditioning consists 
of either purging the converter with air for a minimum of 4 hours or 
until the converter efficiency is greater than 90 percent. The converter 
must be at operational temperature while purging. Do not use this 
procedure prior to checking converter efficiency on in-use converters.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.316  Analyzer leakage and response time.

    (a) Vacuum side leak check. (1) Any location within the analysis 
system where a vacuum leak could affect the test results must be 
checked.
    (2) The maximum allowable leakage rate on the vacuum side is 0.5 
percent of the in-use flow rate for the portion of the system being 
checked. The analyzer flows and bypass flows may be used to estimate the 
in-use flow rates.
    (3) The sample probe and the connection between the sample probe and 
valve V2 (see Figure 1 in appendix B of this subpart) may be excluded 
from the leak check.
    (b) [Reserved]
    (c) The response time shall be accounted for in all emission 
measurement and calculations.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57011, Oct. 23, 1998]



Sec. 89.317  NOX converter check.

    (a) Prior to its introduction into service, and monthly thereafter, 
the chemiluminescent oxides of nitrogen analyzer shall be checked for 
NO2 to NO converter efficiency. Figure 2 in appendix B of 
this subpart is a reference for the following paragraphs.

[[Page 84]]

    (b) Follow good engineering practices for instrument start-up and 
operation. Adjust the analyzer to optimize performance.
    (c) Zero the oxides of nitrogen analyzer with zero-grade air or 
zero-grade nitrogen.
    (d) Connect the outlet of the NOX generator to the sample 
inlet of the oxides of nitrogen analyzer which has been set to the most 
common operating range.
    (e) Introduce into the NOX generator analyzer-system an 
NO-in-nitrogen (N2) mixture with an NO concentration equal to 
approximately 80 percent of the most common operating range. The 
NO2 content of the gas mixture shall be less than 5 percent 
of the NO concentration.
    (f) With the oxides of nitrogen analyzer in the NO mode, record the 
concentration of NO indicated by the analyzer.
    (g) Turn on the NOX generator O2 (or air) 
supply and adjust the O2 (or air) flow rate so that the NO 
indicated by the analyzer is about 10 percent less than indicated in 
paragraph (f) of this section. Record the concentration of NO in this 
NO+O2 mixture.
    (h) Switch the NOX generator to the generation mode and 
adjust the generation rate so that the NO measured on the analyzer is 20 
percent of that measured in paragraph (f) of this section. There must be 
at least 10 percent unreacted NO at this point. Record the concentration 
of residual NO.
    (i) Switch the oxides of nitrogen analyzer to the NOX 
mode and measure total NOX. Record this value.
    (j) Switch off the NOX generator but maintain gas flow 
through the system. The oxides of nitrogen analyzer will indicate the 
NOX in the NO+O2 mixture. Record this value.
    (k) Turn off the NOX generator O2 (or air) 
supply. The analyzer will now indicate the NOX in the 
original NO-in-N2 mixture. This value should be no more than 
5 percent above the value indicated in paragraph (f) of this section.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57011, Oct. 23, 1998]



Sec. 89.318  Analyzer interference checks.

    (a) Gases present in the exhaust other than the one being analyzed 
can interfere with the reading in several ways. Positive interference 
occurs in NDIR and PMD instruments when the interfering gas gives the 
same effect as the gas being measured, but to a lesser degree. Negative 
interference occurs in NDIR instruments by the interfering gas 
broadening the absorption band of the measured gas and in CLD 
instruments by the interfering gas quenching the radiation. The 
interference checks described in this section are to be made initially 
and after any major repairs that could affect analyzer performance.
    (b) CO analyzer water and CO2 interference checks. Prior 
to its introduction into service and annually thereafter, the NDIR 
carbon monoxide analyzer shall be checked for response to water vapor 
and CO2:
    (1) Follow good engineering practices for instrument start-up and 
operation. Adjust the analyzer to optimize performance on the most 
sensitive range to be used.
    (2) Zero the carbon monoxide analyzer with either zero-grade air or 
zero-grade nitrogen.
    (3) Bubble a mixture of 3 percent CO2 in N2 
through water at room temperature and record analyzer response.
    (4) An analyzer response of more than 1 percent of full scale for 
ranges above 300 ppm full scale or more than 3 ppm on ranges below 300 
ppm full scale requires corrective action. (Use of conditioning columns 
is one form of corrective action which may be taken.)
    (c) NOX analyzer quench check. The two gases of concern 
for CLD (and HCLD) analyzers are CO2 and water vapor. Quench 
responses to these two gases are proportional to their concentrations 
and, therefore, require test techniques to determine quench at the 
highest expected concentrations experienced during testing.
    (1) NOX analyzer CO2 quench check. A 
CO2 span gas having a concentration of 80 percent to 100 
percent of full scale of the maximum operating range used during testing 
shall be passed through the CO2 NDIR analyzer and the value 
recorded as a. It is diluted approximately 50 percent with NO span gas 
and then passed through the CO2 NDIR and CLD (or HCLD), with 
the CO2 and NO values recorded as b and c respectively. The 
CO2 shall then be shut off

[[Page 85]]

and only the NO span gas passed through the CLD (or HCLD) and the NO 
value recorded as d. Percent CO2 quench shall be calculated 
as follows and shall not exceed 3 percent:
[GRAPHIC] [TIFF OMITTED] TR17JN94.001

Where:

a = Undiluted CO2 concentration (percent)
b = Diluted CO2 concentration (percent)
c = Diluted NO concentration (ppm)
d = Undiluted NO concentration (ppm)

    (2) NOx analyzer water quench check. (i) This check 
applies to wet measurements only. An NO span gas having a concentration 
of 80 to 100 percent of full scale of a normal operating range shall be 
passed through the CLD (or HCLD) and the response recorded as D. The NO 
span gas shall then be bubbled through water at room temperature and 
passed through the CLD (or HCLD) and the analyzer response recorded as 
AR. Determine and record the bubbler absolute operating pressure and the 
bubbler water temperature. (It is important that the NO span gas 
contains minimal NO2 concentration for this check. No 
allowance for absorption of NO2 in water has been made in the 
following quench calculations. This test may be optionally run in the NO 
mode to minimize the effect of any NO2 in the NO span gas.)
    (ii) Calculations for water quench must consider dilution of the NO 
span gas with water vapor and scaling of the water vapor concentration 
of the mixture to that expected during testing. Determine the mixture's 
saturated vapor pressure (designated as Pwb) that corresponds to the 
bubbler water temperature. Calculate the water concentration (Z1, 
percent) in the mixture by the following equation:

[GRAPHIC] [TIFF OMITTED] TR17JN94.002

where

GP = analyzer operating pressure (Pa)

    (iii) Calculate the expected dilute NO span gas and water vapor 
mixture concentration (designated as D1) by the following equation:
[GRAPHIC] [TIFF OMITTED] TR17JN94.003

    (iv)(A) The maximum raw or dilute exhaust water vapor concentration 
expected during testing (designated as Wm) can be estimated from the 
CO2 span gas (or as defined in the equation in this paragraph 
and designated as A) criteria in paragraph (c)(1) of this section and 
the assumption of a fuel atom H/C ratio of 1.8:1 as:

Wm(%)=0.9 x A(%)

Where:

A = maximum CO2 concentration expected in the sample system during 
testing.

    (B) Percent water quench shall not exceed 3 percent and shall be 
calculated by:
[GRAPHIC] [TIFF OMITTED] TR23OC98.003


[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57011, Oct. 23, 1998; 63 FR 58101, Oct. 29, 1998]



Sec. 89.319  Hydrocarbon analyzer calibration.

    (a) The FID hydrocarbon analyzer shall receive the initial and 
periodic calibration as described in this section.

[[Page 86]]

The HFID used with petroleum-fueled diesel (compression-ignition) 
engines shall be operated to a set point 5.5  deg.C between 
185 and 197  deg.C.
    (b) Initial and periodic optimization of detector response. Prior to 
introduction into service and at least annually thereafter, adjust the 
FID hydrocarbon analyzer for optimum hydrocarbon response as specified 
in this paragraph. Alternate methods yielding equivalent results may be 
used, if approved in advance by the Administrator.
    (1) Follow good engineering practices for initial instrument start-
up and basic operating adjustment using the appropriate fuel (see 
Sec. 89.312(e)) and zero-grade air.
    (2) Optimize the FID's response on the most common operating range. 
The response is to be optimized with respect to fuel pressure or flow. 
Efforts shall be made to minimize response variations to different 
hydrocarbon species that are expected to be in the exhaust. Good 
engineering judgment is to be used to trade off optimal FID response to 
propane-in-air against reductions in relative responses to other 
hydrocarbons. A good example of trading off response on propane for 
relative responses to other hydrocarbon species is given in Society of 
Automotive Engineers (SAE) Paper No. 770141, ``Optimization of Flame 
Ionization Detector for Determination of Hydrocarbon in Diluted 
Automotive Exhausts''; author Glenn D. Reschke. It is also required that 
the response be set to optimum condition with respect to air flow and 
sample flow. Heated Flame Ionization Detectors (HFIDs) must be at their 
specified operating temperature. One of the following procedures is 
required for FID or HFID optimization:
    (i) The procedure outlined in Society of Automotive Engineers (SAE) 
paper No. 770141, ``Optimization of a Flame Ionization Detector for 
Determination of Hydrocarbon in Diluted Automotive Exhausts''; author, 
Glenn D. Reschke. This procedure has been incorporated by reference at 
Sec. 89.6.
    (ii) The HFID optimization procedures outlined in 40 CFR part 86, 
subpart D.
    (iii) Alternative procedures may be used if approved in advance by 
the Administrator.
    (iv) The procedures specified by the manufacturer of the FID or 
HFID.
    (3) After the optimum flow rates have been determined, record them 
for future reference.
    (c) Initial and periodic calibration. Prior to introduction into 
service, after any maintenance which could alter calibration, and 
monthly thereafter, the FID or HFID hydrocarbon analyzer shall be 
calibrated on all normally used instrument ranges using the steps in 
this paragraph (c). Use the same flow rate and pressures as when 
analyzing samples. Calibration gases shall be introduced directly at the 
analyzer, unless the ``overflow'' calibration option of 40 CFR part 86, 
subpart N, for the HFID is taken. New calibration curves need not be 
generated each month if the existing curve can be verified as continuing 
to meet the requirements of paragraph (c)(3) of this section.
    (1) Adjust analyzer to optimize performance.
    (2) Zero the hydrocarbon analyzer with zero-grade air.
    (3) Calibrate on each used operating range with propane-in-air 
(dilute or raw) or propane-in-nitrogen (raw) calibration gases having 
nominal concentrations starting between 10-15 percent and increasing in 
at least six incremental steps to 90 percent (e.g., 15, 30, 45, 60, 75, 
and 90 percent of that range) of that range. The incremental steps are 
to be spaced to represent good engineering practice. For each range 
calibrated, if the deviation from a least-squares best-fit straight line 
is 2 percent or less of the value at each data point, concentration 
values may be calculated by use of a single calibration factor for that 
range. If the deviation exceeds 2 percent at each non-zero data point 
and within 0.3 percent of full scale on the zero, the best-
fit non-linear equation which represents the data to within these limits 
shall be used to determine concentration.
    (d) Oxygen interference optimization (required for raw). Choose a 
range where the oxygen interference check gases will fall in the upper 
50 percent. Conduct the test, as outlined in this paragraph, with the 
oven temperature set as required by the instrument manufacturer. Oxygen 
interference check

[[Page 87]]

gas specifications are found in Sec. 89.312(d).
    (1) Zero the analyzer.
    (2) Span the analyzer with the 21% oxygen interference gas specified 
in Sec. 89.312(d).
    (3) Recheck zero response. If it has changed more than 0.5 percent 
of full scale repeat paragraphs (d)(1) and (d)(2) of this section to 
correct problem.
    (4) Introduce the 5 percent and 10 percent oxygen interference check 
gases.
    (5) Recheck the zero response. If it has changed more 1 
percent of full scale, repeat the test.
    (6) Calculate the percent of oxygen interference (designated as 
percent O2I) for each mixture in paragraph (d)(4) of this 
section.

percent O2I = ((B-C)  x  100)/B

Where:
A = hydrocarbon concentration (ppmC) of the span gas used in paragraph 
(d)(2) of this section.
B = hydrocarbon concentration (ppmC) of the oxygen interference check 
gases used in paragraph (d)(4) of this section.
C = analyzer response (ppmC) = A/D; where
D = (percent of full-scale analyzer response due to A)  x  (percent of 
full-scale analyzer response due to B)

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57011, Oct. 23, 1998]



Sec. 89.320  Carbon monoxide analyzer calibration.

    (a) Calibrate the NDIR carbon monoxide as described in this section.
    (b) Initial and periodic interference check. Prior to its 
introduction into service and annually thereafter, the NDIR carbon 
monoxide analyzer shall be checked for response to water vapor and 
CO2 in accordance with Sec. 318.96(b).
    (c) Initial and periodic calibration. Prior to its introduction into 
service, after any maintenance which could alter calibration, and every 
two months thereafter, the NDIR carbon monoxide analyzer shall be 
calibrated. New calibration curves need not be generated every two 
months if the existing curve can be verified as continuing to meet the 
requirements of paragraph (c)(3) of this section.
    (1) Adjust the analyzer to optimize performance.
    (2) Zero the carbon monoxide analyzer with either zero-grade air or 
zero-grade nitrogen.
    (3) Calibrate on each used operating range with carbon monoxide-in-
N2 calibration gases having nominal concentrations starting 
between 10 and 15 percent and increasing in at least six incremental 
steps to 90 percent (e.g., 15, 30, 45, 60, 75, and 90 percent) of that 
range. The incremental steps are to be spaced to represent good 
engineering practice. For each range calibrated, if the deviation from a 
least-squares best-fit straight line is 2 percent or less of the value 
at each non-zero data point and within  0.3 percent of full 
scale on the zero, concentration values may be calculated by use of a 
single calibration factor for that range. If the deviation exceeds these 
limits, the best-fit non-linear equation which represents the data to 
within these limits shall be used to determine concentration.
    (d) The initial and periodic interference, system check, and 
calibration test procedures specified in part 86, subpart D of this 
chapter may be used in lieu of the procedures specified in this section.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57012, Oct. 23, 1998]



Sec. 89.321  Oxides of nitrogen analyzer calibration.

    (a) The chemiluminescent oxides of nitrogen analyzer shall receive 
the initial and periodic calibration described in this section.
    (b) Prior to its introduction into service, and monthly thereafter, 
the chemiluminescent oxides of nitrogen analyzer is checked for 
NO2 to NO converter efficiency according to Sec. 89.317.
    (c) Initial and periodic calibration. Prior to its introduction into 
service, after any maintenance which could alter calibration, and 
monthly thereafter, the chemiluminescent oxides of nitrogen analyzer 
shall be calibrated on all normally used instrument ranges. New 
calibration curves need not be generated each month if the existing 
curve can be verified as continuing to meet the requirements of 
paragraph (c)(3) of this section. Use the same flow rate as when 
analyzing samples. Proceed as follows:

[[Page 88]]

    (1) Adjust analyzer to optimize performance.
    (2) Zero the oxides of nitrogen analyzer with zero-grade air or 
zero-grade nitrogen.
    (3) Calibrate on each normally used operating range with NO-in-
N2 calibration gases with nominal concentrations starting at 
between 10 and 15 percent and increasing in at least six incremental 
steps to 90 percent (e.g., 15, 30, 45, 60, 75, and 90 percent) of that 
range. The incremental steps are to be spaced to represent good 
engineering practice. For each range calibrated, if the deviation from a 
least-squares best-fit straight line is 2 percent or less of the value 
at each non-zero data point and within  0.3 percent of full 
scale on the zero, concentration values may be calculated by use of a 
single calibration factor for that range. If the deviation exceeds these 
limits, the best-fit non-linear equation which represents the data to 
within these limits shall be used to determine concentration.
    (d) The initial and periodic interference, system check, and 
calibration test procedures specified in part 86, subpart D of this 
chapter may be used in lieu of the procedures specified in this section.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57012, Oct. 23, 1998]



Sec. 89.322  Carbon dioxide analyzer calibration.

    (a) Prior to its introduction into service, after any maintenance 
which could alter calibration, and bi-monthly thereafter, the NDIR 
carbon dioxide analyzer shall be calibrated on all normally used 
instrument ranges. New calibration curves need not be generated each 
month if the existing curve can be verified as continuing to meet the 
requirements of paragraph (a)(3) of this section. Proceed as follows:
    (1) Follow good engineering practices for instrument start-up and 
operation. Adjust the analyzer to optimize performance.
    (2) Zero the carbon dioxide analyzer with either zero-grade air or 
zero-grade nitrogen.
    (3) Calibrate on each normally used operating range with carbon 
dioxide-in-N2 calibration or span gases having nominal 
concentrations starting between 10 and 15 percent and increasing in at 
least six incremental steps to 90 percent (e.g., 15, 30, 45, 60, 75, and 
90 percent) of that range. The incremental steps are to be spaced to 
represent good engineering practice. For each range calibrated, if the 
deviation from a least-squares best-fit straight line is 2 percent or 
less of the value at each non-zero data point and within  
0.3 percent of full scale on the zero, concentration values may be 
calculated by use of a single calibration factor for that range. If the 
deviation exceeds these limits, the best-fit non-linear equation which 
represents the data to within these limits shall be used to determine 
concentration.
    (b) The initial and periodic interference, system check, and 
calibration test procedures specified in part 86, subpart D of this 
chapter may be used in lieu of the procedures in this section.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57012, Oct. 23, 1998]



Sec. 89.323  NDIR analyzer calibration.

    (a) Detector optimization. If necessary, follow the instrument 
manufacturer's instructions for initial start-up and basic operating 
adjustments.
    (b) Calibration curve. Develop a calibration curve for each range 
used as follows:
    (1) Zero the analyzer.
    (2) Span the analyzer to give a response of approximately 90 percent 
of full-scale chart deflection.
    (3) Recheck the zero response. If it has changed more than 0.5 
percent of full scale, repeat the steps given in paragraphs (b)(1) and 
(b)(2) of this section.
    (4) Record the response of calibration gases having nominal 
concentrations starting between 10 and 15 percent and increasing in at 
least six incremental steps to 90 percent of that range. The incremental 
steps are to be spaced to represent good engineering practice.
    (5) Generate a calibration curve. The calibration curve shall be of 
fourth order or less, have five or fewer coefficients. If any range is 
within 2 percent of being linear a linear calibration may be used. 
Include zero as a data point. Compensation for known impurities in the 
zero gas can be made to the zero-

[[Page 89]]

data point. The calibration curve must fit the data points within 2 
percent of point.
    (6) Optional. A new calibration curve need not be generated if:
    (i) A calibration curve conforming to paragraph (b)(5) of this 
section exists; or
    (ii) The responses generated in paragraph (b)(4) of this section are 
within 1 percent of full scale or 2 percent of point, whichever is less, 
of the responses predicted by the calibration curve for the gases used 
in paragraph (b)(4) of this section.
    (7) If multiple range analyzers are used, the lowest range used must 
meet the curve fit requirements below 15 percent of full scale.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.324  Calibration of other equipment.

    (a) Other test equipment used for testing shall be calibrated as 
often as required by the instrument manufacturer or necessary according 
to good practice.
    (b) If a methane analyzer is used, the methane analyzer shall be 
calibrated prior to introduction into service and monthly thereafter:
    (1) Follow the manufacturer's instructions for instrument startup 
and operation. Adjust the analyzer to optimize performance.
    (2) Zero the methane analyzer with zero-grade air.
    (3) Calibrate on each normally used operating range with 
CH4 in air with nominal concentrations starting between 10 
and 15 percent and increasing in at least six incremental steps to 90 
percent (e.g., 15, 30, 45, 60, 75, and 90 percent) of that range. The 
incremental steps are to be spaced to represent good engineering 
practice. For each range calibrated, if the deviation from a least-
squares best-fit straight line is 2 percent or less of the value at each 
non-zero data point and within  0.3 percent of full scale on 
the zero, concentration values may be calculated by use of a single 
calibration factor for that range. If the deviation exceeds these 
limits, the best-fit non-linear equation which represents the data to 
within these limits shall be used to determine concentration.

[63 FR 57013, Oct. 23, 1998]



Sec. 89.325  Engine intake air temperature measurement.

    (a) Engine intake air temperature measurement must be made within 
122 cm of the engine. The measurement location must be made either in 
the supply system or in the air stream entering the supply system.
    (b) The temperature measurements shall be accurate to within 
2  deg.C.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.326  Engine intake air humidity measurement.

    (a) Humidity conditioned air supply. Air that has had its absolute 
humidity altered is considered humidity- conditioned air. For this type 
of intake air supply, the humidity measurements must be made within the 
intake air supply system and after the humidity conditioning has taken 
place.
    (b) Nonconditioned air supply procedure. Humidity measurements in 
nonconditioned intake air supply systems must be made in the intake air 
stream entering the supply system. Alternatively, the humidity 
measurements can be measured within the intake air supply stream.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.327  Charge cooling.

    For engines with an air-to-air intercooler (or any other low 
temperature charge air cooling device) between the turbocharger 
compressor and the intake manifold, follow SAE J1937. This procedure has 
been incorporated by reference. See Sec. 89.6. The temperature of the 
cooling medium and the temperature of the charge air shall be monitored 
and recorded.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.328  Inlet and exhaust restrictions.

    (a) The manufacturer is liable for emission compliance over the full 
range of restrictions that are specified by the manufacturer for that 
particular engine.

[[Page 90]]

    (b) Perform testing at the following inlet and exhaust restriction 
settings.
    (1) Equip the test engine with an air inlet system presenting an air 
inlet restriction within 5 percent of the upper limit at maximum air 
flow, as specified by the engine manufacturer for a clean air cleaner. A 
system representative of the installed engine may be used. In other 
cases a test shop system may be used.
    (2) The exhaust backpressure must be within 5 percent of the upper 
limit at maximum declared power, as specified by the engine 
manufacturer. A system representative of the installed engine may be 
used. In other cases a test shop system may be used.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57013, Oct. 23, 1998]



Sec. 89.329  Engine cooling system.

    An engine cooling system is required with sufficient capacity to 
maintain the engine at normal operating temperatures as prescribed by 
the engine manufacturer.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]



Sec. 89.330  Lubricating oil and test fuels.

    (a) Lubricating oil. Use the engine lubricating oil for testing that 
meets the requirements as specified by the manufacturer for a particular 
engine and intended usage. Record the specifications of the lubricating 
oil used for the test.
    (b) Test fuels. (1) Use diesel fuels for testing which are clean and 
bright, with pour and cloud points adequate for operability. The diesel 
fuel may contain nonmetallic additives as follows: Cetane improver, 
metal deactivator, antioxidant, dehazer, antirust, pour depressant, dye, 
dispersant, and biocide.
    (2) Use petroleum fuel meeting the specifications in Table 4 in 
Appendix A of this subpart, or substantially equivalent specifications 
approved by the Administrator, for exhaust emission testing. The grade 
of diesel fuel used must be commercially designated as ``Type 2-D'' 
grade diesel fuel and recommended by the engine manufacturer.
    (3) Testing of Tier 1 engines rated under 37 kW or Tier 2 engines 
rated at or above 37 kW that is conducted by the Administrator shall be 
performed using test fuels that meet the specifications in Table 4 in 
Appendix A of this subpart and that have a sulfur content no higher than 
0.20 weight percent.
    (c) Other fuels may be used for testing provided they meet the 
following qualifications:
    (1) They are commercially available;
    (2) Information acceptable to the Administrator is provided to show 
that only the designated fuel would be used in customer service;
    (3) Use of a fuel listed under paragraph (b) of this section would 
have a detrimental effect on emissions or durability; and
    (4) Fuel specifications are approved in writing by the Administrator 
prior to the start of testing.
    (d) Report the specification range of the fuel to be used under 
paragraphs (b)(2) and (c)(1) through (c)(4) of this section in the 
application for certification in accordance with Sec. 89.115 (a)(8).

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57013, Oct. 23, 1998]



Sec. 89.331  Test conditions.

    (a) General requirements. Calculate all volumes and volumetric flow 
rates at standard conditions for temperature and pressure (0  deg.C and 
101.3 kPa), and these conditions must be used consistently throughout 
all calculations.
    (b) Engine test conditions. Measure the absolute temperature 
(designated as T and expressed in Kelvin) of the engine air at the inlet 
to the engine, and the dry atmospheric pressure (designated as p and 
expressed in kPa), and determine the parameter f according to the 
following provisions:
    (1) Naturally aspirated and mechanically supercharged engines:
    [GRAPHIC] [TIFF OMITTED] TR17JN94.008
    
    (2) Turbocharged engine with or without cooling of inlet air:
    [GRAPHIC] [TIFF OMITTED] TR17JN94.009
    

[[Page 91]]


    (c) For a test to be recognized as valid, the parameter f shall be 
between the limits as shown below:
[GRAPHIC] [TIFF OMITTED] TR17JN94.010


[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]

                     Appendix A To Subpart D--Tables

                Table 1--Abbreviations Used in Subpart D
CLD...............................  Chemiluminescent detector.
CO................................  Carbon monoxide.
CO2...............................  Carbon dioxide.
HC................................  Hydrocarbons.
HCLD..............................  Heated chemiluminescent detector.
HFID..............................  Heated flame ionization detector.
GC................................  Gas chromatograph.
NDIR..............................  Non-dispersive infra-red analyzer.
NIST..............................  National Institute for Standards and
                                     Testing.
NO................................  Nitric Oxide.
NO2...............................  Nitrogen Dioxide.
NOX...............................  Oxides of nitrogen.
O2................................  Oxygen.


                Table 2--Symbols Used in Subparts D and E
------------------------------------------------------------------------
    Symbol                         Term                         Unit
------------------------------------------------------------------------
conc.........  Concentration (ppm by volume)..............  ppm
f............  Engine specific parameter considering
                atmospheric conditions
FFCB.........  Fuel specific factor for the carbon balance
                calculation
FFD..........  Fuel specific factor for exhaust flow
                calculation on dry basis
FFH..........  Fuel specific factor representing the
                hydrogen to carbon ratio
FFW..........  Fuel specific factor for exhaust flow
                calculation on wet basis
FR...........  Rate of fuel consumed......................  g/h
GAIRW........  Intake air mass flow rate on wet basis.....  kg/h
GAIRD........  Intake air mass flow rate on dry basis.....  kg/h
GEXHW........  Exhaust gas mass flow rate on wet basis....  kg/h
GFuel........  Fuel mass flow rate........................  kg/h
H............  Absolute humidity (water content related to  g/kg
                dry air).
i............  Subscript denoting an individual mode
KH...........  Humidity correction factor
L............  Percent torque related to maximum torque     %
                for the test mode.
mass.........  Pollutant mass flow........................  g/h
nd,i.........  Engine speed (average at the i'th mode       1/min
                during the cycle).
Ps...........  Dry atmospheric pressure...................  kPa
Pd...........  Test ambient saturation vapor pressure at    kPa
                ambient temperature.
P............  Observed brake power output uncorrected....  kW
PAUX.........  Declared total power absorbed by             kW
                auxiliaries fitted for the test.
PM...........  Maximum power measured at the test speed     kW
                under test conditions.
Pi...........  Pi = PM,i + PAUX,i
PB...........  Total barometric pressure (average of the    kPa
                pre-test and post-test values).
Pv...........  Saturation pressure at dew point             kPa
                temperature.
Ra...........  Relative humidity of the ambient air.......  %
S............  Dynamometer setting........................  kW
T............  Absolute temperature at air inlet..........  K
Tbe..........  Air temperature after the charge air cooler  K
                (if applicable) (average).
Tclout.......  Coolant temperature outlet (average).......  K
TDd..........  Absolute dewpoint temperature..............  K
Td,i.........  Torque (average at the i'th mode during the  N-m
                cycle).
TSC..........  Temperature of the intercooled air.........  K
Tref.........  Reference temperature......................  K
VEXHD........  Exhaust gas volume flow rate on dry basis..  m3/h
VAIRW........  Intake air volume flow rate on wet basis...  m3/h
PB...........  Total barometric pressure..................  kPa
VEXHW........  Exhaust gas volume flow rate on wet basis..  m3/h
WF...........  Weighing factor
WFE..........  Effective weighing factor
------------------------------------------------------------------------


         Table 3--Measurement Accuracy and Calibration Frequency
------------------------------------------------------------------------
                                    Calibration          Calibration
No.             Item                 accuracy 1           frequency
------------------------------------------------------------------------
  1  Engine speed.............   2%....  30 days.
  2  Torque...................  Larger of  2% of point
                                 or  1%
                                 of engine maximum.
  3  Fuel consumption (raw       2% of   30 days.
      measurement).              engine maximum.
  4  Air consumption (raw        2% of   As required.
      measurement).              engine maximum.
  5  Coolant temperature......  2 deg.K  As required.
  6  Lubricant temperature....  2 deg.K  As required.
  7  Exhaust backpressure.....   1.0%    As required.
                                 of engine maximum.
  8  Inlet depression.........  1.0% of engine       As required.
                                 maximum.

[[Page 92]]

 
  9  Exhaust gas temperature..  15 deg.  As required.
                                 K.
 10  Air inlet temperature      2 deg.K  As required.
      (combustion air).
 11  Atmospheric pressure.....   0.5%..  As required.
 12  Humidity (combustion air)   0.5...  As required.
      (g of H2O/Kg of dry air).
 13  Fuel temperature.........  2 deg.K  As required.
 14  Temperature with regard    2 deg.K  As required.
      to dilution tunnel.
 15  Dilution air humidity (g    0.5...  As required.
      of H2O/Kg of dry air).
 16  HC analyzer..............   2%....  Monthly or as
                                                      required.
 17  CO analyzer..............   2%....  Once per 60 days or
                                                      as required.
 18  NOX analyzer.............   2%....  Monthly or as
                                                      required.
 19  Methane analyzer.........   2%....  Monthly or as
                                                      required.
 20  NOX converter efficiency   90%................  Monthly.
      check.
 21  CO2 analyzer.............   2%....  Once per 60 days or
                                                      as required.
------------------------------------------------------------------------
\1\ All accuracy requirements pertain to the final recorded value which
  is inclusive of the data acquisition system.


                                    Table 4--Federal Test Fuel Specifications
----------------------------------------------------------------------------------------------------------------
               Item                                   Procedure (ASTM) \1\                     Value (type 2-D)
----------------------------------------------------------------------------------------------------------------
Cetane............................  D613-95.................................................  40-48
Distillation Range:
    IBP,  deg.C...................  D86-97..................................................  171-204
    10% point,  deg.C.............  86-97...................................................  204-238
    50% point,  deg.C.............  86-97...................................................  243-282
    90% point,  deg.C.............  86-97...................................................  293-332
    EP,  deg.C....................  86-97...................................................  321-366
    Gravity, API..................  D287-92.................................................  32-37
Total Sulfur, %mass...............  D129-95 or D2622-98.....................................  0.03--0.40
Hydrocarbon composition:
    Aromatics, %vol...............  D1319-98 or D5186-96....................................  \2\ 10
Paraffins, Naphthenes, Olefins....  D1319-98................................................  (\3\)
Flashpoint,  deg.C (minimum)......  D93-97..................................................  54
Viscosity @ 38 deg.C, Centistokes.  D445-97.................................................  2.0-3.2
----------------------------------------------------------------------------------------------------------------
\1\ All ASTM procedures in this table have been incorporated by reference. See Sec.  89.6.
\2\ Minimum.
\3\ Remainder.

[63 FR 57013, Oct. 23, 1998]

[[Page 93]]

                    Appendix B to Subpart D--Figures
      [GRAPHIC] [TIFF OMITTED] TC01MR92.000
      

[[Page 94]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.001



               Subpart E--Exhaust Emission Test Procedures



Sec. 89.401  Scope; applicability.

    (a) This subpart describes the procedures to follow in order to 
perform exhaust emission tests on new nonroad compression-ignition 
engines subject to the provisions of subpart B of this part.
    (b) Exhaust gases, either raw or dilute, are sampled while the test 
engine is operated using the appropriate test cycle on an engine 
dynamometer. The

[[Page 95]]

exhaust gases receive specific component analysis determining 
concentration of pollutant, exhaust volume, the fuel flow (raw 
analysis), and the power output during each mode. Emissions are reported 
as grams per kilowatt hour (g/kW-hr).
    (c) Requirements for emission test equipment and calibrating this 
equipment are found in subpart D of this part.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57015, Oct. 23, 1998]



Sec. 89.402  Definitions.

    The definitions in subpart A of this part apply to this subpart. For 
terms not defined in this part, the definitions in 40 CFR part 86, 
subparts A, D, I, and N, apply to this subpart.

[63 FR 57015, Oct. 23, 1998]



Sec. 89.403  Symbols/abbreviations.

    (a) The abbreviations in Sec. 86.094-3 or Sec. 89.3 of this chapter 
apply to this subpart.
    (b) The abbreviations in Table 1 in appendix A to subpart D also 
apply to this subpart. Some abbreviations from Sec. 89.3 have been 
included for the convenience of the reader.
    (c) The symbols in Table 2 in appendix A to subpart D apply to this 
subpart.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]



Sec. 89.404  Test procedure overview.

    (a) The test consists of prescribed sequences of engine operating 
conditions to be conducted on an engine dynamometer. The exhaust gases, 
generated raw or dilute during engine operation, are sampled for 
specific component analysis through the analytical train. The test is 
applicable to engines equipped with catalytic or direct-flame 
afterburners, induction system modifications, or other systems, or to 
uncontrolled engines.
    (b) The test is designed to determine the brake-specific emissions 
of hydrocarbons, carbon monoxide, oxides of nitrogen, and particulate 
matter. For more information on particulate matter sampling see 
Sec. 89.112(c). The test cycles consist of various steady-state 
operating modes that include different combinations of engine speeds and 
loads. These procedures require the determination of the concentration 
of each pollutant, exhaust volume, the fuel flow (raw analysis), and the 
power output during each mode. The measured values are weighted and used 
to calculate the grams of each pollutant emitted per kilowatt hour (g/
kW-hr).
    (c)(1) When an engine is tested for exhaust emissions, the complete 
engine shall be tested with all emission control devices installed and 
functioning.
    (2) On air-cooled engines, the fan shall be installed.
    (3) Additional accessories (for example, oil cooler, alternators, or 
air compressors) may be installed but such accessory loading will be 
considered parasitic in nature and observed power shall be used in the 
emission calculation.
    (d) All emission control systems installed on or incorporated in the 
application must be functioning during all procedures in this subpart. 
In cases of component malfunction or failure, maintenance to correct 
component failure or malfunction must be authorized in accordance with 
Sec. 86.094-25 of this chapter.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57015, Oct. 23, 1998]



Sec. 89.405  Recorded information.

    (a) The information described in this section must be recorded, 
where applicable, for each test.
    (b) Engine description and specification. A copy of the information 
specified in this paragraph must accompany each engine sent to the 
Administrator for compliance testing. The manufacturer need not record 
the information specified in this paragraph for each test if the 
information, with the exception of paragraphs (b)(3) and (b)(9) of this 
section, is included in the manufacturer's application for 
certification.
    (1) Engine-system combination.
    (2) Engine identification numbers.
    (3) Number of hours of operation accumulated on engine.
    (4) Rated maximum horsepower and torque.
    (5) Maximum horsepower and torque speeds.
    (6) Engine displacement.
    (7) Governed speed.

[[Page 96]]

    (8) Idle rpm.
    (9) Fuel consumption at maximum power and torque.
    (10) Maximum air flow.
    (11) Air inlet restriction.
    (12) Exhaust pipe diameter(s).
    (13) Maximum exhaust system backpressure.
    (c) Test data; general.
    (1) Engine-system combination.
    (2) Engine identification number.
    (3) Instrument operator.
    (4) Engine operator.
    (5) Number of hours of operation accumulated on the engine prior to 
beginning the warm-up portion of the test.
    (6) Fuel identification.
    (7) Date of most recent analytical assembly calibration.
    (8) All pertinent instrument information such as tuning, gain, 
serial numbers, detector number, and calibration curve numbers. As long 
as this information is available for inspection by the Administrator, it 
may be summarized by system number or analyzer identification numbers.
    (d) Test data; pre-test.
    (1) Date and time of day.
    (2) Test number.
    (3) Intermediate speed and rated speed as defined in Sec. 89.2 and 
maximum observed torque for these speeds.
    (4) Recorder chart or equivalent. Identify the zero traces for each 
range used, and span traces for each range used.
    (5) Air temperature after and pressure drop across the charge air 
cooler (if applicable) at maximum observed torque and rated speed.
    (e) Test data; modal.
    (1) Recorder chart or equivalent. Identify for each test mode the 
emission concentration traces and the associated analyzer range(s). 
Identify the start and finish of each test.
    (2) Observed engine torque.
    (3) Observed engine rpm.
    (4) Record engine torque and engine rpm continuously during each 
mode with a chart recorder or equivalent recording device.
    (5) Intake air flow (for raw mass flow sampling method only) and 
depression for each mode.
    (6) Engine intake air temperature at the engine intake or 
turbocharger inlet for each mode.
    (7) Mass fuel flow (for raw sampling) for each mode.
    (8) Engine intake humidity.
    (9) Coolant temperature outlet.
    (10) Engine fuel inlet temperature at the pump inlet.
    (f) Test data; post-test.
    (1) Recorder chart or equivalent. Identify the zero traces for each 
range used and the span traces for each range used. Identify hangup 
check, if performed.
    (2) Total number of hours of operation accumulated on the engine.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57015, Oct. 23, 1998]



Sec. 89.406  Pre-test procedures.

    (a) Allow a minimum of 30 minutes warmup in the standby or operating 
mode prior to spanning the analyzers.
    (b) Replace or clean the filter elements and then vacuum leak check 
the system per Sec. 89.316(a). Allow the heated sample line, filters, 
and pumps to reach operating temperature.
    (c) Perform the following system checks:
    (1) Check the sample-line temperatures (see Sec. 89.309(a)(4)(ii) 
and (a)(5)(i)(A)).
    (2) Check that the system response time has been accounted for prior 
to sample collection data recording.
    (3) A hang-up check is permitted, but is optional.
    (d) Check analyzer zero and span at a minimum before and after each 
test. Further, check analyzer zero and span any time a range change is 
made or at the maximum demonstrated time span for stability for each 
analyzer used.
    (e) Check system flow rates and pressures.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57015, Oct. 23, 1998]



Sec. 89.407  Engine dynamometer test run.

    (a) Measure and record the temperature of the air supplied to the 
engine, the fuel temperature, the intake air humidity, and the observed 
barometric pressure during the sampling for each mode. The fuel 
temperature shall be

[[Page 97]]

less than or equal to 43C during the sampling for each mode.
    (b) The governor and fuel system shall have been adjusted to provide 
engine performance at the levels reported in the application for 
certification required under Sec. 89.115.
    (c) The following steps are taken for each test:
    (1) Install instrumentation and sample probes as required.
    (2) Perform the pre-test procedure as specified in Sec. 89.406.
    (3) Read and record the general test data as specified in 
Sec. 89.405(c).
    (4) Start cooling system.
    (5) Precondition (warm up) the engine in the following manner:
    (i) For variable-speed engines:
    (A) Operate the engine at idle for 2 to 3 minutes;
    (B) Operate the engine at approximately 50 percent power at the peak 
torque speed for 5 to 7 minutes;
    (C) Operate the engine at rated speed and maximum horsepower for 25 
to 30 minutes;
    (ii) For constant-speed engines:
    (A) Operate the engine at minimum load for 2 to 3 minutes;
    (B) Operate the engine at 50 percent load for 5 to 7 minutes;
    (C) Operate the engine at maximum load for 25 to 30 minutes;
    (iii) Optional. It is permitted to precondition the engine at rated 
speed and maximum horsepower until the oil and water temperatures are 
stabilized. The temperatures are defined as stabilized if they are 
maintained within 2 percent of point on an absolute basis for 2 minutes. 
The engine must be operated a minimum of 10 minutes for this option. 
This optional procedure may be substituted for the procedure in 
paragraph (c)(5)(i)or (c)(5)(ii) of this section;
    (iv) Optional. If the engine has been operating on service 
accumulation for a minimum of 40 minutes, the service accumulation may 
be substituted for the procedure in paragraphs (c)(5)(i) through (iii) 
of this section.
    (6) Read and record all pre-test data specified in Sec. 89.405(d).
    (7) Start the test cycle (see Sec. 89.410) within 20 minutes of the 
end of the warmup. (See paragraph (c)(13) of this section.) A mode 
begins when the speed and load requirements are stabilized to within the 
requirements of Sec. 89.410(b). A mode ends when valid emission sampling 
for that mode ends. For a mode to be valid, the speed and load 
requirements must be maintained continuously during the mode. Sampling 
in the mode may be repeated until a valid sample is obtained as long the 
speed and torque requirements are met.
    (8) Calculate the torque for any mode with operation at rated speed.
    (9) During the first mode with intermediate speed operation, if 
applicable, calculate the torque corresponding to 75 and 50 percent of 
the maximum observed torque for the intermediate speed.
    (10) Record all modal data specified in Sec. 89.405(e) during a 
minimum of the last 60 seconds of each mode.
    (11) Record the analyzer(s) response to the exhaust gas during the a 
minimum of the last 60 seconds of each mode.
    (12) Test modes may be repeated, as long as the engine is 
preconditioned by running the previous mode. In the case of the first 
mode of any cycle, precondition according to paragraph (c)(5) of this 
section.
    (13) If a delay of more than 20 minutes, but less than 4 hours, 
occurs between the end of one mode and the beginning of another mode, 
precondition the engine by running the previous mode. If the delay 
exceeds 4 hours, the test shall include preconditioning (begin at 
paragraph (c)(2) of this section).
    (14) The speed and load points for each mode are listed in Tables 1 
through 4 of Appendix B of this subpart. The engine speed and load shall 
be maintained as specified in Sec. 89.410(b).
    (15) If at any time during a test mode, the test equipment 
malfunctions or the specifications in paragraph (c)(14) of this section 
are not met, the test mode is void and may be aborted. The test mode may 
be restarted by preconditioning with the previous mode.
    (16) Fuel flow and air flow during the idle load condition may be 
determined just prior to or immediately following the dynamometer 
sequence, if longer times are required for accurate measurements.

[[Page 98]]

    (d) Exhaust gas measurements. (1) Measure HC, CO, CO2, 
and NOX concentration in the exhaust sample.
    (2) Each analyzer range that may be used during a test mode must 
have the zero and span responses recorded prior to the execution of the 
test. Only the zero and span for the range(s) used to measure the 
emissions during the test are required to be recorded after the 
completion of the test.
    (3) It is permissible to change filter elements between test modes.
    (4) A leak check is permitted between test segments.
    (5) A hangup check is permitted between test segments.
    (6) If, during the emission measurement portion of a test segment, 
the value of the gauges downstream of the NDIR analyzer(s) G3 or G4 (see 
Figure 1 in appendix B to subpart D) differs by more than 
0.5 kPa from the pretest value, the test segment is void.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57015, Oct. 23, 1998]



Sec. 89.408  Post-test procedures.

    (a) A hangup check is recommended at the completion of the last test 
mode using the following procedure:
    (1) Within 30 seconds introduce a zero-grade gas or room air into 
the sample probe or valve V2 (see Figure 1 in appendix B to subpart D) 
to check the ``hangup zero'' response. Simultaneously start a time 
measurement.
    (2) Select the lowest HC range used during the test.
    (3) Within four minutes of beginning the time measurement in 
paragraph (a)(1) of this section, the difference between the span-zero 
response and the hangup zero response shall not be greater than 5.0 
percent of full scale or 10 ppmC whichever is greater.
    (b) Begin the analyzer span checks within 6 minutes after the 
completion of the last mode in the test. Record for each analyzer the 
zero and span response
    (c) If during the test, the filter element(s) were replaced or 
cleaned, a of Sec. 89.316(a), the test is void.
    (d) Record the post-test data specified in Sec. 89.405(f).
    (e) For a valid test, the zero and span checks performed before and 
after each test for each analyzer must meet the following requirements:
    (1) The span drift (defined as the change in the difference between 
the zero response and the span response) must not exceed 3 percent of 
full-scale chart deflection for each range used.
    (2) The zero response drift must not exceed 3 percent of full-scale 
chart deflection.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57016, Oct. 23, 1998]



Sec. 89.409  Data logging.

    (a) A computer or any other automatic data processing device(s) may 
be used as long as the system meets the requirements of this subpart.
    (b) Determine from the data collection records the analyzer 
responses corresponding to the end of each mode.
    (c) Record data at a minimum of once every 5 seconds.
    (d) Determine the final value for CO2, CO, HC, and 
NOX concentrations by averaging the concentration of each 
point taken during the sample period for each mode.
    (e) For purposes of this section, calibration data includes 
calibration curves, linearity curves, span-gas responses, and zero-gas 
responses.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]



Sec. 89.410  Engine test cycle.

    (a) Emissions shall be measured using one of the test cycles 
specified in Tables 1 through 4 of Appendix B of this subpart, subject 
to the provisions of paragraphs (a)(1) through (a)(4) of this section. 
These cycles shall be used to test engines on a dynamometer.
    (1) The 8-mode test cycle described in Table 1 of Appendix B of this 
subpart shall be used for all engines, except constant speed engines, 
engines rated under 19 kW, and propulsion marine diesel engines.
    (2) The 5-mode test cycle described in Table 2 of Appendix B of this 
subpart shall be used for constant-speed engines as defined in 
Sec. 89.2. Any engine certified under this test cycle must meet the 
labeling requirements of Sec. 89.110(b)(11).
    (3) The 6-mode test cycle described in Table 3 of Appendix B of this 
subpart

[[Page 99]]

shall be used for variable speed engines rated under 19 kW.
    (4) Notwithstanding the provisions of paragraphs (a)(1) through 
(a)(3) of this section, the 4-mode test cycle described in Table 4 of 
Appendix B of this subpart shall be used for propulsion marine diesel 
engines.
    (5) Notwithstanding the provisions of paragraphs (a)(1) through 
(a)(4) of this section:
    (i) Manufacturers may use the 8-mode test cycle described in Table 1 
of Appendix B of this subpart for:
    (A) Constant speed engines, or variable speed engines rated under 19 
kW; or
    (B) Propulsion marine diesel engines, provided the propulsion marine 
diesel engines are certified in an engine family that includes primarily 
non-marine diesel engines, and the manufacturer obtains advance approval 
from the Administrator.
    (ii) The Administrator may use the 8-mode test cycle specified in 
Table 1 of Appendix B of this subpart during testing of any engine which 
was certified based on emission data collected from that test cycle.
    (b) During each non-idle mode, hold the specified load to within 2 
percent of the engine maximum value and speed to within 2 
percent of point. During each idle mode, speed must be held within the 
manufacturer's specifications for the engine, and the throttle must be 
in the fully closed position and torque must not exceed 5 percent of the 
peak torque value of mode 5.
    (c) For any mode except those involving either idle or full-load 
operation, if the operating conditions specified in paragraph (b) of 
this section cannot be maintained, the Administrator may authorize 
deviations from the specified load conditions. Such deviations shall not 
exceed 10 percent of the maximum torque at the test speed. The minimum 
deviations above and below the specified load necessary for stable 
operation shall be determined by the manufacturer and approved by the 
Administrator prior to the test run.
    (d) Power generated during the idle mode may not be included in the 
calculation of emission results.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57016, Oct. 23, 1998]



Sec. 89.411  Exhaust sample procedure--gaseous components.

    (a) Automatic data collection equipment requirements. The analyzer 
response may be read by automatic data collection (ADC) equipment such 
as computers, data loggers, and so forth. If ADC equipment is used, the 
following is required:
    (1) For bag sample analysis, the analyzer response must be stable at 
greater than 99 percent of the final reading for the dilute exhaust 
sample bag. A single value representing the average chart deflection 
over a 10-second stabilized period shall be stored.
    (2) For continuous analysis systems, a single value representing the 
average integrated concentration over a cycle shall be stored.
    (3) The chart deflections or average integrated concentrations 
required in paragraphs (a)(1) and (a)(2) of this section may be stored 
on long-term computer storage devices such as computer tapes, storage 
discs, punch cards, and so forth, or they may be printed in a listing 
for storage. In either case a chart recorder is not required and records 
from a chart recorder, if they exist, need not be stored.
    (4) If ADC equipment is used to interpret analyzer values, the ADC 
equipment is subject to the calibration specifications of the analyzer 
as if the ADC equipment is part of analyzer system.
    (b) Data records from any one or a combination of analyzers may be 
stored as chart recorder records.
    (c) Bag sample analysis. For bag sample analysis perform the 
following sequence:
    (1) Warm up and stabilize the analyzers; clean and/or replace filter 
elements, conditioning columns (if used), and so forth, as necessary.
    (2) Obtain a stable zero reading.
    (3) Zero and span the analyzers with zero and span gases. The span 
gases must have concentrations between 75 and 100 percent of full-scale 
chart deflection. The flow rates and system pressures during spanning 
shall be approximately the same as those encountered during sampling. A 
sample bag may be used to identify the required analyzer range.
    (4) Recheck zero response. If this zero response differs from the 
zero response

[[Page 100]]

recorded in paragraph (c)(3) of this section by more than 1 percent of 
full scale, then paragraphs (c)(2), (c)(3), and (c)(4) of this section 
must be repeated.
    (5) If a chart recorder is used, identify and record the most recent 
zero and span response as the pre-analysis values.
    (6) If ADC equipment is used, electronically record the most recent 
zero and span response as the pre-analysis values.
    (7) Measure HC, CO, CO2, and NOX background 
concentrations in the sample bag(s) with approximately the same flow 
rates and pressures used in paragraph (c)(3) of this section. 
(Constituents measured continuously do not require bag analysis.)
    (8) A post-analysis zero and span check of each range must be 
performed and the values recorded. The number of events that may occur 
between the pre- and post-analysis checks is not specified. However, the 
difference between pre-analysis zero and span values (recorded in 
paragraph (c)(5) or (c)(6) of this section) versus those recorded for 
the post-analysis check may not exceed the zero drift limit or the span 
drift limit of 2 percent of full-scale chart deflection for any range 
used. Otherwise the test is void.
    (d) Continuous sample analysis. For continuous sample analysis 
perform the following sequence:
    (1) Warm up and stabilize the analyzers; clean and/or replace filter 
elements, conditioning columns (if used), and so forth, as necessary.
    (2) Leak check portions of the sampling system that operate at 
negative gauge pressures when sampling, and allow heated sample lines, 
filters, pumps, and so forth to stabilize at operating temperature.
    (3) Optional: Perform a hangup check for the HFID sampling system:
    (i) Zero the analyzer using zero air introduced at the analyzer 
port.
    (ii) Flow zero air through the overflow sampling system. Check the 
analyzer response.
    (iii) If the overflow zero response exceeds the analyzer zero 
response by 2 percent or more of the HFID full-scale deflection, hangup 
is indicated and corrective action must be taken.
    (iv) The complete system hangup check specified in paragraph (e) of 
this section is recommended as a periodic check.
    (4) Obtain a stable zero reading.
    (5) Zero and span each range to be used on each analyzer operated 
prior to the beginning of the test cycle. The span gases shall have a 
concentration between 75 and 100 percent of full-scale chart deflection. 
The flow rates and system pressures shall be approximately the same as 
those encountered during sampling. The HFID analyzer shall be zeroed and 
spanned either through the overflow sampling system or through the 
analyzer port.
    (6) Re-check zero response. If this zero response differs from the 
zero response recorded in paragraph (d)(5) of this section by more than 
1 percent of full scale, then paragraphs (d)(4), (d)(5), and (d)(6) of 
this section must be repeated.
    (7) If a chart recorder is used, identify and record the most recent 
zero and span response as the pre-analysis values.
    (8) If ADC equipment is used, electronically record the most recent 
zero and span response as the pre-analysis values.
    (9) Collect background HC, CO, CO2, and NOX in 
a sample bag (for dilute exhaust sampling only, see Sec. 89.420).
    (10) Perform a post-analysis zero and span check for each range used 
at the conditions specified in paragraph (d)(5) of this section. Record 
these responses as the post-analysis values.
    (11) Neither the zero drift nor the span drift between the pre-
analysis and post-analysis checks on any range used may exceed 3 percent 
for HC, or 2 percent for NOX, CO, and CO2, of full 
scale chart deflection, or the test is void. (If the HC drift is greater 
than 3 percent of full-scale chart deflection, hydrocarbon hangup is 
likely.)
    (12) Determine background levels of NOX, CO, or 
CO2 (for dilute exhaust sampling only) by the bag sample 
technique outlined in paragraph (c) of this section.
    (e) Hydrocarbon hangup. If HC hangup is indicated, the following 
sequence may be performed:
    (1) Fill a clean sample bag with background air.

[[Page 101]]

    (2) Zero and span the HFID at the analyzer ports.
    (3) Analyze the background air sample bag through the analyzer 
ports.
    (4) Analyze the background air through the entire sample probe 
system.
    (5) If the difference between the readings obtained greater than or 
equal to 2 percent of full scale deflection, clean the sample probe and 
the sample line.
    (6) Reassemble the sample system, heat to specified temperature, and 
repeat the procedure in paragraphs (e)(1) through (e)(6) of this 
section.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57016, Oct. 23, 1998]



Sec. 89.412  Raw gaseous exhaust sampling and analytical system description.

    (a) Schematic drawing. An example of a sampling and analytical 
system which may be used for testing under this subpart is shown in 
Figure 1 in appendix B to subpart D. All components or parts of 
components that are wetted by the sample or corrosive calibration gases 
shall be either chemically cleaned stainless steel or inert material, 
for example, polytetrafluoroethylene resin. The use of ``gauge savers'' 
or ``protectors'' with nonreactive diaphragms to reduce dead volumes is 
permitted.
    (b) Sample probe. (1) The sample probe shall be a straight, closed-
end, stainless steel, multi-hole probe. The inside diameter shall not be 
greater than the inside diameter of the sample line plus 0.03 cm. The 
wall thickness of the probe shall not be greater than 0.10 cm. The 
fitting that attaches the probe to the exhaust pipe shall be as small as 
practical in order to minimize heat loss from the probe.
    (2) The probe shall have a minimum of three holes. The spacing of 
the radial planes for each hole in the probe must be such that they 
cover approximately equal cross-sectional areas of the exhaust duct. See 
Figure 1 in appendix A to this subpart. The angular spacing of the holes 
must be approximately equal. The angular spacing of any two holes in one 
plane may not be 180 deg. 20 deg. (that is, section view C-C 
of Figure 1 in appendix A to this subpart). The holes should be sized 
such that each has approximately the same flow. If only three holes are 
used, they may not all be in the same radial plane.
    (3) The probe shall extend radially across the exhaust duct. The 
probe must pass through the approximate center and must extend across at 
least 80 percent of the diameter of the duct.
    (c) Sample transfer line. (1) The maximum inside diameter of the 
sample line shall not exceed 1.32 cm.
    (2) If valve V2 is used, the sample probe must connect directly to 
valve V2. The location of optional valve V2 may not be greater than 1.22 
m from the exhaust duct.
    (3) The location of optional valve V16 may not be greater than 61 cm 
from the sample pump.
    (d) Venting. All vents, including analyzer vents, bypass flow, and 
pressure relief vents of regulators, should be vented in such a manner 
to avoid endangering personnel in the immediate area.
    (e) Any variation from the specifications in this subpart including 
performance specifications and emission detection methods may be used 
only with prior approval by the Administrator.
    (f) Additional components, such as instruments, valves, solenoids, 
pumps, switches, and so forth, may be employed to provide additional 
information and coordinate the functions of the component systems.
    (g) The following requirements must be incorporated in each system 
used for raw testing under this subpart.
    (1) [Reserved]
    (2) The sample transport system from the engine exhaust pipe to the 
HC analyzer and the NOX analyzer must be heated as indicated 
in Figure 1 in appendix B of subpart D.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57016, Oct. 23, 1998]



Sec. 89.413  Raw sampling procedures.

    Follow these procedures when sampling for gaseous emissions.
    (a) The gaseous emission sampling probe must be installed at least 
0.5 m or 3 times the diameter of the exhaust pipe--whichever is the 
larger--upstream of the exit of the exhaust gas system.

[[Page 102]]

    (b) In the case of a multi-cylinder engine with a branched exhaust 
manifold, the inlet of the probe shall be located sufficiently far 
downstream so as to ensure that the sample is representative of the 
average exhaust emissions from all cylinders.
    (c) In multi-cylinder engines having distinct groups of manifolds, 
such as in a ``Vee'' engine configuration, it is permissible to:
    (1) Sample after all exhaust pipes have been connected together into 
a single exhaust pipe.
    (2) For each mode, sample from each exhaust pipe and average the 
gaseous concentrations to determine a value for each mode.
    (3) Sample from all exhaust pipes simultaneously with the sample 
lines connected to a common manifold prior to the analyzer. It must be 
demonstrated that the flow rate through each individual sample line is 
4 percent of the average flow rate through all the sample 
lines.
    (4) Use another method, if it has been approved in advance by the 
Administrator.
    (d) All gaseous heated sampling lines shall be fitted with a heated 
filter to extract solid particles from the flow of gas required for 
analysis. The sample line for CO and CO2 analysis may be 
heated or unheated.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57016, Oct. 23, 1998]



Sec. 89.414  Air flow measurement specifications.

    (a) The air flow measurement method used must have a range large 
enough to accurately measure the air flow over the engine operating 
range during the test. Overall measurement accuracy must be  
2 percent of the maximum engine value for all modes. The Administrator 
must be advised of the method used prior to testing.
    (b) When an engine system incorporates devices that affect the air 
flow measurement (such as air bleeds) that result in understated exhaust 
emission results, corrections to the exhaust emission results shall be 
made to account for such effects.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57017, Oct. 23, 1998]



Sec. 89.415  Fuel flow measurement specifications.

    The fuel flow rate measurement instrument must have a minimum 
accuracy of 2 percent of the engine maximum fuel flow rate. The 
controlling parameters are the elapsed time measurement of the event and 
the weight or volume measurement.

[63 FR 57017, Oct. 23, 1998]



Sec. 89.416  Raw exhaust gas flow.

    The exhaust gas flow shall be determined by one of the methods 
described in this section and conform to the tolerances of Table 3 in 
appendix A to subpart D:
    (a) Measurement of the air flow and the fuel flow by suitable 
metering systems (for details see SAE J244. This procedure has been 
incorporated by reference. See Sec. 89.6.) and calculation of the 
exhaust gas flow as follows:

GEXHW = GAIRW + GFUEL    (for wet 
    exhaust mass)

or

VEXHD = VAIRD + (-.767)  x  GFUEL    
    (for dry exhaust volume)

or

VEXHW = VAIRW + .749  x  GFUEL    (for 
wet exhaust volume)

    (b) Exhaust mass calculation from fuel consumption (see Sec. 89.415) 
and exhaust gas concentrations using the method found in Sec. 89.418.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]



Sec. 89.417  Data evaluation for gaseous emissions.

    For the evaluation of the gaseous emission recording, the last 60 
seconds of each mode are recorded, and the average values for HC, CO, 
CO2, and NOX during each mode are determined from 
the average concentration readings determined from the corresponding 
calibration data.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]

[[Page 103]]



Sec. 89.418  Raw emission sampling calculations.

    (a) The final test results shall be derived through the steps 
described in this section.
    (b) The exhaust gas flow rate GEXHW and VEXHW 
shall be determined for each mode.
    (1) For measurements using the mass flow method, see Sec. 89.416(a).
    (2) For measurements using the fuel consumption and exhaust gas 
concentrations method, use the following equations:
[GRAPHIC] [TIFF OMITTED] TR23OC98.004


Where:
[GRAPHIC] [TIFF OMITTED] TR23OC98.005

[GRAPHIC] [TIFF OMITTED] TR23OC98.006

[GRAPHIC] [TIFF OMITTED] TR23OC98.007

[GRAPHIC] [TIFF OMITTED] TR23OC98.008


K = 3.5
    (3) Humidity values may be calculated from either one of the 
following equations:
[GRAPHIC] [TIFF OMITTED] TR23OC98.009


or

[[Page 104]]

[GRAPHIC] [TIFF OMITTED] TR23OC98.010

    (c) When applying GEXHW, the measured ``dry'' 
concentration shall be corrected to a wet basis, if not already measured 
on a wet basis. This section is applicable only for measurements made on 
raw exhaust gas. Correction to a wet basis shall be according to the 
following formula:

ConcWET = Kw  x  ConcDRY

Where:
KW is determined according to the equations in paragraph 
(c)(1) or (c)(2) of this section.

    (1) For measurements using the mass flow method (see 
Sec. 89.416(a)):
[GRAPHIC] [TIFF OMITTED] TR23OC98.011

[GRAPHIC] [TIFF OMITTED] TR23OC98.012

[GRAPHIC] [TIFF OMITTED] TR23OC98.013

 = H/C mole ratio of the fuel.

    (2) For measurements using the fuel consumption and exhaust gas 
concentrations method (see Sec. 89.416(b)):
[GRAPHIC] [TIFF OMITTED] TR23OC98.014


Where:
[GRAPHIC] [TIFF OMITTED] TR23OC98.015

    (d) As the NOX emission depends on intake air conditions, 
the NOX concentration shall be corrected for intake air 
temperature and humidity with the factor Kh given in the 
following formula. For engines operating on alternative combustion 
cycles, other correction formulas may be used if they can be justified 
or validated. The formula follows:

[[Page 105]]

[GRAPHIC] [TIFF OMITTED] TR23OC98.016

    (e) The pollutant mass flow for each mode shall be calculated as 
follows:

Gas mass = u  x  Gas conc.  x  GEXHW
Gas mass = v  x  Gas conc.  x  VEXHD
Gas mass = w  x  Gas conc.  x  VEXHW
    The coefficients u (wet), v (dry), and w (wet) are to be used 
according to the following table:

----------------------------------------------------------------------------------------------------------------
                  Gas                           u               v               w                 conc.
----------------------------------------------------------------------------------------------------------------
NOX....................................        0.001587         0.00205        0.00205   ppm.
CO.....................................        0.000966         0.00125        0.00125   ppm.
HC.....................................        0.000478                        0.000618  ppm.
CO2....................................       15.19            19.64          19.64      percent.
----------------------------------------------------------------------------------------------------------------
Note: The given coefficients u, v, and w are calculated for 273.15  deg.K (0  deg.C) and 101.3 kPa. In cases
  where the reference conditions vary from those stated, an error may occur in the calculations.

    (f) The following equations may be used to calculate the 
coefficients u, v, and w in paragraph (e) of this section for other 
conditions of temperature and pressure:
    (1) For the calculation of u, v, and w for NOX (as 
NO2), CO, HC (in paragraph (e) of this section as 
CH1.80), CO2, and O2:

Where:

w = 4.4615.10-5  x  M if conc. in ppm
w = 4.4615.10-1  x  M if conc. in percent
v = w
u = w/Air
M = Molecular weight
Air = Density of dry air at 273.15  deg.K (0 
deg.C), 101.3 kPa = 1.293 kg/m\3\
    (2) For real gases at 273.15  deg.K (0  deg.C) and 101.3 kPa: For 
the calculation of u, v, and w

w = gas  x  10-6 if conc. in ppm
v = w
u = w/pAir
pGas = Density of measured gas at 0  deg.C, 101.3 kPas in g/
m3

    (3) General formulas for the calculation of concentrations at 
temperature (designated as T) and pressure (designated as p):


--for ideal gases
[GRAPHIC] [TIFF OMITTED] TR17JN94.017

--for real gases
[GRAPHIC] [TIFF OMITTED] TR17JN94.018


with:

1% = 104 ppm
M = Molecular weight in g/Mo1
Mv = Molecular Volume = 22.414  x  10-3 
m3/Mol for ideal gases
T = reference temperature 273.15 K
p = reference pressure 101.3 kPa
T = Temperature in  deg.C
p = pressure in kPa
pGas = Density of the measured gas at 0  deg.C, 101.3 kPa
Conc. = Gas concentration

    (g)(1) The emission shall be calculated for all individual 
components

[[Page 106]]

in the following way where power at idle is equal to zero:
[GRAPHIC] [TIFF OMITTED] TR23OC98.017

    (2) The weighting factors and the number of modes (n) used in the 
calculation in paragraph (g)(1) of this section are according to 
Sec. 89.410.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57017, Oct. 23, 1998]



Sec. 89.419  Dilute gaseous exhaust sampling and analytical system description.

    (a) General. The exhaust gas sampling system described in this 
section is designed to measure the true mass of gaseous emissions in the 
exhaust of petroleum-fueled nonroad compression-ignition engines. This 
system utilizes the CVS concept (described in Sec. 86.1310-90 of this 
chapter) of measuring mass emissions of HC, CO, and CO2. A 
continuously integrated system is required for HC and NOX 
measurement and is allowed for all CO and CO2 measurements. 
The mass of gaseous emissions is determined from the sample 
concentration and total flow over the test period. As an option, the 
measurement of total fuel mass consumed over a cycle may be substituted 
for the exhaust measurement of CO2. General requirements are 
as follows:
    (1) This sampling system requires the use of a PDP-CVS and a heat 
exchanger or a CFV-CVS with either a heat exchanger or electronic flow 
compensation. Figure 2 in appendix A to this subpart is a schematic 
drawing of the PDP-CVS system. Figure 3 in appendix A to this subpart is 
a schematic drawing of the CFV-CVS system.
    (2) The HC analytical system for petroleum-fueled compression-
ignition engines requires a heated flame ionization detector (HFID) and 
heated sample system (191 11  deg.C).
    (i) The HFID sample must be taken directly from the diluted exhaust 
stream through a heated probe and integrated continuously over the test 
cycle. Unless compensation for varying flow is made, the HFID must be 
used with a constant flow system to ensure a representative sample.
    (ii) The heated probe shall be located in the primary dilution 
tunnel and far enough downstream of the mixing chamber to ensure a 
uniform sample distribution across the CVS duct at the point of 
sampling.
    (3) The CO and CO2 analytical system requires:
    (i) Bag sampling (see Sec. 86.1309-90 of this chapter) and 
analytical capabilities (see Sec. 86.1311-90 of this chapter), as shown 
in Figure 2 and Figure 3 in appendix A to this subpart; or
    (ii) Continuously integrated measurement of diluted CO and 
CO2 meeting the minimum requirements and technical 
specifications contained in paragraph (b)(4) of this section. Unless 
compensation for varying flow is made, a constant flow system must be 
used to ensure a representative sample.
    (4) The NOX analytical system requires a continuously 
integrated measurement of diluted NOX meeting the minimum 
requirements and technical specifications contained in paragraph (b)(4) 
of this section. Unless compensation for varying flow is made, a 
constant flow system must be used to ensure a representative sample.
    (5) Since various configurations can produce equivalent results, 
exact conformance with these drawings is not required. Additional 
components such as instruments, valves, solenoids, pumps, and switches 
may be used to provide additional information and coordinate the 
functions of the component systems. Other components, such as snubbers, 
which are not needed to maintain

[[Page 107]]

accuracy on some systems, may be excluded if their exclusion is based 
upon good engineering judgment.
    (6) Other sampling and/or analytical systems may be used if shown to 
yield equivalent results and if approved in advance by the 
Administrator.
    (b) Component description. The components necessary for exhaust 
sampling shall meet the following requirements:
    (1) Exhaust dilution system. The PDP-CVS shall conform to all of the 
requirements listed for the exhaust gas PDP-CVS in Sec. 86.1309-90(b) of 
this chapter. The CFV-CVS shall conform to all of the requirements 
listed for the exhaust gas CFV-CVS in Sec. 86.1309-90(c) of this 
chapter. In addition, the CVS must conform to the following 
requirements:
    (i) The flow capacity of the CVS must be sufficient to maintain the 
diluted exhaust stream at or below the temperature required for the 
measurement of hydrocarbon emissions noted in the following paragraph 
and to prevent condensation of water at any point in the dilution 
tunnel.
    (ii) The flow capacity of the CVS must be sufficient to maintain the 
diluted exhaust stream in the primary dilution tunnel at a temperature 
of 191  deg.C or less at the sampling zone for hydrocarbon measurement 
and as required to prevent condensation at any point in the dilution 
tunnel. Gaseous emission samples may be taken directly from this 
sampling point.
    (iii) For the CFV-CVS, either a heat exchanger or electronic flow 
compensation is required (see Figure 3 in appendix A to this subpart).
    (iv) For the CFV-CVS when a heat exchanger is used, the gas mixture 
temperature, measured at a point immediately ahead of the critical flow 
venturi, shall be within 11  deg.C) of the average operating 
temperature observed during the test with the simultaneous requirement 
that condensation does not occur. The temperature measuring system 
(sensors and readout) shall have an accuracy and precision of 
2  deg.C. For systems utilizing a flow compensator to 
maintain proportional flow, the requirement for maintaining constant 
temperature is not necessary.
    (v) The primary dilution air shall have a temperature of 25  deg.C 
5  deg.C.
    (2) Continuous HC measurement system. (i) The continuous HC sample 
system (as shown in Figure 2 or 3 in appendix A to this subpart) uses an 
``overflow'' zero and span system. In this type of system, excess zero 
or span gas spills out of the probe when zero and span checks of the 
analyzer are made. The ``overflow'' system may also be used to calibrate 
the HC analyzer per Sec. 86.1321-90(b) of this chapter, although this is 
not required.
    (ii) No other analyzers may draw a sample from the continuous HC 
sample probe, line or system, unless a common sample pump is used for 
all analyzers and the sample line system design reflects good 
engineering practice.
    (iii) The overflow gas flow rates into the sample line shall be at 
least 105 percent of the sample system flow rate.
    (iv) The overflow gases shall enter the heated sample line as close 
as practical to the outside surface of the CVS duct or dilution tunnel.
    (v) The continuous HC sampling system shall consist of a probe 
(which must raise the sample to the specified temperature) and, where 
used, a sample transfer system (which must maintain the specified 
temperature). The continuous hydrocarbon sampling system (exclusive of 
the probe) shall:
    (A) Maintain a wall temperature of 191  deg.C 11  deg.C 
as measured at every separately controlled heated component (that is, 
filters, heated line sections), using permanent thermocouples located at 
each of the separate components.
    (B) Have a wall temperature of 191  deg.C 11  deg.C over 
its entire length. The temperature of the system shall be demonstrated 
by profiling the thermal characteristics of the system where possible at 
initial installation and after any major maintenance performed on the 
system. The profiling shall be accomplished using the insertion 
thermocouple probing technique. The system temperature will be monitored 
continuously during testing at the locations and temperature described 
in Sec. 86.1310-90(b)(3)(v).

[[Page 108]]

    (C) Maintain a gas temperature of 191  deg.C 11  deg.C 
immediately before the heated filter and HFID. These gas temperatures 
will be determined by a temperature sensor located immediately upstream 
of each component.
    (vi) The continuous hydrocarbon sampling probe shall:
    (A) Be defined as the first 25 cm to 76 cm of the continuous 
hydrocarbon sampling system.
    (B) Have a 0.48 cm minimum inside diameter.
    (C) Be installed in the primary dilution tunnel at a point where the 
dilution air and exhaust are well mixed (that is, approximately 10 
tunnel diameters downstream of the point where the exhaust enters the 
dilution tunnel).
    (D) Be sufficiently distant (radially) from other probes and the 
tunnel wall so as to be free from the influence of any wakes or eddies.
    (E) Increase the gas stream temperature to 191  deg.C 11 
 deg.C at the exit of the probe. The ability of the probe to accomplish 
this shall be demonstrated using the insertion thermocouple technique at 
initial installation and after any major maintenance. Compliance with 
the temperature specification shall be demonstrated by continuously 
recording during each test the temperature of either the gas stream or 
the wall of the sample probe at its terminus.
    (vii) The response time of the continuous measurement system shall 
be no greater than:
    (A) 1.5 seconds from an instantaneous step change at the port 
entrance to the analyzer to within 90 percent of the step change.
    (B) 20 seconds from an instantaneous step change at the entrance to 
the sample probe or overflow span gas port to within 90 percent of the 
step change. Analysis system response time shall be coordinated with CVS 
flow fluctuations and sampling time/test cycle offsets if necessary.
    (C) For the purpose of verification of response times, the step 
change shall be at least 60 percent of full-scale chart deflection.
    (3) Primary dilution tunnel. (i) The primary dilution tunnel shall 
be:
    (A) Small enough in diameter to cause turbulent flow (Reynolds 
Number greater than 4000) and of sufficient length to cause complete 
mixing of the exhaust and dilution air;
    (B) At least 46 cm in diameter; (engines below 110 kW may use a 
dilution tunnel that is 20 cm in diameter or larger)
    (C) Constructed of electrically conductive material which does not 
react with the exhaust components; and
    (D) Electrically grounded.
    (ii) The temperature of the diluted exhaust stream inside of the 
primary dilution tunnel shall be sufficient to prevent water 
condensation.
    (iii) The engine exhaust shall be directed downstream at the point 
where it is introduced into the primary dilution tunnel.
    (4) Continuously integrated NOX, CO, and CO2 
measurement systems. (i) The sample probe shall:
    (A) Be in the same plane as the continuous HC probe, but shall be 
sufficiently distant (radially) from other probes and the tunnel wall so 
as to be free from the influences of any wakes or eddies.
    (B) Heated and insulated over the entire length, to prevent water 
condensation, to a minimum temperature of 55  deg.C. Sample gas 
temperature immediately before the first filter in the system shall be 
at least 55  deg.C.
    (ii) The continuous NOX, CO, or CO2 sampling 
and analysis system shall conform to the specifications of part 86, 
subpart D of this chapter with the following exceptions and revisions:
    (A) The system components required to be heated by part 86, subpart 
D of this chapter need only be heated to prevent water condensation, the 
minimum component temperature shall be 55  deg.C.
    (B) The system response shall be no greater than 20 seconds. 
Analysis system response time shall be coordinated with CVS flow 
fluctuations and sampling time/test cycle offsets, if necessary.
    (C) Alternative NOX measurement techniques outlined in 
Sec. 86.346-79 of this chapter are not permitted for NOX 
measurement in this subpart.
    (D) All analytical gases must conform to the specifications of 
Sec. 89.312.
    (E) Any range on a linear analyzer below 155 ppm must have and use a

[[Page 109]]

calibration curve conforming to Sec. 89.310.
    (iii) The chart deflections or voltage output of analyzers with non-
linear calibration curves shall be converted to concentration values by 
the calibration curve(s) specified in Sec. 89.323 before flow correction 
(if used) and subsequent integration takes place.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]



Sec. 89.420  Background sample.

    (a) Background samples are produced by continuously drawing a sample 
of dilution air during the exhaust collection phase of each test cycle 
mode.
    (1) Individual background samples may be produced and analyzed for 
each mode. Hence, a unique background value will be used for the 
emission calculations for each mode.
    (2) Alternatively, a single background sample may be produced by 
drawing a sample during the collection phase of each of the test cycle 
modes. Hence, a single cumulative background value will be used for the 
emission calculations for each mode.
    (b) For analysis of the individual sample described in paragraph 
(a)(1) of this section, a single value representing the average chart 
deflection over a 10-second stabilized period is stored. All readings 
taken during the 10-second interval must be stable at the final value to 
within 1 percent of full scale.
    (c) Measure HC, CO, CO2, and NOX exhaust and 
background concentrations in the sample bag(s) with approximately the 
same flow rates and pressures used during calibration.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57018, Oct. 23, 1998]



Sec. 89.421  Exhaust gas analytical system; CVS bag sample.

    (a) Schematic drawings. Figure 4 in appendix A to this subpart is a 
schematic drawing of the exhaust gas analytical system used for 
analyzing CVS bag samples from compression- ignition engines. Since 
various configurations can produce accurate results, exact conformance 
with the drawing is not required. Additional components such as 
instruments, valves, solenoids, pumps and switches may be used to 
provide additional information and coordinate the functions of the 
component systems. Other components such as snubbers, which are not 
needed to maintain accuracy in some systems, may be excluded if their 
exclusion is based upon good engineering judgment.
    (b) Major component description. The analytical system, Figure 4 in 
appendix A to this subpart, consists of a flame ionization detector 
(FID) (heated for petroleum-fueled compression-ignition engines to 191 
deg.C 6  deg.C) for the measurement of hydrocarbons, 
nondispersive infrared analyzers (NDIR) for the measurement of carbon 
monoxide and carbon dioxide, and a chemiluminescence detector (CLD) (or 
HCLD) for the measurement of oxides of nitrogen. The exhaust gas 
analytical system shall conform to the following requirements:
    (1) The CLD (or HCLD) requires that the nitrogen dioxide present in 
the sample be converted to nitric oxide before analysis. Other types of 
analyzers may be used if shown to yield equivalent results and if 
approved in advance by the Administrator.
    (2) If CO instruments are used which are essentially free of 
CO2 and water vapor interference, the use of the conditioning 
column may be deleted. (See Secs. 86.1322-84 and 86.1342-90 of this 
chapter.)
    (3) A CO instrument will be considered to be essentially free of 
CO2 and water vapor interference if its response to a mixture 
of 3 percent CO2 in N2, which has been bubbled through water 
at room temperature, produces an equivalent CO response, as measured on 
the most sensitive CO range, which is less than 1 percent of full scale 
CO concentration on ranges above 300 ppm full scale or less than 3 ppm 
on ranges below 300 ppm full scale. (See Sec. 86.1322-84 of this 
chapter.)
    (c) Alternate analytical systems. Analysis systems meeting the 
specifications of part 86, subpart D of this chapter (with the exception 
of Secs. 86.346-79 and 86.347-79) may be used for the testing required 
under this subpart. Heated analyzers may be used in their heated 
configuration.
    (d) Other analyzers and equipment. Other types of analyzers and 
equipment may be used if shown to yield

[[Page 110]]

equivalent results and if approved in advance by the Administrator.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]



Sec. 89.422  Dilute sampling procedures--CVS calibration.

    (a) The CVS is calibrated using an accurate flowmeter and restrictor 
valve.
    (1) The flowmeter calibration must be traceable to NIST 
measurements, and will serve as the reference value (NIST ``true'' 
value) for the CVS calibration. (Note: In no case should an upstream 
screen or other restriction which can affect the flow be used ahead of 
the flowmeter unless calibrated throughout the flow range with such a 
device.)
    (2) The CVS calibration procedures are designed for use of a 
``metering venturi'' type flowmeter. Large radius or ASME flow nozzles 
are considered equivalent if traceable to NIST measurements. Other 
measurement systems may be used if shown to be equivalent under the test 
conditions in this section and traceable to NIST measurements.
    (3) Measurements of the various flowmeter parameters are recorded 
and related to flow through the CVS.
    (4) Procedures used by EPA for both PDP-CVS and CFV-CVS are outlined 
below. Other procedures yielding equivalent results may be used if 
approved in advance by the Administrator.
    (b) After the calibration curve has been obtained, verification of 
the entire system may be performed by injecting a known mass of gas into 
the system and comparing the mass indicated by the system to the true 
mass injected. An indicated error does not necessarily mean that the 
calibration is wrong, since other factors can influence the accuracy of 
the system (for example, analyzer calibration, leaks, or HC hangup). A 
verification procedure is found in paragraph (e) of this section.
    (c) PDP-CVS calibration. (1) The following calibration procedure 
outlines the equipment, the test configuration, and the various 
parameters which must be measured to establish the flow rate of the PDP-
CVS pump.
    (i) All the parameters related to the pump are simultaneously 
measured with the parameters related to a flowmeter which is connected 
in series with the pump.
    (ii) The calculated flow rate, in

(cm\3\/s), (at pump inlet absolute pressure and temperature) can then be 
plotted versus a correlation function which is the value of a specific 
combination of pump parameters.
    (iii) The linear equation which relates the pump flow and the 
correlation function is then determined.
    (iv) In the event that a CVS has a multiple speed drive, a 
calibration for each range used must be performed.
    (2) This calibration procedure is based on the measurement of the 
absolute values of the pump and flowmeter parameters that relate the 
flow rate at each point. Two conditions must be maintained to assure the 
accuracy and integrity of the calibration curve:
    (i) The temperature stability must be maintained during calibration. 
(Flowmeters are sensitive to inlet temperature oscillations; this can 
cause the data points to be scattered. Gradual changes in temperature 
are acceptable as long as they occur over a period of several minutes.)
    (ii) All connections and ducting between the flowmeter and the CVS 
pump must be absolutely void of leakage.
    (3) During an exhaust emission test the measurement of these same 
pump parameters enables the user to calculate the flow rate from the 
calibration equation.
    (4) Connect a system as shown in Figure 5 in appendix A to this 
subpart. Although particular types of equipment are shown, other 
configurations that yield equivalent results may be used if approved in 
advance by the Administrator. For the system indicated, the following 
measurements and accuracies are required:

                                          Calibration Data Measurements
----------------------------------------------------------------------------------------------------------------
             Parameter                     Symbol               Units              Sensor-readout tolerances
----------------------------------------------------------------------------------------------------------------
Barometric pressure (corrected)...  PB                   kPa................  .34 kPa

[[Page 111]]

 
Ambient temperature...............  TA                     deg.C............  .3  deg.C
Air temperature into metering       ETI                    deg.C............  1.1  deg.C
 venturi.
Pressure drop between the inlet     EDP                  kPa................  .01 kPa
 and throat of metering venturi.
Air flow..........................  QS                   m3/min.............  .5% of NIST value.
Air temperature at CVS pump inlet.  PTI                    deg.C............  1.1  deg.C
Pressure depression at CVS pump     PPI                  kPa................  .055 kPa
 inlet.
Pressure head at CVS pump outlet..  PPO                  kPa................  .055 kPa
Air temperature at CVS pump outlet  PTO                    deg.C............  1.1  deg.C
 (optional).
Pump revolutions during test        N                    Revs...............  1 Rev.
 period.
Elapsed time for test period......  t                    s..................  .5 s.
----------------------------------------------------------------------------------------------------------------

    (5) After the system has been connected as shown in Figure 5 in 
appendix A to this subpart, set the variable restrictor in the wide open 
position and run the CVS pump for 20 minutes. Record the calibration 
data.
    (6) Reset the restrictor valve to a more restricted condition in an 
increment of pump inlet depression that will yield a minimum of six data 
points for the total calibration. Allow the system to stabilize for 3 
minutes and repeat the data acquisition.
    (7) Data analysis:
    (i) The air flow rate, Qs, at each test point is 
calculated in standard cubic meters per minute (0  deg.C, 101.3 kPa) 
from the flowmeter data using the manufacturer's prescribed method.
    (ii) The air flow rate is then converted to pump flow, 
Vo, in cubic meter per revolution at absolute pump inlet 
temperature and pressure:
[GRAPHIC] [TIFF OMITTED] TR17JN94.020

Where:

Vo = Pump flow, (m3/rev) at Tp, 
Pp.
Qs = Meter air flow rate in standard cubic meters per minute, 
standard conditions are 0  deg.C, 101.3 kPa.
n=Pump speed in revolutions per minute.
Tp=Pump inlet temperature  deg.K=Pti+273  deg.K, 
Pti=Pump inlet temp  deg.C
Pp=Absolute pump inlet pressure, (kPa)
    = PB - PPI
Where:

PB=barometric pressure, (kPa).
PPI=Pump inlet depression, (kPa).

    (iii) The correlation function at each test point is then calculated 
from the calibration data:
[GRAPHIC] [TIFF OMITTED] TR17JN94.021

Xo = correlation function.
 p = The pressure differential from pump inlet to pump outlet, 
(kPa).
    = Pe-Pp.
Pe = Absolute pump outlet pressure, (kPa)
    = PB+PPO
Where:

PPO=Pressure head at pump outlet, (kPa).

    (iv) A linear least squares fit is performed to generate the 
calibration equation which has the form:

Vo=Do-M(Xo)

Do and M are the intercept and slope constants, respectively, 
          describing the regression line.

    (8) A CVS system that has multiple speeds must be calibrated on each 
speed used. The calibration curves generated for the ranges will be 
approximately parallel and the intercept values, Do, will 
increase as the pump flow range decreases.
    (9) If the calibration has been performed carefully, the calculated 
values from the equation will be within 0.50 percent of the 
measured value of Vo. Values of M will vary from one pump to 
another, but values of Do for pumps of the same make, model, 
and range should agree within 3 percent of each other. 
Calibrations should be performed at pump start-up and after major 
maintenance to assure the stability of the pump slip rate. Analysis of 
mass injection data will also reflect pump slip stability.
    (d) CFV-CVS calibration. (1) Calibration of the CFV is based upon 
the flow equation for a critical venturi. Gas

[[Page 112]]

flow is a function of inlet pressure and temperature:
[GRAPHIC] [TIFF OMITTED] TR17JN94.022

Where:

Qs = flow.
Kv = calibration coefficient.
P = absolute pressure.
T = absolute temperature.

The calibration procedure described in paragraph (d)(3) of this section 
establishes the value of the calibration coefficient at measured values 
of pressure, temperature, and air flow.
    (2) The manufacturer's recommended procedure shall be followed for 
calibrating electronic portions of the CFV.
    (3) Measurements necessary for flow calibration are as follows:

                                          Calibration Data Measurements
----------------------------------------------------------------------------------------------------------------
             Parameter                        Symbol                   Units                  Tolerances
----------------------------------------------------------------------------------------------------------------
Barometric pressure (corrected)....  PB                       kPa (Inches Hg).......  0.034 (0.01).
Air temperature, flowmeter.........  ETI                      deg.C (deg.F).........  0.14 (0.25).
Pressure depression upstream of LFE  EPI                      kPa(Inches H2O).......  0.012 (0.05).
Pressure drop across LFE matrix....  EDP                      kPa (Inches H2O)......  0.001 (0.005).
Air flow...........................  Qs                       m3/min. (Ft3/min).....  0.5 pct.
CFV inlet depression...............  PPI                      kPa (Inches Hg).......  0.055 (0.016).
CFV outlet pressure................  PPO                      kPa (Inches Hg).......  0.17 (0.05).
Temperature at venturi inlet.......  Tv                       deg.C (deg.F).........  0.28 (0.5)
Specific gravity of manometer fluid  Sp.Gr                    ......................  (1.75 oil).
----------------------------------------------------------------------------------------------------------------

    (4) Set up equipment as shown in Figure 6 in appendix A to subpart 
and eliminate leaks. (Leaks between the flow measuring devices and the 
critical flow venturi will seriously affect the accuracy of the 
calibration.)
    (5) Set the variable flow restrictor to the open position, start the 
blower, and allow the system to stabilize. Record data from all 
instruments.
    (6) Vary the flow restrictor and make at least eight readings across 
the critical flow range of the venturi.
    (7) Data analysis. The data recorded during the calibration are to 
be used in the following calculations:
    (i) The air flow rate (designated as Qs) at each test 
point is calculated in standard cubic feet per minute from the flow 
meter data using the manufacturer's prescribed method.
    (ii) Calculate values of the calibration coefficient for each test 
point:
[GRAPHIC] [TIFF OMITTED] TR17JN94.023

Where:

Qs = Flow rate in standard cubic meter per minute, at the 
standard conditions of 0  deg.C, 101.3 kPa.
Tv = Temperature at venturi inlet,  deg.K.
Pv = PB - PPI (= Pressure at venturi inlet, kPA)
Where:

PPI = Venturi inlet pressure depression, (kPa).

    (iii) Plot Kv as a function of venturi inlet pressure. 
For choked flow, Kv will have a relatively constant value. As 
pressure decreases (vacuum increases), the venturi becomes unchoked and 
Kv decreases. (See Figure 7 in appendix A to this subpart.)
    (iv) For a minimum of eight points in the critical region calculate 
an average Kv and the standard deviation.
    (v) If the standard deviation exceeds 0.3 percent of the average 
Kv, take corrective action.
    (e) CVS system verification. The following ``gravimetric'' technique 
can be used to verify that the CVS and analytical instruments can 
accurately measure a mass of gas that has been injected into the system. 
(Verification can also be accomplished by constant flow metering using 
critical flow orifice devices.)
    (1) Obtain a small cylinder that has been charged with 99.5 percent 
or greater propane or carbon monoxide gas (Caution--carbon monoxide is 
poisonous).
    (2) Determine a reference cylinder weight to the nearest 0.01 grams.
    (3) Operate the CVS in the normal manner and release a quantity of 
pure propane into the system during the

[[Page 113]]

sampling period (approximately 5 minutes).
    (4) The calculations are performed in the normal way except in the 
case of propane. The density of propane (0.6109 kg/m\3\/carbon atom)) is 
used in place of the density of exhaust hydrocarbons.
    (5) The gravimetric mass is subtracted from the CVS measured mass 
and then divided by the gravimetric mass to determine the percent 
accuracy of the system.
    (6) Good engineering practice requires that the cause for any 
discrepancy greater than 2 percent must be found and 
corrected.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57018, Oct. 23, 1998]



Sec. 89.423   [Reserved]



Sec. 89.424  Dilute emission sampling calculations.

    (a) The final reported emission test results are computed by use of 
the following formula:
[GRAPHIC] [TIFF OMITTED] TR23OC98.018

Where:
Awm = Weighted mass emission level (HC, CO, CO2, 
PM, or NOX) in g/kW-hr.
gi = Mass flow in grams per hour, = grams measured during the 
mode divided by the sample time for the mode.
WFi = Effective weighing factor.
Pi = Power measured during each mode (Power set = zero for 
the idle mode).
    (b) The mass of each pollutant for each mode for bag measurements 
and diesel heat exchanger system measurements is determined from the 
following equations:
    (1) Hydrocarbon mass:

HCmass= Vmix  x  DensityHC  x  
    (HCconc/106)

    (2) Oxides of nitrogen mass:

NOXmass = Vmix  x  DensityNO2  x  KH 
    x  (NOXconc/106)

    (3) Carbon monoxide mass:

COmass= Vmix x  DensityCO x  
    (COconc/106)

    (4) Carbon dioxide mass:

CO2mass= Vmix x  DensityCO2  x  
    (CO2conc/102)

    (c) The mass of each pollutant for the mode for flow compensated 
sample systems is determined from the following equations:
[GRAPHIC] [TIFF OMITTED] TR17JN94.025


[[Page 114]]


[GRAPHIC] [TIFF OMITTED] TR17JN94.026

    (d) Meaning of symbols:
    (1) For hydrocarbon equations:

HCmass= Hydrocarbon emissions, in grams per test mode.
DensityHC= Density of hydrocarbons is (.5800 kg/
m3) for #1 diesel, and (0.5746 kg/m3) for #2 
diesel, assuming an average carbon to hydrogen ratio of 1:1.93 for #1 
diesel, and 1:1.80 for #2 diesel at 20  deg.C and 101.3 kPa pressure.
HCconc= Hydrocarbon concentration of the dilute exhaust 
sample corrected for background, in ppm carbon equivalent (that is, 
equivalent propane times 3).
[GRAPHIC] [TIFF OMITTED] TR17JN94.027

Where:

HCe= Hydrocarbon concentration of the dilute exhaust bag 
sample or, for diesel heat exchanger systems, average hydrocarbon 
concentration of the dilute exhaust sample as calculated from the 
integrated HC traces, in ppm carbon equivalent. For flow compensated 
sample systems (HCe)i is the instantaneous 
concentration.
HCd= Hydrocarbon concentration of the dilution air as 
measured, in ppm carbon equivalent.

    (2) For oxides of nitrogen equations:

NOXmass = Oxides of nitrogen emissions, in grams per test 
mode.
Density NO2= Density of oxides of nitrogen is 1.913 kg/
m3, assuming they are in the form of nitrogen dioxide, at 20 
deg.C and 101.3 kPa pressure.
NOXconc= Oxides of nitrogen concentration of the dilute 
exhaust sample corrected for background, in ppm:
[GRAPHIC] [TIFF OMITTED] TR17JN94.028

Where:

NOXe= Oxides of nitrogen concentration of the dilute exhaust 
bag sample as measured, in ppm. For flow compensated sample systems 
(NOXe)i is the instantaneous concentration.
NOXd= Oxides of nitrogen concentration of the dilute air as 
measured, in ppm.

    (3) For carbon monoxide equations:

COmass=Carbon monoxide emissions, grams per test mode. 
    DensityCO=Density of carbon monoxide (1.164 kg/
    m3 at 20  deg.C and 101.3 kPa pressure).
COconc=Carbon monoxide concentration of the dilute exhaust 
sample corrected for background, water vapor, and CO2 
extraction, ppm.
[GRAPHIC] [TIFF OMITTED] TR17JN94.029

Where:

COe=Carbon monoxide concentration of the dilute exhaust bag 
sample volume corrected for water vapor and carbon dioxide extraction, 
ppm. For flow compensated

[[Page 115]]

sample systems, (COe)i is the instantaneous 
concentration.

    The following calculation assumes the carbon to hydrogen ratio of 
the fuel is 1:1.85. As an option the measured actual carbon to hydrogen 
ratio may be used:

COe=[1-0.01925CO2e-0.000323R]COem

Where:

COem=Carbon monoxide concentration of the dilute exhaust 
sample as measured, ppm.
CO2e=Carbon dioxide concentration of the dilute exhaust bag 
sample, in percent, if measured. For flow compensated sample systems, 
(CO2e)i is the instantaneous concentration. For 
cases where exhaust sampling of CO2 is not performed, the 
following approximation is permitted:
[GRAPHIC] [TIFF OMITTED] TR17JN94.030

a=Average carbon to hydrogen ratio.
    M \1\ = Fuel mass consumed during the mode.
R=Relative humidity of the dilution air, percent.
COd=Carbon monoxide concentration of the dilution air 
corrected for water vapor extraction, ppm.
    COd=(1-0.000323R)COdm
Where:

    COdm=Carbon monoxide concentration of the dilution air 
sample as measured, ppm.

    Note: If a CO instrument which meets the criteria specified in 
Sec. 86.1311-90 of this chapter is used and the conditioning column has 
been deleted, COem must be substituted directly for 
COe and COdm must be substituted directly for 
COd.
    (4) For carbon dioxide equation:

CO2mass=Carbon dioxide emissions, in grams per test mode.
Density CO2=Density of carbon dioxide is 1.830 kg/
m3, at 20  deg.C and 760 mm Hg pressure.
CO2conc=Carbon dioxide concentration of the dilute exhaust 
sample corrected for background, in percent.
[GRAPHIC] [TIFF OMITTED] TR17JN94.031

Where:

CO2d=Carbon dioxide concentration of the dilution air as 
measured, in percent.
[GRAPHIC] [TIFF OMITTED] TR17JN94.032

    (6) Measured ``dry'' concentrations shall be corrected to a wet 
basis, if not already measured on a wet basis. This section is 
applicable only for measurements made on dilute exhaust gas. Correction 
to a wet basis shall be according to the following formula:

ConcWET = KW  x  ConcDRY
    Where: KW is determined according to the equation in 
paragraph (d)(6)(i) or (d)(6)(ii), of this section.
    (i) For wet CO2 measurement:
    [GRAPHIC] [TIFF OMITTED] TR23OC98.019
    
    (ii) For dry CO2 measurement:

[[Page 116]]

[GRAPHIC] [TIFF OMITTED] TR23OC98.020

    (iii) For the equations in paragraph (d)(6)(i) and (d)(6)(ii) of 
this section, the following equation applies:
[GRAPHIC] [TIFF OMITTED] TR23OC98.021

    Where: Ha and Hd are the grams of water per 
kilogram of dry air; as illustrated in the following equations:
[GRAPHIC] [TIFF OMITTED] TR23OC98.022

[GRAPHIC] [TIFF OMITTED] TR23OC98.023

    (e) The final modal reported brake-specific fuel consumption (bsfc) 
shall be computed by use of the following formula:
[GRAPHIC] [TIFF OMITTED] TR23OC98.024

Where:

bsfc = brake-specific fuel consumption for a mode in grams of fuel per 
kilowatt-hour (kW-hr).
M = mass of fuel in grams, used by the engine during a mode.
kW-hr = total kilowatts integrated with respect to time for a mode.
    (f) The mass of fuel for the mode is determined from mass fuel flow 
measurements made during the mode, or from the following equation:
[GRAPHIC] [TIFF OMITTED] TR17JN94.034

Where:

M=Mass of fuel, in grams, used by the engine during the mode.
Gs=Grams of carbon measured during the mode:

[[Page 117]]

[GRAPHIC] [TIFF OMITTED] TR17JN94.035

R2=Grams C in fuel per gram of fuel
Where:

HCmass=hydrocarbon emissions, in grams for the mode
CO2mass=carbon monoxide emissions, in grams for the mode
CO2mass=carbon dioxide emissions, in grams for the mode
=The atomic hydrogen to carbon ratio of the fuel.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57018, Oct. 23, 1998]



Sec. 89.425   [Reserved]

[[Page 118]]

                    Appendix A to Subpart E--Figures
      [GRAPHIC] [TIFF OMITTED] TC01MR92.002
      

[[Page 119]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.003


[[Page 120]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.004


[[Page 121]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.005


[[Page 122]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.006


[[Page 123]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.007


[[Page 124]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.008

               Appendix B To Subpart E of Part 89--Tables

                              Table 1--8-Mode Test Cycle for Variable-Speed Engines
----------------------------------------------------------------------------------------------------------------
                                                                             Observed
                                                                            torque \2\    Minimum
          Test segment                Mode number       Engine speed \1\   (percent of    time in     Weighting
                                                                               max.         mode       factors
                                                                            observed)    (minutes)
----------------------------------------------------------------------------------------------------------------
1...............................  1..................  Rated.............          100          5.0         0.15
1...............................  2..................  Rated.............           75          5.0         0.15
1...............................  3..................  Rated.............           50          5.0         0.15
1...............................  4..................  Rated.............           10          5.0         0.10
2...............................  5..................  Int...............          100          5.0         0.10
2...............................  6..................  Int...............           75          5.0         0.10
2...............................  7..................  Int...............           50          5.0         0.10
2...............................  8..................  Idle..............            0          5.0         0.15
----------------------------------------------------------------------------------------------------------------
\1\ Engine speed (non-idle):  2 percent of point. Engine speed (idle): Within manufacturer's
  specifications. Idle speed is specified by the manufacturer.
\2\ Torque (non-idle): Throttle fully open for 100 percent points. Other non-idle points:  2 percent
  of engine maximum value. Torque (idle): Throttle fully closed. Load less than 5 percent of peak torque.


                              Table 2--5-Mode Test Cycle for Constant-Speed Engines
----------------------------------------------------------------------------------------------------------------
                                                                             Observed
                                                                            torque \2\    Minimum
                Mode number                        Engine\1\ Speed         (percent of    time in     Weighting
                                                                               max.         mode       factors
                                                                            observed)    (minutes)
----------------------------------------------------------------------------------------------------------------
1.........................................  Rated........................          100          5.0         0.05
2.........................................  Rated........................           75          5.0         0.25

[[Page 125]]

 
3.........................................  Rated........................           50          5.0         0.30
4.........................................  Rated........................           25          5.0         0.30
5.........................................  Rated........................           10          5.0         0.10
----------------------------------------------------------------------------------------------------------------
\1\ Engine speed: 2 percent of point.
\2\ Torque: Throttle fully open for 100 percent point. Other points:  2 percent of engine maximum
  value.


                            Table 3--6-Mode Test Cycle for Engines Rated Under 19 kW
----------------------------------------------------------------------------------------------------------------
                                                                             Observed
                                                                            torque \2\    Minimum
                Mode number                        Engine speed \1\        (percent of    time in     Weighting
                                                                               max.         mode       factors
                                                                            observed)    (minutes)
----------------------------------------------------------------------------------------------------------------
1.........................................  Rated........................          100          5.0         0.09
2.........................................  Rated........................           75          5.0         0.20
3.........................................  Rated........................           50          5.0         0.29
4.........................................  Rated........................           25          5.0         0.30
5.........................................  Rated........................           10          5.0         0.07
6.........................................  Idle.........................            0          5.0         0.05
----------------------------------------------------------------------------------------------------------------
\1\ Engine speed (non-idle):  2 percent of point. Engine speed (idle): Within manufacturer's
  specifications. Idle speed is specified by the manufacturer.
\2\ Torque (non-idle): Throttle fully open for operation at 100 percent point. Other nonidle points:  2 percent of engine maximum value. Torque (idle): Throttle fully closed. Load less than 5 percent of
  peak torque.


                         Table 4--4-Mode Test Cycle for Propulsion Marine Diesel Engines
----------------------------------------------------------------------------------------------------------------
                                                   Engine speed   Observed power
                                                   \1\ (percent    \2\ (percent    Minimum time      Weighting
                   Mode number                        of max.         of max.         in mode         factors
                                                     observed)       observed)       (minutes)
----------------------------------------------------------------------------------------------------------------
1...............................................             100             100             5.0            0.20
2...............................................              91              75             5.0            0.50
3...............................................              80              50             5.0            0.15
4...............................................              63              25             5.0            0.15
----------------------------------------------------------------------------------------------------------------
\1\ Engine speed:  2 percent of point.
\2\ Power: Throttle fully open for operation at 100 percent point. Other points:  2 percent of
  engine maximum value.

[63 FR 57019, Oct. 23, 1998]



                Subpart F--Selective Enforcement Auditing



Sec. 89.501  Applicability.

    The requirements of subpart F are applicable to all nonroad engines 
subject to the provisions of subpart A of part 89.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]



Sec. 89.502  Definitions.

    The definitions in subpart A of this part apply to this subpart. The 
following definitions also apply to this subpart.
    Acceptable quality level (AQL) means the maximum percentage of 
failing engines that can be considered a satisfactory process average 
for sampling inspections.
    Configuration means any subclassification of an engine family which 
can be described on the basis of gross power, emission control system, 
governed speed, injector size, engine calibration, and other parameters 
as designated by the Administrator.
    Inspection criteria means the pass and fail numbers associated with 
a particular sampling plan.
    Test engine means an engine in a test sample.
    Test sample means the collection of engines selected from the 
population of an engine family for emission testing.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]

[[Page 126]]



Sec. 89.503  Test orders.

    (a) A test order addressed to the manufacturer is required for any 
testing under this subpart.
    (b) The test order is signed by the Assistant Administrator for Air 
and Radiation or his or her designee. The test order must be delivered 
in person by an EPA enforcement officer or EPA authorized representative 
to a company representative or sent by registered mail, return receipt 
requested, to the manufacturer's representative who signed the 
application for certification submitted by the manufacturer, pursuant to 
the requirements of the applicable section of subpart B of this part. 
Upon receipt of a test order, the manufacturer must comply with all of 
the provisions of this subpart and instructions in the test order.
    (c) Information included in test order. (1) The test order will 
specify the engine family to be selected for testing, the manufacturer's 
engine assembly plant or associated storage facility or port facility 
(for imported engines) from which the engines must be selected, the time 
and location at which engines must be selected, and the procedure by 
which engines of the specified family must be selected. The test order 
may specify the configuration to be audited and/or the number of engines 
to be selected per day. Engine manufacturers are required to select a 
minimum of four engines per day unless an alternate selection procedure 
is approved pursuant to Sec. 89.507(a), or unless total production of 
the specified configuration is less than four engines per day. If total 
production of the specified configuration is less than four engines per 
day, the manufacturer selects the actual number of engines produced per 
day.
    (2) The test order may include alternate families to be selected for 
testing at the Administrator's discretion in the event that engines of 
the specified family are not available for testing because those engines 
are not being manufactured during the specified time or are not being 
stored at the specified assembly plant, associated storage facilities, 
or port of entry.
    (3) If the specified family is not being manufactured at a rate of 
at least two engines per day in the case of manufacturers specified in 
Sec. 89.508(g)(1), or one engine per day in the case of manufacturers 
specified in Sec. 89.508(g)(2), over the expected duration of the audit, 
the Assistant Administrator or her or his designated representative may 
select engines of the alternate family for testing.
    (4) In addition, the test order may include other directions or 
information essential to the administration of the required testing.
    (d) A manufacturer may submit a list of engine families and the 
corresponding assembly plants, associated storage facilities, or (in the 
case of imported engines) port facilities from which the manufacturer 
prefers to have engines selected for testing in response to a test 
order. In order that a manufacturer's preferred location be considered 
for inclusion in a test order for a particular engine family, the list 
must be submitted prior to issuance of the test order. Notwithstanding 
the fact that a manufacturer has submitted the list, the Administrator 
may order selection at other than a preferred location.
    (e) Upon receipt of a test order, a manufacturer must proceed in 
accordance with the provisions of this subpart.
    (f)(1) During a given model year, the Administrator may not issue to 
a manufacturer more Selective Enforcement Auditing (SEA) test orders 
than an annual limit determined to be the larger of the following 
factors:
    (i) Production factor, determined by dividing the projected nonroad 
engine sales in the United States for that model year, as declared by 
the manufacturer under Sec. 89.505(c)(1), by 16,000 and rounding to the 
nearest whole number. If the projected sales are less than 8,000, this 
factor is one.
    (ii) Family factor, determined by dividing the manufacturer's total 
number of certified engine families by five and rounding to the nearest 
whole number.
    (2) If a manufacturer submits to EPA in writing prior to or during 
the model year a reliable sales projection update or adds engine 
families or deletes engine families from its production, that 
information is used for recalculating

[[Page 127]]

the manufacturer's annual limit of SEA test orders.
    (3) Any SEA test order for which the family fails under Sec. 89.510 
or for which testing is not completed is not counted against the annual 
limit.
    (4) When the annual limit has been met, the Administrator may issue 
additional test orders to test those families for which evidence exists 
indicating noncompliance. An SEA test order issued on this basis will 
include a statement as to the reason for its issuance.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]



Sec. 89.504  Testing by the Administrator.

    (a) The Administrator may require by test order under Sec. 89.503 
that engines of a specified family be selected in a manner consistent 
with the requirements of Sec. 89.507 and submitted to the Administrator 
at the place designated for the purpose of conducting emission tests. 
These tests will be conducted in accordance with Sec. 89.508 to 
determine whether engines manufactured by the manufacturer conform with 
the regulations with respect to which the certificate of conformity was 
issued.
    (b) Designating official data. (1) Whenever the Administrator 
conducts a test on a test engine or the Administrator and manufacturer 
each conduct a test on the same test engine, the results of the 
Administrator's test comprise the official data for that engine.
    (2) Whenever the manufacturer conducts all tests on a test engine, 
the manufacturer's test data is accepted as the official data, provided 
that if the Administrator makes a determination based on testing 
conducted under paragraph (a) of this section that there is a 
substantial lack of agreement between the manufacturer's test results 
and the Administrator's test results, no manufacturer's test data from 
the manufacturer's test facility will be accepted for purposes of this 
subpart.
    (c) If testing conducted under Sec. 89.503 is unacceptable under 
paragraph (b)(2) of this section, the Administrator must:
    (1) Notify the manufacturer in writing of the Administrator's 
determination that the test facility is inappropriate for conducting the 
tests required by this subpart and the reasons therefor; and
    (2) Reinstate any manufacturer's data upon a showing by the 
manufacturer that the data acquired under Sec. 89.503 was erroneous and 
the manufacturer's data was correct.
    (d) The manufacturer may request in writing that the Administrator 
reconsider the determination in paragraph (b)(2) of this section based 
on data or information which indicates that changes have been made to 
the test facility and these changes have resolved the reasons for 
disqualification.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]



Sec. 89.505  Maintenance of records; submittal of information.

    (a) The manufacturer of any new nonroad engine subject to any of the 
provisions of this subpart must establish, maintain, and retain the 
following adequately organized and indexed records:
    (1) General records. A description of all equipment used to test 
engines in accordance with Sec. 89.508 pursuant to a test order issued 
under this subpart, specifically, the equipment requirements specified 
in Secs. 86.884-8 and 86.884-9 of this chapter and the equipment 
requirements specified in Secs. 89.306, 89.308, 89.309, and 89.312.
    (2) Individual records. These records pertain to each audit 
conducted pursuant to this subpart and include:
    (i) The date, time, and location of each test;
    (ii) The number of hours of service accumulated on the engine when 
the test began and ended;
    (iii) The names of all supervisory personnel involved in the conduct 
of the audit;
    (iv) A record and description of any repairs performed prior to and/
or subsequent to approval by the Administrator, giving the date, 
associated time, justification, name(s) of the authorizing personnel, 
and names of all supervisory personnel responsible for the conduct of 
the repair;
    (v) The date the engine was shipped from the assembly plant, 
associated storage facility or port facility, and date the engine was 
received at the testing facility;

[[Page 128]]

    (vi) A complete record of all emission tests performed pursuant to 
this subpart (except tests performed directly by EPA), including all 
individual worksheets and/or other documentation relating to each test, 
or exact copies thereof, to be in accordance with the record 
requirements specified in Sec. 89.404 or Sec. 86.884-10 of this chapter.
    (vii) A brief description of any significant audit events not 
described under paragraph (a)(2) of this section, commencing with the 
test engine selection process and including such extraordinary events as 
engine damage during shipment.
    (3) The manufacturer must record test equipment description, 
pursuant to paragraph (a)(1) of this section, for each test cell that 
can be used to perform emission testing under this subpart.
    (b) The manufacturer must retain all records required to be 
maintained under this subpart for a period of one year after completion 
of all testing in response to a test order. Records may be retained as 
hard copy or reduced to microfilm, floppy disc, and so forth, depending 
upon the manufacturer's record retention procedure; provided, that in 
every case, all the information contained in the hard copy is retained.
    (c) The manufacturer must, upon request by the Administrator, submit 
the following information with regard to engine production:
    (1) Projected production for each engine configuration within each 
engine family for which certification is requested;
    (2) Number of engines, by configuration and assembly plant, 
scheduled for production for the time period designated in the request;
    (3) Number of engines, by configuration and by assembly plant, 
storage facility or port facility, scheduled to be stored at facilities 
for the time period designated in the request; and
    (4) Number of engines, by configuration and assembly plant, produced 
during the time period designated in the request that are complete for 
introduction into commerce.
    (d) Nothing in this section limits the Administrator's discretion in 
requiring the manufacturer to retain additional records or submit 
information not specifically required by this section.
    (e) All reports, submissions, notifications, and requests for 
approvals made under this subpart are addressed to: Director, Engine 
Programs and Compliance Division (6405-J), U.S. Environmental Protection 
Agency, 401 M Street SW, Washington, DC 20460.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57020, Oct. 23, 1998]



Sec. 89.506  Right of entry and access.

    (a) To allow the Administrator to determine whether a manufacturer 
is complying with the provisions of this subpart and a test order issued 
thereunder, EPA enforcement officers or EPA authorized representatives 
may enter during operating hours and upon presentation of credentials 
any of the following places:
    (1) Any facility where any engine to be introduced into commerce, 
including ports of entry, or any emission-related component is 
manufactured, assembled, or stored;
    (2) Any facility where any tests conducted pursuant to a test order 
or any procedures or activities connected with these tests are or were 
performed;
    (3) Any facility where any engine which is being tested, was tested, 
or will be tested is present; and
    (4) Any facility where any record or other document relating to any 
of the above is located.
    (b) Upon admission to any facility referred to in paragraph (a) of 
this section, EPA enforcement officers or EPA authorized representatives 
are authorized to perform the following inspection-related activities:
    (1) To inspect and monitor any aspects of engine manufacture, 
assembly, storage, testing and other procedures, and the facilities in 
which these procedures are conducted;
    (2) To inspect and monitor any aspect of engine test procedures or 
activities, including, but not limited to, engine selection, 
preparation, service accumulation, emission test cycles, and maintenance 
and verification of test equipment calibration;
    (3) To inspect and make copies of any records or documents related 
to the assembly, storage, selection, and testing

[[Page 129]]

of an engine in compliance with a test order; and
    (4) To inspect and photograph any part or aspect of any engine and 
any component used in the assembly thereof that is reasonably related to 
the purpose of the entry.
    (c) EPA enforcement officers or EPA authorized representatives are 
authorized to obtain reasonable assistance without cost from those in 
charge of a facility to help the officers perform any function listed in 
this subpart and they are authorized to request the recipient of a test 
order to make arrangements with those in charge of a facility operated 
for the manufacturer's benefit to furnish reasonable assistance without 
cost to EPA whether or not the recipient controls the facility.
    (1) Reasonable assistance includes, but is not limited to, clerical, 
copying, interpretation and translation services; the making available 
on an EPA enforcement officer's or EPA authorized representative's 
request of personnel of the facility being inspected during their 
working hours to inform the EPA enforcement officer or EPA authorized 
representative of how the facility operates and to answer the officer's 
or representative's questions; and the performance on request of 
emission tests on any engine which is being, has been, or will be used 
for SEA testing.
    (2) A manufacturer may be compelled to cause the personal appearance 
of any employee at such a facility before an EPA enforcement officer or 
EPA authorized representative by written request for his appearance, 
signed by the Assistant Administrator for Air and Radiation, served on 
the manufacturer. Any such employee who has been instructed by the 
manufacturer to appear will be entitled to be accompanied, represented, 
and advised by counsel.
    (d) EPA enforcement officers or EPA authorized representatives are 
authorized to seek a warrant or court order authorizing the EPA 
enforcement officers or EPA authorized representatives to conduct 
activities related to entry and access as authorized in this section, as 
appropriate, to execute the functions specified in this section. EPA 
enforcement officers or authorized representatives may proceed ex parte 
to obtain a warrant whether or not the EPA enforcement officers or EPA 
authorized representatives first attempted to seek permission of the 
recipient of the test order or the party in charge of the facilities in 
question to conduct activities related to entry and access as authorized 
in this section.
    (e) A recipient of a test order must permit an EPA enforcement 
officer(s) or EPA authorized representative(s) who presents a warrant or 
court order to conduct activities related to entry and access as 
authorized in this section and as described in the warrant or court 
order. The recipient must also cause those in charge of its facility or 
a facility operated for its benefit to permit entry and access as 
authorized in this section pursuant to a warrant or court order whether 
or not the recipient controls the facility. In the absence of a warrant 
or court order, an EPA enforcement officer(s) or EPA authorized 
representative(s) may conduct activities related to entry and access as 
authorized in this section only upon the consent of the recipient of the 
test order or the party in charge of the facilities in question.
    (f) It is not a violation of this part or the Clean Air Act for any 
person to refuse to permit an EPA enforcement officer(s) or EPA 
authorized representative(s) to conduct activities related to entry and 
access as authorized in this section if the officer(s) or 
representative(s) appears without a warrant or court order.
    (g) A manufacturer is responsible for locating its foreign testing 
and manufacturing facilities in jurisdictions where local law does not 
prohibit an EPA enforcement officer(s) or EPA authorized 
representative(s) from conducting the entry and access activities 
specified in this section. EPA will not attempt to make any inspections 
which it has been informed that local foreign law prohibits.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57020, Oct. 23, 1998]



Sec. 89.507  Sample selection.

    (a) Engines comprising a test sample will be selected at the 
location and in the manner specified in the test order. If a 
manufacturer determines that the test engines cannot be selected in the 
manner specified in the test order, an

[[Page 130]]

alternative selection procedure may be employed, provided the 
manufacturer requests approval of the alternative procedure prior to the 
start of test sample selection, and the Administrator approves the 
procedure.
    (b) The manufacturer must assemble the test engines of the family 
selected for testing using its normal mass production process for 
engines to be distributed into commerce. If, between the time the 
manufacturer is notified of a test order and the time the manufacturer 
finishes selecting test engines, the manufacturer implements any 
change(s) in its production processes, including quality control, which 
may reasonably be expected to affect the emissions of the engines 
selected, then the manufacturer must, during the audit, inform the 
Administrator of such changes. If the test engines are selected at a 
location where they do not have their operational and emission control 
systems installed, the test order will specify the manner and location 
for selection of components to complete assembly of the engines. The 
manufacturer must assemble these components onto the test engines using 
normal assembly and quality control procedures as documented by the 
manufacturer.
    (c) No quality control, testing, or assembly procedures will be used 
on the test engine or any portion thereof, including parts and 
subassemblies, that have not been or will not be used during the 
production and assembly of all other engines of that family, unless the 
Administrator approves the modification in assembly procedures pursuant 
to paragraph (b) of this section.
    (d) The test order may specify that an EPA enforcement officer(s) or 
authorized representative(s), rather than the manufacturer, select the 
test engines according to the method specified in the test order.
    (e) The order in which test engines are selected determines the 
order in which test results are to be used in applying the sampling plan 
in accordance with Sec. 89.510.
    (f) The manufacturer must keep on hand all untested engines, if any, 
comprising the test sample until a pass or fail decision is reached in 
accordance with Sec. 89.510(e). The manufacturer may ship any tested 
engine which has not failed the requirements as set forth in 
Sec. 89.510(b). However, once the manufacturer ships any test engine, it 
relinquishes the prerogative to conduct retests as provided in 
Sec. 89.508(i).

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]



Sec. 89.508  Test procedures.

    (a)(1) For nonroad engines subject to the provisions of this 
subpart, the prescribed test procedures are the nonroad engine 8-mode 
test procedure as described in subpart E of this part, the federal smoke 
test as described in part 86, subpart I of this chapter, and the 
particulate test procedure as adopted in the California Regulations for 
New 1996 and Later Heavy-Duty Off-Road Diesel Cycle Engines. This 
procedure is incorporated by reference. See Sec. 89.6.
    (2) The Administrator may, on the basis of a written application by 
a manufacturer, prescribe test procedures other than those specified in 
paragraph (a)(1) of this section for any nonroad engine he or she 
determines is not susceptible to satisfactory testing using the 
procedures specified in paragraph (a)(1) of this section.
    (b)(1) The manufacturer may not adjust, repair, prepare, or modify 
the engines selected for testing and may not perform any emission tests 
on engines selected for testing pursuant to the test order unless this 
adjustment, repair, preparation, modification, and/or tests are 
documented in the manufacturer's engine assembly and inspection 
procedures and are actually performed or unless these adjustments and/or 
tests are required or permitted under this subpart or are approved in 
advance by the Administrator.
    (2) The Administrator may adjust or cause to be adjusted any engine 
parameter which the Administrator has determined to be subject to 
adjustment for certification and Selective Enforcement Audit testing in 
accordance with Sec. 89.108, to any setting within the physically 
adjustable range of that parameter, as determined by the Administrator 
in accordance with Sec. 89.108, prior to the performance of any tests. 
However, if the idle speed parameter is one which the Administrator has 
determined to be subject to adjustment, the

[[Page 131]]

Administrator may not adjust it to any setting which causes a lower 
engine idle speed than would have been possible within the physically 
adjustable range of the idle speed parameter if the manufacturer had 
accumulated 125 hours of service on the engine under paragraph (c) of 
this section, all other parameters being identically adjusted for the 
purpose of the comparison. The manufacturer may be requested to supply 
information needed to establish an alternate minimum idle speed. The 
Administrator, in making or specifying these adjustments, may consider 
the effect of the deviation from the manufacturer's recommended setting 
on emission performance characteristics as well as the likelihood that 
similar settings will occur on in-use engines. In determining 
likelihood, the Administrator may consider factors such as, but not 
limited to, the effect of the adjustment on engine performance 
characteristics and surveillance information from similar in-use 
engines.
    (c) Service Accumulation. Prior to performing exhaust emission 
testing on an SEA test engine, the manufacturer may accumulate on each 
engine a number of hours of service equal to the greater of 125 hours or 
the number of hours the manufacturer accumulated during certification on 
the emission data engine corresponding to the family specified in the 
test order.
    (1) Service accumulation must be performed in a manner using good 
engineering judgment to obtain emission results representative of normal 
production engines. This service accumulation must be consistent with 
the new engine break-in instructions contained in the applicable owner's 
manual.
    (2) The manufacturer must accumulate service at a minimum rate of 16 
hours per engine during each 24-hour period, unless otherwise approved 
by the Administrator.
    (i) The first 24-hour period for service begins as soon as 
authorized checks, inspections, and preparations are completed on each 
engine.
    (ii) The minimum service or mileage accumulation rate does not apply 
on weekends or holidays.
    (iii) If the manufacturer's service or target is less than the 
minimum rate specified (16 hours per day), then the minimum daily 
accumulation rate is equal to the manufacturer's service target.
    (3) Service accumulation must be completed on a sufficient number of 
test engines during consecutive 24-hour periods to assure that the 
number of engines tested per day fulfills the requirements of paragraphs 
(g)(1) and (g)(2) of this section.
    (d) The manufacturer may not perform any maintenance on test engines 
after selection for testing, nor may the Administrator allow deletion of 
any engine from the test sequence, unless requested by the manufacturer 
and approved by the Administrator before any engine maintenance or 
deletion.
    (e) The manufacturer must expeditiously ship test engines from the 
point of selection to the test facility. If the test facility is not 
located at or in close proximity to the point of selection, the 
manufacturer must assure that test engines arrive at the test facility 
within 24 hours of selection. The Administrator may approve more time 
for shipment based upon a request by the manufacturer accompanied by a 
satisfactory justification.
    (f) If an engine cannot complete the service accumulation or an 
emission test because of a malfunction, the manufacturer may request 
that the Administrator authorize either the repair of that engine or its 
deletion from the test sequence.
    (g) Whenever a manufacturer conducts testing pursuant to a test 
order issued under this subpart, the manufacturer must notify the 
Administrator within one working day of receipt of the test order as to 
which test facility will be used to comply with the test order. If no 
test cells are available at a desired facility, the manufacturer must 
provide alternate testing capability satisfactory to the Administrator.
    (1) A manufacturer with projected nonroad engine sales for the 
United States market for the applicable year of 7,500 or greater must 
complete emission testing at a minimum rate of two engines per 24-hour 
period, including each voided test and each smoke test.
    (2) A manufacturer with projected nonroad engine sales for the 
United States market for the applicable year

[[Page 132]]

of less than 7,500 must complete emission testing at a minimum rate of 
one engine per 24-hour period, including each voided test and each smoke 
test.
    (3) The Administrator may approve a lower daily rate of emission 
testing based upon a request by a manufacturer accompanied by a 
satisfactory justification.
    (h) The manufacturer must perform test engine selection, shipping, 
preparation, service accumulation, and testing in such a manner as to 
assure that the audit is performed in an expeditious manner.
    (i) Retesting. (1) The manufacturer may retest any engines tested 
during a Selective Enforcement Audit once a fail decision for the audit 
has been reached in accordance with Sec. 89.510(e).
    (2) The Administrator may approve retesting at other times based 
upon a request by the manufacturer accompanied by a satisfactory 
justification.
    (3) The manufacturer may retest each engine a total of three times. 
The manufacturer must test each engine or vehicle the same number of 
times. The manufacturer may accumulate additional service before 
conducting a retest, subject to the provisions of paragraph (c) of this 
section.
    (j) A manufacturer must test engines with the test procedure 
specified in subpart E of this part to demonstrate compliance with the 
exhaust emission standard (or applicable FEL) for oxides of nitrogen. If 
alternate procedures were used in certification pursuant to Sec. 89.114, 
then those alternate procedures must be used.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]



Sec. 89.509  Calculation and reporting of test results.

    (a) Initial test results are calculated following the applicable 
test procedure specified in Sec. 89.508(a). The manufacturer rounds 
these results, in accordance with ASTM E29-93a, to the number of decimal 
places contained in the applicable emission standard expressed to one 
additional significant figure. This procedure has been incorporated by 
reference. See Sec. 89.6.
    (b) Final test results are calculated by summing the initial test 
results derived in paragraph (a) of this section for each test engine, 
dividing by the number of tests conducted on the engine, and rounding in 
accordance with the procedure specified in paragraph (a) of this section 
to the same number of decimal places contained in the applicable 
standard expressed to one additional significant figure.
    (c) Within five working days after completion of testing of all 
engines pursuant to a test order, the manufacturer must submit to the 
Administrator a report which includes the following information:
    (1) The location and description of the manufacturer's exhaust 
emission test facilities which were utilized to conduct testing reported 
pursuant to this section;
    (2) The applicable standards and/or FEL against which the engines 
were tested;
    (3) A description of the engine and its associated emission-related 
component selection method used;
    (4) For each test conducted;
    (i) Test engine description, including:
    (A) Configuration and engine family identification;
    (B) Year, make, and build date;
    (C) Engine identification number; and
    (D) Number of hours of service accumulated on engine prior to 
testing;
    (ii) Location where service accumulation was conducted and 
description of accumulation procedure and schedule;
    (iii) Test number, date, test procedure used, initial test results 
before and after rounding, and final test results for all exhaust 
emission tests, whether valid or invalid, and the reason for 
invalidation, if applicable;
    (iv) A complete description of any modification, repair, 
preparation, maintenance, and/or testing which was performed on the test 
engine and has not been reported pursuant to any other paragraph of this 
subpart and will not be performed on all other production engines;
    (v) Where an engine was deleted from the test sequence by 
authorization of the Administrator, the reason for the deletion;
    (vi) Any other information the Administrator may request relevant to 
the determination as to whether the new engines being manufactured by 
the

[[Page 133]]

manufacturer do in fact conform with the regulations with respect to 
which the certificate of conformity was issued; and
    (5) The following statement and endorsement:

    This report is submitted pursuant to sections 213 and 208 of the 
Clean Air Act. This Selective Enforcement Audit was conducted in 
complete conformance with all applicable regulations under 40 CFR part 
89 et seq. and the conditions of the test order. No emission-related 
changes to production processes or quality control procedures for the 
engine family tested have been made between receipt of the test order 
and conclusion of the audit. All data and information reported herein 
is, to the best of (Company Name) knowledge, true and accurate. I am 
aware of the penalties associated with violations of the Clean Air Act 
and the regulations thereunder. (Authorized Company Representative.)

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57020, Oct. 23, 1998]



Sec. 89.510  Compliance with acceptable quality level and passing and failing criteria for selective enforcement audits.

    (a) The prescribed acceptable quality level is 40 percent.
    (b) A failed engine is one whose final test results pursuant to 
Sec. 89.509(b), for one or more of the applicable pollutants, exceed the 
applicable emission standard or family emission level.
    (c) The manufacturer must test engines comprising the test sample 
until a pass decision is reached for all pollutants or a fail decision 
is reached for one pollutant. A pass decision is reached when the 
cumulative number of failed engines, as defined in paragraph (b) of this 
section, for each pollutant is less than or equal to the pass decision 
number, as defined in paragraph (d) of this section, appropriate to the 
cumulative number of engines tested. A fail decision is reached when the 
cumulative number of failed engines for one or more pollutants is 
greater than or equal to the fail decision number, as defined in 
paragraph (d) of this section, appropriate to the cumulative number of 
engines tested.
    (d) The pass and fail decision numbers associated with the 
cumulative number of engines tested are determined by using the tables 
in appendix A to this subpart, ``Sampling Plans for Selective 
Enforcement Auditing of Nonroad Engines,'' appropriate to the projected 
sales as made by the manufacturer in its report to EPA under 
Sec. 89.505(c)(1). In the tables in appendix A to this subpart, sampling 
plan ``stage'' refers to the cumulative number of engines tested. Once a 
pass or fail decision has been made for a particular pollutant, the 
number of engines with final test results exceeding the emission 
standard for that pollutant shall not be considered any further for the 
purposes of the audit.
    (e) Passing or failing of an SEA occurs when the decision is made on 
the last engine required to make a decision under paragraph (c) of this 
section.
    (f) The Administrator may terminate testing earlier than required in 
paragraph (c) of this section.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]



Sec. 89.511  Suspension and revocation of certificates of conformity.

    (a) The certificate of conformity is suspended with respect to any 
engine failing pursuant to paragraph (b) of Sec. 89.510 effective from 
the time that testing of that engine is completed.
    (b) The Administrator may suspend the certificate of conformity for 
a family which does not pass an SEA, pursuant to paragraph 
Sec. 89.510(c), based on the first test or all tests conducted on each 
engine. This suspension will not occur before ten days after failure of 
the audit, unless the manufacturer requests an earlier suspension.
    (c) If the results of testing pursuant to these regulations indicate 
that engines of a particular family produced at one plant of a 
manufacturer do not conform to the regulations with respect to which the 
certificate of conformity was issued, the Administrator may suspend the 
certificate of conformity with respect to that family for engines 
manufactured by the manufacturer at all other plants.
    (d) Notwithstanding the fact that engines described in the 
application may be covered by a certificate of conformity, the 
Administrator may suspend such certificate immediately in whole or in 
part if the Administrator finds any one of the following infractions to 
be substantial:

[[Page 134]]

    (1) The manufacturer refuses to comply with the provisions of a test 
order issued by the Administrator under Sec. 89.503.
    (2) The manufacturer refuses to comply with any of the requirements 
of this subpart.
    (3) The manufacturer submits false or incomplete information in any 
report or information provided to the Administrator under this subpart.
    (4) The manufacturer renders inaccurate any test data submitted 
under this subpart.
    (5) An EPA enforcement officer(s) or EPA authorized 
representative(s) is denied the opportunity to conduct activities 
related to entry and access as authorized in this subpart and a warrant 
or court order is presented to the manufacturer or the party in charge 
of a facility in question.
    (6) An EPA enforcement officer(s) or EPA authorized 
representative(s) is unable to conduct activities related to entry and 
access as authorized in Sec. 89.506 because a manufacturer has located a 
facility in a foreign jurisdiction where local law prohibits those 
activities.
    (e) The Administrator must notify the manufacturer in writing of any 
suspension or revocation of a certificate of conformity in whole or in 
part; a suspension or revocation is effective upon receipt of the 
notification or ten days, except that the certificate is immediately 
suspended with respect to any failed engines as provided for in 
paragraph (a) of this section.
    (f) The Administrator may revoke a certificate of conformity for a 
family when the certificate has been suspended pursuant to paragraph (b) 
or (c) of this section if the proposed remedy for the nonconformity, as 
reported by the manufacturer to the Administrator, is one requiring a 
design change or changes to the engine and/or emission control system as 
described in the application for certification of the affected family.
    (g) Once a certificate has been suspended for a failed engine, as 
provided for in paragraph (a) of this section, the manufacturer must 
take the following actions before the certificate is reinstated for that 
failed engine:
    (1) Remedy the nonconformity.
    (2) Demonstrate that the engine conforms to applicable standards or 
family emission levels by retesting the engine in accordance with these 
regulations.
    (3) Submit a written report to the Administrator, after successful 
completion of testing on the failed engine, which contains a description 
of the remedy and test results for each engine in addition to other 
information that may be required by this part.
    (h) Once a certificate for a failed family has been suspended 
pursuant to paragraph (b) or (c) of this section, the manufacturer must 
take the following actions before the Administrator will consider 
reinstating the certificate:
    (1) Submit a written report to the Administrator which identifies 
the reason for the noncompliance of the engines, describes the proposed 
remedy, including a description of any proposed quality control and/or 
quality assurance measures to be taken by the manufacturer to prevent 
future occurrences of the problem, and states the date on which the 
remedies will be implemented.
    (2) Demonstrate that the engine family for which the certificate of 
conformity has been suspended does in fact comply with these regulations 
by testing engines selected from normal production runs of that engine 
family, at the plant(s), port facility(ies) or associated storage 
facility(ies) specified by the Administrator, in accordance with the 
conditions specified in the initial test order. If the manufacturer 
elects to continue testing individual engines after suspension of a 
certificate, the certificate is reinstated for an engine actually 
determined to be in conformance with the applicable standards or family 
emission levels through testing in accordance with the applicable test 
procedures, provided that the Administrator has not revoked the 
certificate pursuant to paragraph (f) of this section.
    (i) Once the certificate for a family has been revoked under 
paragraph (f) of this section and the manufacturer desires to continue 
introduction into commerce of a modified version of that family, the 
following actions must be taken before the Administrator may consider 
issuing a certificate for that modified family:

[[Page 135]]

    (1) If the Administrator determines that the proposed change(s) in 
engine design may have an effect on emission performance deterioration, 
the Administrator will notify the manufacturer, within five working days 
after receipt of the report in paragraph (g) of this section, whether 
subsequent testing under this subpart is sufficient to evaluate the 
proposed change or changes or whether additional testing is required; 
and
    (2) After implementing the change or changes intended to remedy the 
nonconformity, the manufacturer must demonstrate that the modified 
engine family does in fact conform with these regulations by testing 
engines selected from normal production runs of that modified engine 
family in accordance with the conditions specified in the initial test 
order. If the subsequent audit results in passing of the audit, the 
Administrator will reissue the certificate or issue a new certificate, 
as the case may be, to include that family, provided that the 
manufacturer has satisfied the testing requirements of paragraph (i)(1) 
of this section. If the subsequent audit is failed, the revocation 
remains in effect. Any design change approvals under this subpart are 
limited to the family affected by the test order.
    (j) At any time subsequent to an initial suspension of a certificate 
of conformity for a test engine pursuant to paragraph (a) of this 
section, but not later than 15 days (or such other period as may be 
allowed by the Administrator) after notification of the Administrator's 
decision to suspend or revoke a certificate of conformity in whole or in 
part pursuant to paragraph (b), (c), or (f) of this section, a 
manufacturer may request a hearing as to whether the tests have been 
properly conducted or any sampling methods have been properly applied.
    (k) Any suspension of a certificate of conformity under paragraph 
(d) of this section:
    (1) will be in writing and will include the offer of an opportunity 
for a hearing conducted in accordance with Secs. 89.512, 89.513, and 
89.514 and
    (2) need not apply to engines no longer in the hands of the 
manufacturer.
    (l) After the Administrator suspends or revokes a certificate of 
conformity pursuant to this section and prior to the commencement of a 
hearing under Sec. 89.512, if the manufacturer demonstrates to the 
Administrator's satisfaction that the decision to suspend, revoke, or 
void the certificate was based on erroneous information, the 
Administrator will reinstate the certificate.
    (m) To permit a manufacturer to avoid storing non-test engines when 
conducting an audit of a family subsequent to a failure of an SEA and 
while reauditing of the failed family, it may request that the 
Administrator conditionally reinstate the certificate for that family. 
The Administrator may reinstate the certificate subject to the condition 
that the manufacturer consents to recall all engines of that family 
produced from the time the certificate is conditionally reinstated if 
the family fails the subsequent audit at the level of the standard and 
to remedy any nonconformity at no expense to the owner.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]



Sec. 89.512  Request for public hearing.

    (a) If the manufacturer disagrees with the Administrator's decision 
under Sec. 89.511 (b), (c), (d), or (f) to suspend or revoke a 
certificate or disputes the basis for an automatic suspension pursuant 
to Sec. 89.511 (a), the manufacturer may request a public hearing.
    (b) The manufacturer's request must be filed with the Administrator 
not later than 15 days after the Administrator's notification of the 
decision to suspend or revoke, unless otherwise specified by the 
Administrator. The manufacturer must simultaneously serve two copies of 
this request upon the Director of the Engine Programs and Compliance 
Division and file two copies with the Hearing Clerk of the Agency. 
Failure of the manufacturer to request a hearing within the time 
provided constitutes a waiver of the right to a hearing. Subsequent to 
the expiration of the period for requesting a hearing as of right, the 
Administrator may, at her or his discretion and for good cause shown, 
grant the manufacturer a

[[Page 136]]

hearing to contest the suspension or revocation.
    (c) The manufacturer's request for a public hearing must include:
    (1) A statement as to which engine configuration(s) within a family 
is to be the subject of the hearing;
    (2) A concise statement of the issues to be raised by the 
manufacturer at the hearing, except that in the case of the hearing 
requested under Sec. 89.511(j), the hearing is restricted to the 
following issues:
    (i) Whether tests have been properly conducted, specifically, 
whether the tests were conducted in accordance with applicable 
regulations under this part and whether test equipment was properly 
calibrated and functioning;
    (ii) Whether sampling plans have been properly applied, 
specifically, whether sampling procedures specified in appendix A of 
this subpart were followed and whether there exists a basis for 
distinguishing engines produced at plants other than the one from which 
engines were selected for testing which would invalidate the 
Administrator's decision under Sec. 89.511(c);
    (3) A statement specifying reasons why the manufacturer believes it 
will prevail on the merits of each of the issues raised; and
    (4) A summary of the evidence which supports the manufacturer's 
position on each of the issues raised.
    (d) A copy of all requests for public hearings will be kept on file 
in the Office of the Hearing Clerk and will be made available to the 
public during Agency business hours.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57020, Oct. 23, 1998]



Sec. 89.513  Administrative procedures for public hearing.

    (a) The Presiding Officer is an Administrative Law Judge appointed 
pursuant to 5 U.S.C. 3105 (see also 5 CFR part 930 as amended).
    (b) The Judicial Officer is an officer or employee of the Agency 
appointed as a Judicial Officer by the Administrator, pursuant to this 
section, who meets the qualifications and performs functions as follows:
    (1) Qualifications. A Judicial Officer may be a permanent or 
temporary employee of the Agency who performs other duties for the 
Agency. The Judicial Officer may not be employed by the Office of 
Enforcement or have any connection with the preparation or presentation 
of evidence for a hearing held pursuant to this subpart. The Judicial 
Officer must 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.
    (2) Functions. The Administrator may consult with the Judicial 
Officer or delegate all or part of the Administrator's authority to act 
in a given case under this section to a Judicial Officer, provided that 
this delegation does not preclude the Judicial Officer from referring 
any motion or case to the Administrator when the Judicial Officer 
determines such referral to be appropriate.
    (c) For the purposes of this section, one or more Judicial Officers 
may be designated. As work requires, a Judicial Officer may be 
designated to act for the purposes of a particular case.
    (d) Summary decision. (1) In the case of a hearing requested under 
Sec. 89.511(j), when it clearly appears from the data and other 
information contained in the request for a hearing that no genuine and 
substantial question of fact or law exists with respect to the issues 
specified in Sec. 89.512(c)(2), the Administrator may enter an order 
denying the request for a hearing and reaffirming the original decision 
to suspend or revoke a certificate of conformity.
    (2) In the case of a hearing requested under Sec. 89.512 to 
challenge a suspension of a certificate of conformity for the reasons 
specified in Sec. 89.511(d), when it clearly appears from the data and 
other information contained in the request for the hearing that no 
genuine and substantial question of fact or law exists with respect to 
the issue of whether the refusal to comply with the provisions of a test 
order or any other requirement of Sec. 89.503 was caused by conditions 
and circumstances outside the control of the manufacturer, the 
Administrator may enter an order denying the request for a hearing and 
suspending the certificate of conformity.
    (3) Any order issued under paragraph (d)(1) or (d)(2) of this 
section has the

[[Page 137]]

force and effect of a final decision of the Administrator, as issued 
pursuant to Sec. 89.515.
    (4) If the Administrator determines that a genuine and substantial 
question of fact or law does exist with respect to any of the issues 
referred to in paragraphs (d)(1) and (d)(2) of this section, the 
Administrator will grant the request for a hearing and publish a notice 
of public hearing in the Federal Register or by such other means as the 
Administrator finds appropriate to provide notice to the public.
    (e) Filing and service. (1) An original and two copies of all 
documents or papers required or permitted to be filed pursuant to this 
section and Sec. 89.512(c) must be filed with the Hearing Clerk of the 
Agency. Filing is considered timely if mailed, as determined by the 
postmark, to the Hearing Clerk within the time allowed by this section 
and Sec. 89.512(b). If filing is to be accomplished by mailing, the 
documents must be sent to the address set forth in the notice of public 
hearing referred to in paragraph (d)(4) of this section.
    (2) To the maximum extent possible, testimony will be presented in 
written form. Copies of written testimony will be served upon all 
parties as soon as practicable prior to the start of the hearing. A 
certificate of service will be provided on or accompany each document or 
paper filed with the Hearing Clerk. Documents to be served upon the 
Director of the Engine Programs and Compliance Division must be sent by 
registered mail to: Director, Engine Programs and Compliance Division 
(6405-J), U.S. Environmental Protection Agency, 401 M Street SW., 
Washington, DC 20460. Service by registered mail is complete upon 
mailing.
    (f) Computation of time. (1) In computing any period of time 
prescribed or allowed by this section, except as otherwise provided, the 
day of the act or event from which the designated period of time begins 
to run is not included. Saturdays, Sundays, and federal legal holidays 
are included in computing the period allowed for the filing of any 
document or paper, except that when the period expires on a Saturday, 
Sunday, or federal legal holiday, the period is extended to include the 
next following business day.
    (2) A prescribed period of time within which a party is required or 
permitted to do an act is computed from the time of service, except that 
when service is accomplished by mail, three days will be added to the 
prescribed period.
    (g) Consolidation. The Administrator or the Presiding Officer in his 
discretion may consolidate two or more proceedings to be held under this 
section for the purpose of resolving one or more issues whenever it 
appears that consolidation will expedite or simplify consideration of 
these issues. Consolidation does not affect the right of any party to 
raise issues that could have been raised if consolidation had not 
occurred.
    (h) Hearing date. To the extent possible hearings under Sec. 89.512 
will be scheduled to commence within 14 days of receipt of the 
application in Sec. 89.512.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57020, Oct. 23, 1998]



Sec. 89.514  Hearing procedures.

    The procedures provided in Sec. 86.1014-84 (i) to (s) apply for 
hearings requested pursuant to Sec. 89.512, suspension, revocation, or 
voiding of a certificate of conformity.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]



Sec. 89.515  Appeal of hearing decision.

    The procedures provided in Sec. 86.1014-84 (t) to (aa) apply for 
appeals filed with respect to hearings held pursuant to Sec. 89.514.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]



Sec. 89.516  Treatment of confidential information.

    The provisions for treatment of confidential information as 
described in Sec. 89.7 apply.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]

   Appendix A to Subpart F--Sampling Plans for Selective Enforcement 
                       Auditing of Nonroad Engines

                   Table 1--Sampling Plan Code Letter
------------------------------------------------------------------------
         Annual engine family sales                   Code letter
------------------------------------------------------------------------
20-50.......................................  AA1

[[Page 138]]

 
20-99.......................................  A
100-299.....................................  B
300-299.....................................  C
500 or greater..............................  D
------------------------------------------------------------------------
\1\ A manufacturer may optionally use either the sampling plan for code
  letter ``AA'' or sampling plan for code letter ``A'' for Selective
  Enforcement Audits of engine families with annual sales between 20 and
  50 engines. Additionally, the manufacturer may switch between these
  plans during the audit.


              Table 2--Sampling Plan for Code Letter ``AA''
                      [Sample inspection criteria]
------------------------------------------------------------------------
                     Stage                        Pass No.     Fail No.
------------------------------------------------------------------------
1.............................................        (\1\)        (\2\)
2.............................................        (\1\)        (\2\)
3.............................................            0        (\2\)
4.............................................            0        (\2\)
5.............................................            1            5
6.............................................            1            6
7.............................................            2            6
8.............................................            2            7
9.............................................            3            7
10............................................            3            8
11............................................            4            8
12............................................            4            9
13............................................            5            9
14............................................            5           10
15............................................            6           10
16............................................            6           10
17............................................            7           10
18............................................            8           10
19............................................            8           10
20............................................            9           10
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.


              Table 3--Sampling Plan for Code Letter ``A''
                      [Sample inspection criteria]
------------------------------------------------------------------------
                     Stage                        Pass No.     Fail No.
------------------------------------------------------------------------
1.............................................        (\1\)        (\2\)
2.............................................        (\1\)        (\2\)
3.............................................        (\1\)        (\2\)
4.............................................            0        (\2\)
5.............................................            0        (\2\)
6.............................................            1            6
7.............................................            1            7
8.............................................            2            7
9.............................................            2            8
10............................................            3            8
11............................................            3            8
12............................................            4            9
13............................................            5           10
14............................................            5           10
15............................................            6           11
16............................................            6           11
17............................................            7           12
18............................................            7           12
19............................................            8           13
20............................................            8           13
21............................................            9           14
22............................................           10           14
23............................................           10           15
24............................................           11           15
25............................................           11           16
26............................................           12           16
27............................................           12           17
28............................................           13           17
29............................................           14           17
30............................................           16           17
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.


              Table 4--Sampling Plan for Code Letter ``B''
                      [Sample Inspection Criteria]
------------------------------------------------------------------------
                     Stage                        Pass No.     Fail No.
------------------------------------------------------------------------
1.............................................        (\1\)        (\2\)
2.............................................        (\1\)        (\2\)
3.............................................        (\1\)        (\2\)
4.............................................        (\1\)        (\2\)
5.............................................            0        (\2\)
6.............................................            1            6
7.............................................            1            7
8.............................................            2            7
9.............................................            2            8
10............................................            3            8
11............................................            3            9
12............................................            4            9
13............................................            4           10
14............................................            5           10
15............................................            5           11
16............................................            6           12
17............................................            6           12
18............................................            7           13
19............................................            8           13
20............................................            8           14
21............................................            9           14
22............................................            9           15
23............................................           10           15
24............................................           10           16
25............................................           11           16
26............................................           11           17
27............................................           12           17
28............................................           12           18
29............................................           13           18
30............................................           13           19
31............................................           14           19
32............................................           14           20
33............................................           15           20
34............................................           16           21
35............................................           16           21
36............................................           17           22
37............................................           17           22
38............................................           18           22
39............................................           18           22
40............................................           21          22
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.


              Table 5--Sampling Plan for Code Letter ``C''
                      [Sample Inspection Criteria]
------------------------------------------------------------------------
                     Stage                        Pass No.     Fail No.
------------------------------------------------------------------------
1.............................................        (\1\)        (\2\)
2.............................................        (\1\)        (\2\)
3.............................................        (\1\)        (\2\)

[[Page 139]]

 
4.............................................        (\1\)        (\2\)
5.............................................            0        (\2\)
6.............................................            0            6
7.............................................            1            7
8.............................................            2            7
9.............................................            2            8
10............................................            3            9
11............................................            3            9
12............................................            4           10
13............................................            4           10
14............................................            5           11
15............................................            5           11
16............................................            6           12
17............................................            6           12
18............................................            7           13
19............................................            7           13
20............................................            8           14
21............................................            8           14
22............................................            9           15
23............................................           10           15
24............................................           10           16
25............................................           11           16
26............................................           11           17
27............................................           12           17
28............................................           12           18
29............................................           13           18
30............................................           13           19
31............................................           14           19
32............................................           14           20
33............................................           15           20
34............................................           15           21
35............................................           16           21
36............................................           16           22
37............................................           17           22
38............................................           18           23
39............................................           18           23
40............................................           19           24
41............................................           19           24
42............................................           20           25
43............................................           20           25
44............................................           21           26
45............................................           21           27
46............................................           22           27
47............................................           22           27
48............................................           23           27
49............................................           23           27
50............................................           26          27
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.


              Table 6--Sampling Plan for Code Letter ``D''
                      [Sample Inspection Criteria]
------------------------------------------------------------------------
                     Stage                        Pass No.     Fail No.
------------------------------------------------------------------------
1.............................................        (\1\)        (\2\)
2.............................................        (\1\)        (\2\)
3.............................................        (\1\)        (\2\)
4.............................................        (\1\)        (\2\)
5.............................................            0        (\2\)
6.............................................            0            6
7.............................................            1            7
8.............................................            2            8
9.............................................            2            8
10............................................            3            9
11............................................            3            9
12............................................            4           10
13............................................            4           10
14............................................            5           11
15............................................            5           11
16............................................            6           12
17............................................            6           12
18............................................            7           13
19............................................            7           13
20............................................            8           14
21............................................            8           14
22............................................            9           15
23............................................            9           15
24............................................           10           16
25............................................           11           16
26............................................           11           17
27............................................           12           17
28............................................           12           18
29............................................           13           19
30............................................           13           19
31............................................           14           20
32............................................           14           20
33............................................           15           21
34............................................           15           21
35............................................           16           22
36............................................           16           22
37............................................           17           23
38............................................           17           23
39............................................           18           24
40............................................           18           24
41............................................           19           25
42............................................           19           26
43............................................           20           26
44............................................           21           27
45............................................           21           27
46............................................           22           28
47............................................           22           28
48............................................           23           29
49............................................           23           29
50............................................           24           30
51............................................           24           30
52............................................           25           31
53............................................           25           31
54............................................           26           32
55............................................           26           32
56............................................           27           33
57............................................           27           33
58............................................           28           33
59............................................           28           33
60............................................           32          33
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.



         Subpart G--Importation of Nonconforming Nonroad Engines



Sec. 89.601  Applicability.

    (a) Except where otherwise indicated, this subpart is applicable to 
nonroad engines for which the Administrator has promulgated regulations 
under this part prescribing emission standards and nonroad vehicles and 
equipment containing such nonroad engines that are offered for 
importation or imported

[[Page 140]]

into the United States, but which engines, at the time of conditional 
importation, are not covered by certificates of conformity issued under 
section 213 and section 206(a) of the Clean Air Act as amended (that is, 
which are nonconforming nonroad engines as defined in Sec. 89.602), and 
this part. Compliance with regulations under this subpart does not 
relieve any person or entity from compliance with other applicable 
provisions of the Clean Air Act.
    (b) Regulations prescribing further procedures for the importation 
of nonroad engines and nonroad vehicles and equipment into the customs 
territory of the United States, as defined in 19 U.S.C. 1202, are set 
forth in U.S. Bureau of Customs regulations.
    (c) For the purposes of this subpart, the term ``nonroad engine'' 
includes all nonroad engines incorporated into nonroad equipment or 
nonroad vehicles at the time they are imported or offered for import 
into the United States.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]



Sec. 89.602  Definitions.

    The definitions in subpart A of this part apply to this subpart. The 
following definitions also apply to this subpart.
    Certificate of conformity. The document issued by the Administrator 
under section 213 and section 206(a) of the Act.
    Currently valid certificate of conformity. A certificate of 
conformity for which the current date is within the effective period as 
specified on the certificate of conformity, and which has not been 
withdrawn, superseded, voided, suspended, revoked, or otherwise rendered 
invalid.
    Fifteen working day hold period. The period of time between a 
request for final admission and the automatic granting of final 
admission (unless EPA intervenes) for a nonconforming nonroad engine 
conditionally imported pursuant to Sec. 89.605 or Sec. 89.609. Day one 
of the hold period is the first working day (see definition for 
``working day'' in this section) after the Engine Programs and 
Compliance Division of EPA receives a complete and valid application for 
final admission.
    Independent commercial importer (ICI). An importer who is not an 
original engine manufacturer (OEM) (see definition below), but is the 
entity in whose name a certificate of conformity for a class of nonroad 
engines has been issued.
    Model year for imported engines. The manufacturer's annual 
production period (as determined by the Administrator) which includes 
January 1 of the calendar year; provided, that if the manufacturer has 
no annual production period, the term ``model year'' means the calendar 
year in which a nonroad engine is modified. An independent commercial 
importer (ICI) is deemed to have produced a nonroad engine when the ICI 
has modified (including labeling) the nonconforming nonroad engine to 
meet applicable emission requirements.
    Nonconforming nonroad engine. A nonroad engine which is not covered 
by a certificate of conformity prior to final or conditional admission 
(or for which such coverage has not been adequately demonstrated to EPA) 
and which has not been finally admitted into the United States under the 
provisions of Sec. 89.605 or Sec. 89.609.
    Original engine manufacturer (OEM). The entity which originally 
manufactured the nonroad engine.
    Original production (OP) year. The calendar year in which the 
nonroad engine was originally produced by the OEM.
    Original production (OP) years old. The age of a nonroad engine as 
determined by subtracting the original production year of the nonroad 
engine from the calendar year of importation.
    Production changes. Those changes in nonroad engine configuration, 
equipment, or calibration which are made by an OEM or ICI in the course 
of nonroad engine production and required to be reported under 
Sec. 89.123.
    United States. United States includes the customs territory of the 
United States as defined in 19 U.S.C. 1202, and the Virgin Islands, 
Guam, American Samoa, and the Commonwealth of the Northern Mariana 
Islands.
    Useful life. A period of time as specified in subpart B of this part 
which for a nonconforming nonroad engine begins at the time of resale 
(for a nonroad engine owned by the ICI at the

[[Page 141]]

time of importation) or release to the owner (for a nonroad engine not 
owned by the ICI at the time of importation) of the nonroad engine by 
the ICI after modification and/or testing pursuant to Sec. 89.605 or 
Sec. 89.609.
    Working day. Any day on which federal government offices are open 
for normal business. Saturdays, Sundays, and official federal holidays 
are not working days.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57021, Oct. 23, 1998]



Sec. 89.603  General requirements for importation of nonconforming nonroad engines.

    (a) A nonconforming nonroad engine offered for importation into the 
United States is to be imported only by an Independent Commercial 
Importer (ICI) who is a holder of a currently valid certificate of 
conformity unless an exemption or exclusion is granted by the 
Administrator under Sec. 89.611 of this subpart. For a nonroad engine 
imported pursuant to Sec. 89.605, the ICI must hold a currently valid 
certificate of conformity for that specific nonroad engine model.
    (b) Any nonroad engine imported into the United States must have a 
legible unique engine identification number permanently affixed to or 
engraved on the engine.
    (c) Final admission may not be granted unless:
    (1) The nonroad engine is covered by a certificate of conformity 
issued under subpart B of this part in the name of the ICI and the ICI 
has complied with all requirements of Sec. 89.605; or
    (2) The nonroad engine is modified and emission tested in accordance 
with the provisions of Sec. 89.609 and the ICI has complied with all 
other requirements of Sec. 89.609; or
    (3) The nonroad engine is exempted or excluded under Sec. 89.611.
    (d) The ICI must submit to the Engine Programs and Compliance 
Division of EPA a copy of all approved applications for certification 
used to obtain certificates of conformity for the purpose of importing 
nonconforming nonroad engines pursuant to Sec. 89.605 or Sec. 89.609. In 
addition, the ICI must submit to the Engine Programs and Compliance 
Division a copy of all approved production changes implemented pursuant 
to Sec. 89.605 or subpart B of this part. Documentation submitted 
pursuant to this paragraph (d) must be provided to the Engine Programs 
and Compliance Division within 10 working days of approval of the 
certification application (or production change) by EPA.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57021, Oct. 23, 1998]



Sec. 89.604  Conditional admission.

    (a) A nonroad engine offered for importation under Sec. 89.605 or 
Sec. 89.609 may be conditionally admitted into the United States. These 
engines are refused final admission, unless at the time of conditional 
admission the importer has submitted to the Administrator a written 
report that the subject nonroad engine has been permitted conditional 
admission pending EPA approval of its application for final admission 
under Sec. 89.605 or Sec. 89.609. This written report is to contain the 
following:
    (1) Identification of the importer of the nonroad engine and the 
importer's address, telephone number, and taxpayer identification 
number;
    (2) Identification of the nonroad engine owner, the owner's address, 
telephone number, and taxpayer identification number;
    (3) Identification of the nonroad engine including make, model, 
identification number, and original production year;
    (4) Information indicating under what provision of these regulations 
the nonroad engine is to be imported;
    (5) Identification of the place where the subject nonroad engine is 
to be stored until EPA approval of the importer's application to the 
Administrator for final admission;
    (6) Authorization for EPA enforcement officers to conduct 
inspections or testing otherwise permitted by the Act or regulations 
thereunder;
    (7) Identification of the Independent Commercial Importer's (ICI) 
certificate of conformity that permits the ICI to import that nonroad 
engine (for importation under Sec. 89.605 or Sec. 89.609); and

[[Page 142]]

    (8) Such other information as is deemed necessary by the 
Administrator.
    (b) EPA will not require a U.S. Customs Service bond for a 
nonconforming nonroad engine which is imported under Sec. 89.605 or 
Sec. 89.609. The period of conditional admission may not exceed 120 
days. Nonroad engines imported under Sec. 89.605 or Sec. 89.609 may not 
be operated during the period of conditional admission except for that 
operation necessary to comply with the requirements of this subpart. 
During the period of conditional admission applicable to Sec. 89.605 or 
Sec. 89.609, the importer must store the nonroad engine at a location 
where the Administrator has reasonable access to the nonroad engine for 
inspection.
    (c) During the period of conditional admission under Sec. 89.605 or 
Sec. 89.609, an ICI may transfer responsibility of a nonroad engine to 
another qualified ICI for the purposes of complying with this subpart.
    (1) The transferee ICI must be a holder of a currently valid 
certificate of conformity for the specific nonroad engine being 
transferred or be authorized to import the nonroad engine pursuant to 
Sec. 89.609 as of the transfer date. The transferee ICI must comply with 
all the requirements of Sec. 89.603, Sec. 89.604, and either Sec. 89.605 
or Sec. 89.609, as applicable.
    (2) For the purpose of this subpart, the transferee ICI has 
``imported'' the nonroad engine as of the transfer date as designated in 
a written record that is signed by both ICIs.
    (3) The ICI that originally imported the nonroad engine is 
responsible for all requirements of this subpart from the actual date of 
importation until the date of transfer as designated in the written 
record. The transferee ICI is responsible for all requirements of this 
subpart beginning on the date of transfer.
    (4) A copy of the written record is to be submitted to the Engine 
Programs and Compliance Division of EPA within five working days of the 
transfer date.
    (d) Notwithstanding any other requirement of this subpart or U.S. 
Customs Service regulations, an ICI may also assume responsibility for 
the modification and testing of a nonconforming nonroad engine which was 
previously imported by another party. The ICI must be a holder of a 
currently valid certificate of conformity for that specific nonroad 
engine or authorized to import it pursuant to Sec. 89.609 at the time of 
assuming such responsibility. The ICI must comply with all the 
requirements of Sec. 89.603, Sec. 89.604, and either Sec. 89.605 or 
Sec. 89.609, as applicable. For the purposes of this subpart, the ICI 
has ``imported'' the nonroad engine as of the date the ICI assumes 
responsibility for the modification and testing of the nonroad engine. 
The ICI must submit written notification to the Engine Programs and 
Compliance Division of EPA within 10 working days of the assumption of 
that responsibility.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57021, Oct. 23, 1998]



Sec. 89.605  Final admission of certified nonroad engines.

    (a) A nonroad engine may be finally admitted into the United States 
upon approval of the ICI's application to the Administrator. The 
application is made by completing EPA forms in accordance with EPA 
instructions. The application contains:
    (1) The information required in Sec. 89.604(a);
    (2) Information demonstrating that the nonroad engine has been 
modified in accordance with a valid certificate of conformity. 
Demonstration is made in one of the following ways:
    (i) The ICI attests that the nonroad engine has been modified in 
accordance with the provisions of the ICI's certificate of conformity; 
presents to EPA a statement written by the applicable Original Engine 
Manufacturer that the Original Engine Manufacturer must provide to the 
ICI, and to EPA, information concerning production changes to the class 
of nonroad engines described in the ICI's application for certification; 
delivers to the Engine Programs and Compliance Division of EPA 
notification by the ICI of any production changes already implemented by 
the Original Engine Manufacturer at the time of application and their 
effect on emissions; and obtains from EPA written approval to use this 
demonstration option; or
    (ii) The ICI attests that the nonroad engine has been modified in 
accordance

[[Page 143]]

with the provisions of the ICI's certificate of conformity. The ICI also 
attests that it has conducted, within 120 days of entry, an applicable 
and valid emission test on every third nonroad engine imported under 
that certificate of conformity to demonstrate compliance with Federal 
emission requirements. The test is to be conducted at a laboratory 
located within the United States. Sequencing of the tests is determined 
by the date of importation of each nonroad engine beginning with the 
prototype nonroad engine used to obtain the applicable certificate of 
conformity. Should the ICI exceed a threshold of 300 nonroad engines 
imported under the certificate of conformity without adjustments or 
other changes in accordance with paragraph (a)(3) of this section, the 
amount of required testing is reduced to every fifth nonroad engine.
    (3) The results of every emission test which the ICI conducted on 
the nonroad engine pursuant to paragraph (a)(2)(ii) of this section. 
Should a subject nonroad engine fail an emission test at any time, the 
following procedures are applicable:
    (i) The ICI may either:
    (A) Conduct one retest that involves no adjustment of the nonroad 
engine from the previous test (for example, adjusting the RPM, timing, 
air-to-fuel ratio, and so forth) other than adjustments to adjustable 
parameters that, upon inspection, were found to be out of tolerance. 
When such an allowable adjustment is made, the parameter may be reset 
only to the specified (that is, nominal) value (and not any other value 
within the tolerance band); or
    (B) Initiate a change in production (production change) under the 
provisions of subpart B of this part that causes the nonroad engine to 
meet federal emission requirements.
    (ii) If the ICI chooses to retest in accordance with paragraph 
(a)(3)(i)(A) of this section:
    (A) The retests are to be completed no later than five working days 
subsequent to the first emission test;
    (B) Should the subject nonroad engine fail the second emission test, 
then the ICI must initiate a change in production (a production change) 
under the provisions of subpart B of this part that causes the nonroad 
engine to meet federal emission requirements.
    (iii) If the ICI chooses to initiate a change in production (a 
production change) under the provisions of subpart B of this part that 
causes the nonroad engine to meet federal requirements, a change 
involving adjustments of adjustable nonroad engine parameters (for 
example, adjusting the RPM, timing, air/fuel ratio) represents a change 
in the specified (that is, nominal) value to be deemed acceptable by 
EPA.
    (iv) A production change made in accordance with this section is to 
be implemented on all subsequent nonroad engines imported under the 
certificate of conformity after the date of importation of the nonroad 
engine which gave rise to the production change.
    (v) Commencing with the first nonroad engine receiving the 
production change, every third nonroad engine imported under the 
certificate of conformity is to be emission tested to demonstrate 
compliance with federal emission requirements until, as in paragraph 
(a)(2)(ii) of this section, a threshold of 300 nonroad engines imported 
under the certificate of conformity is exceeded without adjustments or 
other changes in accordance with paragraph (a)(3)(i)(A) of this section, 
at which time the amount of required emission testing is reduced to 
every fifth nonroad engine.
    (vi) A report concerning these production changes is to be made to 
the Engine Programs and Compliance Division of EPA within ten working 
days of initiation of the production change. The cause of any failure of 
an emission test is to be identified, if known;
    (4) The applicable deterioration factor, if any;
    (5) The emission test results adjusted by the deterioration factor;
    (6) Other information that may be specified by applicable 
regulations or on the certificate of conformity under which the nonroad 
engine has been modified in order to assure compliance with requirements 
of the Act;
    (7) All information required under Sec. 89.610 related to 
maintenance, warranties, and labeling;

[[Page 144]]

    (8) An attestation by the ICI that the ICI is responsible for the 
nonroad engine's compliance with federal emission requirements, 
regardless of whether the ICI owns the nonroad engine imported under 
this section;
    (9) The name, address, and telephone number of the person who the 
ICI prefers to receive EPA notification under Sec. 89.605(c);
    (10) An attestation by the ICI that all requirements of Sec. 89.607 
and Sec. 89.610 have been met; and
    (11) Other information as is deemed necessary by the Administrator.
    (b) EPA approval for final admission of a nonroad engine under this 
section is to be presumed not to have been granted if a requirement of 
this subpart has not been met. This includes, but is not limited to, 
properly modifying the nonroad engine to be in conformity in all 
material respects with the description in the application for 
certification or not complying with the provisions of Sec. 89.605(a)(2) 
or if the final emission test results, adjusted by the deterioration 
factor, if applicable, do not comply with applicable emission standards.
    (c) Except as provided in paragraph (b) of this section, EPA 
approval for final admission of a nonroad engine under this section is 
presumed to have been granted if the ICI does not receive oral or 
written notice from EPA to the contrary within 15 working days of the 
date that the Engine Programs and Compliance Division of EPA receives 
the ICI's application under paragraph (a) of this section. EPA notice of 
nonapproval may be made to any employee of the ICI. It is the 
responsibility of the ICI to ensure that the Engine Programs and 
Compliance Division of EPA receives the application and to confirm the 
date of receipt. During this 15 working day hold period, the nonroad 
engine is to be stored at a location where the Administrator has 
reasonable access to the nonroad engine for the Administrator's 
inspection. The storage is to be within 50 miles of the ICI's testing 
facility to allow the Administrator reasonable access for inspection and 
testing. A storage facility not meeting this criterion must be approved 
in writing by the Administrator prior to the submittal of the ICI's 
application under paragraph (a) of this section.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57021, Oct. 23, 1998]



Sec. 89.606  Inspection and testing of imported nonroad engines.

    (a) In order to allow the Administrator to determine whether an 
ICI's production nonroad engines comply with applicable emission 
requirements or requirements of this subpart, an EPA enforcement officer 
or authorized representative is authorized to conduct inspections and/or 
tests of nonroad engines imported by the ICI. The ICI must admit an EPA 
enforcement officer or authorized representative during operating hours 
to any of the following places upon demand and upon presentation of 
credentials:
    (1) Any facility where any nonroad engine imported by the ICI under 
this subpart was or is being modified, tested, or stored and
    (2) Any facility where any record or other document relating to 
modification, testing, or storage of the nonroad engine, or required to 
be kept by Sec. 89.607, is located. EPA may require inspection or 
testing of nonroad engines at the test facility used by the ICI or at an 
EPA-designated testing facility, with transportation and/or testing 
costs to be borne by the ICI.
    (b) Upon admission to any facility referred to in paragraph (a) of 
this section, an EPA enforcement officer or authorized representative is 
allowed during operating hours:
    (1) To inspect and monitor any part or aspect of activities relating 
to the ICI's modification, testing, and/or storage of nonroad engines 
imported under this subpart;
    (2) To inspect and make copies of record(s) or document(s) related 
to modification, testing, and storage of a nonroad engine, or required 
by Sec. 89.607; and
    (3) To inspect and photograph any part or aspect of the nonroad 
engine and any component used in the assembly thereof.
    (c) An EPA enforcement officer or authorized representative is to be 
furnished, by those in charge of a facility being inspected, with such 
reasonable

[[Page 145]]

assistance as the officer or representative may request to help 
discharge any function listed in this subpart. An ICI must make 
arrangements with those in charge of a facility operated for its benefit 
to furnish such reasonable assistance without charge to EPA. Reasonable 
assistance includes, but is not limited to, clerical, copying, 
interpretation and translation services, and the making available on 
request of personnel of the facility being inspected during their 
working hours to inform the EPA enforcement officer or authorized 
representative of how the facility operates and to answer any questions.
    (d) The requirements of paragraphs (a), (b), and (c) of this section 
apply whether or not the ICI owns or controls the facility in question. 
It is the ICI's responsibility to make such arrangements as may be 
necessary to assure compliance with paragraphs (a), (b), and (c) of this 
section. Failure to do so, or other failure to comply with paragraphs 
(a), (b), or (c), may result in sanctions as provided for in the Act or 
Sec. 89.612(e).
    (e) Duly designated enforcement officers are authorized to proceed 
ex parte to seek warrants authorizing the inspection or testing of the 
nonroad engines described in paragraph (a) of this section whether or 
not the enforcement officers first attempted to seek permission from the 
ICI or facility owner to inspect such nonroad engines.
    (f) The results of the Administrator's test under this section 
comprise the official test data for the nonroad engine for purposes of 
determining whether the nonroad engine should be permitted final entry 
under Sec. 89.605 or Sec. 89.609.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]



Sec. 89.607  Maintenance of independent commercial importer's records.

    (a) The Independent Commercial Importer (ICI) subject to any of the 
provisions of this subpart must establish and maintain adequately 
organized and indexed records, correspondence and other applicable 
documents relating to the certification, modification, test, purchase, 
sale, storage, registration, and importation of that nonroad engine. The 
ICI must retain such records for 8 years from the date of final 
admission or exportation of a nonconforming nonroad engine imported by 
the ICI. These records include, but are not limited to:
    (1) The declaration required by U.S. Bureau of Customs regulations.
    (2) Any documents or other written information required by a federal 
government agency to be submitted or retained in conjunction with the 
certification, importation or emission testing (if applicable) of 
nonroad engines;
    (3) All bills of sale, invoices, purchase agreements, purchase 
orders, principal or agent agreements, and correspondence between the 
ICI and the ultimate purchaser of each nonroad engine and between any 
agents of the above parties;
    (4) For nonroad engines imported by an ICI pursuant to Sec. 89.605 
or Sec. 89.609, documents providing parts identification data (including 
calibration changes and part numbers and location of such parts on each 
nonroad engine) associated with the emission control system installed on 
each nonroad engine demonstrating that such emission control system was 
properly installed on such nonroad engine;
    (5) For nonroad engines imported by an ICI pursuant to Sec. 89.605 
or Sec. 89.609, documents demonstrating that, where applicable, each 
nonroad engine was emission tested in accordance with subpart E of this 
part and part 86, subpart I of this chapter;
    (6) Documents providing evidence that the requirements of 
Sec. 89.610 have been met;
    (7) Documents providing evidence of compliance with all relevant 
requirements of the Clean Air Act;
    (8) Documents providing evidence of the initiation of the 15 working 
day hold period (that is, evidence that the application submitted 
pursuant to Sec. 89.605(a) or Sec. 89.609(b) was received by EPA) for 
each nonroad engine imported pursuant to Sec. 89.605 or Sec. 89.609;
    (9) For nonroad engines owned by the ICI at the time of importation, 
documents providing evidence of the date of sale and date of delivery to 
the ultimate purchaser, together with the name, address, and telephone 
number of the ultimate purchaser for each

[[Page 146]]

nonroad engine imported pursuant to Sec. 89.605 or Sec. 89.609;
    (10) For nonroad engines not owned by the ICI at the time of 
importation, documents providing evidence and date of release to the 
owner (including owner's name, address, and telephone number) for each 
nonroad engine imported pursuant to Sec. 89.605 or Sec. 89.609;
    (11) Documents providing evidence of the date of original 
manufacture of the nonroad engine. The importer may substitute an 
alternate date in lieu of the date of original manufacture, provided 
that the substitution of such alternate date is approved in advance by 
the Administrator.
    (b) The ICI is responsible for ensuring the maintenance of records 
required by this section, regardless of whether or not facilities used 
by the ICI to comply with requirements of this subpart are under the 
control of the ICI.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]



Sec. 89.608  ``In Use'' inspections and recall requirements.

    (a) Nonroad engines which have been imported by an Independent 
Commercial Importer (ICI) pursuant to Sec. 89.605 or Sec. 89.609 and 
finally admitted by EPA may be inspected and emission tested by EPA for 
the recall period specified in Sec. 89.104(b).
    (b) ICIs must maintain for eight years, and provide to EPA upon 
request, a list of owners or ultimate purchasers of all nonroad engines 
imported by the ICI under this subpart.
    (c) The Administrator must notify the ICI whenever the Administrator 
has determined that a substantial number of a class or category of the 
ICI's nonroad engines, although properly maintained and used, do not 
conform to the regulations prescribed under section 213 of the Act when 
in actual use throughout their useful lives. After such notification, 
the recall regulations at subpart H of this part govern the ICI's 
responsibilities. References to a manufacturer in the recall regulations 
apply to the ICI.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]



Sec. 89.609  Final admission of modification nonroad engines and test nonroad engines.

    (a) A nonroad engine may be imported under this section by an 
Independent Commercial Importer (ICI) possessing a currently valid 
certificate of conformity only if:
    (1) The nonroad engine is six original production years old or 
older; and
    (2) The ICI's name has not been placed on a currently effective EPA 
list of ICIs ineligible to import such modification/test nonroad 
engines, as described in paragraph (e) of this section; and
    (3) The ICI has a currently valid certificate of conformity for the 
same nonroad engine class and fuel type as the nonroad engine being 
imported.
    (b) A nonroad engine conditionally imported under this section may 
be finally admitted into the United States upon approval of the ICI's 
application by the Administrator. The application is to be made by 
completing EPA forms, in accordance with EPA instructions. The ICI 
includes in the application:
    (1) The identification information required in Sec. 89.604;
    (2) An attestation by the ICI that the nonroad engine has been 
modified and tested in accordance with the applicable emission tests as 
specified in Subpart B Sec. 89.119(a) of this part at a laboratory 
within the United States;
    (3) The results of all emission tests;
    (4) The applicable deterioration factor assigned by EPA, if any;
    (5) The emission test results adjusted by the applicable 
deterioration factor;
    (6) All information required under Sec. 89.610 related to 
maintenance, warranties, and labeling;
    (7) An attestation by the ICI that the ICI is responsible for the 
nonroad engine's compliance with federal emission requirements, 
regardless of whether the ICI owns the nonroad engine imported under 
this section;
    (8) The applicable address and telephone number of the ICI, or the 
name, address, and telephone number of the person who the ICI prefers to 
receive EPA notification under Sec. 89.609(d);
    (9) An attestation by the ICI that all requirements of Sec. 89.607-
95 and Sec. 89.610 have been met; and

[[Page 147]]

    (10) Such other information as is deemed necessary by the 
Administrator.
    (c) EPA approval for final admission of a nonroad engine under this 
section is presumed not to have been granted if any requirement of this 
subpart has not been met.
    (d) Except as provided in paragraph (c) of this section, EPA 
approval for final admission of a nonroad engine under this section is 
presumed to have been granted if the ICI does not receive oral or 
written notice from EPA to the contrary within 15 working days of the 
date that the Engine Programs and Compliance Division of EPA receives 
the ICI's application under paragraph (b) of this section. Such EPA 
notice of nonapproval may be made to any employee of the ICI. It is the 
responsibility of the ICI to ensure that the Engine Programs and 
Compliance Division of EPA receives the application and to confirm the 
date of receipt. During this 15 working day hold period, the nonroad 
engine is stored at a location where the Administrator has reasonable 
access to the nonroad engine for the Administrator's inspection. The 
storage is to be within 50 miles of the ICI's testing facility to allow 
the Administrator reasonable access for inspection and testing. A 
storage facility not meeting this criterion must be approved in writing 
by the Administrator prior to the submittal of the ICI's application 
under paragraph (b) of this section.
    (e) EPA list of ICIs ineligible to import nonroad engines for 
modification/test. EPA maintains a current list of ICIs who have been 
determined to be ineligible to import nonroad engines under this 
section. The determination of ineligibility is made in accordance with 
the criteria and procedures in Sec. 89.612(e) of this subpart.
    (f) Inspections. Prior to final admission, a nonroad engine imported 
under this section is subject to special inspections as described in 
Sec. 89.606 with these additional provisions:
    (1) If, in the judgment of the Administrator, a significant number 
of nonroad engines imported by an ICI fail to comply with emission 
requirements upon inspection or retest or if the ICI fails to comply 
with a provision of these regulations that pertain to nonroad engines 
imported pursuant to Sec. 89.609, the ICI may be placed on the EPA list 
of ICIs ineligible to import nonroad engines under this section as 
specified in paragraph (e) of this section and Sec. 89.612(e).
    (2) An individual nonroad engine which fails a retest or inspection 
is to be repaired and retested, as applicable, to demonstrate compliance 
with emission requirements before final admission is granted by EPA.
    (3) Unless otherwise specified by EPA, the ICI bears the costs of 
all retesting under this subsection, including transportation.
    (g) In-use inspection and testing. A nonroad engine imported under 
this section may be tested or inspected by EPA at any time during the 
recall period specified in Sec. 89.104(b), in accordance with 
Sec. 89.608(a). If, in the judgment of the Administrator, a significant 
number of properly maintained and used nonroad engines imported by the 
ICI pursuant to this section fail to meet emission requirements, the 
name of the ICI may be placed on the EPA list of ICIs ineligible to 
import nonroad engines under the modification/test provision as 
specified in paragraph (e) of this section and Sec. 89.612(e).

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57021, Oct. 23, 1998]



Sec. 89.610  Maintenance instructions, warranties, emission labeling.

    The provisions of this section are applicable to all nonroad engines 
imported under the provisions of Sec. 89.605 or Sec. 89.609.
    (a) Maintenance instructions. (1) The Independent Commercial 
Importer (ICI) must furnish to the purchaser, or to the owner of each 
nonroad engine imported under Sec. 89.605 or Sec. 89.609 of this 
subpart, written instructions for the maintenance and use of the nonroad 
engine by the purchaser or owner. Each application for final admission 
of a nonroad engine is to provide an attestation that such instructions 
have been or will be (if the ultimate purchaser is unknown) furnished to 
the purchaser or owner of such nonroad engine at the time of sale or 
delivery. The ICI must maintain a record of having furnished such 
instructions.

[[Page 148]]

    (2) For each nonroad engine imported under Sec. 89.609, a copy of 
the maintenance and use instructions is to be maintained in a file 
containing the records for that nonroad engine.
    (3) The maintenance and use instructions are not to contain 
requirements more restrictive than those set forth in Sec. 89.109 
(Maintenance Instructions) and are to be in sufficient detail and 
clarity that a mechanic of average training and ability can maintain or 
repair the nonroad engine.
    (4) For each nonroad engine imported pursuant to Sec. 89.605 or 
Sec. 89.609, ICIs must furnish with each nonroad engine a list of the 
emission control parts, emission-related parts added by the ICI, and the 
emission control and emission-related parts furnished by the Original 
Engine Manufacturer (OEM).
    (5) The information required in this section to be furnished to the 
ultimate purchaser or owner is to be copied and maintained in a file 
containing the records for that nonroad engine prior to submitting each 
application for final admission pursuant to Sec. 89.605(a) or 
Sec. 89.609(b).
    (b) Warranties. (1) ICIs must submit to the Engine Programs and 
Compliance Division of EPA sample copies (including revisions) of any 
warranty documents required by this section prior to importing nonroad 
engines under this subpart.
    (2) ICIs must provide to nonroad engine owners emission warranties 
identical to those required by sections 207(a) of the Act. The warranty 
period for each nonroad engine is to commence on the date the nonroad 
engine is delivered by the ICI to the ultimate purchaser or owner.
    (3) ICIs must provide warranty insurance coverage by a prepaid 
mandatory service insurance policy underwritten by an independent 
insurance company. The policy is to:
    (i) Be subject to the approval of the Administrator if the insurance 
coverage is less than the required warranty;
    (ii) At a minimum, provide coverage for emission-related components 
installed or modified by the ICI and, to the maximum extent possible, 
the emission-related components installed by the OEM;
    (iii) Be transferable to each successive owner for the periods 
specified in Sec. 89.104(c); and
    (iv) Provide that in the absence of an ICI's facility being 
reasonably available (that is, within 50 miles) for performance of 
warranty repairs, the warranty repairs may be performed anywhere.
    (4) ICIs must attest in each application for final admission that 
the warranty requirements have been met, that the mandatory insurance 
has been paid and is in effect, and that certificates and statements of 
the warranties have been or will be provided to the owner or ultimate 
purchaser. A copy of the warranties and evidence that the warranties are 
paid and in effect is to be maintained in a file containing the records 
for each nonroad engine prior to submitting each application for final 
admission pursuant to Sec. 89.605(a) or Sec. 89.609(b).
    (c) Emission labeling. (1) For each nonroad engine imported pursuant 
to Sec. 89.605 or Sec. 89.609, the ICI must affix a permanent legible 
label which identifies each nonroad engine and also satisfies the 
following:
    (i) The label meets all the requirements of Sec. 89.110 and contains 
the following statement ``This nonroad engine was originally produced in 
(month and year of original production). It has been imported and 
modified by (ICI's name, address, and telephone number) to conform to 
United States emission regulations applicable to the (year) model 
year.''
    (ii) If the nonroad engine is owned by the ICI at the time of 
importation, the label also states ``This nonroad engine is warranted 
for five years or 3000 hours of operation from the date of purchase, 
whichever first occurs.''
    (iii) If the nonroad engine is not owned by the ICI at the time of 
importation, the label states ``This nonroad engine is warranted for 
five years or 3000 hours of operation from the date of release to the 
owner, whichever first occurs.''
    (iv) For nonroad engines imported under Sec. 89.609, the label 
clearly states in bold letters that ``This nonroad engine has not been 
manufactured under

[[Page 149]]

a certificate of conformity but conforms to United States emission 
regulations under a modification/test program.'' For all nonroad engines 
imported pursuant to Sec. 89.605 or Sec. 89.609, the label contains the 
vacuum hose routing diagram applicable to the nonroad engines.
    (2) As part of the application to the Administrator for final 
admission of each individual nonroad engine under Sec. 89.609, the ICI 
must maintain a copy of the labels for each nonroad engine in a file 
containing the records for that nonroad engine prior to submitting each 
application for final admission. ICIs importing under Sec. 89.605 or 
Sec. 89.609 must attest to compliance with the preceding labeling 
requirements of this section in each application for final admission.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57021, Oct. 23, 1998]



Sec. 89.611  Exemptions and exclusions.

    (a) Individuals, as well as ICIs, are eligible for importing nonroad 
engines into the United States under the provisions of this section, 
unless otherwise specified.
    (b) Notwithstanding other requirements of this subpart, a nonroad 
engine entitled to one of the temporary exemptions of this paragraph may 
be conditionally admitted into the United States if prior written 
approval for the conditional admission is obtained from the 
Administrator. Conditional admission is to be under bond. The 
Administrator may request that the U.S. Customs Service require a 
specific bond amount to ensure compliance with the requirements of the 
Act and this subpart. A written request for approval from the 
Administrator is to contain the identification required in 
Sec. 89.604(a) (except for Sec. 89.604(a)(5)) and information that 
demonstrates that the importer is entitled to the exemption. 
Noncompliance with provisions of this section may result in the 
forfeiture of the total amount of the bond or exportation of the nonroad 
engine. The following temporary exemptions are permitted by this 
paragraph:
    (1) Exemption for repairs or alterations. Upon written approval by 
EPA, an owner of nonroad engines may conditionally import under bond 
such nonroad engines solely for purpose of repair(s) or alteration(s). 
The nonroad engines may not be operated in the United States other than 
for the sole purpose of repair or alteration. They may not be sold or 
leased in the United States and are to be exported upon completion of 
the repair(s) or alteration(s).
    (2) Testing exemption. A test nonroad engine may be conditionally 
imported by a person subject to the requirements of Sec. 89.905. A test 
nonroad engine may be operated in the United States provided that the 
operation is an integral part of the test. This exemption is limited to 
a period not exceeding one year from the date of importation unless a 
request is made by the appropriate importer concerning the nonroad 
engine in accordance with Sec. 89.905(f) for a subsequent one-year 
period.
    (3) Precertification exemption. A prototype nonroad engine for use 
in applying to EPA for certification pursuant to this subpart may be 
conditionally imported subject to applicable provisions of Sec. 89.906 
and the following requirements:
    (i) No more than one prototype nonroad engine for each engine family 
for which an importer is seeking certification is to be imported.
    (ii) The granting of precertification exemptions by the 
Administrator is discretionary. Normally, no more than three outstanding 
precertification exemptions are allowed for each importer. No 
precertification exemption is allowed if the importer requesting the 
exemption is in noncompliance with any requirement of this subpart until 
the noncompliance is corrected.
    (iii) Unless a certificate of conformity is issued for the prototype 
nonroad engine and the nonroad engine is finally admitted pursuant to 
the requirements of Sec. 89.605 within 180 days from the date of entry, 
the total amount of the bond is to be forfeited or the nonroad engine 
exported unless an extension is granted by the Administrator. A request 
for an extension is to be in writing and received by the Administrator 
prior to the date that the precertification exemption expires.
    (iv) Such precertification nonroad engine may not be operated in the

[[Page 150]]

United States other than for the sole purpose of the precertification 
exemption.
    (4) Display exemptions. (i) A nonroad engine intended solely for 
display may be conditionally imported subject to the requirements of 
Sec. 89.907.
    (ii) A display nonroad engine may be imported by any person for 
purposes related to a business or the public interest. Such purposes do 
not include collections normally inaccessible or unavailable to the 
public on a daily basis, display of a nonroad engine at a dealership, 
private use, or other purpose that the Administrator determines is not 
appropriate for display exemptions. A display nonroad engine may not be 
sold in the United States and may not be operated in the United States 
except for the operation incident and necessary to the display purpose.
    (iii) A temporary display exemption is granted for 12 months or for 
the duration of the display purpose, whichever is shorter. Two 
extensions of up to 12 months each are available upon approval by the 
Administrator. In no circumstances, however, may the total period of 
exemption exceed 36 months. The U.S. Customs Service bonds a temporary 
display exemption.
    (c) Notwithstanding any other requirement of this subpart, a nonroad 
engine may be finally admitted into the United States under this 
paragraph if prior written approval for such final admission is obtained 
from the Administrator. Conditional admission of these nonroad engines 
under this subpart is not permitted for the purpose of obtaining such 
written approval from the Administrator. A request for approval is to 
contain the identification information required in Sec. 89.604(a) 
(except for Sec. 89.604(a)(5)) and information that demonstrates that 
the importer is entitled to the exemption or exclusion. The following 
exemptions or exclusions are permitted by this paragraph:
    (1) National security exemption. A nonroad engine may be imported 
under the national security exemption found at Sec. 89.908.
    (2) Hardship exemption. The Administrator may exempt on a case-by-
case basis a nonroad engine from federal emission requirements to 
accommodate unforeseen cases of extreme hardship or extraordinary 
circumstances.
    (3) Exemption for nonroad engines identical to United States 
certified versions.
    (i) A person (including businesses) is eligible for importing a 
nonroad engine into the United States under the provisions of this 
paragraph. An exemption will be granted if the nonroad engine:
    (A) is owned by the importer;
    (B) is not offered for importation for the purpose of resale; and
    (C) is proven to be identical, in all material respects, to a 
nonroad engine certified by the Original Engine Manufacturer (OEM) for 
sale in the United States or is proven to have been modified to be 
identical, in all material respects, to a nonroad engine certified by 
the OEM for sale in the United States according to complete written 
instructions provided by the OEM's United States representative, or his/
her designee.
    (ii) Proof of conformity. (A) Documentation submitted pursuant to 
this section for the purpose of proving conformity of individual nonroad 
engines is to contain sufficiently organized data or evidence 
demonstrating that the nonroad engine identified pursuant to 
Sec. 89.604(a) is identical, in all material respects, to a nonroad 
engine identified in an OEM's application for certification.
    (B) If the documentation does not contain all the information 
required by this part, or is not sufficiently organized, EPA notifies 
the importer of any areas of inadequacy, and that the documentation does 
not receive further consideration until the required information or 
organization is provided.
    (C) If EPA determines that the documentation does not clearly or 
sufficiently demonstrate that a nonroad engine is eligible for 
importation, EPA notifies the importer in writing.
    (D) If EPA determines that the documentation clearly and 
sufficiently demonstrates that a nonroad engine is eligible for 
importation, EPA grants approval for importation and notifies the 
importer in writing. Notwithstanding any other requirement of this 
subpart, the notice constitutes approval for final admission into the 
United States.

[[Page 151]]

    (d) Foreign diplomatic and military personnel may import a 
nonconforming nonroad engine without bond. At the time of admission, the 
importer must submit to the Administrator the written report required in 
Sec. 89.604(a) (except for information required by Sec. 89.604(a)(5)) 
and a statement from the U.S. Department of State confirming 
qualification for this exemption. The nonroad engine may not be sold in 
the United States and must be exported if the individual's diplomatic 
status is no longer applicable, as determined by the Department of 
State, unless subsequently brought into conformity in accordance with 
Secs. 89.605, 89.609, or 89.611(c)(3).
    (e) Competition exclusion. A nonconforming engine may be imported by 
any person provided the importer demonstrates to the Administrator that 
the engine is used to propel a vehicle used solely for competition and 
obtains prior written approval from the Administrator. A nonconforming 
engine imported pursuant to this paragraph may not be operated in the 
United States except for that operation incident and necessary for the 
competition purpose, unless subsequently brought into conformity with 
United States emission requirements in accordance with Secs. 89.605, 
89.609, or 89.611(c)(3).
    (f) Exclusions/exemptions based on date of original manufacture. (1) 
Notwithstanding any other requirements of this subpart, the following 
nonroad engines are excluded, as determined by the engine's gross power 
output, from the requirements of the Act in accordance with section 213 
of the Act and may be imported by any person:
    (i) All nonroad engines greater than or equal to 37 kW but less than 
75 kW originally manufactured prior to January 1, 1998.
    (ii) All nonroad engines greater than or equal to 75 kW but less 
than 130 kW originally manufactured prior to January 1, 1997.
    (iii) All nonroad engines greater than or equal to 130 kW but less 
than or equal to 560 kW originally manufactured prior to January 1, 
1996.
    (iv) All nonroad engines greater than 560 kW originally manufactured 
prior to January 1, 2000.
    (2) Notwithstanding other requirements of this subpart, a nonroad 
engine not subject to an exclusion under Sec. 89.611(f)(1) but greater 
than 20 original production (OP) years old is entitled to an exemption 
from the requirements of the Act, provided that it has not been modified 
in those 20 OP years and it is imported into the United States by an 
ICI. At the time of admission, the ICI must submit to the Administrator 
the written report required in Sec. 89.604(a) (except for information 
required by Sec. 89.604(a)(5)).
    (g) An application for exemption and exclusion provided for in 
paragraphs (b), (c), and (e) of this section is to be mailed to: U.S. 
Environmental Protection Agency, Office of Mobile Sources, Engine 
Programs and Compliance Division (6405-J), 401 M Street, SW, Washington, 
DC 20460, Attention: Imports.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57022, Oct. 23, 1998]



Sec. 89.612  Prohibited acts; penalties.

    (a) The importation of a nonroad engine, including a nonroad engine 
incorporated into a nonroad vehicle or nonroad equipment, which is not 
covered by a certificate of conformity other than in accordance with 
this subpart and the entry regulations of the U.S. Customs Service is 
prohibited. Failure to comply with this section is a violation of 
section 213(d) and section 203 of the Act.
    (b) Unless otherwise permitted by this subpart, during a period of 
conditional admission, the importer of a nonroad engine may not:
    (1) Register, license, or operate the nonroad engine in the United 
States;
    (2) Sell or offer the nonroad engine for sale;
    (3) Store the nonroad engine on the premises of a dealer (unless 
approved by the Administrator), owner, or purchaser;
    (4) Relinquish control of the nonroad engine to the owner or 
purchaser; or
    (5) Cause a nonroad engine to be altered in any manner subsequent to 
modification and testing, if applicable, for which an application for 
final admission is based and submitted to the Administrator, unless 
approved in advance by the Administrator.

[[Page 152]]

    (c) A nonroad engine conditionally admitted pursuant to Sec. 89.604 
and not granted final admission within 120 days of such conditional 
admission, or within such additional time as the Administrator and the 
U.S. Customs Service may allow, is deemed to be unlawfully imported into 
the United States in violation of section 213(d) and section 203 of the 
Act, unless the nonroad engine has been delivered to the U.S. Customs 
Service for export or other disposition under applicable Customs laws 
and regulations. A nonroad engine not so delivered is subject to seizure 
by the U.S. Customs Service.
    (d) An importer who violates section 213(d) and section 203 of the 
Act is subject to the provisions of section 209 of the Act and is also 
subject to a civil penalty under section 205 of the Act of not more than 
$25,000 for each nonroad engine subject to the violation. In addition to 
the penalty provided in the Act, where applicable, a person or entity 
who imports an engine under the exemption provisions of Sec. 89.611(b) 
and, who fails to deliver the nonroad engine to the U.S. Customs Service 
is liable for liquidated damages in the amount of the bond required by 
applicable Customs laws and regulations.
    (e)(1) An ICI whose nonroad engines imported under Sec. 89.605 or 
Sec. 89.609 fail to conform to federal emission requirements after 
modification and/or testing or who fails to comply with applicable 
provisions of this subpart, may, in addition to any other applicable 
sanctions and penalties, be subject to any, or all, of the following 
sanctions:
    (i) The ICI's currently held certificates of conformity may be 
revoked or suspended;
    (ii) The ICI may be deemed ineligible to apply for new certificates 
of conformity for up to three years; and
    (iii) The ICI may be deemed ineligible to import nonroad engines 
under Sec. 89.609 in the future and be placed on a list of ICIs 
ineligible to import nonroad engines under the provisions of 
Sec. 89.609.
    (2) Grounds for the actions described in paragraph (e)(1) of this 
section include, but are not limited to, the following:
    (i) Action or inaction by the ICI or the laboratory performing the 
emission test on behalf of the ICI, which results in fraudulent, 
deceitful, or grossly inaccurate representation of any fact or condition 
which affects a nonroad engine's eligibility for admission to the United 
States under this subpart;
    (ii) Failure of a significant number of imported nonroad engines to 
comply with federal emission requirements upon EPA inspection or retest; 
or
    (iii) Failure by an ICI to comply with requirements of this subpart.
    (3) The following procedures govern any decision to suspend, revoke, 
or refuse to issue certificates of conformity under this subpart:
    (i) When grounds appear to exist for the actions described in 
paragraph (e)(1) of this section, the Administrator must notify the ICI 
in writing of any intended suspension or revocation of a certificate of 
conformity, proposed ineligibility to apply for new certificates of 
conformity, or intended suspension of eligibility to conduct 
modification/testing under Sec. 89.609, and the grounds for such action.
    (ii) Except as provided by paragraph (e)(3)(iv), the ICI must take 
the following actions before the Administrator will consider withdrawing 
notice of intent to suspend or revoke the ICI's certificate of 
conformity or to deem the ICI ineligible to apply for new certification 
or to deem the ICI ineligible to perform modification/testing under 
Sec. 89.609:
    (A) Submit a written report to the Administrator which identifies 
the reason for the noncompliance of the nonroad engine, describes the 
proposed remedy, including a description of any proposed quality control 
and/or quality assurance measures to be taken by the ICI to prevent the 
future occurrence of the problem, and states the date on which the 
remedies are to be implemented or
    (B) Demonstrate that the nonroad engine does in fact comply with 
applicable regulations in this chapter by retesting, if applicable, the 
nonroad engine in accordance with the applicable emission test specified 
in subpart E of this part.
    (iii) An ICI may request, within 15 calendar days of the 
Administrator's notice of intent to suspend or revoke the ICI's 
certificate of conformity or to deem the ICI ineligible to apply for

[[Page 153]]

new certificates or to deem the ICI ineligible to perform modification/
testing under Sec. 89.609, that the Administrator grant such ICI a 
hearing:
    (A) As to whether the tests, if applicable, have been properly 
conducted,
    (B) As to any substantial factual issue raised by the 
Administrator's proposed action.
    (iv) If, after the Administrator notifies an ICI of the intent to 
suspend or revoke the ICI's certificate of conformity or to deem the ICI 
ineligible to apply for new certificates or to deem the ICI ineligible 
to perform modification/testing under Sec. 89.609 and prior to any final 
suspension or revocation, the ICI demonstrates to the Administrator's 
satisfaction that the decision to initiate suspension or revocation of 
the certificate of conformity or eligibility to perform modification/
testing under Sec. 89.609 was based on erroneous information, the 
Administrator will withdraw the notice of intent.
    (4) Hearings on suspensions and revocations of certificates of 
conformity or of eligibility to apply for new certificates or of 
eligibility to perform modification/testing under Sec. 89.609 will be 
held in accordance with the following:
    (i) The procedures prescribed by this section will apply whenever an 
ICI requests a hearing pursuant to paragraph (e)(3)(iii) of this 
section.
    (ii) Hearings under paragraph (e)(3)(iii) will be held in accordance 
with the procedures outlined in Sec. 86.614 of this chapter, where 
applicable, provided that where Sec. 86.612 is referred to in 
Sec. 86.614: Sec. 86.612(a) is replaced by Sec. 89.612(e)(2); and 
Sec. 86.612(i) is replaced by Sec. 89.612(e)(3)(iii).
    (5) When a hearing is requested under this section and it clearly 
appears from the data or other information contained in the request for 
a hearing, or submitted at the hearing, that no genuine and substantial 
question of fact exists with respect to the issue of whether the ICI 
failed to comply with this subpart, the Administrator will enter an 
order denying the request for a hearing, or terminating the hearing, and 
suspending or revoking the certificate of conformity and/or deeming the 
ICI ineligible to apply for new certificates or to perform modification/
testing under Sec. 89.609.
    (6) In lieu of requesting a hearing under paragraph (e)(3)(iii) of 
this section, an ICI may respond in writing to EPA's charges in the 
notice of intent to suspend or revoke. An ICI's written response must be 
received by EPA within 30 days of the date of EPA's notice of intent. No 
final decision to suspend or revoke will be made before that time.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]



Sec. 89.613  Treatment of confidential information.

    The provisions for treatment of confidential information as 
described in Sec. 89.7 apply.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]



                      Subpart H--Recall Regulations



Sec. 89.701  Applicability.

    The requirements of subpart H are applicable to all nonroad engines 
subject to the provisions of subpart A of part 89.



Sec. 89.702  Definitions.

    The definitions in subpart A of this part apply to this subpart.



Sec. 89.703  Applicability of part 85, subpart S.

    (a) Nonroad engines subject to provisions of subpart B of this part 
are subject to recall regulations specified in part 85, subpart S of 
this title, except for the items set forth in this section.
    (b) Reference to section 214 of the Clean Air Act in Sec. 85.1801 is 
replaced by reference to section 216 of the Clean Air Act.
    (c) Reference to section 202 of the Act in Sec. 85.1802(a) is 
replaced by reference to section 213 of the Act.
    (d) Reference to ``family particulate emission limits as defined in 
Part 86 promulgated under section 202 of the Act'' in Sec. 85.1803(a) 
and Sec. 85.1805(a)(1) is replaced by reference to family emission 
limits as defined in part 89 promulgated under section 213 of the Act.

[[Page 154]]

    (e) Reference to ``vehicles or engines'' throughout the subpart is 
replaced by reference to ``engines.''



            Subpart I--Emission Defect Reporting Requirements



Sec. 89.801  Applicability.

    The requirements of subpart I are applicable to all nonroad engines 
subject to the provisions of subpart A of part 89. The requirement to 
report emission-related defects affecting a given class or category of 
engines remains applicable for five years from the end of the model year 
in which such engines were manufactured.



Sec. 89.802  Definitions.

    The definitions in subpart A of this part apply to this subpart.



Sec. 89.803  Applicability of part 85, subpart T.

    (a) Nonroad engines subject to provisions of subpart B of this part 
are subject to emission defect reporting requirements specified in part 
85, subpart T of this chapter, except for the items set forth in this 
section.
    (b) Section 85.1901 is replaced by Sec. 89.801.
    (c) Reference to the Clean Air Act, 42 U.S.C. 1857 in 
Sec. 85.1902(a) is replaced by reference to the Clean Air Act, 42 U.S.C. 
7401.
    (d) Reference to the ``approved Application for Certification 
required by 40 CFR 86.077-22 and like provisions of Part 85 and Part 86 
of Title 40 of the Code of Federal Regulations'' in Sec. 85.1902(b) is 
replaced by reference to the approved application for certification 
required by Sec. 89.115 and like provisions of part 89 of this chapter.
    (e) Reference to section 202(d) of the Act in Sec. 85.1902(c) is 
replaced by reference to section 202(d) and section 213 of the Act.
    (f) Reference to section 214 of the Act in Sec. 85.1902 (e) and (f) 
is replaced by reference to section 216 of the Act.
    (g) Reference to ``vehicles or engines'' throughout the subpart is 
replaced by reference to ``engines.''



                     Subpart J--Exemption Provisions



Sec. 89.901  Applicability.

    The requirements of subpart J are applicable to all nonroad engines 
subject to the provisions of subpart A of part 89.



Sec. 89.902  Definitions.

    The definitions in subpart A of this part apply to this subpart. The 
following definitions also apply to this subpart.
    Exemption means exemption from the prohibitions of Sec. 89.1006.
    Export exemption means an exemption granted under Sec. 89.1004(b) 
for the purpose of exporting new nonroad engines.
    National security exemption means an exemption which may be granted 
under Sec. 89.1004(b) for the purpose of national security.
    Manufacturer-owned nonroad engine means an uncertified nonroad 
engine owned and controlled by a nonroad engine manufacturer and used in 
a manner not involving lease or sale by itself or in a vehicle or piece 
of equipment employed from year to year in the ordinary course of 
business for product development, production method assessment, and 
market promotion purposes.
    Testing exemption means an exemption which may be granted under 
Sec. 89.1004(b) for the purpose of research investigations, studies, 
demonstrations or training, but not including national security.



Sec. 89.903  Application of section 216(10) of the Act.

    (a) For the purpose of determining the applicability of section 
216(10) of the Act, an internal combustion engine (including the fuel 
system) that is not used in a motor vehicle is deemed a nonroad engine 
if it meets the definition in subpart A of this part.
    (b) EPA will maintain a list of nonroad engines that have been 
determined to be excluded because they are used solely for competition. 
This list will be available to the public and may be obtained by writing 
to the following address: Chief, Selective Enforcement Auditing Section, 
Engine Programs and Compliance Division (6405-J), Environmental 
Protection Agency, 401 M Street SW, Washington, DC 20460.

[[Page 155]]

    (c) Upon written request, EPA will make written determinations as to 
whether certain engines are or are not nonroad engines. Engines that are 
determined not to be nonroad engines are excluded from regulations under 
this part.

[59 FR 31335, June 17, 1994, as amended at 63 FR 57022, Oct. 23, 1998]



Sec. 89.904  Who may request an exemption.

    (a) Any person may request a testing exemption under Sec. 89.905.
    (b) Any nonroad engine manufacturer may request a national security 
exemption under Sec. 89.908.
    (c) For nonroad engine manufacturers, nonroad engines manufactured 
for export purposes are exempt without application, subject to the 
provisions of Sec. 89.909.
    (d) For eligible manufacturers, as determined by Sec. 89.906, 
manufacturer-owned nonroad engines are exempt without application, 
subject to the provisions of Sec. 89.906.
    (e) For any person, display nonroad engines are exempt without 
application, subject to the provisions of Sec. 89.907.



Sec. 89.905  Testing exemption.

    (a) Any person requesting a testing exemption must demonstrate the 
following:
    (1) That the proposed test program has a purpose which constitutes 
an appropriate basis for an exemption in accordance with this section;
    (2) That the proposed test program necessitates the granting of an 
exemption;
    (3) That the proposed test program exhibits reasonableness in scope; 
and
    (4) That the proposed test program exhibits a degree of control 
consonant with the purpose of the test program and EPA's monitoring 
requirements.
    (5) Paragraphs (b), (c), (d), and (e) of this section describe what 
constitutes a sufficient demonstration for each of the four identified 
elements.
    (b) With respect to the purpose of the proposed test program, an 
appropriate purpose would be research, investigations, studies, 
demonstrations, or training, but not national security. A concise 
statement of purpose is a required item of information.
    (c) With respect to the necessity that an exemption be granted, 
necessity arises from an inability to achieve the stated purpose in a 
practicable manner without performing or causing to be performed one or 
more of the prohibited acts under Sec. 89.1003. In appropriate 
circumstances, time constraints may be a sufficient basis for necessity, 
but the cost of certification alone, in the absence of extraordinary 
circumstances, is not a basis for necessity.
    (d) With respect to reasonableness, a test program must exhibit a 
duration of reasonable length and affect a reasonable number of engines. 
In this regard, required items of information include:
    (1) An estimate of the program's duration, and
    (2) The maximum number of nonroad engines involved.
    (e) With respect to control, the test program must incorporate 
procedures consistent with the purpose of the test and be capable of 
affording EPA monitoring capability. As a minimum, required items of 
information include:
    (1) The technical nature of the test;
    (2) The site of the test;
    (3) The time or mileage duration of the test;
    (4) The ownership arrangement with regard to the engines involved in 
the test;
    (5) The intended final disposition of the engines;
    (6) The manner in which the engine identification numbers will be 
identified, recorded, and made available; and
    (7) The means or procedure whereby test results will be recorded.
    (f) A manufacturer of new nonroad engines may request a testing 
exemption to cover nonroad engines intended for use in test programs 
planned or anticipated over the course of a subsequent one-year period. 
Unless otherwise required by the Director, Engine Programs and 
Compliance Division, a manufacturer requesting such an exemption need 
only furnish the information required by paragraphs (a)(1) and (d)(2) of 
this section along with a description of the record-keeping and

[[Page 156]]

control procedures that will be employed to assure that the engines are 
used for purposes consistent with paragraph (a) of this section.

[59 FR 31335, June 17, 1994, as amended at 63 FR 57022, Oct. 23, 1998]



Sec. 89.906  Manufacturer-owned exemption and precertification exemption.

    (a) Except as provided in paragraph (b) of this section, any 
manufacturer-owned nonroad engine, as defined by Sec. 89.902, is exempt 
from Sec. 89.1003, without application, if the manufacturer complies 
with the following terms and conditions:
    (1) The manufacturer must establish, maintain, and retain the 
following adequately organized and indexed information on each exempted 
engine:
    (i) Engine identification number,
    (ii) Use of the engine on exempt status and
    (iii) Final disposition of any engine removed from exempt status; 
and
    (2) The manufacturer must provide right of entry and access to these 
records to EPA authorized representatives as outlined in Sec. 89.506.
    (3) Unless the requirement is waived or an alternate procedure is 
approved by the Director, Engine Programs and Compliance Division, the 
manufacturer must permanently affix a label to each nonroad engine on 
exempt status. This label should:
    (i) Be affixed in a readily visible portion of the engine,
    (ii) Be attached in such a manner that cannot be removed without 
destruction or defacement,
    (iii) State in the English language and in block letters and 
numerals of a color that contrasts with the background of the label, the 
following information:
    (A) The label heading ``Emission Control Information;''
    (B) Full corporate name and trademark of manufacturer;
    (C) Engine displacement, engine family identification, and model 
year of engine; or person of office to be contacted for further 
information about the engine;
    (D) The statement ``This nonroad engine is exempt from the 
prohibitions of 40 CFR 89.1003.''
    (4) No provision of paragraph (a)(3) of this section prevents a 
manufacturer from including any other information it desires on the 
label.
    (b) Any independent commercial importer that desires a 
precertification exemption pursuant to Sec. 89.611(b)(3) and is in the 
business of importing, modifying, or testing uncertified nonroad engines 
for resale under the provisions of subpart G of this part, must apply to 
the Director, Engine Programs and Compliance Division. The Director may 
require such independent commercial importer to submit information 
regarding the general nature of the fleet activities, the number of 
nonroad engines involved, and a demonstration that adequate record-
keeping procedures for control purposes will be employed.

[59 FR 31335, June 17, 1994, as amended at 63 FR 57022, Oct. 23, 1998]



Sec. 89.907  Display exemption.

    Where an uncertified nonroad engine is a display engine to be used 
solely for display purposes, will only be operated incident and 
necessary to the display purpose, and will not be sold unless an 
applicable certificate of conformity has been received or the engine has 
been finally admitted pursuant to subpart G of this part, no request for 
exemption of the engine is necessary.



Sec. 89.908  National security exemption.

    (a)(1) Any nonroad engine, otherwise subject to this part, which is 
used in a vehicle that exhibits substantial features ordinarily 
associated with military combat such as armor and/or permanently affixed 
weaponry and which will be owned and/or used by an agency of the federal 
government with responsibility for national defense, will be considered 
exempt from these regulations for purposes of national security. No 
request for exemption is necessary.
    (2) Manufacturers may request a national security exemption for any 
nonroad engine, otherwise subject to this part, which does not meet the 
conditions described in paragraph (a)(1) of this section. A manufacturer 
requesting a national security exemption must state the purpose for 
which the exemption is required and the request must be endorsed by an 
agency of the federal

[[Page 157]]

government charged with responsibility for national defense.
    (b) EPA will maintain a list of models of nonroad engines (and the 
vehicles which use them) that have been granted a national security 
exemption under paragraph (a)(2) of this section. This list will be 
available to the public and may be obtained by writing to the following 
address: Group Manager, Engine Compliance Programs Group, Engine 
Programs and Compliance Division (6403J) Environmental Protection 
Agency, 401 M Street SW., Washington, DC 20460.

[61 FR 52102, Oct. 4, 1996]



Sec. 89.909  Export exemptions.

    (a) A new nonroad engine intended solely for export, and so labeled 
or tagged on the outside of the container and on the engine itself, is 
subject to the provisions of Sec. 89.1003, unless the importing country 
has new nonroad engine emission standards which differ from EPA 
standards.
    (b) For the purpose of paragraph (a) of this section, a country 
having no standards, whatsoever, is deemed to be a country having 
emission standards which differ from EPA standards.
    (c) EPA will maintain a list of foreign countries that have in force 
nonroad emission standards identical to EPA standards and have so 
notified EPA. This list may be obtained by writing to the following 
address: Chief, Selective Enforcement Auditing Section, Manufacturers 
Operations Division (6405-J), Environmental Protection Agency, 401 M 
Street, SW., Washington, DC 20460. New nonroad engines exported to such 
countries must comply with EPA certification regulations.
    (d) It is a condition of any exemption for the purpose of export 
under paragraph (a) of this section, that such exemption is void ab 
initio with respect to a new nonroad engine intended solely for export, 
where such nonroad engine is sold, or offered for sale, to an ultimate 
purchaser or otherwise distributed or introduced into commerce in the 
United States for purposes other than export.



Sec. 89.910  Granting of exemptions.

    (a) If upon completion of the review of an exemption request made 
pursuant to Sec. 89.905 or Sec. 89.908, EPA determines it is appropriate 
to grant such an exemption, a memorandum of exemption is to be prepared 
and submitted to the person requesting the exemption. The memorandum is 
to set forth the basis for the exemption, its scope, and such terms and 
conditions as are deemed necessary. Such terms and conditions generally 
include, but are not limited to, agreements by the applicant to conduct 
the exempt activity in the manner described to EPA, create and maintain 
adequate records accessible to EPA at reasonable times, employ labels 
for the exempt engines setting forth the nature of the exemption, take 
appropriate measures to assure that the terms of the exemption are met, 
and advise EPA of the termination of the activity and the ultimate 
disposition of the engines.
    (b) Any exemption granted pursuant to paragraph (a) of this section 
is deemed to cover any subject engine only to the extent that the 
specified terms and conditions are complied with. A breach of any term 
or condition causes the exemption to be void ab initio with respect to 
any engine. Consequently, the causing or the performing of an act 
prohibited under Sec. 89.1003( a)(1) or (a)(3), other than in strict 
conformity with all terms and conditions of this exemption, renders the 
person to whom the exemption is granted, and any other person to whom 
the provisions of Sec. 89.1003(a) are applicable, liable to suit under 
sections 204 and 205 of the Act.



Sec. 89.911  Submission of exemption requests.

    Requests for exemption or further information concerning exemptions 
and/or the exemption request review procedure should be addressed to: 
Chief, Selective Enforcement Auditing Section, Engine Programs and 
Compliance Division (6405-J), Environmental Protection Agency, 401 M 
Street SW, Washington, DC 20460.

[63 FR 57022, Oct. 23, 1998]



Sec. 89.912  Treatment of confidential information.

    The provisions for treatment of confidential information as 
described in Sec. 89.7 apply.

[[Page 158]]



      Subpart K--General Enforcement Provisions and Prohibited Acts



Sec. 89.1001  Applicability.

    The requirements of subpart K are applicable to all nonroad engines 
subject to the provisions of subpart A of part 89, and to all nonroad 
vehicles and equipment that contain such nonroad engines.



Sec. 89.1002  Definitions.

    The definitions in subpart A of this part apply to this subpart.



Sec. 89.1003  Prohibited acts.

    (a) The following acts and the causing thereof are prohibited:
    (1)(i) In the case of a manufacturer of new nonroad engines, 
vehicles, or equipment for distribution in commerce, the sale, or the 
offering for sale, or the introduction, or delivery for introduction, 
into commerce, of any new nonroad engine manufactured after the 
applicable effective date under this part, or any nonroad vehicle or 
equipment containing such engine, unless such engine is covered by a 
certificate of conformity issued (and in effect) under regulations found 
in this part.
    (ii) In the case of any person, except as provided in subpart G of 
this part, the importation into the United States of any new nonroad 
engine manufactured after the applicable effective date under this part, 
or any nonroad vehicle or equipment containing such engine, unless such 
engine is covered by a certificate of conformity issued (and in effect) 
under regulations found in this part.
    (2)(i) For a person to fail or refuse to permit access to or copying 
of records or to fail to make reports or provide information required 
under Sec. 89.1004.
    (ii) For a person to fail or refuse to permit entry, testing, or 
inspection authorized under Secs. 89.129, 89.506 or 89.1004.
    (iii) For a person to fail or refuse to perform tests, or to have 
tests performed as required under Secs. 89.119 or 89.1004.
    (iv) For a person to fail to establish or maintain records as 
required under Sec. 89.1004.
    (3)(i) For a person to remove or render inoperative a device or 
element of design installed on or in a nonroad engine, vehicle or 
equipment in compliance with regulations under this part prior to its 
sale and delivery to the ultimate purchaser, or for a person knowingly 
to remove or render inoperative such a device or element of design after 
the sale and delivery to the ultimate purchaser; or
    (ii) For a person to manufacture, sell or offer to sell, or install, 
a part or component intended for use with, or as part of, a nonroad 
engine, vehicle or equipment, where a principal effect of the part or 
component is to bypass, defeat, or render inoperative a device or 
element of design installed on or in a nonroad engine in compliance with 
regulations issued under this part, and where the person knows or should 
know that the part or component is being offered for sale or installed 
for this use or put to such use; or
    (iii) For a person to deviate from the provisions of Sec. 89.130 
when rebuilding an engine (or rebuilding a portion of an engine or 
engine system).
    (4) For a manufacturer of a new nonroad engine subject to standards 
prescribed under this part:
    (i) To sell, offer for sale, or introduce or deliver into commerce, 
a nonroad engine unless the manufacturer has complied with the 
requirements of Sec. 89.1007.
    (ii) To sell, offer for sale, or introduce or deliver into commerce, 
a nonroad engine unless a label or tag is affixed to the engine in 
accordance with Sec. 89.110.
    (iii) To fail or refuse to comply with the requirements of 
Sec. 89.1008.
    (iv) Except as provided in Sec. 89.109, to provide directly or 
indirectly in any communication to the ultimate purchaser or a 
subsequent purchaser that the coverage of a warranty under the Act is 
conditioned upon use of a part, component, or system manufactured by the 
manufacturer or a person acting for the manufacturer or under its 
control, or conditioned upon service performed by such persons.
    (v) To fail or refuse to comply with the terms and conditions of the 
warranty under Sec. 89.1007.
    (5) For a person to circumvent or attempt to circumvent the 
residence time requirements of paragraph (2)(iii)

[[Page 159]]

of the nonroad engine definition in Sec. 89.2.
    (6) For a manufacturer of nonroad vehicles or equipment to 
distribute in commerce, sell, offer for sale, or introduce into commerce 
a nonroad vehicle or piece of equipment which contains an engine not 
covered by a certificate of conformity, except as otherwise allowed by 
this part.
    (b) For the purposes of enforcement of this part, the following 
apply:
    (1) Nothing in paragraph (a)(3) of this section is to be construed 
to require the use of manufacturer parts in maintaining or repairing a 
nonroad engine.
    (2) Actions for the purpose of repair or replacement of a device or 
element of design or any other item are not considered prohibited acts 
under Sec. 89.1003(a) if the action is a necessary and temporary 
procedure, the device or element is replaced upon completion of the 
procedure, and the action results in the proper functioning of the 
device or element of design.
    (3) Actions for the purpose of a conversion of a nonroad engine for 
use of a clean alternative fuel (as defined in Title II of the Act) are 
not considered prohibited acts under Sec. 89.1003(a) if:
    (i) the vehicle complies with the applicable standard when operating 
on the alternative fuel, and the device or element is replaced upon 
completion of the conversion procedure, and
    (ii) in the case of engines converted to dual fuel or flexible use, 
the action results in proper functioning of the device or element when 
the nonroad engine operates on conventional fuel.
    (4) Certified nonroad engines shall be used in all vehicles and 
equipment manufactured on or after the applicable model years in 
Sec. 89.112 that are self-propelled, portable, transportable, or are 
intended to be propelled while performing their function, unless the 
manufacturer of the vehicle or equipment can prove that the vehicle or 
equipment will be used in a manner consistent with paragraph (2) of the 
definition of nonroad engine in Sec. 89.2. After the date on which a new 
standard takes effect, nonroad vehicle and equipment manufacturers may 
continue to use nonroad engines built prior to this date that are not 
certified to the standard until inventories of those engines are 
depleted; however, stockpiling of such nonroad engines will be 
considered a violation of this section.
    (5) A manufacturer of nonroad vehicles may install an engine 
certified to the motor vehicle requirements of 40 CFR part 86 in a 
nonroad vehicle or equipment where:
    (i) The subject nonroad vehicle or equipment is designed for travel 
on public streets and highways to get from one job site to another; and
    (ii) The engine serves to propel the vehicle or equipment when it is 
operated on public roads; and
    (iii) There is no adjustment outside of the manufacturer's 
specifications or removal or rendering inoperative of devices or 
elements of design installed on or in the engine by the original engine 
manufacturer for purposes of emission control or any other action that 
may be considered tampering under section 203 of the Clean Air Act or 
paragraph (a)(3) of this section; and
    (iv) A certified nonroad engine is not available with appropriate 
physical or performance characteristics; or
    (v) A state requires the use of an on-highway engine pursuant to a 
waiver granted by EPA under section 209(e) of the Clean Air Act.
    (6) A manufacturer that produces nonroad vehicles or equipment by 
performing modifications to complete or incomplete motor vehicles may 
retain the motor vehicle engine in such vehicle or equipment provided 
that:
    (i) The engine is certified to the motor vehicle requirements of 40 
CFR part 86; and
    (ii) The on-highway vehicle is not available from its manufacturer 
with a certified nonroad engine having appropriate performance 
characteristics; and
    (iii) There is no adjustment outside of the manufacturer's 
specifications or removal or rendering inoperative of devices or 
elements of design installed on or in the engine or vehicle by the 
original engine or vehicle manufacturer for purposes of emission 
control, or any other action that may be considered tampering under 
section 203 of the Clean Air Act or paragraph (a)(3) of this section.
    (7) A new nonroad engine intended solely to replace a nonroad engine 
in a piece of nonroad equipment, where the

[[Page 160]]

engine requiring replacement is not certified or is certified to 
emission standards that are less stringent than those in effect when the 
replacement engine is built, shall not be subject to the prohibitions of 
paragraph (a)(1) of this section or to the requirements of Sec. 89.105 
and paragraph (b)(4) of this section, provided that:
    (i) The engine manufacturer has ascertained that no engine produced 
by itself or by the manufacturer of the engine that is being replaced, 
if different, and certified to the requirements of this subpart, is 
available with the appropriate physical or performance characteristics 
to repower the equipment; and
    (ii) The engine manufacturer or its agent takes ownership and 
possession of the engine being replaced in partial exchange for the 
replacement engine; and
    (iii) The replacement engine is clearly labeled with the following 
language, or similar alternate language approved by the Administrator: 
THIS ENGINE DOES NOT COMPLY WITH FEDERAL NONROAD OR ON-HIGHWAY EMISSION 
REQUIREMENTS. SALE OR INSTALLATION OF THIS ENGINE FOR ANY PURPOSE OTHER 
THAN AS A REPLACEMENT ENGINE FOR AN ENGINE MANUFACTURED PRIOR TO JANUARY 
1 [INSERT APPROPRIATE YEAR] IS A VIOLATION OF FEDERAL LAW SUBJECT TO 
CIVIL PENALTY; and
    (iv) In cases where an engine is to be imported for replacement 
purposes under the provisions of this paragraph (b)(7), the term 
``engine manufacturer'' shall not apply to an individual or other entity 
that does not possess a current Certificate of Conformity issued by EPA 
under this part; and
    (v) Where the replacement engine is intended to replace an engine 
that is certified to emission standards that are less stringent than 
those in effect when the replacement engine is built, the replacement 
engine shall be identical in all material respects to a certified 
configuration of the same or later model year as the engine being 
replaced; and
    (vi) Engines sold pursuant to the provisions of this paragraph 
(b)(7) will neither generate nor use emission credits and will not be 
part of any accounting under the averaging, banking and trading program.

[59 FR 31335, June 17, 1994, as amended at 61 FR 58106, Nov. 12, 1996; 
63 FR 57022, Oct. 23, 1998]



Sec. 89.1004  General enforcement provisions.

    (a) Information collection provisions. (1) Every manufacturer of new 
nonroad engines and other persons subject to the requirements of this 
part must establish and maintain records, perform tests where such 
testing is not otherwise reasonably available under this part, make 
reports and provide information the Administrator may reasonably require 
to determine whether the manufacturer or other person has acted or is 
acting in compliance with this part or to otherwise carry out the 
provisions of this part, and must, upon request of an officer or 
employee duly designated by the Administrator, permit the officer or 
employee at reasonable times to have access to and copy such records. 
The manufacturer shall comply in all respects with the requirements of 
subpart I of this part.
    (2) For purposes of enforcement of this part, an officer or employee 
duly designated by the Administrator, upon presenting appropriate 
credentials, is authorized:
    (i) To enter, at reasonable times, any establishment of the 
manufacturer, or of any person whom the manufacturer engaged to perform 
any activity required under paragraph (a) (1) of this section, for the 
purposes of inspecting or observing any activity conducted pursuant to 
paragraph (a)(1) of this section, and
    (ii) To inspect records, files, papers, processes, controls, and 
facilities used in performing an activity required by paragraph (a)(1) 
of this section, by the manufacturer or by a person whom the 
manufacturer engaged to perform the activity.
    (b) Exemption provision. The Administrator may exempt a new nonroad 
engine from Sec. 89.1003 upon such terms and conditions as the 
Administrator may find necessary for the purpose of export, research, 
investigations, studies, demonstrations, or training, or for reasons of 
national security.

[[Page 161]]

    (c) Importation provision. (1) A new nonroad engine, vehicle, or 
equipment offered for importation or imported by a person in violation 
of Sec. 89.1003 is to be refused admission into the United States, but 
the Secretary of the Treasury and the Administrator may, by joint 
regulation, provide for deferring a final determination as to admission 
and authorizing the delivery of such a nonroad engine offered for import 
to the owner or consignee thereof upon such terms and conditions 
(including the furnishing of a bond) as may appear to them appropriate 
to insure that the nonroad engine will be brought into conformity with 
the standards, requirements, and limitations applicable to it under this 
part.
    (2) If a nonroad engine is finally refused admission under this 
paragraph, the Secretary of the Treasury shall cause disposition thereof 
in accordance with the customs laws unless it is exported, under 
regulations prescribed by the Secretary, within 90 days of the date of 
notice of the refusal or additional time as may be permitted pursuant to 
the regulations.
    (3) Disposition in accordance with the customs laws may not be made 
in such manner as may result, directly or indirectly, in the sale, to 
the ultimate consumer, of a new nonroad engine that fails to comply with 
applicable standards of the Administrator under this part.
    (d) Export provision. A new nonroad engine intended solely for 
export, and so labeled or tagged on the outside of the container and on 
the engine itself, shall be subject to the provisions of Sec. 89.1003, 
except that if the country that is to receive the engine has emission 
standards that differ from the standards prescribed under subpart B of 
this part, then the engine must comply with the standards of the country 
that is to receive the engine.



Sec. 89.1005  Injunction proceedings for prohibited acts.

    (a) The district courts of the United States have jurisdiction to 
restrain violations of Sec. 89.1003(a).
    (b) Actions to restrain violations of Sec. 89.1003(a) must be 
brought by and in the name of the United States. In an action, subpoenas 
for witnesses who are required to attend a district court in any 
district may run into any other district.



Sec. 89.1006  Penalties.

    (a) Violations. A violation of the requirements of this subpart is a 
violation of the applicable provisions of the Act, including sections 
213(d) and 203, and is subject to the penalty provisions thereunder.
    (1) A person who violates Sec. 89.1003(a)(1), (a)(4), or (a)(6), or 
a manufacturer or dealer who violates Sec. 89.1003(a)(3)(i), is subject 
to a civil penalty of not more than $25,000 for each violation.
    (2) A person other than a manufacturer or dealer who violates 
Sec. 89.1003(a)(3)(i) or any person who violates Sec. 89.1003(a)(3)(ii) 
is subject to a civil penalty of not more than $2,500 for each 
violation.
    (3) A violation with respect to Sec. 89.1003 (a)(1), (a)(3)(i), 
(a)(4), or (a)(6) constitutes a separate offense with respect to each 
nonroad engine.
    (4) A violation with respect to Sec. 89.1003(a)(3)(ii) constitutes a 
separate offense with respect to each part or component. Each day of a 
violation with respect to Sec. 89.1003(a)(5) constitutes a separate 
offense.
    (5) A person who violates Sec. 89.1003(a)(2) or (a)(5) is subject to 
a civil penalty of not more than $25,000 per day of violation.
    (b) Civil actions. The Administrator may commence a civil action to 
assess and recover any civil penalty under paragraph (a) of this 
section.
    (1) An action under this paragraph may be brought in the district 
court of the United States for the district in which the defendant 
resides or has the Administrator's principal place of business, and the 
court has jurisdiction to assess a civil penalty.
    (2) In determining the amount of a civil penalty to be assessed 
under this paragraph, the court is to take into account the gravity of 
the violation, the economic benefit or savings (if any) resulting from 
the violation, the size of the violator's business, the violator's 
history of compliance with Title II of the Act, action taken to remedy 
the violation, the effect of the penalty on the violator's ability to 
continue in

[[Page 162]]

business, and such other matters as justice may require.
    (3) In any such action, subpoenas for witnesses who are required to 
attend a district court in any district may run into any other district.
    (c) Administrative assessment of certain penalties--(1) 
Administrative penalty authority. In lieu of commencing a civil action 
under paragraph (b) of this section, the Administrator may assess any 
civil penalty prescribed in paragraph (a) of this section, except that 
the maximum amount of penalty sought against each violator in a penalty 
assessment proceeding shall not exceed $200,000, unless the 
Administrator and the Attorney General jointly determine that a matter 
involving a larger penalty amount is appropriate for administrative 
penalty assessment. Any such determination by the Administrator and the 
Attorney General is not subject to judicial review. Assessment of a 
civil penalty shall be by an order made on the record after opportunity 
for a hearing held in accordance with the procedures found at part 22 of 
this chapter. The Administrator may compromise, or remit, with or 
without conditions, any administrative penalty which may be imposed 
under this section.
    (2) Determining amount. In determining the amount of any civil 
penalty assessed under this paragraph, the Administrator shall take into 
account the gravity of the violation, the economic benefit or savings 
(if any) resulting from the violation, the size of the violator's 
business, the violator's history of compliance with Title II of the Act, 
action taken to remedy the violation, the effect of the penalty on the 
violator's ability to continue in business, and such other matters as 
justice may require.
    (3) Effect of administrator's action. (i) Action by the 
Administrator under this paragraph does not affect or limit the 
Administrator's authority to enforce any provisions of the Act; except 
that any violation with respect to which the Administrator has commenced 
and is diligently prosecuting an action under this paragraph, or for 
which the Administrator has issued a final order not subject to further 
judicial review and for which the violator has paid a penalty assessment 
under this paragraph shall not be the subject of a civil penalty action 
under paragraph (b) of this section.
    (ii) No action by the Administrator under this paragraph shall 
affect a person's obligation to comply with a section of this part.
    (4) Finality of order. An order issued under this subsection is to 
become final 30 days after its issuance unless a petition for judicial 
review is filed under paragraph (c)(5) of this section.
    (5) Judicial review. A person against whom a civil penalty is 
assessed in accordance with this subsection may seek review of the 
assessment in the United States District Court for the District of 
Columbia or for the district in which the violation is alleged to have 
occurred, in which such person resides, or where the person's principal 
place of business is located, within the 30-day period beginning on the 
date a civil penalty order is issued. The person shall simultaneously 
send a copy of the filing by certified mail to the Administrator and the 
Attorney General. The Administrator shall file in the court within 30 
days a certified copy, or certified index, as appropriate, of the record 
on which the order was issued. The court is not to set aside or remand 
any order issued in accordance with the requirements of this paragraph 
unless substantial evidence does not exist in the record, taken as a 
whole, to support the finding of a violation or unless the 
Administrator's assessment of the penalty constitutes an abuse of 
discretion, and the court is not to impose additional civil penalties 
unless the Administrator's assessment of the penalty constitutes an 
abuse of discretion. In any proceedings, the United States may seek to 
recover civil penalties assessed under this section.
    (6) Collection. (i) If any person fails to pay an assessment of a 
civil penalty imposed by the Administrator as provided in this part 
after the order making the assessment has become final or after a court 
in an action brought under paragraph (c)(5) of this section has entered 
a final judgment in favor of the Administrator, the Administrator shall 
request that the Attorney General bring a civil action in an appropriate 
district court to recover the

[[Page 163]]

amount assessed (plus interest at rates established pursuant to section 
6621(a)(2) of the Internal Revenue Code of 1986 from the date of the 
final order or the date of final judgment, as the case may be). In such 
an action, the validity, amount, and appropriateness of the penalty is 
not subject to review.
    (ii) A person who fails to pay on a timely basis the amount of an 
assessment of a civil penalty as described in paragraph (c)(6)(i) of 
this section shall be required to pay, in addition to that amount and 
interest, the United States' enforcement expenses, including attorney's 
fees and costs for collection proceedings, and a quarterly nonpayment 
penalty for each quarter during which the failure to pay persists. The 
nonpayment penalty is an amount equal to ten percent of the aggregate 
amount of that person's penalties and nonpayment penalties which are 
unpaid as of the beginning of such quarter.



Sec. 89.1007  Warranty provisions.

    (a) The manufacturer of each nonroad engine must warrant to the 
ultimate purchaser and each subsequent purchaser that the engine is 
designed, built, and equipped so as to conform at the time of sale with 
applicable regulations under section 213 of the Act, and is free from 
defects in materials and workmanship which cause such engine to fail to 
conform with applicable regulations for its warranty period (as 
determined under Sec. 89.104).
    (b) In the case of a nonroad engine part, the manufacturer or 
rebuilder of the part may certify according to Sec. 85.2112 that use of 
the part will not result in a failure of the engine to comply with 
emission standards promulgated in this part.
    (c) For the purposes of this section, the owner of any nonroad 
engine warranted under this part is responsible for the proper 
maintenance of the engine. Proper maintenance includes replacement and 
service, at the owner's expense at a service establishment or facility 
of the owner's choosing, of all parts, items, or devices related to 
emission control (but not designed for emission control) under the terms 
of the last sentence of section 207(a)(3) of the Act, unless such part, 
item, or device is covered by any warranty not mandated by this Act.

[59 FR 31335, June 17, 1994, as amended at 63 FR 57023, Oct. 23, 1998]



Sec. 89.1008  In-use compliance provisions.

    (a) Effective with respect to nonroad vehicles, equipment, and 
engines manufactured during model years 1996 and after:
    (1) If the Administrator determines that a substantial number of any 
class or category of engines, although properly maintained and used, do 
not conform to the regulations prescribed under section 213 of the Act 
when in actual use throughout their recall period (as defined under 
Sec. 89.104(b)), the Administrator shall immediately notify the 
manufacturer of such nonconformity and require the manufacturer to 
submit a plan for remedying the nonconformity of the engines with 
respect to which such notification is given.
    (i) The manufacturer's plan shall provide that the nonconformity of 
any such engines which are properly used and maintained will be remedied 
at the expense of the manufacturer.
    (ii) If the manufacturer disagrees with such determination of 
nonconformity and so advises the Administrator, the Administrator shall 
afford the manufacturer and other interested persons an opportunity to 
present their views and evidence in support thereof at a public hearing. 
Unless, as a result of such hearing, the Administrator withdraws such 
determination of nonconformity, the Administrator shall, within 60 days 
after the completion of such hearing, order the manufacturer to provide 
prompt notification of such nonconformity in accordance with paragraph 
(a)(2) of this section. The manufacturer shall comply in all respects 
with the requirements of subpart G of this part.
    (2) Any notification required to be given by the manufacturer under 
paragraph (a)(1) of this section with respect to any class or category 
of engines shall be given to dealers, ultimate purchasers, and 
subsequent purchasers (if known) in such manner and containing such 
information as required in subparts H and I of this part.

[[Page 164]]

    (3)(i) The manufacturer shall furnish with each new nonroad engine 
written instructions for the proper maintenance and use of the engine by 
the ultimate purchaser as required under Sec. 89.109. The manufacturer 
shall provide in boldface type on the first page of the written 
maintenance instructions notice that maintenance, replacement, or repair 
of the emission control devices and systems may be performed by any 
nonroad engine repair establishment or individual using any nonroad 
engine part which has been certified as provided in Sec. 89.1007(a).
    (ii) The instruction under paragraph (3)(i) of this section must not 
include any condition on the ultimate purchaser's using, in connection 
with such engine, any component or service (other than a component or 
service provided without charge under the terms of the purchase 
agreement) which is identified by brand, trade, or corporate name. 
Subject instructions also must not directly or indirectly distinguish 
between service performed by the franchised dealers of such 
manufacturer, or any other service establishments with which such 
manufacturer has a commercial relationship, and service performed by 
independent nonroad engine repair facilities with which such 
manufacturer has no commercial relationship.
    (iii) The prohibition of paragraph (a)(3)(ii) of this section may be 
waived by the Administrator if:
    (A) The manufacturer satisfies the Administrator that the engine 
will function properly only if the component or service so identified is 
used in connection with such engine, and
    (B) The Administrator finds that such a waiver is in the public 
interest.
    (iv) In addition, the manufacturer shall indicate by means of a 
label or tag permanently affixed to the engine that the engine is 
covered by a certificate of conformity issued for the purpose of 
assuring achievement of emission standards prescribed under section 213 
of the Act. This label or tag shall also contain information relating to 
control of emissions as prescribed under Sec. 89.110.
    (b) The manufacturer bears all cost obligation a dealer incurs as a 
result of a requirement imposed by paragraph (a) of this section. The 
transfer of any such cost obligation from a manufacturer to a dealer 
through franchise or other agreement is prohibited.
    (c) If a manufacturer includes in an advertisement a statement 
respecting the cost or value of emission control devices or systems, the 
manufacturer shall set forth in the statement the cost or value 
attributed to these devices or systems by the Secretary of Labor 
(through the Bureau of Labor Statistics). The Secretary of Labor, and 
his or her representatives, has the same access for this purpose to the 
books, documents, papers, and records of a manufacturer as the 
Comptroller General has to those of a recipient of assistance for 
purposes of section 311 of the Act.
    (d) Any inspection of a nonroad engine for purposes of paragraph 
(a)(1) of this section, after its sale to the ultimate purchaser, is to 
be made only if the owner of such vehicle or engine voluntarily permits 
such inspection to be made, except as may be provided by any state or 
local inspection program.



PART 90--CONTROL OF EMISSIONS FROM NONROAD SPARK-IGNITION ENGINES--Table of Contents




                           Subpart A--General

Sec.
90.1  Applicability.
90.2  Effective dates.
90.3  Definitions.
90.4  Treatment of confidential information.
90.5  Acronyms and abbreviations.
90.6  Table and figure numbering; position.
90.7  Reference materials.

       Subpart B--Emission Standards and Certification Provisions

90.101  Applicability.
90.102  Definitions.
90.103  Exhaust emission standards.
90.104  Compliance with emission standards.
90.105  Useful life periods for Phase 2 engines.
90.106  Certificate of conformity.
90.107  Application for certification.
90.108  Certification.
90.109  Requirement of certification--closed crankcase.
90.110  Requirement of certification--prohibited controls.
90.111  Requirement of certification--prohibition of defeat devices.

[[Page 165]]

90.112  Requirement of certification--adjustable parameters.
90.113  In-use testing program for Phase 1 engines.
90.114  Requirement of certification--engine information label.
90.115  Requirement of certification--supplying production engines upon 
          request.
90.116  Certification procedure--determining engine displacement, engine 
          class, and engine families.
90.117  Certification procedure--test engine selection.
90.118  Certification procedure--service accumulation and usage of 
          deterioration factors.
90.119  Certification procedure--testing.
90.120  Certification procedure--use of special test procedures.
90.121  Certification procedure--recordkeeping.
90.122  Amending the application and certificate of conformity.
90.123  Denial, revocation of certificate of conformity.
90.124  Request for hearing.
90.125  Hearing procedures.
90.126  Right of entry and access.

   Subpart C--Certification Averaging, Banking, and Trading Provisions

90.201  Applicability.
90.202  Definitions.
90.203  General provisions.
90.204  Averaging.
90.205  Banking.
90.206  Trading.
90.207  Credit calculation and manufacturer compliance with emission 
          standards.
90.208  Certification.
90.209  Maintenance of records.
90.210  End-of-year and final reports.
90.211  Request for hearing.

              Subpart D--Emission Test Equipment Provisions

90.301  Applicability.
90.302  Definitions.
90.303  Symbols, acronyms, abbreviations.
90.304  Test equipment overview.
90.305  Dynamometer specifications and calibration accuracy.
90.306  Dynamometer torque cell calibration.
90.307  Engine cooling system.
90.308  Lubricating oil and test fuels.
90.309  Engine intake air temperature measurement.
90.310  Engine intake air humidity measurement.
90.311  Test conditions.
90.312  Analytical gases.
90.313  Analyzers required.
90.314  Analyzer accuracy and specifications.
90.315  Analyzer initial calibration.
90.316  Hydrocarbon analyzer calibration.
90.317  Carbon monoxide analyzer calibration.
90.318  Oxides of nitrogen analyzer calibration.
90.319  NOX converter check.
90.320  Carbon dioxide analyzer calibration.
90.321  NDIR analyzer calibration.
90.322  Calibration of other equipment.
90.323  Analyzer bench checks.
90.324  Analyzer leakage check.
90.325  Analyzer interference checks.
90.326  Pre- and post-test analyzer calibration.
90.327  Sampling system requirements.
90.328  Measurement equipment accuracy/calibration frequency table.
90.329  Catalyst thermal stress test.

Appendix A to Subpart D of Part 90--Tables
Appendix B to Subpart D of Part 90--Figures

               Subpart E--Gaseous Exhaust Test Procedures

90.401  Applicability.
90.402  Definitions.
90.403  Symbols, acronyms, and abbreviations.
90.404  Test procedure overview.
90.405  Recorded information.
90.406  Engine parameters to be measured and recorded.
90.407  Engine inlet and exhaust systems.
90.408  Pre-test procedures.
90.409  Engine dynamometer test run.
90.410  Engine test cycle.
90.411  Post-test analyzer procedures.
90.412  Data logging.
90.413  Exhaust sample procedure--gaseous components.
90.414  Raw gaseous exhaust sampling and analytical system description.
90.415  Raw gaseous sampling procedures.
90.416  Intake air flow measurement specifications.
90.417  Fuel flow measurement specifications.
90.418  Data evaluation for gaseous emissions.
90.419  Raw emission sampling calculations--gasoline fueled engines.
90.420  CVS concept of exhaust gas sampling system.
90.421  Dilute gaseous exhaust sampling and analytical system 
          description.
90.422  Background sample.
90.423  Exhaust gas analytical system; CVS grab sample.
90.424  Dilute sampling procedures--CVS calibration.
90.425  CVS calibration frequency.
90.426  Dilute emission sampling calculations--gasoline fueled engines.
90.427  Catalyst thermal stress resistance evaluation.

[[Page 166]]


Appendix A to Subpart E of Part 90--Tables
Appendix B to Subpart E of Part 90--Figures

                Subpart F--Selective Enforcement Auditing

90.501  Applicability.
90.502  Definitions.
90.503  Test orders.
90.504  Testing by the Administrator.
90.505  Maintenance of records; submittal of information.
90.506  Right of entry and access.
90.507  Sample selection.
90.508  Test procedures.
90.509  Calculation and reporting of test results.
90.510  Compliance with acceptable quality level and passing and failing 
          criteria for selective enforcement audits.
90.511  Suspension and revocation of certificates of conformity.
90.512  Request for public hearing.
90.513  Administrative procedures for public hearing.
90.514  Hearing procedures.
90.515  Appeal of hearing decision.
90.516  Treatment of confidential information.

Appendix A to Subpart F of Part 90--Sampling Plans for Selective 
          Enforcement Auditing of Small Nonroad Engines

             Subpart G--Importation of Nonconforming Engines

90.601  Applicability.
90.602  Definitions.
90.603  [Reserved]
90.604  General requirements.
90.605-90.610  [Reserved]
90.611  Importation for purposes other than resale.
90.612  Exemptions and exclusions.
90.613  Prohibited acts; penalties.
90.614  Treatment of confidential information.

         Subpart H--Manufacturer Production Line Testing Program

90.701  Applicability.
90.702  Definitions.
90.703  Production line testing by the manufacturer.
90.704  Maintenance of records; submission of information.
90.705  Right of entry and access.
90.706  Engine sample selection.
90.707  Test procedures.
90.708  Cumulative Sum (CumSum) procedure.
90.709  Calculation and reporting of test results.
90.710  Compliance with criteria for production line testing.
90.711  Suspension and revocation of certificates of conformity.
90.712  Request for public hearing.
90.713  Administrative procedures for public hearing.

  Subpart I--Emission-related Defect Reporting Requirements, Voluntary 
                Emission Recall Program, Ordered Recalls

90.801  Applicability.
90.802  Definitions.
90.803  Emission defect information report.
90.804  Voluntary emissions recall.
90.805  Reports, voluntary recall plan filing, record retention.
90.806  Responsibility under other legal provisions preserved.
90.807  Disclaimer of production warranty applicability.
90.808  Ordered recall provisions.

 Subpart J--Exclusion and Exemption of Nonroad Engines From Regulations

90.901  Applicability.
90.902  Definitions.
90.903  Exclusions, application of section 216 (10) and (11) of the Act.
90.904  Who may request an exemption.
90.905  Testing exemption.
90.906  Manufacturer-owned exemption and precertification exemption.
90.907  Display exemption.
90.908  National security exemption.
90.909  Export exemptions.
90.910  Granting of exemptions.
90.911  Submission of exemption requests.
90.912  Treatment of confidential information.

      Subpart K--Prohibited Acts and General Enforcement Provisions

90.1001  Applicability.
90.1002  Definitions.
90.1003  Prohibited acts.
90.1004  General enforcement provisions.
90.1005  Injunction proceedings for prohibited acts.
90.1006  Penalties.

        Subpart L--Emission Warranty and Maintenance Instructions

90.1101  Applicability.
90.1102  Definitions.
90.1103  Emission warranty, warranty period.
90.1104  Furnishing of maintenance instructions to ultimate purchaser.

                   Subpart M--Voluntary In-Use Testing

Sec.
90.1201  Applicability.

[[Page 167]]

90.1202  Definitions.
90.1203  Voluntary Manufacturer In-use testing program.
90.1204  Maintenance, aging and testing of engines.
90.1205  In-use test program reporting requirements.
90.1206  Reserved.
90.1207  Entry and access.
90.1208-90.1249  [Reserved]

    Authority: Sections 203, 204, 205, 206, 207, 208, 209, 213, 215, 
216, and 301(a) of the Clean Air Act, as amended (42 U.S.C. 7522, 7523, 
7524, 7525, 7541, 7542, 7543, 7547, 7549, 7550, and 7601(a)).

    Source: 60 FR 34598, July 3, 1995, unless otherwise noted.



                           Subpart A--General



Sec. 90.1  Applicability.

    (a) This part applies to nonroad spark-ignition engines and vehicles 
that have a gross power output at or below 19 kilowatts (kW) and that 
are used for any purpose.
    (b) Notwithstanding paragraph (a) of this section, the following 
nonroad engines and vehicles are not subject to the provisions of this 
part:
    (1) Engines used to propel marine vessels as defined in the General 
Provisions of the United States Code, 1 U.S.C. 3 (1992);
    (2) Engines that are both:
    (i) Used in underground mining or in underground mining equipment; 
and
    (ii) Regulated by the Mining Safety and Health Administration (MSHA) 
in 30 CFR parts 7, 31, 32, 36, 56, 57, 70, and 75;
    (3) Engines used in motorcycles and regulated in 40 CFR part 86, 
subpart E;
    (4) Engines used in aircraft as that term is defined in 40 CFR 
87.1(a);
    (5) Engines used in recreational vehicles and which are defined by 
the following criteria:
    (i) The engine's rated speed is greater than or equal to 5,000 RPM;
    (ii) The engine has no installed speed governor;
    (iii) The engine is not used for the propulsion of a marine vessel; 
and
    (iv) The engine does not meet the criteria to be categorized as a 
Class III, IV, or V engine, as indicated in Sec. 90.103;
    (6) Engines that are used exclusively in emergency and rescue 
equipment where no certified engines are available to power the 
equipment safely and practically, but not including generators, 
alternators, compressors or pumps used to provide remote power to a 
rescue tool. The equipment manufacturer bears the responsibility to 
ascertain on an annual basis and maintain documentation available to the 
Administrator that no appropriate certified engine is available from any 
source.
    (c) Engines subject to the provisions of this subpart are also 
subject to the provisions found in subparts B through M of this part, 
except that subparts C, H, and M of this part apply only to Phase 2 
engines as defined in this subpart.
    (d) Certain text in this part is identified as pertaining to Phase 1 
or Phase 2 engines. Such text pertains only to engines of the specified 
Phase. If no indication of Phase is given, the text pertains to all 
engines, regardless of Phase.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15235, Mar. 30, 1999]



Sec. 90.2  Effective dates.

    (a) This subpart applies to nonroad spark-ignition engines at or 
below 19 kW effective with the 1997 model year.
    (b) Notwithstanding paragraph (a) of this section, this subpart 
applies to class V engines, as specified in Sec. 90.116(b)(5), that are 
preempted from regulation in California by section 209(e)(1)(A) of the 
Act, effective January 1, 1998.



Sec. 90.3  Definitions.

    The following definitions apply to part 90. All terms not defined 
herein have the meaning given them in the Act.
    Act means the Clean Air Act, as amended, 42 U.S.C. 7401 et seq.
    Adjustable parameter means any device, system, or element of design 
which is physically capable of being adjusted (including those which are 
difficult to access) and which, if adjusted, may affect emissions or 
engine performance during emission testing or normal in-use operation.
    Administrator means the Administrator of the Environmental 
Protection Agency or his or her authorized representative.

[[Page 168]]

    Aftertreatment means the passage of exhaust gases through a device 
or system such as a catalyst whose purpose is to chemically alter the 
gases prior to their release to the atmosphere.
    Auxiliary emission control device (AECD) means any element of design 
that senses temperature, vehicle speed, engine RPM, transmission gear, 
or any other parameter for the purpose of activating, modulating, 
delaying, or deactivating the operation of any part of the emission 
control system.
    Certification means, with respect to new nonroad engines, obtaining 
a certificate of conformity for an engine family complying with the 
nonroad engine emission standards and requirements specified in this 
part.
    DF or df means deterioration factor.
    Eligible production or U.S. production means Phase 2 engines 
produced for purposes of being used in the United States, and includes 
any engine exported and subsequently imported in a new piece of 
equipment, but excludes any engine introduced into commerce, by itself 
or in a piece of equipment, for use in a state that has established its 
own emission requirements applicable to such engines pursuant to a 
waiver granted by EPA under section 209(e) of the Clean Air Act.
    Emission control system means any device, system, or element of 
design which controls or reduces the emission of substances from an 
engine.
    Engine as used in this part, refers to nonroad engine.
    Engine family means a group of engines, as specified in Sec. 90.116.
    Engine manufacturer means any person engaged in the manufacturing or 
assembling of new nonroad engines or the importing of such engines for 
resale, or who acts for and is under the control of any such person in 
connection with the distribution of such engines. Engine manufacturer 
does not include any dealer with respect to new nonroad engines received 
by such person in commerce.
    EPA enforcement officer means any officer, employee, or authorized 
representative of the U.S. Environmental Protection Agency so designated 
in writing by the Administrator (or by his or her designee).
    Equipment manufacturer means a manufacturer of equipment using 
engines covered by the provisions of this Part who does not also 
manufacture engines covered by the provisions of this Part.
    Exhaust emissions means matter emitted into the atmosphere from any 
opening downstream from the exhaust port of a nonroad engine.
    Family Emission Limit or FEL means an emission level that is 
declared by the manufacturer to serve in lieu of an emission standard 
for the purposes of certification, production line testing, and 
Selective Enforcement Auditing for engines participating in the 
averaging, banking and trading program. A declared FEL will also serve 
in lieu of an emission standard where the manufacturer elects to perform 
voluntary in-use testing under this part. An FEL must be expressed to 
the same number of decimal places as the applicable emission standard.
    Fuel system means all components involved in the transport, 
metering, and mixture of the fuel from the fuel tank to the combustion 
chamber(s) including the following: fuel tank, fuel tank cap, fuel pump, 
fuel lines, oil injection metering system, carburetor or fuel injection 
components, and all fuel system vents.
    Gross power means the power measured at the crankshaft or its 
equivalent, the engine being equipped only with the standard accessories 
(such as oil pumps, coolant pumps, and so forth) necessary for its 
operation on the test bed.
    Handheld equipment engine means a nonroad engine that meets the 
requirements specified in Sec. 90.103(a)(2) (i) through (iv).
    HC+NOX means total hydrocarbons plus oxides of nitrogen.
    Model year (MY) means the manufacturer's annual new model production 
period which includes January 1 of the calendar year, ends no later than 
December 31 of the calendar year, and does not begin earlier than 
January 2 of the previous calendar year. Where a manufacturer has no 
annual new model production period, model year means calendar year.

[[Page 169]]

    New, for the purposes of this part, means a nonroad engine or 
nonroad vehicle the equitable or legal title to which has never been 
transferred to an ultimate purchaser. Where the equitable or legal title 
to the engine or vehicle is not transferred to an ultimate purchaser 
until after the engine or vehicle is placed into service, then the 
engine or vehicle will no longer be new after it is placed into service. 
A nonroad engine or vehicle is placed into service when it is used for 
its functional purposes. With respect to imported nonroad engines or 
nonroad vehicles, the term ``new'' means an engine or vehicle that is 
not covered by a certificate of conformity issued under this part at the 
time of importation, and that is manufactured after the effective date 
of a regulation issued under this part which is applicable to such 
engine or vehicle (or which would be applicable to such engine or 
vehicle had it been manufactured for importation into the United 
States).
    New Class I engine family means any group of engines that employ a 
design that is different from engine families that the engine 
manufacturer has previously certified, and does not include any engine 
family certified on the basis of carryover data or any engine family 
that differs from another engine family solely as a result of a running 
change.
    NMHC+NOX means nonmethane hydrocarbons plus oxides of 
nitrogen.
    Nonroad engine means:
    (1) Except as discussed in paragraph (2) of this definition, any 
internal combustion engine:
    (i) In or on a piece of equipment that is self-propelled or serves a 
dual purpose by both propelling itself and performing another function 
(such as garden tractors, off-highway mobile cranes, and bulldozers); or
    (ii) In or on a piece of equipment that is intended to be propelled 
while performing its function (such as lawnmowers and string trimmers); 
or
    (iii) That, by itself or in or on a piece of equipment, is portable 
or transportable, meaning designed to be and capable of being carried or 
moved from one location to another. Indicia of transportability include, 
but are not limited to, wheels, skids, carrying handles, dolly, trailer, 
or platform.
    (2) An internal combustion engine is not a nonroad engine if:
    (i) The engine is used to propel a motor vehicle or a vehicle used 
solely for competition, or is subject to standards promulgated under 
section 202 of the Act; or
    (ii) The engine is regulated by a federal New Source Performance 
Standard promulgated under section 111 of the Act; or
    (iii) The engine otherwise included in paragraph (1)(iii) of this 
definition remains or will remain at a location for more than 12 
consecutive months or a shorter period of time for an engine located at 
a seasonal source. A location is any site at a building, structure, 
facility, or installation. Any engine (or engines) that replaces an 
engine at a location and that is intended to perform the same or similar 
function as the engine replaced will be included in calculating the 
consecutive time period. An engine located at a seasonal source is an 
engine that remains at a seasonal source during the full annual 
operating period of the seasonal source. A seasonal source is a 
stationary source that remains in a single location on a permanent basis 
(i.e., at least two years) and that operates at that single location 
approximately three months (or more) each year. This paragraph does not 
apply to an engine after the engine is removed from the location.
    Nonroad vehicle means a vehicle that is powered by a nonroad engine 
as defined in this section and that is not a motor vehicle or a vehicle 
used solely for competition. Nonroad vehicle also includes equipment 
that is powered by nonroad engines.
    Nonroad vehicle manufacturer means any person engaged in the 
manufacturing or assembling of new nonroad vehicles or importing such 
vehicles for resale, or who acts for and is under the control of any 
such person in connection with the distribution of such vehicles. A 
nonroad vehicle manufacturer does not include any dealer with respect to 
new nonroad vehicles received by such person in commerce.
    Operating hours means:

[[Page 170]]

    (1) For engine storage areas or facilities, all times during which 
personnel other than custodial personnel are at work in the vicinity of 
the storage area or facility and have access to it.
    (2) For all other areas or facilities, all times during which an 
assembly line is in operation or all times during which testing, 
maintenance, service accumulation, production or compilation of records, 
or any other procedure or activity related to certification testing, to 
translation of designs from the test stage to the production stage, or 
to engine manufacture or assembly is being carried out in a facility.
    Overhead valve engine means an otto-cycle, four stroke engine in 
which the intake and exhaust valves are located above the combustion 
chamber within the cylinder head. Such engines are sometimes referred to 
as ``valve-in-head'' engines.
    Phase 1 engine means any handheld or nonhandheld engine, that was 
produced under a certificate of conformity issued under the regulations 
in this part to the standard levels defined for Phase 1.
    Phase 2 engine means any nonhandheld engine that was produced under 
a certificate of conformity under the regulations in this part to the 
standards defined for Phase 2 engines.
    Presentation of credentials means the display of the document 
designating a person as an EPA enforcement officer or EPA authorized 
representative.
    Round, rounded or rounding means, unless otherwise specified, that 
numbers will be rounded according to ASTM-E29-93a, which is incorporated 
by reference in this part pursuant to Sec. 90.7.
    Scheduled maintenance means any adjustment, repair, removal, 
disassembly, cleaning, or replacement of components or systems required 
by the manufacturer to be performed on a periodic basis to prevent part 
failure or vehicle or engine malfunction, or those actions anticipated 
as necessary to correct an overt indication of malfunction or failure 
for which periodic maintenance is not appropriate.
    Side valve engine means an otto-cycle, four stroke engine in which 
the intake and exhaust valves are located to the side of the cylinder, 
not within the cylinder head. Such engines are sometimes referred to as 
``L-head'' engines.
    Small volume engine family means any nonhandheld engine family whose 
eligible production in a given model year are projected at the time of 
certification to be no more than 5,000 engines.
    Small volume engine manufacturer means, for nonhandheld engines, any 
engine manufacturer whose total eligible production of nonhandheld 
engines are projected at the time of certification of a given model year 
to be no more than 10,000 nonhandheld engines.
    Small volume equipment manufacturer means, for nonhandheld 
equipment, any equipment manufacturer whose production of nonhandheld 
equipment subject to regulation under this part or powered by engines 
regulated under this part, does not exceed 5,000 pieces for a given 
model year or annual production period excluding that equipment intended 
for introduction into commerce for use in a state that has established 
its own emission requirements applicable to such equipment or engines in 
such equipment, pursuant to a waiver granted by EPA under section 209(e) 
of the Clean Air Act.
    Small volume equipment model means, for nonhandheld equipment, any 
unique model of equipment whose production subject to regulations under 
this part or powered by engines regulated under this part, does not 
exceed 500 pieces for a given model year or annual production period 
excluding that equipment intended for introduction into commerce for use 
in a state that has established its own emission requirements applicable 
to such equipment or engines in such equipment, pursuant to a waiver 
granted by EPA under section 209(e) of the Clean Air Act.
    Test engine means the engine or group of engines that a manufacturer 
uses during certification to determine compliance with emission 
standards.
    Ultimate purchaser means, with respect to any new nonroad engine or 
new nonroad vehicle, the first person who in good faith purchases such 
new nonroad engine or vehicle for purposes other than resale.

[[Page 171]]

    Used solely for competition means exhibiting features that are not 
easily removed and that would render its use other than in competition 
unsafe, impractical, or highly unlikely.
    Warranty period means the period of time the engine or part is 
covered by the warranty provisions.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15235, Mar. 30, 1999]



Sec. 90.4  Treatment of confidential information.

    (a) Any manufacturer may assert that some or all of the information 
submitted pursuant to this part is entitled to confidential treatment as 
provided by part 2, subpart B of this chapter.
    (b) Any claim of confidentiality must accompany the information at 
the time it is submitted to EPA.
    (c) To assert that information submitted pursuant to this subpart is 
confidential, a manufacturer must indicate clearly the items of 
information claimed confidential by marking, circling, bracketing, 
stamping, or otherwise specifying the confidential information. 
Furthermore, EPA requests, but does not require, that the submitter also 
provide a second copy of its submittal from which all confidential 
information has been deleted. If a need arises to publicly release 
nonconfidential information, EPA will assume that the submitter has 
accurately deleted the confidential information from this second copy.
    (d) If a claim is made that some or all of the information submitted 
pursuant to this subpart is entitled to confidential treatment, the 
information covered by that confidentiality claim will be disclosed by 
the Administrator only to the extent and by means of the procedures set 
forth in part 2, subpart B of this chapter.
    (e) Information provided without a claim of confidentiality at the 
time of submission may be made available to the public by EPA without 
further notice to the submitter, in accordance with 
Sec. 2.204(c)(2)(i)(A) of this chapter.



Sec. 90.5  Acronyms and abbreviations.

    The following acronyms and abbreviations apply to part 90.

AECD--Auxiliary emission control device
ASME--American Society of Mechanical Engineers
ASTM--American Society for Testing and Materials
CAA--Clean Air Act
CAAA--Clean Air Act Amendments of 1990
CLD--chemiluminescent detector
CO--Carbon monoxide
CO2--Carbon dioxide
EPA--Environmental Protection Agency
FTP--Federal Test Procedure
g/kW-hr--grams per kilowatt hour
HC--hydrocarbons
HCLD--heated chemiluminescent detector
HFID--heated flame ionization detector
ICI--independent Commercial Importer
NDIR--non-dispersive infrared analyzer
NIST--National Institute for Standards and Testing
NO--Nitric oxide
NO2--Nitrogen dioxide
NOX--Oxides of nitrogen
O2--Oxygen
OEM--original equipment manufacturer
PMD--paramagnetic detector
SAE--Society of Automotive Engineers
SEA--Selective Enforcement Auditing
SI--spark-ignition
U.S.C.--United States Code
VOC--Volatile organic compounds
ZROD--zirconiumdioxide sensor



Sec. 90.6  Table and figure numbering; position.

    (a) Tables for each subpart appear in an appendix at the end of the 
subpart. Tables are numbered consecutively by order of appearance in the 
appendix. The table title will indicate the topic.
    (b) Figures for each subpart appear in an appendix at the end of the 
subpart. Figures are numbered consecutively by order of appearance in 
the appendix. The figure title will indicate the topic.



Sec. 90.7  Reference materials.

    (a) Incorporation by reference. The documents in paragraph (b) of 
this section have been incorporated by reference. The 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 
inspected at U.S. EPA Air and Radiation Docket, room M-1500, 401 M 
Street, S.W., Washington D.C. 20460, or at the Office of the Federal 
Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
    (b) The following paragraphs and tables set forth the material that 
has

[[Page 172]]

been incorporated by reference in this part.
    (1) ASTM material. The following table sets forth material from the 
American Society for Testing and Materials which has been incorporated 
by reference. The first column lists the number and name of the 
material. The second column lists the section(s) of this part, other 
than Sec. 90.7, in which the matter is referenced. The second column is 
presented for information only and may not be all inclusive. Copies of 
these materials may be obtained from American Society for Testing and 
Materials, 1916 Race St., Philadelphia, PA 19103.

----------------------------------------------------------------------------------------------------------------
              Document number and name                                 40 CFR part 90 reference
----------------------------------------------------------------------------------------------------------------
ASTM D86-93:
    Standard Test Method for Distillation of          Appendix A to subpart D, Table 3.
     Petroleum Products.
ASTM D1319-89:
    Standard Test Method for Hydrocarbon Types in     Appendix A to subpart D, Table 3.
     Liquid Petroleum Products by Fluorescent
     Indicator Adsorption.
ASTM D2622-92:
    Standard Test Method for Sulfur in Petroleum      Appendix A to subpart D, Table 3.
     Products by X-ray Spectrometry.
ASTM D2699-92:
    Standard Test Method for Knock Characteristics    Appendix A to subpart D, Table 3.
     of Motor Fuels by the Research Method.
ASTM D2700-92:
    Standard Test Method for Knock Characteristics    Appendix A to subpart D, Table 3.
     of Motor and Aviation Fuels by the Motor Method.
ASTM D3231-89:
    Standard Test Method for Phosphorus in Gasoline.  Appendix A to subpart D, Table 3.
ASTM D3606-92:
    Standard Test Method for Determination of         Appendix A to subpart D, Table 3.
     Benzene and Toluene in Finished Motor and
     Aviation Gasoline by Gas Chromatography.
ASTM D5191-93a:
    Standard Test Method for Vapor Pressure of        Appendix A to subpart D, Table 3.
     Petroleum Products (Mini Method).
ASTM E29-93a:
    Standard Practice for Using Significant Digits    90.116; 90.509.
     in Test Data to Determine Conformance with
     Specifications.
----------------------------------------------------------------------------------------------------------------

    (2) SAE material. The following table sets forth material from the 
Society of Automotive Engineers which has been incorporated by 
reference. The first column lists the number and name of the material. 
The second column lists the section(s) of this part, other than 
Sec. 90.7, in which the matter is referenced. The second column is 
presented for information only and may not be all inclusive. Copies of 
these materials may be obtained from Society of Automotive Engineers 
International, 400 Commonwealth Dr., Warrendale, PA 15096-0001.

------------------------------------------------------------------------
                                                             40 CFR part
                  Document number and name                        90
                                                              reference
------------------------------------------------------------------------
SAE J1930 September 1991, Electrical/Electronic Systems           90.114
 Diagnostic Terms, Definitions, Abbreviations and Acronyms.
SAE Paper 770141, Optimization of a Flame Ionization              90.316
 Detector for Determination of Hydrocarbon in Diluted
 Automotive Exhausts, Glenn D. Reschke, 1977...............
------------------------------------------------------------------------



       Subpart B--Emission Standards and Certification Provisions



Sec. 90.101  Applicability.

    The requirements of subpart B are applicable to all nonroad engines 
and vehicles subject to the provisions of subpart A of part 90.



Sec. 90.102  Definitions.

    The definitions in subpart A of part 90 apply to this subpart. All 
terms not defined herein or in subpart A have the meaning given them in 
the Act. The following definitions also apply to this subpart.

[[Page 173]]

    Attitudinal control means the operator regulates either the 
horizontal or vertical position of the equipment, or both.
    Carry means the operator completely bears the weight of the 
equipment, including the engine.
    Support means that the operator holds the equipment in position so 
as to prevent it from falling, slipping or sinking. It is not necessary 
for the entire weight of the equipment to be borne by the operator.



Sec. 90.103  Exhaust emission standards.

    (a) Exhaust emissions for new Phase 1 and Phase 2 nonroad spark 
ignition engines at or below 19 kilowatts (kW), shall not exceed the 
following levels. Throughout this part, NMHC+NOX standards 
are applicable only to natural gas fueled engines at the option of the 
manufacturer, in lieu of HC+NOX standards.

                                   Table 1--Phase 1 Exhaust Emission Standards
                                            [Grams per kilowatt-hour]
----------------------------------------------------------------------------------------------------------------
                                          Hydrocarbons+oxides
        Engine displacement class             of nitrogen        Hydrocarbons   Carbon monoxide     Oxides of
                                                (HC+NOX)                                          nitrogen (NOX)
----------------------------------------------------------------------------------------------------------------
I.......................................               16.1    ...............              519  ...............
II......................................               13.4    ...............              519  ...............
III.....................................  ...................              295              805             5.36
IV......................................  ...................              241              805             5.36
V.......................................  ...................              161              603             5.36
----------------------------------------------------------------------------------------------------------------


                           Table 2--Phase 2 Class I Engine Exhaust Emission Standards
                                            [grams per kilowatt-hour]
----------------------------------------------------------------------------------------------------------------
          Engine class                HC+NOX         NMHC+NOX           CO                Effective date
----------------------------------------------------------------------------------------------------------------
I...............................            16.1            14.8             610  August 1, 2007; in addition,
                                                                                   any Class I engine family
                                                                                   initially produced on or
                                                                                   after August 1, 2003 must
                                                                                   meet the Phase 2 Class I
                                                                                   standards before they may be
                                                                                   introduced into commerce.
----------------------------------------------------------------------------------------------------------------


                                        Table 3--Phase 2 Class II Engine Exhaust Emission Standards by Model Year
                                                                ]grams per kilowatt-hour]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Model Year
---------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                              2005  and
                 Engine Class                          Emission requirement             2001          2002          2003          2004          later
--------------------------------------------------------------------------------------------------------------------------------------------------------
II............................................  HC +NOX                                     18.0          16.6          15.0          13.6          12.1
                                                NMHC+NOX                                    16.7          15.3          14.0          12.7          11.3
                                                CO                                         610           610           610           610           610
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (1) Each engine displacement class has a unique set of exhaust 
emission standards. Boundaries for each class are indicated in 
Sec. 90.116(b).
    (2) Emission standards for classes III, IV, V may be used only if an 
engine meets at least one of the following requirements:
    (i) The engine must be used in a piece of equipment that is carried 
by the operator throughout the performance of its intended function(s);
    (ii) The engine must be used in a piece of equipment that must 
operate multipositionally, such as upside down or sideways, to complete 
its intended function(s);
    (iii) The engine must be used in a piece of equipment for which the 
combined engine and equipment dry weight is under 14 kilograms, no more 
than two wheels are present on the equipment, and at least one of the 
following attributes is also present:
    (A) The operator must alternately provide support or carry the 
equipment throughout the performance of its intended function(s);

[[Page 174]]

    (B) The operator must provide support or attitudinal control for the 
equipment throughout the performance of its intended function(s); and
    (C) The engine must be used in a generator or pump;
    (iv) The engine must be used to power one-person augers, with a 
combined engine and equipment dry weight under 20 kilograms.
    (3) Notwithstanding paragraph (a)(2) of this section, two stroke 
engines used to power lawnmowers or other nonhandheld equipment may meet 
Phase 1 Class III, IV or V standards and requirements, as appropriate, 
through model year 2002 subject to the provisions of Sec. 90.107(e), (f) 
and (h). Such engines shall not be included in any computations of Phase 
2 averaging, banking, or trading credits or eligible production.
    (4) Notwithstanding paragraph (a)(2) of this section, two-stroke 
engines used to power snowthrowers may meet class III, IV, or V 
standards.
    (5) Notwithstanding paragraph (a)(2) of this section, engines used 
exclusively to power products which are used exclusively in wintertime, 
such as snowthrowers and ice augers, at the option of the engine 
manufacturer, need not certify to or comply with standards regulating 
emissions of HC, NOX, HC+NOX or 
NMHC+NOX, as applicable. If the manufacturer exercises the 
option to certify to standards regulating such emissions, such engines 
must meet such standards. If the engine is to be used in any equipment 
or vehicle other than an exclusively wintertime product such as a 
snowthrower or ice auger, it must be certified to the applicable 
standard regulating emissions of HC, NOX, HC+NOX 
or NMHC+NOX as applicable.
    (6) In lieu of certifying to the applicable Phase 2 standards, small 
volume engine manufacturers as defined in this part may, at their 
option, certify their engines families as Phase 1 engines until the 2010 
model year. Such engines shall not exceed the applicable Phase 1 
standards and are excluded from the averaging, banking and trading 
program and any related credit calculations. Beginning with the 2010 
model year, these engines must meet the applicable Phase 2 standards.
    (7) In lieu of certifying to the applicable Phase 2 standards, 
manufacturers of small volume engine families, as defined in this part 
may, at their option, certify their small volume engine families as 
Phase 1 engines until the 2010 model year. Such engines shall not exceed 
the applicable Phase 1 standards and are excluded from the averaging, 
banking and trading program and any related credit calculations. 
Beginning with the 2010 model year, these engines must meet the 
applicable Phase 2 standards.
    (8) Notwithstanding the standards shown in Table 3 of this section, 
the HC+NOX (NMHC+NOX) standard for Phase 2 Class 
II side valve engine families with annual production of 1000 or less 
shall be 24.0 g/kW-hr (22.0 g/kW-hr) for model years 2010 and later. 
Engines produced subject to this provision may not exceed this standard 
and are excluded from the averaging, banking and trading program and any 
related credit calculations.
    (b) Exhaust emissions will be measured using the procedures set 
forth in subpart E of this part.

[60 FR 34598, July 3, 1995, as amended at 61 FR 58300, Nov. 13, 1996; 62 
FR 42643, Aug. 7, 1997; 64 FR 15236, Mar. 30, 1999]



Sec. 90.104  Compliance with emission standards.

    Paragraphs (a) through (c) of this section apply to Phase 1 engines 
only. Paragraphs (d) through (h) of this section apply only to Phase 2 
engines.
    (a) If all test engines representing an engine family have emissions 
less than or equal to each emission standard in a given engine 
displacement class, that family complies with that class of emission 
standards.
    (b) If any test engine representing an engine family has emissions 
greater than any one emission standard in a given engine displacement 
class, that family will be deemed not in compliance with that class of 
emission standards.
    (c) If catalysts are used in an engine family, the engine 
manufacturer must affirm that catalyst durability has been confirmed on 
the basis of the evaluation procedure that is specified in subpart E of 
this part.

[[Page 175]]

    (d) The exhaust emission standards (FELs, where applicable) for 
Phase 2 engines set forth in this part apply to the emissions of the 
engines for their full useful lives as determined pursuant to 
Sec. 90.105.
    (e) For all Phase 2 engines, if all test engines representing an 
engine family have emissions, when properly tested according to 
procedures in this part, less than or equal to each Phase 2 emission 
standard (FEL, where applicable) in a given engine class and given model 
year, when multiplicatively adjusted by the deterioration factor 
determined in this section, that family complies with that class of 
emission standards for purposes of certification. If any test engine 
representing an engine family has emissions adjusted multiplicatively by 
the deterioration factor determined in this section, greater than any 
one emission standard (FEL, where applicable) for a given displacement 
class, that family does not comply with that class of emission 
standards.
    (f) Each engine manufacturer must comply with all provisions of the 
averaging, banking and trading program outlined in subpart C of this 
part for each engine family participating in that program.
    (g)(1) Small volume engine manufacturers and small volume engine 
families may, at their option, take deterioration factors for 
HC+NOX (NMHC+NOX) and CO from Table 1 of this 
section, or they may calculate deterioration factors for 
HC+NOX (NMHC+NOX) and CO according to the process 
described in paragraph (h) of this section. For technologies that are 
not addressed in Table 1 of this section, the manufacturer may ask the 
Administrator to assign a deterioration factor prior to the time of 
certification.
    (2) Table 1 follows:

      Table 1: Nonhandheld Engine HC+NOX (NMHC+NOX) and CO Assigned Deterioration Factors for Small Volume
                                 Manufacturers and Small Volume Engine Families
----------------------------------------------------------------------------------------------------------------
                                           Side valve engines      Overhead valve
                                         ----------------------        engines
              Engine class                                     ----------------------        Engines with
                                             HC+NOX       CO       HC+NOX                   aftertreatment
                                           (NMHC+NOX)            (NMHC+NOX)     CO
----------------------------------------------------------------------------------------------------------------
Class I.................................           2.1     1.1           1.5     1.1  Dfs must be calculated
                                                                                       using the formula in Sec.
                                                                                        90.104(g)(3).
Class II................................           1.6     1.1           1.4     1.1
----------------------------------------------------------------------------------------------------------------

    (3) Formula for calculating deterioration factors for engines with 
aftertreatment:

DF = [(NE * EDF) - (CC * F)]/(NE - CC)

Where:

DF = deterioration factor
NE = new engine emission levels prior to the catalyst (g/kW-hr)
EDF = deterioration factor for engines without catalyst as shown in 
Table 1
CC = amount converted at 0 hours in g/kW-hr
F = 0.8 for HC (NMHC) and 0.0 for NOX for Class I and II 
engines
F = 0.8 for CO for all classes of engines

    (h)(1) Manufacturers shall obtain an assigned df or calculate a df, 
as appropriate, for each regulated pollutant for all Phase 2 engine 
families. Such dfs shall be used for certification, production line 
testing, and Selective Enforcement Auditing.
    (2) For engines not using assigned dfs from Table 1 of this section, 
dfs shall be determined as follows:
    (i) On at least one test engine representing the configuration 
chosen to be the most likely to exceed HC+NOX 
(NMHC+NOX) emission standards, (FELs where applicable), and 
constructed to be representative of production engines pursuant to 
Sec. 90.117, conduct full Federal test procedure emission testing 
pursuant to the regulations of subpart E of this part at the number of 
hours representing stabilized emissions pursuant to Sec. 90.118. If more 
than one engine is tested, average the results and round to the same 
number of decimal places contained in the applicable standard, expressed 
to one additional significant figure;

[[Page 176]]

    (ii) Conduct such emission testing again following aging the engine. 
The aging procedure should be designed to allow the manufacturer to 
appropriately predict the in-use emission deterioration expected over 
the useful life of the engine, taking into account the type of wear and 
other deterioration mechanisms expected under typical consumer use which 
could affect emissions performance. If more than one engine is tested, 
average the results and round to the same number of decimal places 
contained in the applicable standard, expressed to one additional 
significant figure;
    (iii) Divide the full useful life emissions (average emissions, if 
applicable) for each regulated pollutant by the stabilized emissions 
(average emissions, if applicable) and round to two significant figures. 
The resulting number shall be the df, unless it is less than 1.0, in 
which case the df shall be 1.0.
    (iv) At the manufacturer's option additional emission test points 
can be scheduled between the stabilized emission test point and the full 
useful life test period. If intermediate tests are scheduled, the test 
points must be evenly spaced over the full useful life period (plus or 
minus 2 hours) and one such test point shall be at one-half of full 
useful life (plus or minus 2 hours). For each pollutant 
HC+NOX (NMHC+NOX) and CO, a line must be fitted to 
the data points treating the initial test as occurring at hour zero, and 
using the method of least-squares. The deterioration factor is the 
calculated emissions durability period divided by the calculated 
emissions at zero hours.
    (3) EPA may reject a df if it has evidence that the df is not 
appropriate for that family within 30 days of receipt from the 
manufacturer. The manufacturer must retain actual emission test data to 
support its choice of df and furnish that data to the Administrator upon 
request. Manufacturers may request approval by the Administrator of 
alternate procedures for determining deterioration. Any submitted df not 
rejected by EPA within 30 days shall be deemed to have been approved.
    (4) Calculated deterioration factors may cover families and model 
years in addition to the one upon which they were generated if the 
manufacturer submits a justification acceptable to the Administrator in 
advance of certification that the affected engine families can be 
reasonably expected to have similar emission deterioration 
characteristics.
    (5) Engine families that undergo running changes need not generate a 
new df if the manufacturer submits a justification acceptable to the 
Administrator concurrent with the running change that the affected 
engine families can be reasonably expected to have similar emission 
deterioration characteristics.

[60 FR 34598, July 3, 1995, as amended by 64 FR 15237, Mar. 30, 1999]



Sec. 90.105  Useful life periods for Phase 2 engines.

    (a) Manufacturers shall declare the applicable useful life category 
for each engine family at the time of certification as described in this 
section. Such category shall be the category which most closely 
approximates the expected useful lives of the equipment into which the 
engines are anticipated to be installed as determined by the engine 
manufacturer. Manufacturers shall retain data appropriate to support 
their choice of useful life category for each engine family. Such data 
shall be furnished to the Administrator upon request.
    (1) For nonhandheld engines: Manufacturers shall select a useful 
life category from Table 1 of this section at the time of certification.
    (2) Table 1 follows:

     Table 1: Useful Life Categories for Nonhandheld Engines [hours]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Class I...........................................    125    250     500
Class II..........................................    250    500    1000
------------------------------------------------------------------------

    (3)-(4) [Reserved]
    (5) Data to support a manufacturer's choice of useful life category, 
for a given engine family, may include but are not limited to:
    (i) Surveys of the life spans of the equipment in which the subject 
engines are installed;
    (ii) Engineering evaluations of field aged engines to ascertain when 
engine performance deteriorates to the point

[[Page 177]]

where usefulness and/or reliability is impacted to a degree sufficient 
to necessitate overhaul or replacement;
    (iii) Warranty statements and warranty periods;
    (iv) Marketing materials regarding engine life;
    (v) Failure reports from engine customers; and
    (vi) Engineering evaluations of the durability, in hours, of 
specific engine technologies, engine materials or engine designs.
    (b) [Reserved]

[64 FR 15238, Mar. 30, 1999]



Sec. 90.106  Certificate of conformity.

    (a)(1) Except as provided in Sec. 90.2(b), every manufacturer of new 
engines produced during or after model year 1997 must obtain a 
certificate of conformity covering such engines; however, engines 
manufactured during an annual production period beginning prior to 
September 1, 1996 are not required to be certified.
    (2) Except as required in paragraph (b)(3) of this section, Class II 
engines manufactured during an annual production period beginning prior 
to September 1, 2000 are not required to meet Phase 2 requirements.
    (b)(1) The annual production period begins either when an engine 
family is first produced or on January 2 of the calendar year preceding 
the year for which the model year is designated, whichever date is 
later. The annual production period ends either when the last engine is 
produced or on December 31 of the calendar year for which the model year 
is named, whichever date is sooner.
    (2) Notwithstanding paragraph (b)(1) of this section, annual 
production periods beginning prior to September 1, 1996 may not exceed 
12 months in length.
    (3) Manufacturers who commence an annual production period for a 
Class II engine family between January 1, 2000 and September 1, 2000 
must meet Phase 2 requirements for that family only if that production 
period will exceed 12 months in length.
    (c) Except as provided in paragraph (d) of this section, a 
certificate of conformity is deemed to cover the engines named in such 
certificate and produced during the annual production period, as defined 
in paragraph (b) of this section.
    (d) Except as provided in paragraph (e) of this section, the 
certificate of conformity must be obtained from the Administrator prior 
to selling, offering for sale, introducing into commerce, or importing 
into the United States the new engine. Engines produced prior to the 
effective date of a certificate of conformity may also be covered by the 
certificate, once it is effective, if the following conditions are met:
    (1) The engines conform in all respects to the engines described in 
the application for the certificate of conformity.
    (2) The engines are not sold, offered for sale, introduced into 
commerce, or delivered for introduction into commerce prior to the 
effective date of the certificate of conformity.
    (3) EPA is notified prior to the beginning of production when such 
production will start, and EPA is provided a full opportunity to inspect 
and/or test the engines during and after their production. EPA must have 
the opportunity to conduct SEA production line testing as if the 
vehicles had been produced after the effective date of the certificate.
    (e) Engines that are certified by EPA prior to January 2, 1996 for 
model year 1997 may be delivered for introduction into commerce prior to 
January 2, 1996 once a certificate of conformity has been issued.
    (f) Engines imported by an original equipment manufacturer after 
December 31 of the calendar year for which the model year is named are 
still covered by the certificate of conformity as long as the production 
of the engine was completed before December 31 of that year.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15238, Mar. 30, 1999]



Sec. 90.107  Application for certification.

    (a) For each engine family, the engine manufacturer must submit to 
the Administrator a completed application for a certificate of 
conformity.
    (b) The application must be approved and signed by the authorized 
representative of the manufacturer.

[[Page 178]]

    (c) The application must be updated and corrected by amendment as 
provided in Sec. 90.122 to accurately reflect the manufacturer's 
production.
    (d) Required content. Each application must include the following 
information:
    (1) A description of the basic engine design including, but not 
limited to, the engine family specifications;
    (2) An explanation of how the emission control system operates, 
including a detailed description of all emission control system 
components (Detailed component calibrations are not required to be 
included; they must be provided if requested, however.), each auxiliary 
emission control device (AECD), and all fuel system components to be 
installed on any production or test engine(s);
    (3) Proposed test engine(s) selection and the rationale for the test 
engine(s) selection;
    (4) Special or alternate test procedures, if applicable;
    (5) The service accumulation period necessary to break in the test 
engine(s) and stabilize emission levels;
    (6) A description of all adjustable operating parameters including 
the following:
    (i) The nominal or recommended setting and the associated production 
tolerances;
    (ii) The intended physically adjustable range;
    (iii) The limits or stops used to establish adjustable ranges;
    (iv) Production tolerances of the limits or stops used to establish 
each physically adjustable range; and
    (v) Information relating to why the physical limits or stops used to 
establish the physically adjustable range of each parameter, or any 
other means used to inhibit adjustment, are effective in preventing 
adjustment of parameters to settings outside the manufacturer's intended 
physically adjustable ranges on in-use engines;
    (7) The proposed engine information label;
    (8) All test data obtained by the manufacturer on each test engine;
    (9) A statement that the test engine(s), as described in the 
manufacturer's application for certification, has been tested in 
accordance with the applicable test procedures, utilizing the fuels and 
equipment required under subparts D and E of this part, and that on the 
basis of such tests the engine(s) conforms to the requirements of this 
part;
    (10) An unconditional statement certifying that all engines in the 
engine family comply with all requirements of this part and the Clean 
Air Act;
    (11) This paragraph (d)(11) is applicable only to Phase 2 engines.
    (i) Engine manufacturers participating in the averaging, banking and 
trading program as described in subpart C of this part shall declare the 
applicable Family Emission Limit (FEL) for HC+NOX 
(NMHC+NOX).
    (ii) Provide the applicable useful life as determined under 
Sec. 90.105.
    (e)(1) In addition to the information specified in paragraph (d) of 
this section, manufacturers of two-stroke lawnmower engines must submit 
with their application for a certificate of conformity:
    (i) For model year 1997, information establishing the highest number 
of two-stroke lawnmower engines produced in a single annual production 
period from 1992 through 1994. This number will be known as the 
production baseline.
    (ii) For model years 1998 through 2002, information documenting the 
previous year's production and projected production for the current 
year.
    (2) In model year 1997, two-stroke lawnmower engine manufacturers 
may produce up to 100 percent of their production baseline established 
under paragraph (e)(1)(i) of this section.
    (3) In model year 1998, two-stroke lawnmower engine manufacturers 
may produce up to 75 percent of their production baseline.
    (4) From model years 1999 through 2002, two-stroke lawnmower engine 
manufacturers may produce up to 50 percent of their production baseline.
    (5) In model year 2003, two-stroke lawnmower engine manufacturers 
must meet class I or II standards specified in Sec. 90.103(a). If in 
model year 2003 those standards have been superseded by Phase 2 
standards, two-stroke lawnmower engine manufacturers must meet the Phase 
2 standards that are

[[Page 179]]

equivalent to the class I or II standards.
    (f) At the Administrator's request, the manufacturer must supply 
such additional information as may be required to evaluate the 
application including, but not limited to, projected nonroad engine 
production.
    (g)(1) The Administrator may modify the information submission 
requirements of paragraph (d) of this section, provided that all of the 
information specified therein is maintained by the engine manufacturer 
as required by Sec. 90.121, and amended, updated, or corrected as 
necessary.
    (2) For the purposes of this paragraph, Sec. 90.121(a)(1) includes 
all information specified in paragraph (d) of this section whether or 
not such information is actually submitted to the Administrator for any 
particular model year.
    (3) The Administrator may review an engine manufacturer's records at 
any time. At the Administrator's discretion, this review may take place 
either at the manufacturer's facility or at another facility designated 
by the Administrator.
    (h)(1) The Administrator may, upon receipt of a written request from 
an equipment manufacturer, accompanied by sufficient documentation, 
permit two stroke engines produced for nonhandheld equipment other than 
lawnmowers to meet the standards specified in Sec. 90.103(a)(3) under 
the schedule outlined in paragraph (e) of this section. The equipment 
manufacturer must demonstrate to the satisfaction of the Administrator 
that:
    (i) Four stroke engines for such equipment are not available with 
suitable physical or performance characteristics; and
    (ii) The equipment can not be converted to use four stroke engines 
without substantial redesign for which additional lead time is necessary 
to avoid economic hardship.
    (2) The Administrator may waive the phase-in percentages of 
paragraphs (e)(3) and (e)(4) of this section for engines used in low 
volume nonhandheld equipment other than lawnmowers where the equipment 
manufacturer demonstrates to the satisfaction of the Administrator that 
compliance with the production cap is not economically feasible.

[60 FR 34598, July 3, 1995, as amended at 61 FR 20742, May 8, 1996; 62 
FR 42643, Aug. 7, 1997; 64 FR 15238, Mar. 30, 1999]



Sec. 90.108  Certification.

    (a) If, after a review of the manufacturer's submitted application, 
information obtained from any inspection, and such other information as 
the Administrator may require, the Administrator determines that the 
application is complete and that the engine family meets the 
requirements of this part and the Clean Air Act, the Administrator shall 
issue a certificate of conformity.
    (b) The Administrator shall give a written explanation when 
certification is denied. The manufacturer may request a hearing on a 
denial. (See Sec. 90.124 for procedure.)
    (c) For certificates issued for engine families included in the 
averaging, banking and trading program as described in subpart C of this 
part:
    (1) Failure to comply with all applicable averaging, banking and 
trading provisions in this part will be considered to be a failure to 
comply with the terms and conditions upon which the certificate was 
issued, and the certificate may be determined to be void ab initio.
    (2) The manufacturer shall bear the burden of establishing to the 
satisfaction of the Administrator that the conditions upon which the 
certificate was granted were satisfied or waived.
    (d) The Administrator may, upon request by a manufacturer, waive any 
requirement of this part otherwise necessary for the issuance of a 
certificate. The Administrator may set such conditions in a certificate 
as he or she deems appropriate to assure that the waived requirements 
are either satisfied or are demonstrated, for the subject engines, to be 
inappropriate, irrelevant or met by the application of a different 
requirement under this chapter. The Administrator may indicate on such 
conditional certificates that failure to meet these conditions may 
result in suspension or revocation or the voiding ab initio of the 
certificate.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15238, Mar. 30, 1999]

[[Page 180]]



Sec. 90.109  Requirement of certification--closed crankcase.

    (a) An engine's crankcase must be closed.
    (b) For purposes of this section, ``crankcase'' means the housing 
for the crankshaft and other related internal parts.
    (c) Notwithstanding paragraph (a) of this section, the Administrator 
will allow open crankcases for engines used exclusively to power 
snowthrowers based upon a manufacturer's demonstration that all 
applicable emission standards will be met by the engine for the 
combination of emissions from the crankcase, and exhaust emissions 
measured using the procedures in subpart E of this part. This 
demonstration may be made based upon best engineering judgment. Upon 
request of the Administrator, the manufacturer must provide an 
explanation of any procedure or methodology used to determine that the 
total CO emissions from the crankcase and the exhaust are below the 
applicable standard for CO.

[60 FR 34598, July 3, 1995, as amended at 61 FR 58301, Nov. 13, 1996]



Sec. 90.110  Requirement of certification--prohibited controls.

    (a) An engine may not be equipped with an emission control device, 
system, or element of design for the purpose of complying with emission 
standards if such device, system, or element of design will cause or 
contribute to an unreasonable risk to public health, welfare, or safety 
in its operation or function.
    (b) An engine with an emission control device, system, or element of 
design may not emit any noxious or toxic substance which would not be 
emitted in the operation of such engine in the absence of the device, 
system, or element of design except as specifically permitted by 
regulation.



Sec. 90.111  Requirement of certification--prohibition of defeat devices.

    (a) An engine may not be equipped with a defeat device.
    (b) For purposes of this section, ``defeat device'' means any 
device, system, or element of design which senses operation outside 
normal emission test conditions and reduces emission control 
effectiveness.
    (1) Defeat device includes any auxiliary emission control device 
(AECD) that reduces the effectiveness of the emission control system 
under conditions which may reasonably be expected to be encountered in 
normal operation and use unless such conditions are included in the test 
procedure.
    (2) Defeat device does not include such items which either operate 
only during engine starting or are necessary to protect the engine (or 
vehicle in which it is installed) against damage or accident during its 
operation.



Sec. 90.112  Requirement of certification--adjustable parameters.

    (a) Engines equipped with adjustable parameters must comply with all 
requirements of this subpart for any specification within the physically 
available range.
    (b) An operating parameter is not considered adjustable if it is 
permanently sealed by the manufacturer or otherwise not normally 
accessible using ordinary tools.
    (c) The Administrator may require that adjustable parameters be set 
to any specification within the adjustable range during certification or 
a selective enforcement audit to determine compliance with the 
requirements of this subpart.



Sec. 90.113  In-use testing program for Phase 1 engines.

    (a) This section applies only to Phase 1 engines. In-use testing 
provisions for Phase 2 engines are found in subpart M of this part. At 
the time of certification the engine manufacturer may propose which 
engine families should be included in an in-use test program. EPA will 
approve a manufacturer's test program if the selected engine families 
represent an adequate consideration of the elements listed in paragraphs 
(b) and (c) of this section.
    (b) Number of engines to be tested. The number of engines to be 
tested by a manufacturer is determined by the following method:
    (1) For an engine manufacturer with total projected annual 
production of more than 75,000 engines destined for the United States 
market for that

[[Page 181]]

model year, the minimum number of engines to be tested may be the lowest 
of the numbers determined in paragraph (b)(1)(i), (ii) or (iii) of this 
section:
    (i) Divide the manufacturer's total projected annual production of 
small SI engines destined for the United States market for that model 
year by 50,000, and round to the nearest whole number;
    (ii) Test five engines each from 25 percent of all engine families 
certified in that model year; and
    (iii) Test three engines each from 50 percent of all engine families 
certified in that model year.
    (2) An engine manufacturer with total projected annual production of 
75,000 engines or less destined for the United States market for that 
model year may test a minimum of two engines.
    (c) Criteria for selecting test engines. An engine manufacturer may 
select test engines from engine families utilizing the following 
criteria and in the order specified:
    (1) Engine families using emission control technology which most 
likely will be used on Phase 2 engines;
    (2) Engine families using aftertreatment;
    (3) Engine families certified to different emission standards;
    (4) Different engine designs (such as sidevalve head versus overhead 
valve engines);
    (5) Engine families using emission control technology specifically 
installed to achieve compliance with emission standards of this part;
    (6) The engine family with the highest projected annual sales; and
    (7) Engine families which meet the above criteria, but have not been 
included in prior model year in-use testing programs as required by 
these provisions.
    (d) Collection of in-use engines. An engine manufacturer may procure 
in-use engines which have been operated for between half and three-
quarters of the engine's advertised (or projected) useful life. All 
testing may be completed within three years from the date the 
certificate is first issued for an engine family undergoing in-use 
testing.
    (1) Test engines may be procured from sources not associated with 
the engine manufacturer or vehicle manufacturer, except that with prior 
approval of the Administrator, an engine manufacturer with annual sales 
of less than 50,000 engines may obtain in-use engines associated with 
itself or its vehicle manufacturer.
    (2) A test engine should have a maintenance history representative 
of actual in-use conditions.
    (i) A manufacturer may question the end user regarding the 
accumulated usage, maintenance, operating conditions, and storage of the 
test engines.
    (ii) Documents used in the procurement process may be maintained as 
required in Sec. 90.121.
    (3) Maintenance and testing of test engines.
    (i) The manufacturer may perform minimal set-to-spec maintenance on 
a test engine. Maintenance may include only that which is listed in the 
owner's instructions for engines with the amount of service and age of 
the acquired test engine.
    (ii) Documentation of all maintenance and adjustments may be 
maintained and retained as required by Sec. 90.121.
    (4) One valid emission test may be conducted for each in-use engine.
    (5) If a selected in-use engine fails to comply with any applicable 
certification emission standard, the manufacturer may determine the 
reason for noncompliance. The manufacturer may report all determinations 
for noncompliance in its annual in-use test result report as described 
below.
    (e) In-use test program reporting. The manufacturer may submit to 
the Administrator by January 30 of each calendar year all emission 
testing results generated from in-use testing. The following information 
may be reported for each test engine:
    (1) Engine family;
    (2) Model;
    (3) Engine serial number;
    (4) Date of manufacture;
    (5) Estimated hours of use;
    (6) Results of all emission testing;
    (7) Summary of all maintenance and/or adjustments performed;
    (8) Summary of all modifications and/or repairs; and

[[Page 182]]

    (9) Determinations of compliance and/or noncompliance.
    (f) The Administrator may approve and/or suggest modifications to a 
manufacturer's in-use testing program.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15239, Mar. 30, 1999]



Sec. 90.114  Requirement of certification--engine information label.

    (a) The engine manufacturer must affix at the time of manufacture a 
permanent and legible label identifying each nonroad engine. The label 
must meet the following requirements:
    (1) Be attached in such a manner that it cannot be removed without 
destroying or defacing the label;
    (2) Be durable and readable for the entire engine life;
    (3) Be secured to an engine part necessary for normal engine 
operation and not normally requiring replacement during engine life;
    (4) Be written in English; and
    (5) Be located so as to be readily visible to the average person 
after the engine is installed in the vehicle.
    (b) If the nonroad vehicle obscures the label on the engine, the 
nonroad vehicle manufacturer must attach a supplemental label so that 
this label is readily visible to the average person. The supplemental 
label must:
    (1) Be attached in such a manner that it cannot be removed without 
destroying or defacing the label;
    (2) Be secured to a vehicle part necessary for normal operation and 
not normally requiring replacement during the vehicle life; and
    (3) Be identical in content to the label which was obscured.
    (c) The label must contain the following information:
    (1) The heading ``Important Engine Information;''
    (2) The full corporate name and trademark of the engine 
manufacturer;
    (3) The statement, ``This (specify vehicle or engine, as applicable) 
is certified to operate on (specify operating fuel(s));''
    (4) Identification of the Exhaust Emission Control System 
(Abbreviations may be used and must conform to the nomenclature and 
abbreviations provided in the Society of Automotive Engineers procedure 
J1930, ``Electrical/Electronic Systems Diagnostic Terms, Definitions, 
Abbreviations and Acronyms,'' September 1991. This procedure has been 
incorporated by reference. See Sec. 90.7.);
    (5) All engine lubricant requirements;
    (6) Date of engine manufacture [day (optional), month and year];
    (7) The statement ``This engine conforms to [model year] U.S. EPA 
regulations for small nonroad engines.'';
    (8) EPA standardized engine family designation;
    (9) Engine displacement [in cubic centimeters];
    (10) Other information concerning proper maintenance and use or 
indicating compliance or noncompliance with other standards may be 
indicated on the label;
    (11) For Phase 2 engines, the useful life category as determined by 
the manufacturer pursuant to Sec. 90.105. Such useful life category 
shall be shown by one of the following statements to be appended to the 
statement required under paragraph (c)(7) of this section:
    (i) ``EMISSIONS COMPLIANCE PERIOD: [useful life] HOURS''; or
    (ii) ``EMISSIONS COMPLIANCE PERIOD: CATEGORY [fill in C, B or A as 
indicated and appropriate from the tables in Sec. 90.105], REFER TO 
OWNER'S MANUAL FOR FURTHER INFORMATION'';
    (d) If there is insufficient space on the engine (or on the vehicle 
where a supplemental label is required under paragraph (b) of this 
section) to accommodate a label including all the information required 
in paragraph (c) of this section, the manufacturer may delete or alter 
the label as indicated in this paragraph. The information deleted from 
the label must appear in the owner's manual.
    (1) Exclude the information required in paragraphs (c)(3), (4), and 
(5) of this section. The fuel or lubricant may be specified elsewhere on 
the engine.
    (2) Exclude the information required by paragraph (c)(6) of this 
section, if the date the engine was manufactured is stamped on the 
engine.
    (e) The Administrator may, upon request, waive or modify the label 
content requirements of paragraphs (c) and (d) of this section, provided 
that the intent of such requirements is met.

[[Page 183]]

    (f) Manufacturers electing to use the labeling language of paragraph 
(c)(11)(ii) of this section must provide in the documents intended to be 
conveyed to the ultimate purchaser, the statement:
    (1) For nonhandheld engines: The Emissions Compliance Period 
referred to on the Emissions Compliance label indicates the number of 
operating hours for which the engine has been shown to meet Federal 
emission requirements. For engines less than 225 cc displacement, 
Category C=125 hours, B=250 hours and A=500 hours. For engines of 225 cc 
or more, Category C=250 hours, B=500 hours and A=1000 hours.
    (2) [Reserved]
    (3) The manufacturer must provide, in the same document as the 
statement in paragraph (f)(1) of this section, a statement of the 
engine's displacement or an explanation of how to readily determine the 
engine's displacement. The Administrator may approve alternate language 
to the statement in paragraph (f)(1) of this section, provided that the 
alternate language provides the ultimate purchaser with a clear 
description of the number of hours represented by each of the three 
letter categories for the subject engine's displacement.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15239, Mar. 30, 1999]



Sec. 90.115  Requirement of certification--supplying production engines upon request.

    Upon the Administrator's request, the manufacturer must supply a 
reasonable number of production engines for testing and evaluation. 
These engines must be representative of typical production and supplied 
for testing at such time and place and for such reasonable periods as 
the Administrator may require.



Sec. 90.116  Certification procedure--determining engine displacement, engine class, and engine families.

    (a) Engine displacement must be calculated using nominal engine 
values and rounded to the nearest whole cubic centimeter in accordance 
with ASTM E29-93a. This procedure has been incorporated by reference. 
See Sec. 90.7.
    (b) Engines will be divided into classes by the following:
    (1) Class I--engines less than 225 cc in displacement,
    (2) Class II--engines greater than or equal to 225 cc in 
displacement,
    (3) Class III--handheld equipment engines less than 20 cc in 
displacement,
    (4) Class IV--handheld equipment engines equal or greater than 20 cc 
but less than 50 cc in displacement, and
    (5) Class V--handheld equipment engines equal to or greater than 50 
cc in displacement.
    (c) The manufacturer's product line will be divided into groupings 
of engine families as specified by paragraph (d) of this section.
    (d) To be classed in the same engine family, engines must be 
identical in all of the following applicable respects:
    (1) The combustion cycle;
    (2) The cooling mechanism;
    (3) The cylinder configuration (inline, vee, opposed, bore spacings, 
and so forth);
    (4) The number of cylinders;
    (5) The engine class;
    (6) The location of valves, where applicable, with respect to the 
cylinder (e.g. side valves or overhead valves);
    (7) The number of catalytic converters, location, volume and 
composition;
    (8) The thermal reactor characteristics;
    (9) The fuel required (e.g. gasoline, natural gas, LPG); and
    (10) The useful life category.
    (e) At the manufacturer's option, engines identical in all the 
respects listed in paragraph (d) of this section may be further divided 
into different engine families if the Administrator determines that they 
may be expected to have different emission characteristics. This 
determination is based upon the consideration of features such as:
    (1) The bore and stroke;
    (2) The combustion chamber configuration;
    (3) The intake and exhaust timing method of actuation (poppet valve, 
reed valve, rotary valve, and so forth);
    (4) The intake and exhaust valve or port sizes, as applicable;
    (5) The fuel system;
    (6) The exhaust system; and
    (7) The method of air aspiration.

[[Page 184]]

    (f) Where engines are of a type which cannot be divided into engine 
families based upon the criteria listed in paragraph (d) of this 
section, the Administrator will establish families for those engines 
based upon the features most related to their emission characteristics.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15239, Mar. 30, 1999]



Sec. 90.117  Certification procedure--test engine selection.

    (a) For Phase 1 engines, the manufacturer must select, from each 
engine family, a test engine that the manufacturer determines to be most 
likely to exceed the emission standard. For Phase 2 engines, the 
manufacturer must select, from each engine family, a test engine of a 
configuration that the manufacturer determines to be most likely to 
exceed the HC+NOX (NMHC+NOX) Family Emission Limit 
(FEL), or HC+NOX (NMHC+NOX) standard if no FEL is 
applicable.
    (b) The test engine must be constructed to be representative of 
production engines.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15239, Mar. 30, 1999]



Sec. 90.118  Certification procedure--service accumulation and usage of deterioration factors.

    (a)(1) The test engine must be operated with all emission control 
systems operating properly for a period sufficient to stabilize 
emissions.
    (2) The period sufficient to stabilize emissions may not exceed 12 
hours.
    (b) No maintenance, other than recommended lubrication and filter 
changes, may be performed during service accumulation without the 
Administrator's approval.
    (c) Service accumulation is to be performed in a manner using good 
engineering judgment to ensure that emissions are representative of 
production engines.
    (d) The manufacturer must maintain, and provide to the Administrator 
if requested, records stating the rationale for selecting a service 
accumulation period less than 12 hours and records describing the method 
used to accumulate hours on the test engine(s).
    (e) For purposes of establishing whether Phase 2 engines comply with 
applicable exhaust emission standards or FELs, the test results for each 
regulated pollutant as measured pursuant to Sec. 90.119 shall be 
multiplied by the applicable df determined under Sec. 90.104 (g) or (h). 
The product of the two numbers shall be rounded to the same number of 
decimal places contained in the applicable standard, and compared 
against the applicable standard or FEL, as appropriate.

[60 FR 34598, July 3, 1995, as amended at 61 FR 20742, May 8, 1996; 64 
FR 15239, Mar. 30, 1999]



Sec. 90.119  Certification procedure--testing.

    (a) Manufacturer testing. The manufacturer must test the test engine 
using the specified test procedures and appropriate test cycle. All test 
results must be reported to the Administrator.
    (1) The test procedure to be used is detailed in Subpart E of this 
part.
    (i) Class I and II engines must use Test Cycle A described in 
Subpart E of this part, except that Class I and II engine families in 
which 100 percent of the engines sold operate only at rated speed may 
use Test Cycle B described in subpart E of this part.
    (ii) Class III, IV, and V engines must use Test Cycle C described in 
subpart E of this part.
    (2) Emission test equipment provisions are described in subpart D of 
this part.
    (b) Administrator testing. (1) The Administrator may require that 
any one or more of the test engines be submitted to the Administrator, 
at such place or places as the Administrator may designate, for the 
purposes of conducting emission tests. The Administrator may specify 
that testing will be conducted at the manufacturer's facility, in which 
case instrumentation and equipment specified by the Administrator must 
be made available by the manufacturer for test operations. Any testing 
conducted at a manufacturer's facility must be scheduled by the 
manufacturer as promptly as possible.

[[Page 185]]

    (2)(i) Whenever the Administrator conducts a test on a test engine, 
the results of that test will, unless subsequently invalidated by the 
Administrator, comprise the official data for the engine and the 
manufacturer's data will not be used in determining compliance with 
emission standards.
    (ii) Prior to the performance of such test, the Administrator may 
adjust or cause to be adjusted any adjustable parameter of the test 
engine which the Administrator has determined to be subject to 
adjustment for certification testing, to any setting within the 
physically adjustable range of that parameter, to determine whether such 
engine conforms to applicable emission standards.
    (iii) For those engine parameters which the Administrator has not 
determined to be subject to adjustment for certification testing, the 
test engine presented to the Administrator for testing will be 
calibrated within the production tolerances applicable to the 
manufacturer specification shown on the engine label or in the owner's 
manual, as specified in the application for certification.
    (c) Use of carryover test data. In lieu of testing, the manufacturer 
may submit, with the Administrator's approval, emission test data used 
to certify substantially similar engine families in previous years. This 
``carryover'' test data is only allowable if the data shows the test 
engine would fully comply with the emission standards for the applicable 
class.
    (d) Scheduled maintenance during testing. No scheduled maintenance 
may be performed during testing of the engine.
    (e) Unscheduled maintenance on test engines. (1) Manufacturers may 
not perform any unscheduled engine, emission control system, or fuel 
system adjustment, repair, removal, disassembly, cleaning, or 
replacement on a test engine without the advance approval of the 
Administrator.
    (2) The Administrator may approve unscheduled maintenance if:
    (i) A preliminary determination has been made that a part failure or 
system malfunction, or the repair of such failure or malfunction, does 
not render the engine unrepresentative of engines in use, and does not 
require direct access to the combustion chamber; and
    (ii) A determination has been made that the need for maintenance or 
repairs is indicated by an overt malfunction such as persistent misfire, 
engine stall, overheating, fluid leakage, or loss of oil pressure.
    (3) Emission measurements may not be used as a means of determining 
the need for unscheduled maintenance under paragraph (e)(2) of this 
section.
    (4) The Administrator must have the opportunity to verify the extent 
of any overt indication of part failure (for example, misfire, stall), 
or an activation of an audible and/or visual signal, prior to the 
manufacturer performing any maintenance related to such overt indication 
or signal.
    (5) Unless approved by the Administrator prior to use, engine 
manufacturers may not use any equipment, instruments, or tools to 
identify malfunctioning, maladjusted, or defective engine components 
unless the same or equivalent equipment, instruments, or tools are 
available at dealerships and other service outlets and are used in 
conjunction with scheduled maintenance on such components.
    (6) If the Administrator determines that part failure or system 
malfunction occurrence and/or repair rendered the engine 
unrepresentative of production engines, the engine cannot be used as a 
test engine.
    (7) Unless waived by the Administrator, complete emission tests are 
required before and after any engine maintenance which may reasonably be 
expected to affect emissions.
    (f) Engine failure. A manufacturer may not use as a test engine any 
engine which incurs major mechanical failure necessitating disassembly 
of the engine. This prohibition does not apply to failures which occur 
after completion of the service accumulation period.



Sec. 90.120  Certification procedure--use of special test procedures.

    (a) Use of special test procedures by EPA. The Administrator may 
establish special test procedures for any engine that the Administrator 
determines is not susceptible to satisfactory testing

[[Page 186]]

under the specified test procedures set forth in subpart E of this part.
    (b)(1) Use of alternate test procedures by an engine manufacturer. A 
manufacturer may elect to use an alternate test procedure provided that 
it yields results equal to the results from the specified test procedure 
in subpart E, its use is approved in advance by the Administrator, and 
the basis for equivalent results with the specified test procedure is 
fully described in the manufacturer's application.
    (2) An engine manufacturer electing to use alternate test procedures 
is solely responsible for the results obtained. The Administrator may 
reject data generated under test procedures which do not correlate with 
data generated under the specified procedures.
    (c) Optional procedures approved during Phase 1 can be carried over 
to Phase 2, following advance approval by the Administrator, to the 
extent the alternate procedure continues to yield results equal to the 
results from the specified test procedures in subpart E of this part.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15239, Mar. 30, 1999]



Sec. 90.121  Certification procedure--recordkeeping.

    (a) The engine manufacturer must maintain the following adequately 
organized records:
    (1) Copies of all applications filed with the Administrator;
    (2) A copy of all data obtained through the in-use testing program; 
and
    (3) A detailed history of each test engine used for certification 
including the following:
    (i) A description of the test engine's construction, including a 
general description of the origin and buildup of the engine, steps taken 
to insure that it is representative of production engines, description 
of components specially built for the test engine, and the origin and 
description of all emission-related components;
    (ii) A description of the method used for engine service 
accumulation, including date(s) and the number of hours accumulated;
    (iii) A description of all maintenance, including modifications, 
parts changes, and other servicing performed, and the date(s), and 
reason(s) for such maintenance;
    (iv) A description of all emission tests performed including routine 
and standard test documentation, as specified in subpart E of this part, 
date(s), and the purpose of each test;
    (v) A description of all tests performed to diagnose engine or 
emission control performance, giving the date and time of each and the 
reason(s) for the test; and
    (vi) A description of any significant event(s) affecting the engine 
during the period covered by the history of the test engine but not 
described by an entry under one of the previous paragraphs of this 
section.
    (b) Routine emission test data, such as those reporting test cell 
temperature and relative humidity at start and finish of test and raw 
emission results from each mode or test phase, must be retained for a 
period of one year after issuance of all certificates of conformity to 
which they relate. All other information specified in paragraph (a) of 
this section must be retained for a period of eight years after issuance 
of all certificates of conformity to which they relate.
    (c) Records may be kept in any format and on any media, provided 
that, at the Administrator's request, organized, written records in 
English are promptly supplied by the manufacturer.
    (d) The manufacturer must supply, at the Administrator's request, 
copies of any engine maintenance instructions or explanations issued by 
the manufacturer.



Sec. 90.122  Amending the application and certificate of conformity.

    (a) The engine manufacturer must notify the Administrator when 
either an engine is to be added to a certificate of conformity, an FEL 
is to be changed, or changes are to be made to a product line covered by 
a certificate of conformity. Notification occurs when the manufacturer 
submits an amendment to the original application prior to either 
producing such engines or making such changes to a product line.

[[Page 187]]

    (b) The amendment must request that the engine manufacturer's 
existing certificate of conformity be amended and include the following 
information:
    (1) A full description of the engine to be added or the change(s) to 
be made in production;
    (2) The manufacturer's proposed test engine selection(s); and
    (3) Engineering evaluations or reasons why the original test engine 
is or is not still appropriate.
    (c) The Administrator may require the engine manufacturer to perform 
tests on an engine representing the engine to be added or changed.
    (d) Decision by Administrator. (1) Based on the submitted amendment 
and data derived from such testing as the Administrator may require or 
conduct, the Administrator must determine whether the proposed addition 
or change would still be covered by the certificate of conformity then 
in effect.
    (2) If the Administrator determines that the new or changed 
engine(s) meets the requirements of this subpart and the Act, the 
appropriate certificate of conformity will be amended.
    (3) If the Administrator determines that the proposed amendment 
would not be covered by the certificate of conformity, the Administrator 
must provide a written explanation to the engine manufacturer of his or 
her decision not to amend the certificate. The manufacturer may request 
a hearing on a denial.
    (4) If the Administrator determines that a revised FEL meets the 
requirements of this subpart and the Act, the appropriate certificate of 
conformity will be amended, or a new certificate will be issued to 
reflect the revised FEL. The certificate of conformity is revised 
conditional upon compliance with Sec. 90.207(b).
    (e)(1) Alternatively, an engine manufacturer may make changes in or 
additions to production engines concurrently with amending the 
application as set forth in paragraph (b) of this section, if the 
manufacturer determines that all affected engines will still meet 
applicable emission standards. The engine manufacturer must supply 
supporting documentation, test data, and engineering evaluations as 
appropriate to support its determination.
    (2) If, after a review, the Administrator determines additional 
testing is required, the engine manufacturer must provide required test 
data within 30 days or cease production of the affected engines.
    (3) If the Administrator determines that the affected engines do not 
meet applicable requirements, the Administrator will notify the engine 
manufacturer to cease production of the affected engines.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15239, Mar. 30, 1999]



Sec. 90.123  Denial, revocation of certificate of conformity.

    (a) If, after review of the engine manufacturer's application, 
request for certification, information obtained from any inspection, and 
any other information the Administrator may require, the Administrator 
determines that the test engine does not meet applicable standards and 
requirements, the Administrator will notify the manufacturer in writing, 
setting forth the basis for this determination.
    (b) Notwithstanding the fact that engines described in the 
application may comply with all other requirements of this subpart, the 
Administrator may deny the issuance of or revoke a previously issued 
certificate of conformity if the Administrator finds any one of the 
following infractions to be substantial:
    (1) The engine manufacturer submits false or incomplete information;
    (2) The engine manufacturer denies an EPA enforcement officer or EPA 
authorized representative the opportunity to conduct authorized 
inspections;
    (3) The engine manufacturer fails to supply requested information or 
amend its application to include all engines being produced;
    (4) The engine manufacturer renders inaccurate any test data which 
it submits or otherwise circumvents the intent of the Act or this part; 
or
    (5) The engine manufacturer denies an EPA enforcement officer or EPA 
authorized representative reasonable assistance (as defined in 
Sec. 90.506).

[[Page 188]]

    (c) If a manufacturer knowingly commits an infraction specified in 
paragraph (b)(1) or (b)(4) of this section or knowingly commits any 
fraudulent act which results in the issuance of a certificate of 
conformity, the Administrator may deem such certificate void ab initio.
    (d) When the Administrator denies or revokes a certificate of 
conformity, the engine manufacturer will be provided a written 
determination. The manufacturer may request a hearing on the 
Administrator's decision.
    (e) Any revocation of a certificate of conformity extends no further 
than to forbid the introduction into commerce of those engines 
previously covered by the certification which are still in the 
possession of the engine manufacturer, except in cases of such fraud or 
other misconduct that makes the certification void ab initio.



Sec. 90.124  Request for hearing.

    (a) An engine manufacturer may request a hearing on the 
Administrator's denial or revocation of a certificate of conformity.
    (b) The engine manufacturer's request must be filed within 30 days 
of the Administrator's decision, be in writing, and set forth the 
manufacturer's objections to the Administrator's decision and data to 
support the objections.
    (c) If, after review of the request and supporting data, the 
Administrator finds that the request raises a substantial and factual 
issue, the Administrator will provide the engine manufacturer a hearing.



Sec. 90.125  Hearing procedures.

    The hearing procedures set forth in Secs. 90.513, 90.514, and 90.515 
apply to this subpart.



Sec. 90.126  Right of entry and access.

    Any engine manufacturer that has applied for certification of a new 
engine or engine family subject to certification testing under this 
subpart must admit or cause to be admitted to any applicable facilities 
during operating hours any EPA enforcement officer or EPA authorized 
representative as provided in Sec. 90.506.



   Subpart C--Certification Averaging, Banking, and Trading Provisions

    Source: 64 FR 15239, Mar. 30, 1999, unless otherwise noted.



Sec. 90.201  Applicability.

    The requirements of this subpart C are applicable to all Phase 2 
spark-ignition engines subject to the provisions of subpart A of this 
part except as provided in Sec. 90.103(a). These provisions are not 
applicable to any Phase 1 engines. Participation in the averaging, 
banking and trading program is voluntary, but if a manufacturer elects 
to participate, it must do so in compliance with the regulations set 
forth in this subpart. The provisions of this subpart are applicable for 
HC+NOX (NMHC+NOX) emissions but not for CO 
emissions.



Sec. 90.202  Definitions.

    The definitions in subpart A of this part apply to this subpart. The 
following definitions also apply to this subpart:
    Averaging means the exchange of emission credits between engine 
families within a given manufacturer's product line.
    Banking means the retention of emission credits by the manufacturer 
generating the emission credits or obtaining such credits through 
trading, for use in future model year averaging or trading as permitted 
in this part.
    Emission credits represent the amount of emission reduction or 
exceedance, by an engine family, below or above the applicable 
HC+NOX (NMHC+NOX) emission standard, respectively. 
FELs below the standard create ``positive credits,'' while FELs above 
the standard create ``negative credits.'' In addition, ``projected 
credits'' refer to emission credits based on the projected applicable 
production volume of the engine family. ``Reserved credits'' are 
emission credits generated within a model year waiting to be reported to 
EPA at the end of the model year. ``Actual credits'' refer to emission 
credits based on actual applicable production volume as contained in the 
end-of-year reports submitted to EPA. Some or all of these credits may 
be revoked if EPA

[[Page 189]]

review of the end-of-year reports or any subsequent audit action(s) 
reveals problems or errors of any nature with credit computations.
    Trading means the exchange of emission credits between 
manufacturers.



Sec. 90.203  General provisions.

    (a) The certification averaging, banking, and trading provisions for 
HC+NOX and NMHC+NOX emissions from eligible 
engines are described in this subpart.
    (b) An engine family may use the averaging, banking and trading 
provisions for HC+NOX and NMHC+NOX emissions if it 
is subject to regulation under this part with certain exceptions 
specified in paragraph (c) of this section. HC+NOX and 
NMHC+NOX credits shall be interchangeable subject to the 
limitations on credit generation, credit usage, and other provisions 
described in this subpart.
    (c) A manufacturer shall not include in its calculation of credit 
generation and may exclude from its calculation of credit usage, any new 
engines:
    (1) Which are intended to be exported, unless the manufacturer has 
reason or should have reason to believe that such engines have been or 
will be imported in a piece of equipment; or
    (2) Which are subject to state engine emission standards pursuant to 
a waiver granted by EPA under section 209(e) of the Act, unless the 
manufacturer demonstrates to the satisfaction of the Administrator that 
inclusion of these engines in averaging, banking and trading is 
appropriate.
    (d) For an engine family using credits, a manufacturer may, at its 
option, include its entire production of that engine family in its 
calculation of credit usage for a given model year.
    (e)(1) A manufacturer may certify engine families at Family Emission 
Limits (FELs) above or below the applicable emission standard subject to 
the limitation in paragraph (f) of this section, provided the summation 
of the manufacturer's projected balance of credits from all credit 
transactions for all engine classes in a given model year is greater 
than or equal to zero, as determined under Sec. 90.207.
    (2) A manufacturer of an engine family with an FEL exceeding the 
applicable emission standard must obtain positive emission credits 
sufficient to address the associated credit shortfall via averaging, 
banking, or trading.
    (3) An engine family with an FEL below the applicable emission 
standard may generate positive emission credits for averaging, banking, 
or trading, or a combination thereof.
    (4) In the case of a Selective Enforcement Audit (SEA) failure, 
credits may be used to cover subsequent production of engines for the 
family in question if the manufacturer elects to recertify to a higher 
FEL. Credits may not be used to remedy a nonconformity determined by an 
SEA, except that the Administrator may permit the use of credits to 
address a nonconformity determined by an SEA where the use of such 
credits is one component of a multi-part remedy for the previously 
produced engines and the remedy, including the use of credits and the 
quantity of credits being used, is such that the Administrator is 
satisfied that the manufacturer has strong and lasting incentive to 
accurately verify its new engine emission levels and will set or reset 
its FELs for current and future model years so that production line 
compliance is assured.
    (5) In the case of a production line testing (PLT) failure pursuant 
to subpart H of this part, a manufacturer may revise the FEL based upon 
production line testing results obtained under subpart H of this part 
and upon Administrator approval pursuant to Sec. 90.122(d). The 
manufacturer may use credits to cover both past production and 
subsequent production of the engines as needed as allowed under 
Sec. 90.207(c).
    (f) No Phase 2 engine family may have a HC + NOX FEL that 
is greater than 32.2 g/kW-hr for Class I engines and 26.8 g/kW-hr for 
Class II engines.
    (g)(1) Credits generated in a given model year by an engine family 
subject to the Phase 2 emission requirements may only be used in 
averaging, banking or trading, as appropriate, for any other engine 
family for which the Phase 2 requirements are applicable. Credits 
generated in one model year may not be used for prior model years, 
except as allowed under Sec. 90.207(c).

[[Page 190]]

    (2) For the 2005 model year and for each subsequent model year, 
manufacturers of Class II engines must provide a demonstration that the 
production weighted average FEL for HC+NOX (including 
NMHC+NOX FELs), for all of the manufacturer's Class II 
engines, will not exceed 13.6 g/kW-hr for the 2005 model year, 13.1 g/
kW-hr for the 2006 model year and 12.6 g/kW-hr for the 2007 and each 
subsequent Phase 2 model year. Such demonstration shall be subject to 
the review and approval of the Administrator, shall be provided at the 
time of the first Class II certification of that model year and shall be 
based on projected eligible production for that model year.
    (h) Manufacturers must demonstrate compliance under the averaging, 
banking, and trading provisions for a particular model year by 270 days 
after the end of the model year. Except as provided in Sec. 90.207(c), 
an engine family generating negative credits for which the manufacturer 
does not obtain or generate an adequate number of positive credits by 
that date from the same or previous model year engines will violate the 
conditions of the certificate of conformity. The certificate of 
conformity may be voided ab initio pursuant to Sec. 90.123 for this 
engine family.



Sec. 90.204  Averaging.

    (a) Negative credits from engine families with FELs above the 
applicable emission standard must be offset by positive credits from 
engine families having FELs below the applicable emission standard, as 
allowed under the provisions of this subpart. Averaging of credits in 
this manner is used to determine compliance under Sec. 90.207(b).
    (b) Cross-class averaging of credits is allowed across all classes 
of nonroad spark-ignition nonhandheld engines at or below 19 kW.
    (c) Credits used in averaging for a given model year may be obtained 
from credits generated in the same model year by another engine family, 
credits banked in previous model years, or credits of the same or 
previous model year obtained through trading. The restrictions of this 
paragraph notwithstanding, credits from a given model year may be used 
to address credit needs of previous model year engines as allowed under 
Sec. 90.207(c).
    (d) The use of credits generated under the early banking provisions 
of Sec. 90.205(b) is subject to regulations under this subpart.



Sec. 90.205  Banking.

    (a)(1) Beginning August 1, 2007, a manufacturer of a Class I engine 
family with an FEL below the applicable emission standard for a given 
model year may bank credits in that model year for use in averaging and 
trading. For new Class I engine families initially produced during the 
period starting August 1, 2003 through July 31, 2007, a manufacturer of 
a Class I engine family with an FEL below the applicable emission 
standard for a given model year may bank credits in that model year for 
use in averaging and trading.
    (2) [Reserved]
    (3) Beginning with the 2001 model year, a manufacturer of a Class II 
engine family with an FEL below the applicable emission standard for a 
given model year may bank credits in that model year for use in 
averaging and trading.
    (4)-(5) [Reserved]
    (6) Negative credits may be banked only according to the 
requirements under Sec. 90.207(c).
    (b)(1) For Class I engine families initially produced during the 
period beginning with the 1999 model year and prior to August 1, 2003, a 
manufacturer may bank early credits for engines with HC + NOX 
FELs below 16.1 g/kW-hr. All early credits for such Class I engines 
shall be calculated against a HC + NOX level of 20.5 g/kW-hr 
and may continue to be calculated against the 20.5 g/kW-hr level until 
August 1, 2007.
    (2) Beginning with the 1999 model year and prior to the applicable 
date listed in paragraph (a) of this section for Class II engines, a 
manufacturer may bank early credits for all Class II engines with 
HC+NOX FELs below 12.1 g/kW-hr. All early credits for Class 
II engines shall be calculated against a HC+NOX level of 18.0 
g/kW-hr.
    (3)-(5) [Reserved]
    (6) Engines certified under the early banking provisions of this 
paragraph are subject to all of the requirements

[[Page 191]]

of this part applicable to Phase 2 engines.
    (c) A manufacturer may bank actual credits only after the end of the 
model year and after EPA has reviewed the manufacturer's end-of-year 
reports. During the model year and before submittal of the end-of-year 
report, credits originally designated in the certification process for 
banking will be considered reserved and may be redesignated for trading 
or averaging in the end-of-year report and final report.
    (d) Credits declared for banking from the previous model year that 
have not been reviewed by EPA may be used in averaging or trading 
transactions. However, such credits may be revoked at a later time 
following EPA review of the end-of-year report or any subsequent audit 
actions.



Sec. 90.206  Trading.

    (a) An engine manufacturer may exchange emission credits with other 
engine manufacturers in trading.
    (b) Credits for trading can be obtained from credits banked in 
previous model years or credits generated during the model year of the 
trading transaction.
    (c) Traded credits can be used for averaging, banking, or further 
trading transactions.
    (d) Traded credits are subject to the limitations on use for past 
model years, as set forth in Sec. 90.204(c).
    (e) In the event of a negative credit balance resulting from a 
transaction, both the buyer and the seller are liable, except in cases 
involving fraud. Certificates of all engine families participating in a 
negative trade may be voided ab initio pursuant to Sec. 90.123.



Sec. 90.207  Credit calculation and manufacturer compliance with emission standards.

    (a) For each engine family, HC+NOX [NMHC+NOX] 
certification emission credits (positive or negative) are to be 
calculated according to the following equation and rounded to the 
nearest gram. Consistent units are to be used throughout the equation.

Credits = Production x (Standard--FEL) x Power x Useful life x Load 
    Factor
Where:

Production = eligible production as defined in this part. Annual 
production projections are used to project credit availability for 
initial certification. Eligible production volume is used in determining 
actual credits for end-of-year compliance determination.
Standard = the current and applicable Small SI engine HC+NOX 
(NMHC+NOX) emission standard in grams per kilowatt hour as 
determined in Sec. 90.103 or, for early credits, the applicable emission 
level as specified in Sec. 90.205(b).
FEL = the family emission limit for the engine family in grams per 
kilowatt hour.
Power = the maximum modal power of the certification test engine, in 
kilowatts, as calculated from the applicable federal test procedure as 
described in this part.
Useful Life = the useful life in hours corresponding to the useful life 
category for which the engine family was certified.
Load Factor = 47 percent (i.e., 0.47) for Test Cycle A and Test Cycle B. 
For approved alternate test procedures, the load factor must be 
calculated according to the following formula:
[GRAPHIC] [TIFF OMITTED] TN05AP99.000

Where:

%MTT modei = percent of the maximum FTP torque for mode i.
%MTS modei = percent of the maximum FTP engine rotational 
speed for mode i.
WF modei = the weighting factor for mode i.

    (b) Manufacturer compliance with the emission standards is 
determined on a corporate average basis at the end of each model year. A 
manufacturer is in compliance when the sum of positive and negative 
emission credits it holds is greater than or equal to zero, except that 
the sum of positive and negative credits may be less than zero as 
allowed under paragraph (c) of this section.

[[Page 192]]

    (c) If, as a result of production line testing as required in 
subpart H of this part, an engine family is determined to be in 
noncompliance pursuant to Sec. 90.710, the manufacturer may raise its 
FEL for past and future production as necessary. Further, a manufacturer 
may carry a negative credit balance (known also as a credit deficit) for 
the subject class and model year and for the next three model years. The 
credit deficit may be no larger than that created by the nonconforming 
family. If the credit deficit still exists after the model year 
following the model year in which the nonconformity occurred, the 
manufacturer must obtain and apply credits to offset the remaining 
credit deficit at a rate of 1.2 grams for each gram of deficit within 
the next two model years. The provisions of this paragraph are subject 
to the limitations in paragraph (d) of this section.
    (d) Regulations elsewhere in this part notwithstanding, if an engine 
manufacturer experiences two or more production line testing failures 
pursuant to the regulations in subpart H of this part in a given model 
year, the manufacturer may raise the FEL of previously produced engines 
only to the extent that such engines represent no more than 10 percent 
of the manufacturer's total eligible production for that model year, as 
determined on the date when the FEL is adjusted. For any additional 
engine families determined to be in noncompliance, the manufacturer must 
conduct offsetting projects approved in advance by the Administrator.
    (e) If, as a result of production line testing under this subpart, a 
manufacturer desires to lower its FEL it may do so subject to 
Sec. 90.708(c).
    (f) Except as allowed at paragraph (c) of this section, when a 
manufacturer is not in compliance with the applicable emission standard 
by the date 270 days after the end of the model year, considering all 
credit calculations and transactions completed by then, the manufacturer 
will be in violation of the regulations in this part and EPA may, 
pursuant to Sec. 90.123, void ab initio the certificates of engine 
families for which the manufacturer has not obtained sufficient positive 
emission credits.

[64 FR 15239, Mar. 30, 1999; 64 FR 16526, Apr. 5, 1999]



Sec. 90.208  Certification.

    (a) In the application for certification a manufacturer must:
    (1) Submit a statement that the engines for which certification is 
requested will not, to the best of the manufacturer's belief, cause the 
manufacturer to be in noncompliance under Sec. 90.207(b) when all 
credits are calculated for the manufacturer's engine families.
    (2) Declare an FEL for each engine family for HC+NOX 
(NMHC+NOX). The FEL must have the same number of significant 
digits as the emission standard.
    (3) Indicate the projected number of credits generated/needed for 
this family; the projected applicable eligible annual production volume, 
and the values required to calculate credits as given in Sec. 90.207.
    (4) Submit calculations in accordance with Sec. 90.207 of projected 
emission credits (positive or negative) based on annual production 
projections for each family.
    (5) (i) If the engine family is projected to have negative emission 
credits, state specifically the source (manufacturer/engine family or 
reserved) of the credits necessary to offset the credit deficit 
according to projected annual production.
    (ii) If the engine family is projected to generate credits, state 
specifically (manufacturer/engine family or reserved) where the 
projected annual credits will be applied.
    (iii) The manufacturer may supply the information required by this 
section in the form of a spreadsheet detailing the manufacturer's annual 
production plans and the credits generated or consumed by each engine 
family.
    (b) All certificates issued are conditional upon manufacturer 
compliance with the provisions of this subpart both during and after the 
model year of production.
    (c) Failure to comply with all provisions of this subpart will be 
considered to be a failure to satisfy the conditions upon which the 
certificate was issued,

[[Page 193]]

and the certificate may be determined to be void ab initio pursuant to 
Sec. 90.123.
    (d) The manufacturer bears the burden of establishing to the 
satisfaction of the Administrator that the conditions upon which the 
certificate was issued were satisfied or waived.
    (e) Projected credits based on information supplied in the 
certification application may be used to obtain a certificate of 
conformity. However, any such credits may be revoked based on review of 
end-of-year reports, follow-up audits, and any other verification steps 
considered appropriate by the Administrator.



Sec. 90.209  Maintenance of records.

    (a) The manufacturer must establish, maintain, and retain the 
following adequately organized and indexed records for each engine 
family:
    (1) EPA engine family identification code;
    (2) Family Emission Limit (FEL) or FELs where FEL changes have been 
implemented during the model year;
    (3) Maximum modal power for the certification test engine;
    (4) Projected production volume for the model year; and
    (5) Records appropriate to establish the quantities of engines that 
constitute eligible production as defined in Sec. 90.3 for each FEL.
    (b) Any manufacturer producing an engine family participating in 
trading reserved credits must maintain the following records on an 
annual basis for each such engine family:
    (1) The engine family;
    (2) The actual applicable production volume;
    (3) The values required to calculate credits as given in 
Sec. 90.207;
    (4) The resulting type and number of credits generated/required;
    (5) How and where credit surpluses are dispersed; and
    (6) How and through what means credit deficits are met.
    (c) The manufacturer must retain all records required to be 
maintained under this section for a period of eight years from the due 
date for the end-of-model year report. Records may be retained as hard 
copy or reduced to microfilm, ADP diskettes, and so forth, depending on 
the manufacturer's record retention procedure; provided, that in every 
case all information contained in the hard copy is retained.
    (d) Nothing in this section limits the Administrator's discretion in 
requiring the manufacturer to retain additional records, or submit 
information not specifically required by this section, if otherwise 
permitted by law.
    (e) Pursuant to a request made by the Administrator, the 
manufacturer must submit to the Administrator the information that the 
manufacturer is required to retain.
    (f) EPA may, pursuant to Sec. 90.123, void ab initio a certificate 
of conformity for an engine family for which the manufacturer fails to 
retain the records required in this section or to provide such 
information to the Administrator upon request.



Sec. 90.210  End-of-year and final reports.

    (a) End-of-year and final reports must indicate the engine family, 
the engine class, the actual production volume, the values required to 
calculate credits as given in Sec. 90.207, and the number of credits 
generated/required. Manufacturers must also submit how and where credit 
surpluses were dispersed (or are to be banked) and/or how and through 
what means credit deficits were met. Copies of contracts related to 
credit trading must be included or supplied by the broker, if 
applicable. The report must include a calculation of credit balances to 
show that the credit summation for all engines is equal to or greater 
than zero (or less than zero in cases of negative credit balances as 
permitted in Sec. 90.207(c)). For model year 2005 and later, the report 
must include a calculation of the production weighted average 
HC+NOX (including NMHC+NOX) FEL for Class II 
engine families to show compliance with the provisions of 
Sec. 90.203(g)(2).
    (b) The calculation of eligible production for end-of-year and final 
reports must be based on engines produced for the United States market, 
excluding engines which are subject to state emission standards pursuant 
to a waiver granted by EPA under section 209(e) of the Act. Upon advance 
written request, the Administrator will consider other methods to track 
engines for

[[Page 194]]

credit calculation purposes that provide high levels of confidence that 
eligible production or sales are accurately counted.
    (c)(1)End-of-year reports must be submitted within 90 days of the 
end of the model year to: Manager, Engine Compliance Programs Group 
(6403-J), U.S. Environmental Protection Agency, Washington, DC 20460.
    (2) Unless otherwise approved by the Administrator, final reports 
must be submitted within 270 days of the end of the model year to: 
Manager, Engine Compliance Programs Group (6403-J), U.S. Environmental 
Protection Agency, Washington, DC 20460.
    (d) Failure by a manufacturer to submit any end-of-year or final 
reports in the specified time for any engines subject to regulation 
under this part is a violation of Sec. 90.1003(a)(2) and section 213(d) 
of the Clean Air Act for each engine.
    (e) A manufacturer generating credits for banking only who fails to 
submit end-of-year reports in the applicable specified time period (90 
days after the end of the model year) may not use the credits until such 
reports are received and reviewed by EPA. Use of projected credits 
pending EPA review is not permitted in these circumstances.
    (f) Errors discovered by EPA or the manufacturer in the end-of-year 
report, including errors in credit calculation, may be corrected in the 
final report.
    (g) If EPA or the manufacturer determines that a reporting error 
occurred on an end-of-year or final report previously submitted to EPA 
under this section, the manufacturer's credits and credit calculations 
must be recalculated. Erroneous positive credits will be void except as 
provided in paragraph (h) of this section. Erroneous negative credit 
balances may be adjusted by EPA.
    (h) If EPA review determines a reporting error in the manufacturer's 
favor (that is, resulting in an increased credit balance) or if the 
manufacturer discovers such an error within 270 days of the end of the 
model year, EPA shall restore the credits for use by the manufacturer.



Sec. 90.211  Request for hearing.

    An engine manufacturer may request a hearing on the Administrator's 
voiding of the certificate under Secs. 90.203(h), 90.206(e), 90.207(f), 
90.208(c), or 90.209(f), pursuant to Sec. 90.124. The procedures of 
Sec. 90.125 shall apply to any such hearing.



              Subpart D--Emission Test Equipment Provisions



Sec. 90.301  Applicability.

    (a) This subpart describes the equipment required in order to 
perform exhaust emission tests on new nonroad spark-ignition engines and 
vehicles subject to the provisions of subpart A of this part. Certain 
text in this subpart is identified as pertaining to Phase 1 or Phase 2 
engines. Such text pertains only to engines of the specified Phase. If 
no indication of Phase is given, the text pertains to all engines, 
regardless of Phase.
    (b) Exhaust gases, either raw or dilute, are sampled while the test 
engine is operated using a steady state test cycle on an engine 
dynamometer. The exhaust gases receive specific component analysis 
determining concentration of pollutant. Emission concentrations are 
converted to mass emission rates in grams per hour based on either fuel 
flow, fuel flow and engine intake air flow, or exhaust volume flow. 
Weighted emission rates are reported as grams per brake-kilowatt hour 
(g/kW-hr). See subpart E of this part for a complete description of the 
test procedure.
    (c) Additional information about system design, calibration 
methodologies, and so forth, for raw gas sampling can be found in part 
86, subpart D of this chapter. Examples for system design, calibration 
methodologies, and so forth, for dilute exhaust gas sampling can be 
found in part 86, subpart N of this chapter.
    (d) For Phase 2 Class I, and Phase 2 Class II natural gas fueled 
engines, the following sections from 40 CFR Part 86 are applicable to 
this subpart. The requirements of these sections which pertain 
specifically to the measurement and calculation of non-methane 
hydrocarbon (NMHC) exhaust emissions from otto cycle heavy-duty engines 
must be

[[Page 195]]

followed when determining the NMHC exhaust emissions from Phase 2 Class 
I, and Phase 2 Class II natural gas fueled engines. Those sections are: 
40 CFR 86.1306-90 Equipment required and specifications; overview, 40 
CFR 86.1309-90 Exhaust gas sampling system; otto-cycle engines, 40 CFR 
86.1311-94 Exhaust gas analytical system; CVS bag sampling, 40 CFR 
86.1313-94(e) Fuel Specification--Natural gas-fuel, 40 CFR 86.1314-94 
Analytical gases, 40 CFR 86.1316-94 Calibrations; frequency and 
overview, 40 CFR 86.1321-94 Hydrocarbon analyzer calibration, 40 CFR 
86.1325-94 Methane analyzer calibration, 40 CFR 86.1327-94 Engine 
dynamometer test procedures, overview, 40 CFR 86.1340-94 Exhaust sample 
analysis, 40 CFR 86.1342-94 Calculations; exhaust emissions, 40 CFR 
86.1344-94(d) Required information--Pre-test data, 40 CFR 86.1344-94(e) 
Required information--Test data.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15243, Mar. 30, 1999]



Sec. 90.302  Definitions.

    The definitions in Sec. 90.3 apply to this subpart. The following 
definitions also apply to this subpart.
    Intermediate speed means the engine speed which is 85 percent of the 
rated speed.
    Natural gas means a fuel whose primary constituent is methane.
    Rated speed means the speed at which the manufacturer specifies the 
maximum rated power of an engine.

[64 FR 15243, Mar. 30, 1999]



Sec. 90.303  Symbols, acronyms, abbreviations.

    (a) The acronyms and abbreviations in Sec. 90.5 apply to this 
subpart.
    (b) The symbols in Table 1 in Appendix A of this subpart apply to 
this subpart.



Sec. 90.304  Test equipment overview.

    (a) All engines subject to this subpart are tested for exhaust 
emissions. Engines are operated on dynamometers meeting the 
specification given in Sec. 90.305.
    (b) The exhaust is tested for gaseous emissions using a raw gas 
sampling system as described in Sec. 90.414 or a constant volume 
sampling (CVS) system as described in Sec. 90.421. Both systems require 
analyzers (see paragraph (c) of this section) specific to the pollutant 
being measured.
    (c) Analyzers used are a non-dispersive infrared (NDIR) absorption 
type for carbon monoxide and carbon dioxide analysis; paramagnetic 
(PMD), zirconia (ZRDO), or electrochemical type (ECS) for oxygen 
analysis; a flame ionization (FID) or heated flame ionization (HFID) 
type for hydrocarbon analysis; and a chemiluminescent detector (CLD) or 
heated chemiluminescent detector (HCLD) for oxides of nitrogen analysis.



Sec. 90.305  Dynamometer specifications and calibration accuracy.

    (a) Dynamometer specifications. The dynamometer test stand and other 
instruments for measurement of speed and power output must meet the 
engine speed and torque accuracy requirements shown in Table 2 in 
Appendix A of this subpart. The dynamometer must be capable of 
performing the test cycle described in Sec. 90.410.
    (b) Dynamometer calibration accuracy. (1) The dynamometer test stand 
and other instruments for measurement of power output must meet the 
calibration frequency shown in Table 2 in Appendix A of this subpart.
    (2) A minimum of three calibration weights for each range used is 
required. The weights must be equally spaced and traceable to within 0.5 
percent of National Institute for Standards and Testing (NIST) weights. 
Laboratories located in foreign countries may certify calibration 
weights to local government bureau standards.



Sec. 90.306  Dynamometer torque cell calibration.

    (a)(1) Any lever arm used to convert a weight or a force through a 
distance into a torque must be used in a horizontal position for 
horizontal shaft dynamometers ( five degrees). For vertical 
shaft dynamometers, a pulley system may be used to convert the 
dynamometer's horizontal loading into the vertical plane.
    (2) Calculate the indicated torque (IT) for each calibration weight 
to be used by:


[[Page 196]]


IT=Moment Arm (meters)  x  Calibration Weight (Newtons)

    (3) Attach each calibration weight specified in Sec. 90.305(b)(2) to 
the moment arm at the calibration distance determined in paragraph 
(a)(2) of this section. Record the power measurement equipment response 
(N-m) to each weight.
    (4) Compare the torque value measured to the calculated torque.
    (5) The measured torque must be within two percent of the calculated 
torque.
    (6) If the measured torque is not within two percent of the 
calculated torque, adjust or repair the system. Repeat steps in 
paragraphs (a)(1) through (a)(6) of this section with the adjusted or 
repaired system.
    (b) Option. A master load-cell or transfer standard may be used to 
verify the torque measurement system.
    (1) The master load-cell and read out system must be calibrated 
using weights specified in Sec. 90.305(b)(2).
    (2) Attach the master load-cell and loading system.
    (3) Load the dynamometer to a minimum of three equally spaced torque 
values as indicated by the master load-cell for each in-use range used.
    (4) The in-use torque measurement must be within two percent of the 
torque measured by the master system for each load used.
    (5) If the in-use torque is not within two percent of the master 
torque, adjust or repair the system. Repeat steps in paragraphs (b)(2) 
through (b)(4) of this section with the adjusted or repaired system.
    (c) Calibrated resistors may not be used for engine flywheel torque 
transducer calibration, but may be used to span the transducer prior to 
engine testing.
    (d) Other engine dynamometer system calibrations such as speed are 
performed as specified by the dynamometer manufacturer or as dictated by 
good engineering practice.



Sec. 90.307  Engine cooling system.

    An engine cooling system is required with sufficient capacity to 
maintain the engine at normal operating temperatures as prescribed by 
the engine manufacturer. Auxiliary fan(s) may be used to maintain 
sufficient engine cooling during engine dynamometer operation.



Sec. 90.308  Lubricating oil and test fuels.

    (a) Lubricating oil. Use the engine lubricating oil which meets the 
engine manufacturer's specifications for a particular engine and 
intended usage.
    (1) Manufacturers must use engine lubricants representative of 
commercially available engine lubricants.
    (2) For 2-stroke engines, the fuel/oil mixture ratio must be that 
which is recommended by the manufacturer.
    (b) Test Fuels--Certification. (1) The manufacturer must use 
gasoline having the specifications, or substantially equivalent 
specifications approved by the Administrator, as specified in Table 3 in 
Appendix A of this subpart for exhaust emission testing of gasoline 
fueled engines. As an option, manufacturers may use the fuel specified 
in Sec. 86.1313-94(a) of this chapter for gasoline fueled engines.
    (2) Alternative fuels, such as natural gas, propane, and methanol, 
used for exhaust emission testing and service accumulation of 
alternative fuel spark-ignition engines must be representative of 
commercially available alternative fuels.
    (i) The manufacturer shall recommend the alternative fuel to be used 
for certification testing and engine service accumulation in accordance 
with paragraph (b)(3) of this section.
    (ii) The Administrator shall determine the alternative fuel to be 
used for testing and engine service accumulation, taking into 
consideration the alternative fuel recommended by the manufacturer.
    (3) Other fuels may be used for testing provided:
    (i) They are commercially viable;
    (ii) Information acceptable to the Administrator is provided to show 
that only the designated fuel would be used in customer service; and
    (iii) Fuel specifications are approved in writing by the 
Administrator prior to the start of testing.
    (c) Test fuels--service accumulation and aging. Unleaded gasoline 
representative of commercial gasoline generally available through retail 
outlets must be used in service accumulation and aging

[[Page 197]]

for gasoline-fueled spark-ignition engines. As an alternative, the 
certification test fuels specified under paragraph (b) of this section 
may be used for engine service accumulation and aging. Leaded fuel may 
not be used during service accumulation or aging.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15243, Mar. 30, 1999]



Sec. 90.309  Engine intake air temperature measurement.

    (a) The measurement location must be within 10 cm of the engine 
intake system (i.e., the air cleaner, for most engines.)
    (b) The temperature measurements must be accurate to within 
 2  deg.C.



Sec. 90.310  Engine intake air humidity measurement.

    This section refers to engines which are supplied with intake air 
other than the ambient air in the test cell (i.e., air which has been 
pumped directly to the engine air intake system). For engines which use 
ambient test cell air for the engine intake air, the ambient test cell 
humidity measurement may be used.
    (a) Humidity conditioned air supply. Air that has had its absolute 
humidity altered is considered humidity-conditioned air. For this type 
of intake air supply, the humidity measurements must be made within the 
intake air supply system and after the humidity conditioning has taken 
place.
    (b) Unconditioned air supply. Humidity measurements in unconditioned 
intake air supply systems must be made in the intake air stream entering 
the supply system. Alternatively, the humidity measurements can be 
measured within the intake air supply stream.



Sec. 90.311  Test conditions.

    (a) General requirements. (1) Ambient temperature levels encountered 
by the test engine throughout the test sequence may not be less than 20 
deg.C or more than 30  deg.C. All engines must be installed on the test 
bed at their design installation angle to prevent abnormal fuel 
distribution.
    (2) Calculate all volumes and volumetric flow rates at standard 
conditions for temperature and pressure, and use these conditions 
consistently throughout all calculations. Standard conditions for 
temperature and pressure are 25  deg.C and 101.3 kPa.
    (b) Engine test conditions. Measure the absolute temperature 
(designated as T and expressed in Kelvin) of the engine air at the inlet 
to the engine and the dry atmospheric pressure (designated as 
ps and expressed in kPa), and determine the parameter f 
according to the following provisions for naturally aspirated engines:
[GRAPHIC] [TIFF OMITTED] TR03JY95.009


For a certification test to be recognized as valid, the parameter f 
shall be between the limits as shown below: 0.96f1.04



Sec. 90.312  Analytical gases.

    (a) The shelf life of a calibration gas may not be exceeded. The 
expiration date stated by the gas supplier must be recorded.
    (b) Pure gases. The required purity of the gases is defined by the 
contamination limits specified in this subsection. The following gases 
must be available for operation:
    (1) Purified nitrogen, also refered to as ``zero-grade nitrogen'' 
(Contamination  1 ppm C,  1 ppm CO,  
400 ppm CO2,  0.1 ppm NO);
    (2) Purified oxygen (Purity 99.5 percent vol O2);
    (3) Hydrogen-helium mixture (40  2 percent hydrogen, 
balance helium) (Contamination  1 ppm C,  400 ppm 
CO);
    (4) Purified synthetic air, also refered to as ``zero air'' or 
``zero gas'' (Contamination  1 ppm C,  1 ppm CO, 
 400 ppm CO2,  0.1 ppm NO) (Oxygen 
content between 18-21 percent vol.).
    (c) Calibration and span gases. (1) Calibration gas values are to be 
derived from NIST ``Standard Reference Materials'' (SRM's) and are to be 
single blends as specified in this subsection.
    (2) Mixtures of gases having the following chemical compositions 
must be available:

C3 H8 and purified synthetic air and/or 
C3 H8 and purified nitrogen;
CO and purified nitrogen;
NOX and purified nitrogen (the amount of NO2 
contained in this calibration gas must not exceed five percent of the NO 
content);

[[Page 198]]

CO2 and purified nitrogen.

    Note: For the HFID or FID the manufacturer may choose to use as a 
diluent span gas and the calibration gas either purified synthetic air 
or purified nitrogen. Any mixture of C3 H8 and 
purified synthetic air which contains a concentration of propane higher 
than what a gas supplier considers to be safe may be substituted with a 
mixture of C3 H8 and purified nitrogen. However, 
the manufacturer must be consistent in the choice of diluent (zero air 
or purified nitrogen) between the calibration and span gases. If a 
manufacturer chooses to use C3 H8 and purified 
nitrogen for the calibration gases, then purified nitrogen must be the 
diluent for the span gases.

    (3) The true concentration of a span gas must be within  
two percent of the NIST gas standard. The true concentration of a 
calibration gas must be within  one percent of the NIST gas 
standard. The use of precision blending devices (gas dividers) to obtain 
the required calibration gas concentrations is acceptable. Give all 
concentrations of calibration gas on a volume basis (volume percent or 
volume ppm).
    (4) The gas concentrations used for calibration and span may also be 
obtained by means of a gas divider, diluting either with purified 
N2 or with purified synthetic air. The accuracy of the mixing 
device must be such that the concentration of the diluted gases may be 
determined to within  two percent.
    (d) Oxygen interference check gases must contain propane with 350 
ppmC  75 ppmC hydrocarbon. Determine the concentration value 
to calibration gas tolerances by chromatographic analysis of total 
hydrocarbons plus impurities or by dynamic blending. For gasoline fueled 
engines, oxygen contentration must be between 0 and 1 percent 
O2. Nitrogen must be the predominant diluent with the balance 
oxygen.
    (e) Fuel for the hydrocarbon flame ionization detector (HC-FID) must 
be a blend of 40  two percent hydrogen with the balance 
being helium. The mixture must contain less than one ppm equivalent 
carbon response; 98 to 100 percent hydrogen fuel may be used with 
advance approval of the Administrator.
    (f) Hydrocarbon analyzer burner air. The concentration of oxygen 
must be within one mole percent of the oxygen concentration of the 
burner air used in the latest oxygen interference check (percent 
O2 I), see Sec. 90.316(d). If the difference in oxygen 
concentration is greater than one mole percent, then the oxygen 
interference must be checked and, if necessary, the analyzer adjusted to 
meet the percent O2 I requirements. The burner air must 
contain less than two ppmC hydrocarbon.



Sec. 90.313  Analyzers required.

    (a) Analyzers. Analyze measured gases with the following 
instruments:
    (1) Carbon monoxide (CO) analysis. (i) The carbon monoxide analyzer 
shall be of the non-dispersive infrared (NDIR) absorption type.
    (ii) The use of linearizing circuits is permitted.
    (2) Carbon dioxide (CO2) analysis. (i) The carbon dioxide 
analyzer shall be of the non-dispersive infrared (NDIR) absorption type.
    (ii) The use of linearizing circuits is permitted.
    (3) Oxygen (O2) analysis. Oxygen (O2) 
analyzers may be of the paramagnetic (PMD), zirconia (ZRDO) or 
electrochemical type (ECS).
    (4) Hydrocarbon (HC) analysis. (i) For Raw Gas Sampling, the 
hydrocarbon analyzer shall be of the heated flame ionization (HFID) 
type. For constant volume sampling, the hydrocarbon analyzer may be of 
the flame ionization (FID) type or of the heated flame ionization (HFID) 
type.
    (ii) For the HFID system, if the temperature of the exhaust gas at 
the sample probe is below 190  deg.C, the temperature of the valves, 
pipe work, and so forth, must be controlled so as to maintain a wall 
temperature of 190  deg.C 11  deg.C. If the temperature of 
the exhaust gas at the sample probe is above 190  deg.C, the temperature 
of the valves, pipe work, and so forth, must be controlled so as to 
maintain a wall temperature greater than 180  deg.C.
    (iii) For the HFID analyzer, the detector, oven, and sample-handling 
components within the oven must be suitable for continuous operation at 
temperatures to 200  deg.C. It must by capable of maintaining 
temperature within 5.5  deg.C of the set point.
    (iv) Fuel and burner air must conform to the specifications in 
Sec. 90.312.

[[Page 199]]

    (v) The percent of oxygen interference must be less than three 
percent, as specified in Sec. 90.316(d).
    (5) Oxides of nitrogen (NOX) analysis.
    (i) This analysis device consists of the following items:
    (A) A NO2 to NO converter. The NO2 to NO 
converter efficiency must be at least 90 percent.
    (B) An ice bath located after the NOX converter 
(optional).
    (C) A chemiluminescent detector (CLD) or heated chemiluminescent 
detector (HCLD).
    (ii) The quench interference must be less than 3.0 percent as 
measured in Sec. 90.325.
    (b) Other analyzers and equipment. Other types of analyzers and 
equipment may be used if shown to yield equivalent results and if 
approved in advance by the Administrator.
    (c) The following requirements must be incorporated as indicated in 
systems used for testing under this subpart.
    (1) Carbon monoxide and carbon dioxide measurements must be made on 
a dry basis (for raw exhaust measurement only). Specific requirements 
for the means of drying the sample can be found in Sec. 90.313(e).
    (2) Calibration or span gases for the NOX measurement 
system must pass through the NO2 to NO converter.
    (d) The electromagnetic compatibility (EMC) of the equipment must be 
on a level as to minimize additional errors.
    (e) Gas drying. Chemical dryers are not an acceptable method of 
removing water from the sample. Water removal by condensation is 
acceptable. If water is removed by condensation, the sample gas 
temperature or sample dew point must be monitored either within the 
water trap or downstream and its temperature must not exceed 7  deg.C. A 
water trap performing this function is an acceptable method. Means other 
than condensation may be used only with prior approval from the 
Administrator.



Sec. 90.314  Analyzer accuracy and specifications.

    (a) Measurement and accuracy--general. The analyzers must have a 
measuring range which allows them to measure the concentrations of the 
exhaust gas sample pollutants with the accuracies shown in Table 2 in 
Appendix A of this subpart.
    (1) Precision. The precision of the analyzer must be, at worst, two 
percent of full-scale concentration for each range used. The precision 
is defined as 2.5 times the standard deviation(s) of 10 repetitive 
responses to a given calibration or span gas.
    (2) Noise. The analyzer peak-to-peak response to zero and 
calibration or span gases over any 10-second period must not exceed two 
percent of full-scale chart deflection on all ranges used.
    (3) Zero drift. The analyzer zero-response drift during a one-hour 
period must be less than two percent of full-scale chart deflection on 
the lowest range used. The zero-response is defined as the mean response 
including noise to a zero-gas during a 30-second time interval.
    (4) Span drift. The analyzer span drift during a one-hour period 
must be less than two percent of full-scale chart deflection on the 
lowest range used. The analyzer span is defined as the difference 
between the span-response and the zero-response. The span-response is 
defined as the mean response including noise to a span gas during a 30-
second time interval.
    (b) Operating procedure for analyzers and sampling system. Follow 
the start-up and operating instructions of the instrument manufacturer 
or use good engineering practice. Adhere to the minimum requirements 
given in Secs. 90.316 through 90.325 and Sec. 90.409.
    (c) Emission measurement accuracy--Bag sampling. (1) Good 
engineering practice dictates that exhaust emission sample analyzer 
readings below 15 percent of full-scale chart deflection should 
generally not be used.
    (2) Some high resolution read-out systems, such as computers, data 
loggers, and so forth, can provide sufficient accuracy and resolution 
below 15 percent of full scale. Such systems may be used provided that 
additional calibrations are made to ensure the accuracy of the 
calibration curves. The following procedure for calibration below 15 
percent of full scale may be used:

[[Page 200]]

    Note to paragraph (c): If a gas divider is used, the gas divider 
must conform to the accuracy requirements as follows. The use of 
precision blending devices (gas dividers) to obtain the required 
calibration gas concentrations is acceptable, provided that the blended 
gases are accurate to within  1.5 percent of NIST gas 
standards or other gas standards which have been approved by the 
Administrator. This accuracy implies that primary gases used for 
blending must be ``named'' to an accuracy of at least  one 
percent, traceable to NIST or other approved gas standards.
    (i) Span the full analyzer range using a top range calibration gas. 
The span gases must be accurate to within  two percent of 
NIST gas standards or other gas standards which have been approved by 
the Administrator.
    (ii) Generate a calibration curve according to, and meeting the 
requirements, of the sections describing analyzer calibrations which are 
found in Secs. 90.316, 90.317, 90.318, and 90.320.
    (iii) Select a calibration gas (a span gas may be used for 
calibrating the CO2 analyzer) with a concentration between 
the two lowest non-zero gas divider increments. This gas must be 
``named'' to an accuracy of  one percent of NIST gas 
standards or other standards approved by the Administrator.
    (iv) Using the calibration curve fitted to the points generated in 
paragraphs (c)(2) (i) and (ii) of this section, check the concentration 
of the gas selected in paragraph (c)(2)(iii) of this section. The 
concentration derived from the curve must be within  2.3 
percent ( 2.8 percent for CO2 span gas) of the 
gas's original named concentration.
    (v) Provided the requirements of paragraph (c)(2)(iv) of this 
section are met, use the gas divider with the gas selected in paragraph 
(c)(2)(iii) of this section and determine the remainder of the 
calibration points. Fit a calibration curve per Secs. 90.316, 90.317, 
90.318, and 90.320 of this chapter for the entire analyzer range.
    (d) Emission measurement accuracy--continuous sampling. Analyzers 
used for continuous analysis must be operated such that the measured 
concentration falls between 15 and 100 percent of full-scale chart 
deflection. Exceptions to these limits are:
    (1) The analyzer's response may be less than 15 percent or more than 
100 percent of full scale if automatic range change circuitry is used 
and the limits for range changes are between 15 and 100 percent of full-
scale chart deflection;
    (2) The analyzer's response may be less than 15 percent of full 
scale if:
    (i) The alternative in paragraph (c)(2) of this section is used to 
ensure that the accuracy of the calibration curve is maintained below 15 
percent; or
    (ii) The full-scale value of the range is 155 ppm (C) or less; or
    (iii) The emissions from the engine are erratic and the integrated 
chart deflection value for the cycle is greater than 15 percent of full 
scale; or
    (iv) The contribution of all data read below the 15 percent level is 
less than 10 percent by mass of the final test results.



Sec. 90.315  Analyzer initial calibration.

    (a) Warming-up time. The warming-up time should be according to the 
recommendations of the manufacturer. If not specified, a minimum of two 
hours should be allowed for warming up the analyzers.
    (b) NDIR, FID, and HFID analyzer. Tune and maintain the NDIR 
analyzer per the instrument manufacturer recommendations or 
specifications or using good engineering practice. The combustion flame 
of the FID or HFID analyzer must be optimized in order to meet the 
specifications in Sec. 90.316(b).
    (c) Zero setting and calibration. Using purified synthetic air (or 
nitrogen), set the CO, CO2, NOX, and HC analyzers 
at zero. Connect the appropriate calibrating gases to the analyzers and 
record the values. Use the same gas flow rates and pressure as when 
sampling exhaust.
    (d) Rechecking of zero setting. Recheck the zero setting and, if 
necessary, repeat the procedure described in paragraph (c) of this 
section.



Sec. 90.316  Hydrocarbon analyzer calibration.

    (a) Calibrate the FID and HFID hydrocarbon analyzer as described in 
this section. Operate the HFID to a set point  5.5  deg.C 
between 185 and 197  deg.C.
    (b) Initial and periodic optimization of detector response. Prior to 
initial use and at least annually thereafter, adjust

[[Page 201]]

the FID and HFID hydrocarbon analyzer for optimum hydrocarbon response 
as specified in this paragraph. Alternative methods yielding equivalent 
results may be used, if approved in advance by the Administrator.
    (1) Follow good engineering practices for initial instrument start-
up and basic operating adjustment using the appropriate fuel (see 
Sec. 90.312) and purified synthetic air or zero-grade nitrogen.
    (2) Use of one of the following procedures is required for FID or 
HFID optimization:
    (i) The procedure outlined in Society of Automotive Engineers (SAE) 
paper No. 770141, ``Optimization of a Flame Ionization Detector for 
Determination of Hydrocarbon in Diluted Automotive Exhausts;'' author, 
Glenn D. Reschke. This procedure has been incorporated by reference. See 
Sec. 90.7.
    (ii) The HFID optimization procedures outlined in Sec. 86.331-79 of 
this chapter.
    (iii) Alternative procedures may be used if approved in advance by 
the Administrator.
    (3) After the optimum flow rates have been determined, record them 
for future reference.
    (c) Initial and periodic calibration. Prior to initial use and 
monthly thereafter, or within one month prior to the certification test, 
the FID or HFID hydrocarbon analyzer must be calibrated on all normally 
used instrument ranges using the steps in this paragraph. Use the same 
flow rate and pressures as when analyzing samples. Introduce calibration 
gases directly at the analyzer. An optional method for dilute sampling 
described in Sec. 86.1310-90(b)(3)(i) may be used.
    (1) Adjust analyzer to optimize performance.
    (2) Zero the hydrocarbon analyzer with purified synthetic air or 
zero-grade nitrogen.
    (3) Calibrate on each used operating range with calibration gases 
having nominal concentrations between 10 and 90 percent of that range. A 
minimum of six evenly spaced points covering at least 80 percent of the 
10 to 90 range (64 percent) is required (see following table).

------------------------------------------------------------------------
     Example calibration points (%)        Acceptable for calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70.................  No, range covered is 50
                                          percent, not 64.
20, 30, 40, 50, 60, 70, 80, 90.........  Yes.
10, 25, 40, 55, 70, 85.................  Yes.
10, 30, 50, 70, 90.....................  No, though equally spaced and
                                          entire range covered, a
                                          minimum of six points are
                                          needed.
------------------------------------------------------------------------


For each range calibrated, if the deviation from a least-squares best-
fit straight line is two percent or less of the value at each data 
point, calculate concentration values by use of a single calibration 
factor for that range. If the deviation exceeds two percent at any 
point, use the best-fit non-linear equation which represents the data to 
within two percent of each test point to determine concentration.
    (d) Oxygen interference optimization. Prior to initial use and 
monthly thereafter, perform the oxygen interference optimization as 
described in this paragraph. Choose a range where the oxygen 
interference check gases will fall in the upper 50 percent. Conduct the 
test, as outlined in this paragraph, with the oven temperature set as 
required by the instrument manufacturer. Oxygen interference check gas 
specifications are found in Sec. 90.312(d).
    (1) Zero the analyzer.
    (2) Span the analyzer with the 21 percent oxygen blend.
    (3) Recheck zero response. If it has changed more than 0.5 percent 
of full scale repeat paragraphs (d)(1) and (d)(2) of this section to 
correct the problem.
    (4) Introduce the five percent and 10 percent oxygen interference 
check gases.
    (5) Recheck the zero response. If it has changed by more than 
 one percent of full scale, repeat the test.
    (6) Calculate the percent of oxygen interference (designated as 
percent O2 I) for each mixture in paragraph (d)(4) of this 
section according to the following equation.

[[Page 202]]

[GRAPHIC] [TIFF OMITTED] TR03JY95.010

Where:

A = hydrocarbon concentration (ppmC) of the span gas used in paragraph 
(d)(2) of this section.
B = hydrocarbon concentration (ppmC) of the oxygen interference check 
gases used in paragraph (d)(4) of this section.

    (7) The percent of oxygen interference (designated as percent 
O2 I) must be less than  three percent for all 
required oxygen interference check gases prior to testing.
    (8) If the oxygen interference is greater than the specifications, 
incrementally adjust the air flow above and below the manufacturer's 
specifications, repeating paragraphs (d)(1) through (d)(7) of this 
section for each flow.
    (9) If the oxygen interference is greater than the specification 
after adjusting the air flow, vary the fuel flow and thereafter the 
sample flow, repeating paragraphs (d)(1) through (d)(7) of this section 
for each new setting.
    (10) If the oxygen interference is still greater than the 
specifications, repair or replace the analyzer, FID fuel, or burner air 
prior to testing. Repeat this section with the repaired or replaced 
equipment or gases.



Sec. 90.317  Carbon monoxide analyzer calibration.

    (a) Calibrate the NDIR carbon monoxide analyzer as described in this 
section.
    (b) Initial and periodic interference. Prior to its initial use and 
annually thereafter, check the NDIR carbon monoxide analyzer for 
response to water vapor and CO2:
    (1) Follow good engineering practices for instrument start-up and 
operation. Adjust the analyzer to optimize performance on the most 
sensitive range to be used.
    (2) Zero the carbon monoxide analyzer with either purified synthetic 
air or zero-grade nitrogen.
    (3) Bubble a mixture of three percent CO2 in 
N2 through water at room temperature and record analyzer 
response.
    (4) An analyzer response of more than one percent of full scale for 
ranges above 300 ppm full scale or more than three ppm on ranges below 
300 ppm full scale requires corrective action. (Use of conditioning 
columns is one form of corrective action which may be taken.)
    (c) Initial and periodic calibration. Prior to its initial use and 
monthly thereafter, or within one month prior to the certification test, 
calibrate the NDIR carbon monoxide analyzer.
    (1) Adjust the analyzer to optimize performance.
    (2) Zero the carbon monoxide analyzer with either purified synthetic 
air or zero-grade nitrogen.
    (3) Calibrate on each used operating range with carbon monoxide-in-
N2 calibration gases having nominal concentrations between 10 
and 90 percent of that range. A minimum of six evenly spaced points 
covering at least 80 percent of the 10 to 90 range (64 percent) is 
required (see following table).

------------------------------------------------------------------------
     Example calibration points (%)        Acceptable for calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70.................  No, range covered is 50
                                          percent, not 64.
20, 30, 40, 50, 60, 70, 80, 90.........  Yes.
10, 25, 40, 55, 70, 85.................  Yes.

[[Page 203]]

 
10, 30, 50, 70, 90.....................  No, though equally spaced and
                                          entire range covered, a
                                          minimum of six points are
                                          needed.
------------------------------------------------------------------------


Additional calibration points may be generated. For each range 
calibrated, if the deviation from a least-squares best-fit straight line 
is two percent or less of the value at each data point, calculate 
concentration values by use of a single calibration factor for that 
range. If the deviation exceeds two percent at any point, use the best-
fit non-linear equation which represents the data to within two percent 
of each test point to determine concentration.



Sec. 90.318  Oxides of nitrogen analyzer calibration.

    (a) Calibrate the chemiluminescent oxides of nitrogen analyzer as 
described in this section.
    (b) Initial and Periodic Interference: Prior to its initial use and 
monthly thereafter, or within one month prior to the certification test, 
check the chemiluminescent oxides of nitrogen analyzer for 
NO2 to NO converter efficiency. Figure 1 in Appendix B of 
this subpart is a reference for paragraphs (b)(1) through (11) of this 
section:
    (1) Follow good engineering practices for instrument start-up and 
operation. Adjust the analyzer to optimize performance.
    (2) Zero the oxides of nitrogen analyzer with purified synthetic air 
or zero-grade nitrogen.
    (3) Connect the outlet of the NOX generator to the sample 
inlet of the oxides of nitrogen analyzer which has been set to the most 
common operating range.
    (4) Introduce into the NOX generator analyzer-system an 
NO-in-nitrogen (N2) mixture with an NO concentration equal to 
approximately 80 percent of the most common operating range. The 
NO2 content of the gas mixture must be less than five percent 
of the NO concentration.
    (5) With the oxides of nitrogen analyzer in the NO mode, record the 
concentration of NO indicated by the analyzer.
    (6) Turn on the NOX generator O2 (or air) 
supply and adjust the O2 (or air) flow rate so that the NO 
indicated by the analyzer is about 10 percent less than indicated in 
paragraph (b)(5) of this section. Record the concentration of NO in this 
NO+O2 mixture as value ``c.''
    (7) Switch the NOX generator to the generation mode and 
adjust the generation rate so that the NO measured on the analyzer is 20 
percent of that measured in paragraph (b)(5) of this section. There must 
be at least 10 percent unreacted NO at this point. Record the 
concentration of residual NO as value ``d.''
    (8) Switch the oxides of nitrogen analyzer to the NOX 
mode and measure total NOX. Record this value as ``a.''
    (9) Switch off the NOX generator but maintain gas flow 
through the system. The oxides of nitrogen analyzer will indicate the 
NOX in the NO+O2 mixture. Record this value as 
``b''.
    (10) Turn off the NOX generator O2 (or air) 
supply. The analyzer will now indicate the NOX in the 
original NO-in-N2 mixture. This value should be no more than 
five percent above the value indicated in paragraph (b)(4) of this 
section.
    (11) Calculate the efficiency of the NOX converter by 
substituting the concentrations obtained into the following equation:
[GRAPHIC] [TIFF OMITTED] TR03JY95.049

Where:

a = concentration obtained in paragraph (b)(8),
b = concentration obtained in paragraph (b)(9),
c = concentration obtained in paragraph (b)(6),
d = concentration obtained in paragraph (b)(7).

    If converter efficiency is less than 90 percent, corrective action 
will be required.
    (c) Initial and periodic calibration. Prior to its initial use and 
monthly thereafter, or within one month prior to the certification test, 
calibrate the chemiluminescent oxides of nitrogen

[[Page 204]]

analyzer on all normally used instrument ranges. Use the same flow rate 
as when analyzing samples. Proceed as follows:
    (1) Adjust analyzer to optimize performance.
    (2) Zero the oxides of nitrogen analyzer with purified synthetic air 
or zero-grade nitrogen.
    (3) Calibrate on each normally used operating range with NO-in-
N2 calibration gases having nominal concentrations between 10 
and 90 percent of that range. A minimum of six evenly spaced points 
covering at least 80 percent of the 10 to 90 range (64 percent) is 
required (see following table).

------------------------------------------------------------------------
     Example calibration points (%)        Acceptable for calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70.................  No, range covered is 50
                                          percent, not 64
20, 30, 40, 50, 60, 70, 80, 90.........  Yes.
10, 25, 40, 55, 70, 85.................  Yes.
10, 30, 50, 70, 90.....................  No, though equally spaced and
                                          entire range covered, a
                                          minimum of six points are
                                          needed.
------------------------------------------------------------------------


Additional calibration points may be generated. For each range 
calibrated, if the deviation from a least-squares best-fit straight line 
is two percent or less of the value at each data point, calculate 
concentration values by use of a single calibration factor for that 
range. If the deviation exceeds two percent at any point, use the best-
fit non-linear equation which represents the data to within two percent 
of each test point to determine concentration.
    (d) The initial and periodic interference, system check, and 
calibration test procedures specified in Sec. 86.332-79 of this chapter 
may be used in lieu of the procedures specified in this section.



Sec. 90.319  NOX converter check.

    (a) The efficiency of the converter used for the conversion of 
NO2 to NO is tested as given in paragraphs (a)(1) through 
(a)(8) of this section.
    (1) Using the test setup as shown in Figure 1 in Appendix B of this 
subpart (see also Sec. 90.318 of this chapter) and the procedure 
described in paragraphs (a)(2) through (a)(8) of this section, test the 
efficiency of converters by means of an ozonator.
    (2) Calibrate the HCLD or CLD in the most common operating range 
following the manufacturer's specifications using zero and span gas (the 
NO content of which must amount to about 80 percent of the operating 
range and the NO2 concentration of the gas mixture less than 
five percent of the NO concentration). The NOX analyzer must 
be in the NO mode so that the span gas does not pass through the 
converter. Record the indicated concentration.
    (3) Calculate the efficiency of the NOX converter as 
described in Sec. 90.318(b).
    (4) Via a T-fitting, add oxygen continuously to the gas flow until 
the concentration indicated is about 20 percent less than the indicated 
calibration concentration given in paragraph (a)(2) of this section. 
Record the indicated concentration ``c.'' The ozonator is kept 
deactivated throughout the process.
    (5) Activate the ozonator to generate enough ozone to bring the NO 
concentration down to about 20 percent (minimum 10 percent) of the 
calibration concentration given in paragraph (a)(2) of this section. 
Record the indicated concentration ``d.''

    Note: If, with the analyzer in the most common range, the 
NOX converter can not give a reduction from 80 percent to 20 
percent, then use the highest range which will give the reduction.

    (6) Switch the NO analyzer to the NOX mode which means 
that the gas mixture (consisting of NO, NO2, O2 
and N2) now passes through the converter. Record the 
indicated concentration ``a.''
    (7) Deactivate the ozonator. The mixture of gases described in 
paragraph (a)(6) of this section passes through the converter into the 
detector. Record the indicated concentration ``b.''
    (8) Switched to NO mode with the ozonator deactivated, the flow of 
oxygen or purified synthetic air is also

[[Page 205]]

shut off. The NOX reading of the analyzer may not deviate by 
more than  five percent of the theoretical value of the 
figure given in paragraph (a)(2) of this section.
    (b) The efficiency of the converter must be tested prior to each 
calibration of the NOX analyzer.
    (c) The efficiency of the converter may not be less than 90 percent.



Sec. 90.320  Carbon dioxide analyzer calibration.

    (a) Prior to its initial use and monthly thereafter, or within one 
month prior to the certification test, calibrate the NDIR carbon dioxide 
analyzer as follows:
    (1) Follow good engineering practices for instrument start-up and 
operation. Adjust the analyzer to optimize performance.
    (2) Zero the carbon dioxide analyzer with either purified synthetic 
air or zero-grade nitrogen.
    (3) Calibrate on each normally used operating range with carbon 
dioxide-in-N2 calibration or span gases having nominal 
concentrations between 10 and 90 percent of that range. A minimum of six 
evenly spaced points covering at least 80 percent of the 10 to 90 range 
(64 percent) is required (see following table).

------------------------------------------------------------------------
     Example calibration points (%)        Acceptable for Calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70.................  No, range covered is 50
                                          percent, not 64.
20, 30, 40, 50, 60, 70, 80, 90.........  Yes.
10, 25, 40, 55, 70, 85.................  Yes.
10, 30, 50, 70, 90.....................  No, though equally spaced and
                                          entire range covered, a
                                          minimum of six points are
                                          needed.
------------------------------------------------------------------------


Additional calibration points may be generated. For each range 
calibrated, if the deviation from a least-squares best-fit straight line 
is two percent or less of the value at each data point, calculate 
concentration values by use of a single calibration factor for that 
range. If the deviation exceeds two percent at any point, use the best-
fit non-linear equation which represents the data to within two percent 
of each test point to determine concentration.
    (b) The initial and periodic interference, system check, and 
calibration test procedures specified in Secs. 86.316, 86.319, 86.320, 
86.321, and 86.322 of this chapter may be used in lieu of the procedures 
in this section.



Sec. 90.321  NDIR analyzer calibration.

    (a) Detector optimization. If necessary, follow the instrument 
manufacturer's instructions for initial start-up and basic operating 
adjustments.
    (b) Calibration curve. Develop a calibration curve for each range 
used as follows:
    (1) Zero the analyzer.
    (2) Span the analyzer to give a response of approximately 90 percent 
of full-scale chart deflection.
    (3) Recheck the zero response. If it has changed more than 0.5 
percent of full scale, repeat the steps given in paragraphs (b)(1) and 
(b)(2) of this section.
    (4) Record the response of calibration gases having nominal 
concentrations between 10 and 90 percent of full-scale concentration. A 
minimum of six evenly spaced points covering at least 80 percent of the 
10 to 90 range (64 percent) is required (see following table).

------------------------------------------------------------------------
     Example calibration points (%)        Acceptable for calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70.................  No, range covered is 50
                                          percent, not 64.
20, 30, 40, 50, 60, 70, 80, 90.........  Yes.
10, 25, 40, 55, 70, 85.................  Yes.
10, 30, 50, 70, 90.....................  No, though equally spaced and
                                          entire range covered, a
                                          minimum of six points are
                                          needed.
------------------------------------------------------------------------


[[Page 206]]

    (5) Generate a calibration curve. The calibration curve must be of 
fourth order or less, have five or fewer coefficients, and be of the 
form of the following equation (1) or (2). Include zero as a data point. 
Compensation for known impurities in the zero gas can be made to the 
zero-data point. The calibration curve must fit the data points within 
two percent of point or one percent of full scale, whichever is less.
[GRAPHIC] [TIFF OMITTED] TR03JY95.011

where:

y = concentration
x = chart deflection

    (6) Option. A new calibration curve need not be generated if:
    (i) A calibration curve conforming to paragraph (b)(5) of this 
section exists; or,
    (ii) The responses generated in paragraph (b)(4) of this section are 
within one percent of full scale or two percent of point, whichever is 
less, of the responses predicted by the calibration curve for the gases 
used in paragraph (b)(4) of this section.
    (7) If multiple range analyzers are used, the lowest range used must 
meet the curve fit requirements below 15 percent of full scale.
    (c) Linear calibration criteria. If any range is within two percent 
of being linear, a linear calibration may be used. To determine if this 
criterion is met:
    (1) Perform a linear least-square regression on the data generated. 
Use an equation of the form y=mx, where x is the actual chart deflection 
and y is the concentration.
    (2) Use the equation z=y/m to find the linear chart deflection 
(designated as z) for each calibration gas concentration (designated as 
y).
    (3) Determine the linearity (designated as percent L) for each 
calibration gas by:
[GRAPHIC] [TIFF OMITTED] TR03JY95.012

    (4) The linearity criterion is met if the %L is less than 
 two percent for each data point generated. For each 
emission test, use a calibration curve of the form Y=mx. The slope 
(designated as m) is defined for each range by the spanning process.



Sec. 90.322  Calibration of other equipment.

    Calibrate other test equipment used for testing as often as required 
by the test equipment manufacturer or as necessary according to good 
engineering practice.



Sec. 90.323  Analyzer bench checks.

    (a) Prior to initial use and after major repairs, verify that each 
analyzer complies with the specifications given in Table 2 in Appendix A 
of this subpart.
    (b) If a stainless steel NO2 to NO converter is used, 
condition all new or replacement converters. The conditioning consists 
of either purging the converter with air for a minimum of four hours or 
until the converter efficiency is greater than 90 percent. The converter 
must be at operational temperature while purging. Do not use this 
procedure prior to checking converter efficiency on in-use converters.



Sec. 90.324  Analyzer leakage check.

    (a) Vacuum side leak check. (1) Check any location within the 
analysis system where a vacuum leak could affect the test results.
    (2) The maximum allowable leakage rate on the vacuum side is 0.5 
percent of the in-use flow rate for the portion of the system being 
checked. The analyzer flows and bypass flows may be used to estimate the 
in-use flow rates.

[[Page 207]]

    (3) The sample probe and the connection between the sample probe and 
valve V2, see Figure 2 in Appendix B of this subpart, may be excluded 
from the leak check.
    (b) Pressure side leak check. The maximum allowable leakage rate on 
the pressure side is five percent of the in-use flow rate.



Sec. 90.325  Analyzer interference checks.

    (a) Gases present in the exhaust other than the one being analyzed 
can interfere with the reading in several ways. Positive interference 
occurs in NDIR and PMD instruments when the interfering gas gives the 
same effect as the gas being measured, but to a lesser degree. Negative 
interference occurs in NDIR instruments by the interfering gas 
broadening the absorption band of the measured gas, and in CLD 
instruments by the interfering gas quenching the radiation. The 
interference checks described in this section are to be made initially 
and after any major repairs that could affect analyzer performance.
    (b) CO analyzer water and CO2 interference checks. Bubble 
through water at room temperature a CO2 span gas having a 
concentration of between 80 percent and 100 percent inclusive of full 
scale of the maximum operating range used during testing and record the 
analyzer response. For dry measurements, this mixture may be introduced 
into the sample system prior to the water trap. The analyzer response 
must not be more than one percent of full scale for ranges equal to or 
above 300 ppm or more than three ppm for ranges below 300 ppm.
    (c) NOX analyzer quench check. The two gases of concern 
for CLD (and HCLD) analyzers are CO2 and water vapor. Quench 
responses to these two gases are proportional to their concentrations 
and, therefore, require test techniques to determine quench at the 
highest expected concentrations experienced during testing.
    (1) NOX analyzer CO2 quench check. (i) Pass a 
CO2 span gas having a concentration of 80 percent to 100 
percent of full scale of the maximum operating range used during testing 
through the CO2 NDIR analyzer and record the value ``a.''
    (ii) Dilute the CO2 span gas approximately 50 percent 
with NO span gas and pass through the CO2 NDIR and CLD (or 
HCLD). Record the CO2 and NO values as ``b'' and ``c'' 
respectively.
    (iii) Shut off the CO2 and pass only the NO span gas 
through the CLD (or HCLD). Record the NO value as ``d.''
    (iv) Calculate the percent CO2 quench as follows, not to 
exceed three percent:
[GRAPHIC] [TIFF OMITTED] TR03JY95.013

Where:

a = Undiluted CO2 concentration (percent)
b = Diluted CO2 concentration (percent)
c = Diluted NO concentration (ppm)
d = Undiluted NO concentration (ppm)

    (2) NOX analyzer water quench check. (i) This check 
applies to wet measurements only. An NO span gas having a concentration 
of 80 percent to 100 percent of full scale of a normal operating range 
is passed through the CLD (or HCLD) and the response recorded as ``D''. 
The NO span gas is then bubbled through water at room temperature and 
passed through the CLD (or HCLD) and the analyzer's response recorded as 
AR. Determine and record the analyzer's absolute operating pressure and 
the bubbler water temperature. (It is important that the NO span gas 
contains minimal NO2 concentration for this check. No 
allowance for absorption of NO2 in water has been made in the 
following quench calculations.)
    (ii) Calculations for water quench must consider dilution of the NO 
span gas with water vapor and scaling of the water vapor concentration 
of the mixture to that expected during testing. Determine the mixture's 
saturated vapor pressure (designated as Pwb) that corresponds to the 
bubbler water

[[Page 208]]

temperature. Calculate the water concentration (``Z1'', percent) in the 
mixture by the following equation:
[GRAPHIC] [TIFF OMITTED] TR03JY95.014


where GP is the analyzer's standard operating pressure (pascals).
    (iii) Calculate the expected dilute NO span gas and water vapor 
mixture concentration (designated as D1) by the following equation:
[GRAPHIC] [TIFF OMITTED] TR03JY95.015



Sec. 90.326  Pre- and post-test analyzer calibration.

    Calibrate the range of each analyzer used during the engine exhaust 
emission test prior to and after each test in accordance with the 
following:
    (a) Make the calibration by using a zero gas and a span gas. The 
span gas value must be between 75 percent and 100 percent of full scale, 
inclusive, of the measuring range.
    (b) Use the same analyzer(s) flow rate and pressure as that used 
during exhaust emission test sampling.
    (c) Warm-up and stabilize the analyzer(s) before the calibration is 
made.
    (d) If necessary clean and/or replace filter elements before 
calibration is made.
    (e) Calibrate analyzer(s) as follows:
    (1) Zero the analyzer using the appropriate zero gas. Adjust 
analyzer zero if necessary. Zero reading should be stable.
    (2) Span the analyzer using the appropriate span gas for the range 
being calibrated. Adjust the analyzer to the calibration set point if 
necessary.
    (3) Re-check zero and span set points.
    (4) If the response of the zero gas or span gas differs more than 
one percent of full scale, then repeat paragraphs (e) (1) through (3) of 
this section.



Sec. 90.327  Sampling system requirements.

    (a) Sample component surface temperature. For sampling systems which 
use heated components, use engineering judgment to locate the coolest 
portion of each component (pump, sample line section, filters, and so 
forth) in the heated portion of the sampling system that has a separate 
source of power or heating element. Monitor the temperature at that 
location. If several components are within an oven, then only the 
surface temperature of the component with the largest thermal mass and 
the oven temperature need be measured.
    (b) If water is removed by condensation, monitor the sample gas 
temperature or sample dew point either within the water trap or 
downstream. It may not exceed 7  deg.C.



Sec. 90.328  Measurement equipment accuracy/calibration frequency table.

    (a) The accuracy of measurements must be such that the maximum 
tolerances shown in Table 2 in Appendix A of this subpart are not 
exceeded.
    (b) All equipment and analyzers must be calibrated according to the 
frequencies shown in Table 2 in Appendix A of this subpart.
    (c) Prior to initial use and after major repairs, bench check each 
analyzer (see Sec. 90.323).
    (d) Calibrate equipment as specified in Sec. 90.306 and Secs. 90.315 
through 90.322.
    (e) At least monthly, or after any maintenance which could alter 
calibration, perform the following calibrations and checks.
    (1) Leak check the vacuum side of the system (see Sec. 90.324(a)).
    (2) Verify that the automatic data collection system (if used) meets 
the requirements found in Table 2 in Appendix A of this subpart.
    (3) Check the fuel flow measurement instrument to insure that the 
specifications in Table 2 in Appendix A of this subpart are met.
    (f) Verify that all NDIR analyzers meet the water rejection ratio 
and the CO2 rejection ratio as specified in Sec. 90.325.
    (g) Verify that the dynamometer test stand and power output 
instrumentation meet the specifications in Table 2 in Appendix A of this 
subpart.



Sec. 90.329  Catalyst thermal stress test.

    (a) Oven characteristics. The oven used for thermally stressing the 
test catalyst must be capable of maintaining a temperature of 500 
 5  deg.C and 1000  10  deg.C.

[[Page 209]]

    (b) Evaluation gas composition. (1) A synthetic exhaust gas mixture 
is used for evaluating the effect of thermal stress on catalyst 
conversion efficiency.
    (2) The synthetic exhaust gas mixture must have the following 
composition:

------------------------------------------------------------------------
                                                                  Parts
                     Constituent                        Volume     per
                                                        percent  million
------------------------------------------------------------------------
Carbon Monoxide......................................       1    .......
Oxygen...............................................       1.3  .......
Carbon Dioxide.......................................       3.8  .......
Water Vapor..........................................      10    .......
Sulfer dioxide.......................................  ........       20
Oxides of nitrogen...................................  ........      280
Hydrogen.............................................  ........     3500
Hydrocarbon*.........................................  ........     4000
Nitrogen = Balance
------------------------------------------------------------------------
* Propylene/propane ratio = 2/1.

    (c) Phase 2 engines. The catalyst thermal stress test is not 
required for engine families certified to the Phase 2 standards.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15243, Mar. 30, 1999]
               Appendix A to Subpart D of Part 90--Tables

                   Table 1--Symbols Used in Subpart D
------------------------------------------------------------------------
     Symbol                         Term                        Unit
------------------------------------------------------------------------
CO                Carbon monoxide.........................
CO2               Carbon dioxide..........................
NO                Nitric oxide............................
NO2               Nitrogen dioxide........................
NOX               Oxides of nitrogen......................
O2                Oxygen..................................
conc              Concentration (ppm by volume)...........  ppm
f                 Engine specific parameter considering
                   atmospheric conditions.
FFCB              Fuel specific factor for the carbon
                   balance calculation.
FFD               Fuel specific factor for exhaust flow
                   calculation on dry basis.
FFH               Fuel specific factor representing the
                   hydrogen to carbon ratio.
FFW               Fuel specific factor for exhaust flow
                   calculation on wet basis.
GAIRW             Intake air mass flow rate on wet basis..  kg/h
GAIRD             Intake air mass flow rate on dry basis..  kg/h
GEXHW             Exhaust gas mass flow rate on wet basis.  kg/h
GFuel             Fuel mass flow rate.....................  kg/h
H                 Absolute humidity (water content related  gr/kg
                   to dry air).
i                 Subscript denoting an individual mode...
KH                Humidity correction factor..............
L                 Percent torque related to maximum torque  percent
                   for the test mode.
mass              Pollutant mass flow.....................  g/h
nd,i              Engine speed (average at the i'th mode    1/min
                   during the cycle).
Ps                Dry atmospheric pressure................  kPa
Pd                Test ambient saturation vapor pressure    kPa
                   at ambient temperature.
P                 Gross power output uncorrected..........  kW
PAUX              Declared total power absorbed by          kW
                   auxiliaries fitted for the test.
PM                Maximum power measured at the test speed  kW
                   under test conditions.
Pi                Pi = PM,i + PAUX,i......................
PB                Total barometric pressure (average of     kPa
                   the pre-test and post-test values).
Ra                Relative humidity of the ambient air....  percent
T                 Absolute temperature at air inlet.......  C
Tbe               Air temperature after the charge air      C
                   cooler (if applicable) (average).
Tclout            Coolant temperature outlet (average)....  C
TDd               Absolute dew point temperature..........  C
Td,i              Torque (average at the i'th mode during   N-m
                   the cycle).
TSC               Temperature of the intercooled air......  C
Tref.             Reference temperature...................  C
VEXHD             Exhaust gas volume flow rate on dry       m3/h
                   basis.
VAIRW             Intake air volume flow rate on wet basis  m3/h
PB                Total barometric pressure...............  kPa
VEXHW             Exhaust gas volume flow rate on wet       m3/h
                   basis.
WF                Weighing factor.........................
WFE               Effective weighing factor...............
------------------------------------------------------------------------


[[Page 210]]


                             Table 2--Measurement Calibration Accuracy and Frequency
----------------------------------------------------------------------------------------------------------------
                                           Permissible deviation from reading *
    No.                Item           ----------------------------------------------    Calibration frequency
                                                Non-idle                 Idle
----------------------------------------------------------------------------------------------------------------
1.........  Engine speed.............   2 %.........  Same.............  Monthly or within one month
                                                                                      prior to the certification
                                                                                      test.
2.........  Torque...................   2 %.........  .................  Monthly or within one month
                                                                                      prior to the certification
                                                                                      test.
3.........  Fuel consumption.........   2 %.........  5%...  Monthly or within one month
                                                                                      prior to the certification
                                                                                      test.
4.........  Air consumption..........   2 %.........  5%...  As required.
5.........  Coolant temperature......   2  deg.C....  Same.............  As required.
6.........  Lubricant temperature....   2  deg.C....  Same.............  As required.
7.........  Exhaust back pressure....   5 %.........  Same.............  As required.
8.........  Inlet depression.........   5 %.........  Same.............  As required.
9.........  Exhaust gas temperature..   15  deg.C...  Same.............  As required.
10........  Air inlet temperature       2  deg.C....  Same.............  As required.
             (combustion air).
11........  Atmospheric pressure.....   0.5 %.......  Same.............  As required.
12........  Humidity (combustion air)   3.0 %.......  Same.............  As required.
             (relative).
13........  Fuel temperature.........   2  deg.C....  Same.............  As required.
14........  Temperature with regard     2  deg.C....  Same.............  As required.
             to dilution system.
15........  Dilution air humidity....   3 % absolute  Same.............  As required.
16........  HC analyzer..............   2 %**.......  Same.............  Monthly or within one month
                                                                                      prior to the certification
                                                                                      test.
17........  CO analyzer..............   2 % **......  Same.............  Monthly or within one month
                                                                                      prior to the certification
                                                                                      test.
18........  NOX analyzer.............   2 % **......  Same.............  Monthly or within one month
                                                                                      prior to the certification
                                                                                      test.
19........  NOX converter check......  90 %.....................  Same.............  Monthly or within one month
                                                                                      prior to the certification
                                                                                      test.
20........  CO2 analyzer.............   2 % **......  Same.............  Monthly or within one month
                                                                                      prior to the certification
                                                                                      test.
----------------------------------------------------------------------------------------------------------------
* All accuracy requirements pertain to the final recorded value which is inclusive of the data acquisition
  system.
** If reading is under 100 ppm then the accuracy shall be  2 ppm.


                                        Table 3--Test Fuel Specifications
----------------------------------------------------------------------------------------------------------------
                Item                           Property                  Tolerances          Procedure (ASTM) 1
----------------------------------------------------------------------------------------------------------------
Sulfur, ppm max.....................  339......................  .........................  D 2622-92
Benzene, max. %.....................  1.5......................  .........................  D 3606-92
RVP, psi............................  8.7......................  0.2..........  D 5191-93a
Octane, R+M/2.......................  87.3.....................  0.5..........  D 2699-92
                                                                                            D 2700-92
IBP,  deg.C.........................  32.8.....................  11.0.........  D 86-93
10 % point,  deg.C..................  53.3.....................  5.5..........  D 86-93
50 % point,  deg.C..................  103.3....................  5.5..........  D 86-93
90 % point,  deg.C..................  165.6....................  5.5..........  D 86-93
End Point, max.  deg.C..............  212.8....................  .........................  D 86-93
Phosphorus, g/liter, max............  0.02.....................  .........................  D 3231-89
Lead, g/liter, max..................  0.02.....................  .........................  ....................
Manganese, g/liter, max.............  0.004....................  .........................  ....................
Aromatics, %........................  32.0.....................  4.0..........  D 1319-89
Olefins, %..........................  9.2......................  4.0..........  D 1319-89
Saturates, %........................  Remainder................  .........................  D 1319-89
----------------------------------------------------------------------------------------------------------------
1 All ASTM procedures in this table have been incorporated by reference. See Sec.  90.7.


[[Page 211]]

               Appendix B to Subpart D of Part 90--Figures
      [GRAPHIC] [TIFF OMITTED] TC01MR92.085
      

[[Page 212]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.086


[[Page 213]]





               Subpart E--Gaseous Exhaust Test Procedures



Sec. 90.401  Applicability.

    (a) This subpart describes the procedures to follow in order to 
perform exhaust emission tests on new nonroad spark-ignition engines and 
vehicles subject to the provisions of subpart A of part 90. Provisions 
specific to raw gas sampling are in Sec. 90.414 through Sec. 90.419, 
provisions specific to constant volume sampling are in Sec. 90.420 
through Sec. 90.426. All other sections in this subpart apply to both 
raw gas sampling and constant volume sampling except where indicated 
otherwise.
    (b) Requirements for emission test equipment and calibrating this 
equipment are found in subpart D of this part.
    (c) Certain text in this subpart is identified as pertaining to 
Phase 1 or Phase 2 engines. Such text pertains only to engines of the 
specified Phase. If no indication of Phase is given, the text pertains 
to all engines, regardless of Phase.
    (d) For Phase 2 Class I, and Phase 2 Class II natural gas fueled 
engines, the following sections from 40 CFR part 86 are applicable to 
this subpart. The requirements of these sections which pertain 
specifically to the measurement and calculation of non-methane 
hydrocarbon (NMHC) exhaust emissions from otto cycle heavy-duty engines 
must be followed when determining the NMHC exhaust emissions from Phase 
2 Class I, and Phase 2 Class II natural gas fueled engines. Those 
sections are: 40 CFR 86.1327-94 Engine dynamometer test procedures, 
overview, 40 CFR 86.1340-94 Exhaust sample analysis, 40 CFR 86.1342-94 
Calculations; exhaust emissions, 40 CFR 86.1344-94(d) Required 
information--Pre-test data, and 40 CFR 86.1344-94(e) Required 
information--Test data.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15244, Mar. 30, 1999]



Sec. 90.402  Definitions.

    The definitions in Sec. 90.3, Sec. 90.101, and Sec. 90.302 apply to 
this subpart.



Sec. 90.403  Symbols, acronyms, and abbreviations.

    (a) The acronyms and abbreviations in Sec. 90.5 apply to this 
subpart.
    (b) The symbols in Table 1 in Appendix A to Subpart D apply to this 
subpart.



Sec. 90.404  Test procedure overview.

    (a) The test consists of prescribed sequences of engine operating 
conditions to be conducted on an engine dynamometer or equivalent load 
and speed measurement device. The exhaust gases generated during engine 
operation are sampled either raw or dilute and specific components are 
analyzed through the analytical system.
    (b) The test is designed to determine the brake-specific emissions 
of hydrocarbons, carbon monoxide, carbon dioxide, and oxides of nitrogen 
and fuel consumption. For Phase 2 Class I and Phase 2 Class II natural 
gas fueled engines the test is also designed to determine the brake-
specific emissions of non-methane hydrocarbons. The test consists of 
three different test cycles which are application specific for engines 
which span the typical operating range of nonroad spark-ignition 
engines. Two cycles exist for Class I and II engines and one is for 
Class III, IV, and V engines (see Sec. 90.103(a) and Sec. 90.116(b) for 
the definitions of Class I--V engines). The test cycles for Class I and 
II engines consist of one idle mode and five power modes at one speed 
(rated or intermediate). The test cycle for Class III, IV, and V engines 
consists of one idle mode at idle speed and one power mode at rated 
speed. These procedures require the determination of the concentration 
of each pollutant, fuel flow, and the power output during each mode. The 
measured values are weighted and used to calculate the grams of each 
pollutant emitted per brake kilowatt hour (g/kW-hr).
    (c)(1) When an engine is tested for exhaust emissions the complete 
engine must be tested, with all emission control devices installed and 
functioning.
    (2) On air cooled engines, the cooling fan must be installed. For 
engines whose cooling fan serves a dual purpose, such as an air pump/
blower, an external fan may be used to provide the

[[Page 214]]

engine with cooling air and the original cooling fan may be removed.
    (d) All emission control systems installed on or incorporated in the 
application must be functioning during all procedures in this subpart. 
In case of component malfunction or failure, no maintenance is allowed 
without prior approval from the Administrator, in accordance with 
Sec. 90.119.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15244, Mar. 30, 1999]



Sec. 90.405  Recorded information.

    (a) Record the information described in this section for each test, 
where applicable.
    (b) Test data; general. (1) Engine identification number.
    (2) Engine emission control system.
    (3) Test operator(s).
    (4) Number of hours of operation accumulated on the engine prior to 
beginning the warm-up portion of the test (to the nearest tenth hour).
    (5) Fuel identification.
    (6) For 2-stroke engines, fuel/oil mixture ratio.
    (7) Date of most recent analyzer bench calibration.
    (8) All pertinent instrument information such as tuning, gain, 
serial numbers, detector number, and calibration curve(s). As long as 
this information is traceable, it may be summarized by system number or 
analyzer identification numbers.
    (c) Test data; pre-test. (1) Date and time of day.
    (2) Test number.
    (3) Barometric pressure; as an option, barometric pressure can be 
measured as a modal measurement instead of or in addition to a pre- and 
post-test measurement.
    (4) Recorder chart or equivalent. Identify for each test segment 
zero traces for each range used, and span traces for each range used.
    (d) Test data; modal. (1) Recorder chart or equivalent. Identify for 
each test mode the emission concentration traces and the associated 
analyzer range(s).
    (2) Observed engine torque.
    (3) Observed engine rpm.
    (4) Intake air flow if applicable.
    (5) Test cell temperature and humidity for each mode.
    (6) For raw gas testing; fuel flow for each mode. Fuel flow 
measurement is not required for dilute testing, but is allowed. If the 
fuel flow measurement is a volume measurement system, record the fuel 
temperature in the measurement system for fuel density corrections to 
the mass flow rate. If the fuel temperature is within 3  deg.C of the 
calibration temperature, no density correction is required.
    (7) Engine intake temperature and humidity, if applicable.
    (8) Exhaust mixing chamber surface temperature, if applicable.
    (9) Exhaust sample line temperature, if applicable.
    (10) Engine fuel inlet pressure.
    (e) Test data; post-test. (1) Recorder chart or equivalent. Identify 
the hang-up check.
    (2) Recorder chart or equivalent. Identify the zero traces for each 
range used and the span traces for each range used.
    (3) Total number of hours of operation accumulated on the engine (to 
the nearest tenth hour).
    (4) Barometric pressure, post-test segment.



Sec. 90.406  Engine parameters to be measured and recorded.

    Measure or calculate, then record the engine parameters in Table 1 
in Appendix A of this subpart.



Sec. 90.407  Engine inlet and exhaust systems.

    (a) The engine manufacturer is liable for exhaust emission 
compliance over the full range of air inlet filter systems and exhaust 
muffler systems.
    (b) The air inlet filter system and exhaust muffler system 
combination used on the test engine must be the systems expected to 
yield the highest emission levels.



Sec. 90.408  Pre-test procedures.

    (a) Engine service accumulation and stabilization procedure. Use the 
service accumulation procedure determined by the manufacturer for 
exhaust emission stabilizing of an engine, consistent with good 
engineering practice (see Sec. 90.118).
    (1) The manufacturer determines, for each engine family, the number 
of

[[Page 215]]

hours at which the engine exhaust emission control system combination is 
stabilized for emission testing. However, this stabilization procedure 
may not exceed 12 hours. The manufacturer must maintain, and provide to 
the Administrator upon request, a record of the rationale used in making 
this determination. If the manufactuer can document that at some time 
prior to the full 12 hour service accumulation period the engine 
emissions are decreasing for the remainder of the 12 hours, the service 
accumulation may be completed at that time. The manufacturer may elect 
to accumulate 12 hours on each test engine within an engine family 
without making this determination.
    (2) During service accumulation, the fuel and lubricants specified 
in Sec. 90.308 must be used.
    (3) Engine maintenance during service accumulation is allowed only 
in accordance with Sec. 90.118.
    (b) Engine pre-test preparation. (1) Drain and charge the fuel 
tank(s) with the specified test fuel (see Sec. 90.308(b)) to 50 percent 
of the tank's nominal capacity. If an external fuel tank is used, the 
engine fuel inlet system pressure must be typical of what the engine 
will see in use.
    (2) Operate the engine on the dynamometer measuring the fuel 
consumption (fuel consumption required only for raw gas sampling method) 
and torque before and after the emission sampling equipment is 
installed, including the sample probe, using the modes specified in the 
following table.

------------------------------------------------------------------------
                                                               Operating
              Engine class                    Test cycle          mode
------------------------------------------------------------------------
I, II..................................  A                            6
I, II..................................  B                            1
III, IV, V.............................  C                            1
------------------------------------------------------------------------

    These modes are from Table 2 in Appendix A of this subpart. The 
emission sampling equipment may not significantly affect the operational 
characteristics of the engine (typically the results should agree within 
five percent).
    (c) Analyzer pre-test procedures. (1) If necessary, warm up and 
stabilize the analyzer(s) before calibrations are performed.
    (2) Replace or clean the filter elements and then leak check the 
system as required by Sec. 90.324(a). If necessary, allow the heated 
sample line, filters, and pumps to reach operating temperature.
    (3) Perform the following system checks:
    (i) If necessary, check the sample-line temperature. Heated FID 
sample line temperature must be maintained between 110  deg.C and 230 
deg.C; a heated NOX sample line temperature must be 
maintained between 60  deg.C and 230  deg.C.
    (ii) Check that the system response time has been accounted for 
prior to sample collection data recording.
    (iii) A HC hang-up check is permitted (see Sec. 90.413(e)).
    (4) Check analyzer zero and span before and after each test at a 
minimum. Further, check analyzer zero and span any time a range change 
is made or at the maximum demonstrated time span for stability for each 
analyzer used.
    (d) Check system flow rates and pressures and reset, if necessary.



Sec. 90.409  Engine dynamometer test run.

    (a) Engine and dynamometer start-up. (1) Only adjustments in 
accordance with Sec. 90.119 may be made to the test engine prior to 
starting a test.
    (2) If necessary, warm up the dynamometer as recommended by the 
dynamometer manufacturer or use good engineering practice.
    (3) For Phase 1 engines, at the manufacturer's option, the engine 
can be run with the throttle in a fixed position or by using the 
engine's governor (if the engine is manufactured with a governor). In 
either case, the engine speed and load must meet the requirements 
specified in paragraph (b)(12) of this section. For Phase 2 Class I and 
Phase 2 Class II engines equipped with an engine speed governor, the 
governor must be used to control engine speed during all test cycle 
modes except for Mode 1 or Mode 6, and no external throttle control may 
be used that interferes with the function of the engine's governor; a 
controller may be used to adjust the governor setting for the desired 
engine speed in Modes 2-5 or Modes 7-10; and during Mode 1 or Mode 6 
fixed throttle operation may be used

[[Page 216]]

to determine the 100 percent torque value.
    (b) Each test consists of the following steps.
    (1) Record the general test data as specified in Sec. 90.405(b).
    (2) Precondition the engine in the following manner;
    (i) Operate the engine at a power greater than or equal to 50 
percent maximum power at the appropriate speed (rated or intermediate) 
for 20 minutes;
    (ii) Option. If the engine has been operating on service 
accumulation for a minimum of 40 minutes, the service accumulation may 
be substituted for step (i).
    (3) Record all pre-test data specified in Sec. 90.405(c).
    (4) Start the test cycle (see Sec. 90.410) within five minutes of 
the completion of the steps required by paragraph (b)(2) of this 
section.
    (5) Modes are to be performed in the numerical order specified for 
the appropriate test cycle (see ``Mode Points'' Table 2 in Appendix A of 
this subpart).
    (6) For Class I and II engines, during the maximum torque mode 
calculate the torque corresponding to 75, 50, 25, and 10 percent of the 
maximum observed torque (see Table 2 in Appendix A to this subpart).
    (7) Once engine speed and load are set for a mode, run the engine 
for a sufficient period of time to achieve thermal stability. At the 
manufacturer's option, determine and document the appropriate criterion 
for thermal stability for each engine family. If the manufacture chooses 
not to make this determination, an acceptable alternative is to run the 
engine at each mode until the cylinder head temperature remains within a 
10  deg.C bandwidth for three minutes. Cylinder head temperature may be 
measured at the base of the spark plug. After stability is achieved, 
emission measurements are initiated.
    (8) Record all modal data specified in Sec. 90.405(d) for a minimum 
time period of the last two minutes of each mode. Longer averaging 
periods are acceptable, but the data averaged must be from a continuous 
time period. The duration of time during which this data is recorded is 
referred to as the ``sampling period.'' The data collected during the 
sampling period is used for modal emission calculations.
    (9) Continuously record the analyzer's response to the exhaust gas 
during each mode.
    (10) Modes may be repeated.
    (11) If a delay of more than one hour occurs between the end of one 
mode and the beginning of another mode, the test is void and must be 
restarted at paragraph (b)(1) of this section.
    (12) The engine speed and load must be maintained within the 
requirements of Sec. 90.410 during the sampling period of each mode. If 
this requirement is not met, the mode is void and must be restarted.
    (13) If at any time during a mode the test equipment malfunctions or 
the specifications in Sec. 90.410 can not be met, the test is void and 
must be aborted. Corrective action should be taken and the test 
restarted.
    (14) If at any time during an operating mode the engine stalls, 
restart the engine immediately and continue the test starting with the 
steps required by paragraph (b)(6) of this section. If the engine will 
not restart within five minutes the test is void. If maintenance is 
required on the engine, advance approval from the Administrator is 
required as specified in Sec. 90.119. After corrective action is taken, 
the engine may be rescheduled for testing. Report the reason for the 
malfunction (if determined) and the corrective action taken.
    (15) Fuel flow and air flow during the idle condition may be 
determined just prior to or immediately following the dynamometer 
sequence, if longer times are required for accurate measurements. If the 
dilute sampling method (Constant Volume Sampling) is used, neither fuel 
flow nor air flow measurements are required.
    (c) Exhaust gas measurements. (1) Measure HC, CO, CO2, 
and NOX concentration in the exhaust sample.
    (2) Each analyzer range that may be used during a test mode must 
have the zero and span responses recorded prior to the start of the 
test. Only the range(s) used to measure the emissions during the test is 
required to have its zero and span recorded after the completion of the 
test. Depending on the

[[Page 217]]

stability of each individual analyzer, more frequent zero checks or 
spans between modes may be necessary.
    (3) It is permitted to change filter elements between modes.
    (4) A leak check is permitted between modes.
    (5) A hang-up check is permitted between modes (see Sec. 90.413).
    (6) If, during the emission measurement portion of a mode, the value 
of the gauges downstream of the NDIR analyzer(s) G3 or G4 (see Figure 2 
in Appendix B of Subpart D), differs by more than 0.5kPa 
from the pretest value, the test mode is void.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15244, Mar. 30, 1999]



Sec. 90.410  Engine test cycle.

    (a) Follow the appropriate 6-mode test cycle for Class I and II 
engines and 2-mode test cycle for Class III, IV, and V engines when 
testing spark-ignition engines (see Table 2 in Appendix A of this 
subpart).
    (b) For Phase 1 engines and Phase 2 Class I and II engines not 
equipped with an engine speed governor, during each non-idle mode, hold 
both the specified speed and load within  five percent of 
point. During the idle mode, hold speed within  ten percent 
of the manufacturer's specified idle engine speed. For Phase 2 Class I 
and II engines equipped with an engine speed governor, during Mode 1 or 
Mode 6 hold both the specified speed and load within  five 
percent of point, during Modes 2-3, or Modes 7-8 hold the specified load 
with  five percent of point, during Modes 4-5 or Modes 9-10, 
hold the specified load within the larger range provided by +/-0.27Nm 
(+/-0.2 lb-ft), or ten (10) percent of point, and during the 
idle mode hold the specified speed within ten percent of the 
manufacturer's specified idle engine speed (see Table 1 in Appendix A to 
subpart E of this part for a description of test Modes). The use of 
alternative test procedures is allowed if approved in advance by the 
Administrator.
    (c) If the operating conditions specified in paragraph (b) of this 
section for Class I and II engines using Mode Points 2, 3, 4, and 5 
cannot be maintained, the Administrator may authorize deviations from 
the specified load conditions. Such deviations may not exceed 10 percent 
of the maximum torque at the test speed. The minimum deviations, above 
and below the specified load, necessary for stable operation shall be 
determined by the manufacturer and approved by the Administrator prior 
to the test run.
    (d) Do not include power generated during the idle mode, Mode 11, in 
the calculation of emission results.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15244, Mar. 30, 1999]



Sec. 90.411  Post-test analyzer procedures.

    (a) Perform a HC hang-up check within 60 seconds of the completion 
of the last mode in the test. Use the following procedure:
    (1) Introduce a zero gas or room air into the sample probe or valve 
V2 (see Figure 2 in Appendix B of Subpart D) to check the ``hangup 
zero'' response. Simultaneously start a time measurement.
    (2) Select the lowest HC range used during the test.
    (3) Within four minutes of beginning the time measurement in 
paragraph (a)(1) of this section, the difference between the zero gas 
response and the hang-up zero response may not be greater than 5.0 
percent of full scale or 10 ppmC, whichever is greater.
    (b) Begin the analyzer span checks within six minutes after the 
completion of the last mode in the test. Record for each analyzer the 
zero and span response for each range used during the preceding test or 
test segment.
    (c) If during the test, the filter element(s) were replaced or 
cleaned, a vacuum check must be performed per Sec. 90.324(a) immediately 
after the span checks. If the vacuum side leak check does not meet the 
requirements of Sec. 90.324(a), the test is void.
    (d) Read and record the post-test data specified in Sec. 90.405(e).
    (e) For a valid test, the analyzer drift between the before-segment 
and after-segment span checks for each analyzer must meet the following 
requirements:
    (1) The span drift (defined as the change in the difference between 
the zero response and the span response) may not exceed two percent of 
full-scale chart deflection for each range used.

[[Page 218]]

    (2) The zero response drift may not exceed two percent of full-scale 
chart deflection for each range used above 155 ppm (or ppm C), or three 
percent of full-scale chart deflection for each range below 155 ppm (or 
ppm C).



Sec. 90.412  Data logging.

    (a) A computer or any other automatic data collection (ADC) 
device(s) may be used as long as the system meets the requirements of 
this subpart.
    (b) Determine from the data collection records the analyzer 
responses corresponding to the end of each mode.
    (c) Record data at a minimum of rate of one Hz (one time per 
second).
    (d) Determine the final value for power by averaging the 
individually calculated power points for each value of speed and torque 
recorded during the sampling period. As an alternative, the final value 
for power can be calculated from the average values for speed and 
torque, collected during the sampling period.
    (e) Determine the final value for CO2, CO, HC, and 
NOX concentrations by averaging the concentration of each 
point taken during the sample period for each mode.



Sec. 90.413  Exhaust sample procedure--gaseous components.

    (a) Automatic data collection equipment requirements. The analyzer 
response may be read by automatic data collection (ADC) equipment such 
as computers, data loggers, and so forth. If ADC equipment is used, the 
following is required:
    (1) For dilute grab (``bag'') sample analysis, the analyzer response 
must be stable at greater than 99 percent of the final reading for the 
dilute exhaust sample. The ADC must store a single value representing 
the average chart deflection over a 10-second stabilized period. 
Alternatively, the ADC may store the individual instantaneous chart 
deflections collected over a 10-second stabilized period.
    (2) For continuous analysis systems, the ADC must store a single 
value representing the average integrated concentration over a 
measurement period. Alternatively, the ADC may store the individual 
instantaneous values collected during the measurement period.
    (3) The chart deflections or average integrated concentrations 
required in paragraphs (a)(1) and (a)(2) of this section may be stored 
on long-term computer storage devices such as computer tapes, storage 
discs, punch cards, or they may be printed in a listing for storage. In 
either case a chart recorder is not required and records from a chart 
recorder, if they exist, need not be stored.
    (4) If ADC equipment is used to interpret analyzer values, the ADC 
equipment is subject to the calibration specifications of the analyzer 
as if the ADC equipment is part of analyzer system.
    (b) Data records from any one or a combination of analyzers may be 
stored as chart recorder records.
    (c) Grab sample analysis. For dilute grab sample analysis perform 
the following procedure:
    (1) Calibrate analyzers using the procedure described in 
Sec. 90.326.
    (2) Record the most recent zero and span response as the pre-
analysis values.
    (3) Measure and record HC, CO, CO2, and NOX 
concentrations in the exhaust sample bag(s) and background sample bag(s) 
using the same flow rates and pressures.
    (4) Good engineering practice dictates that exhaust emission sample 
bag analyzer readings below 15 percent of full scale should generally 
not be used.
    (5) A post-analysis zero and span calibration check of each range 
must be performed and the values recorded. The number of events that may 
occur between the pre- and post-checks is not specified. However, the 
difference between pre-analysis zero and span values (recorded in 
paragraph (c)(2) or (c)(3) of this section) versus those recorded for 
the post-analysis check may not exceed the zero drift limit or the span 
drift limit of two percent of full-scale chart deflection for any range 
used. Otherwise the analysis is void.
    (d) Continuous sample analysis. For continuous sample analysis 
perform the following procedure:
    (1) Calibrate analyzers using the procedure described in 
Sec. 90.326.
    (2) Leak check portions of the sampling system that operate at 
negative gauge pressures when sampling and allow heated sample lines, 
filters,

[[Page 219]]

pumps, and so forth to stabilize at operating temperature.
    (3) Option: Determine the HC hang-up for the FID or HFID sampling 
system:
    (i) Zero the analyzer using zero gas introduced at the analyzer 
port.
    (ii) Flow zero gas through the overflow sampling system. Check the 
analyzer response.
    (iii) If the overflow zero response exceeds the analyzer zero 
response by two percent or more of the FID or HFID full-scale 
deflection, hang-up is indicated and corrective action must be taken 
(see paragraph (e) of this section).
    (iv) The complete system hang-up check specified in paragraph (e) of 
this section is recommended as a periodic check.
    (4) If necessary, recalibrate analyzer using the procedure specified 
in paragraph (d)(1) of this section.
    (5) Good engineering practice dictates that analyzers used for 
continuous analysis should be operated such that the measured 
concentration falls between 15 percent and 100 percent of full scale.
    (6) Record the most recent zero and span response as the pre-
analysis values.
    (7) Collect background HC, CO, CO2, and NOX in 
a sample bag (for dilute exhaust sampling only, see Sec. 90.422).
    (8) Perform a post-analysis zero and span check for each range used 
at the conditions specified in paragraph (d)(1) of this section. Record 
these responses as the post-analysis values.
    (9) Neither the zero drift nor the span drift between the pre-
analysis and post-analysis checks on any range used may exceed three 
percent for HC, or two percent for NOX, CO, and 
CO2, of full-scale chart deflection, or the test is void. (If 
the HC drift is greater than three percent of full-scale chart 
deflection, HC hang-up is likely.)
    (10) Determine background levels of HC, NOX, CO, or 
CO2 (for dilute exhaust sampling only) by the grab (``bag'') 
technique outlined in paragraph (c) of this section.
    (e) Hydrocarbon hang-up. If HC hang-up is indicated, the following 
procedure may be performed:
    (1) Fill a clean, evacuated sample bag with background air.
    (2) Zero and span the HFID at the analyzer ports.
    (3) Analyze the background air sample bag through the analyzer 
ports.
    (4) Analyze the background air through the entire sample probe 
system.
    (5) If the difference between the readings obtained is two ppm or 
more, clean the sample probe and the sample line.
    (6) Reassemble the sample system, heat to specified temperature, and 
repeat the procedure in paragraphs (e)(1) through (e)(5) of this 
section.



Sec. 90.414  Raw gaseous exhaust sampling and analytical system description.

    (a) Schematic drawing. An example of a sampling and analytical 
system which may be used for testing under this subpart is shown in 
Figure 2 in Appendix B of Subpart D. All components or parts of 
components that are wetted by the sample or corrosive calibration gases 
must be either chemically cleaned stainless steel or inert material 
(e.g., polytetrafluoroethylene resin). The use of ``gauge savers'' or 
``protectors'' with nonreactive diaphragms to reduce dead volumes is 
permitted.
    (b) Sample probe. (1) The sample probe must be a straight, closed 
end, stainless steel, multi-hole probe. The inside diameter may not be 
greater than the inside diameter of the sample line +0.03 cm. The wall 
thickness of the probe may not be greater than 0.10 cm. The fitting that 
attaches the probe to the exhaust pipe must be as small as practical in 
order to minimize heat loss from the probe.
    (2) The probe must have a minimum of three holes. The spacing of the 
radial planes for each hole in the probe must be such that they cover 
approximately equal cross-sectional areas of the exhaust duct. See 
Figure 2 in Appendix B of Subpart D. The angular spacing of the holes 
must be approximately equal. The angular spacing of any two holes in one 
plane may not be 180 deg.  20 deg. (i.e., section view C-C 
of Figure 2 in Appendix B of Subpart D). The holes should be sized such 
that each has approximately the same flow. If

[[Page 220]]

only three holes are used, they may not all be in the same radial plane.
    (3) The exhaust gas probe must be located in a position which yields 
a well mixed, homogenous sample of the engine exhaust. The probe must 
extend radially across the exhaust gas stream. The probe must pass 
through the approximate center and must extend across at least 80 
percent of the exhaust gas stream. The exact position of the probe may 
vary from engine family to engine family.
    (c) Mixing chamber. The exhaust mixing chamber is located in the 
exhaust system between the muffler and the sample probe. The mixing 
chamber is an optional component of the raw gas sampling equipment.
    (1) The internal volume of the mixing chamber may not be less than 
ten times the cylinder displacement of the engine under test. The shape 
of the mixing chamber must be such that it provides a well mixed, 
homogenous sample at the sample probe location.
    (2) Couple the mixing chamber as closely as possible to the engine 
muffler.
    (3) Maintain the inner surface of the mixing chamber at a minimum 
temperature of 179  deg.C.
    (4) Thermocouple temperature monitoring of the mixing chamber inner 
surface is required to assure wall temperatures specified in paragraph 
(c)(3) of this section. The temperature measurement must be accurate to 
within  5  deg.C.
    (5) The sample probe must extend radially across the exit of the 
mixing chamber. The probe must pass through the approximate center and 
must extend across at least 80 percent of the diameter of the exit. The 
exact position of the probe may vary from engine family to engine 
family. The probe must be located in a position which yields a well 
mixed, homogenous sample of the exhaust.
    (d) Sample transfer line. (1) The maximum inside diameter of the 
sample line may not exceed 1.32 cm.
    (2) If valve V2 in Figure 1 of Appendix B of this subpart is used, 
the sample probe must connect directly to valve V2. The location of 
optional valve V2 in Figure 1 of Appendix B of Subpart D may not be 
greater than 1.22 m from the exhaust duct.
    (3) The location of optional valve V16, Figure 1 of Appendix B of 
this subpart, may not be greater than 61 cm from the sample pump. The 
leakage rate for this section on the pressure side of the sample pump 
may not exceed the leakage rate specification for the vacuum side of the 
pump.
    (e) Venting. All vents, including analyzer vents, bypass flow, and 
pressure relief vents, of regulators should be vented in such a manner 
as to avoid endangering personnel in the immediate area.
    (f) Any variation from the specifications in this subpart, including 
performance specifications and emission detection methods, may be used 
only with prior approval by the Administrator.
    (g) Additional components, such as instruments, valves, solenoids, 
pumps, switches, and so forth, may be employed to provide additional 
information and coordinate the functions of the component systems.
    (h) The following requirements must be incorporated in each system 
used for raw testing under this subpart.
    (1) Take the sample for all components with one sample probe and 
split it internally to the different analyzers.
    (2) Heat the sample transport system from the engine exhaust pipe to 
the HC analyzer for the raw gas sampling method as indicated in Figure 1 
in Appendix B of this subpart. The NOX analyzer for the raw 
gas sampling method may be heated as indicated in Figure 1 in Appendix B 
of this subpart. The HC analyzer and the NOX analyzer for the 
dilute sampling method may be heated as indicated in Figure 1 in 
Appendix B of this subpart.



Sec. 90.415  Raw gaseous sampling procedures.

    Fit all heated sampling lines with a heated filter to extract solid 
particles from the flow of gas required for analysis. The sample line 
for HC measurement must be heated. The sample line for CO, 
CO2 and NOX analysis may be heated or unheated.

[[Page 221]]



Sec. 90.416  Intake air flow measurement specifications.

    (a) If used, the engine intake air flow measurement method used must 
have a range large enough to accurately measure the air flow over the 
engine operating range during the test. Overall measurement accuracy 
must be two percent of full-scale value of the measurement device for 
all modes except the idle mode. For the idle mode, the measurement 
accuracy must be five percent or less of the full-scale 
value. The Administrator must be advised of the method used prior to 
testing.
    (b) When an engine system incorporates devices that affect the air 
flow measurement (such as air bleeds, air injection, pulsed air, and so 
forth) resulting in understated exhaust emission results, make 
corrections to the exhaust emission results to account for such effects.



Sec. 90.417  Fuel flow measurement specifications.

    (a) Fuel flow measurement is required only for raw testing. Fuel 
flow is allowed for dilute testing. If the measured fuel flow is used in 
the dilute calculations for brake-specific fuel consumption (see 
Sec. 90.426(e)), the fuel flow instrument must meet the requirements of 
this section.
    (b) The fuel flow measurement instrument must have a minimum 
accuracy of one percent of full-scale flow rate for each measurement 
range used. An exception is allowed for the idle mode. For this mode, 
the minimum accuracy is  five percent of full-scale flow 
rate for the measurement range used. The controlling parameters are the 
elapsed time measurement of the event and the weight or volume 
measurement.



Sec. 90.418  Data evaluation for gaseous emissions.

    For the evaluation of the gaseous emissions recording, record the 
last four minutes of each mode and determine the average values for HC, 
CO, CO2 and NOX during each mode from the average 
concentration readings determined from the corresponding calibration 
data. Longer averaging times are acceptable, but the sampling period 
which is reported must be a continuous set of data.



Sec. 90.419  Raw emission sampling calculations--gasoline fueled engines.

    (a) Derive the final weighted brake-specific mass emission rates (g/
kW-hr) through the steps described in this section.
    (b) Air and fuel flow method. If both air and fuel flow mass rates 
are measured, use the following equations to determine the weighted 
emission values for the test engine:
[GRAPHIC] [TIFF OMITTED] TR03JY95.016

Where:

WHC = Mass rate of HC in exhaust [g/hr],
GAIRD = Intake air mass flow rate on dry basis [g/hr],
GFUEL = Fuel mass flow rate [g/hr],
MHCexh = Molecular weight of hydrocarbons in the exhaust, see 
the following equation:
[GRAPHIC] [TIFF OMITTED] TR03JY95.017

Where:

 = Hydrogen/carbon atomic ratio of the fuel
 = Oxygen/carbon atomic ratio of the fuel

[[Page 222]]

Mexh = Molecular weight of the total exhaust, see the 
following equation:
[GRAPHIC] [TIFF OMITTED] TR03JY95.018

Where:

WHC = HC volume concentration in exhaust, ppmC wet
WCO = CO percent concentration in the exhaust, wet
DCO = CO percent concentration in the exhaust, dry
WCO2 = CO2 percent concentration in the exhaust, 
wet
DCO2 = CO2 percent concentration in the exhaust, 
dry
WNOX = NO volume concentration in exhaust, ppm wet
WO2 = O2 percent concentration in the exhaust, wet
WH2 = H2 percent concentration in exhaust, wet
K = correction factor to be used when converting dry measurements to a 
wet basis. Therefore, wet concentration=dry concentration  x  K,
where K is:
[GRAPHIC] [TIFF OMITTED] TR03JY95.019

DH2 = H2 percent concentration in exhaust, dry, 
calculated from the following equation:
[GRAPHIC] [TIFF OMITTED] TR03JY95.020

Wco = Mass rate of CO in exhaust, [g/hr]
Mco = Molecular weight of CO=28.01
WNOx = Mass rate of NOX in exhaust, [g/hr]
MNO2 = Molecular weight of NO2=46.01
KH = Factor for correcting the effects of humidity on 
NO2 formation for 4-stroke gasoline small engines, see the 
equation below:
[GRAPHIC] [TIFF OMITTED] TR03JY95.021

Where:
H = absolute humidity of the intake air in grams of moisture per 
kilogram of dry air, see Sec. 90.426(f) for a method by which H can be 
calculated.

    For two-stroke gasoline engines, KH should be set to 1.
    (c) Fuel flow method. The following equations are to be used when 
fuel flow is selected as the basis for mass emission calculations using 
the raw gas method.
[GRAPHIC] [TIFF OMITTED] TR03JY95.022

Where:
WHC = Mass rate of HC in exhaust, [g/hr]

[[Page 223]]

MHCexh = Molecular weight of hydrocarbons in the exhaust, see 
following equation:
[GRAPHIC] [TIFF OMITTED] TR03JY95.023

MC = Molecular weight of carbon=12.01 [g/mole]
MH = Molecular weight of hydrogen=1.008 [g/mole]
MO = Molecular weight of oxygen=16.00 [g/mole]
 = Hydrogen to carbon ratio of the test fuel
 = Oxygen to carbon ratio of the test fuel
MF = Molecular weight of test fuel
GFUEL = Fuel mass flow rate, [g/hr]
TC=Total carbon in exhaust, see following equation:
[GRAPHIC] [TIFF OMITTED] TR03JY95.024

WCO = CO percent concentration in the exhaust, wet
WCO2 = CO2 percent concentration in the exhaust, 
wet
DCO = CO percent concentration in the exhaust, dry
DCO2 = CO2 percent concentration in the exhaust, 
dry
WHC = HC volume concentration in exhaust, ppmC wet
WNOX = NOX volume concentration in exhaust, ppm 
wet
K = correction factor to be used when converting dry measurements to a 
wet basis. Therefore, wet concentration=dry concentration x K, where K 
is:
[GRAPHIC] [TIFF OMITTED] TR03JY95.025

DH2 = H2 percent concentration in exhaust, dry, 
calculated from the following equation:
[GRAPHIC] [TIFF OMITTED] TR03JY95.026

WCO = Mass rate of CO in exhaust, [g/hr]
MCO = Molecular weight of CO = 28.01
WNOX = Mass rate of NOX in exhaust, [g/hr]
MNO2 = Molecular weight of NO2=46.01
KH = Factor for correcting the effects of humidity on 
NO2 formation for 4-stroke gasoline small engines, see the 
following equation:
[GRAPHIC] [TIFF OMITTED] TR03JY95.027

Where:
H = specific humidity of the intake air in grams of moisture per 
kilogram of dry air.
For two-stroke gasoline engines, KH should be set to 1.

    (d) Calculate the final weighted brake-specific emission rate for 
each individual gas component using the following equation:
[GRAPHIC] [TIFF OMITTED] TR03JY95.028

Where:
AWM = Final weighted brake-specific mass emission rate (HC, 
CO, NOX) [g/kW-hr]
Wi = Mass emission rate during mode i [g/hr]
WFi = Weighting factors for each mode according to 
Sec. 90.410(a)
Pi = Gross average power generated during mode i [kW], 
calculated from the following equation,
[GRAPHIC] [TIFF OMITTED] TR03JY95.029

Where:
speed = average engine speed measured during mode i [rev./minute]
torque = average engine torque measured during mode i [N-m] (e) Compute 
the final reported brake-specific fuel consumption (BSFC) by use of the 
following formula:

[[Page 224]]

[GRAPHIC] [TIFF OMITTED] TR03JY95.030

Where:
BSFC = brake-specific fuel consumption in grams of fuel per kilowatt-
hour (g/kW-hr).
GFUELi = Fuel mass flow rate of the engine during mode i [g/
hr]
WFi = Weighting factors for each mode according to 
Sec. 90.410(a)
Pi = Gross average power generated during mode i [kW].



Sec. 90.420  CVS concept of exhaust gas sampling system.

    (a) A dilute exhaust sampling system is designed to directly measure 
the true mass of emissions in engine exhaust without the necessity of 
measuring either fuel flow or intake air flow. This is accomplished by 
diluting the exhaust produced by a test engine with ambient background 
air and measuring the total diluted exhaust flow rate and the 
concentration of emissions within the dilute flow. Total mass flow of an 
emission is then easily calculated.
    (b) A constant volume sampler (CVS) is typically used to control the 
total amount of dilute flow through the system. As the name implies, a 
CVS restricts flow to a known value dependent only on the dilute exhaust 
temperature and pressure.
    (c) For the testing described in this subpart, a CVS must consist 
of: a mixing tunnel into which the engine exhaust and dilutant 
(background) air are dumped; a dilute exhaust flow metering system; a 
dilute exhaust sample port; a background sample port; a dilute exhaust 
sampling system; and a background sampling system.
    (1) Mixing tunnel. The mixing tunnel must be constructed such that 
complete mixing of the engine exhaust and background air is assured 
prior to the sampling probe.
    (2) Exhaust flow metering system. A dilute exhaust flow metering 
system must be used to control the total flow rate of the dilute engine 
exhaust as described in Sec. 90.421.
    (3) Exhaust sample port. A dilute exhaust sample port must be 
located in or downstream of the mixing tunnel at a point where complete 
mixing of the engine exhaust and background air is assured.
    (4) Background sample port. A dilute exhaust sample port must be 
located in the stream of background air before it is mixed with the 
engine exhaust. The background probe must draw a representative sample 
of the background air during each sampling mode.
    (5) Exhaust sampling system. The dilute exhaust sampling system 
controls the flow of samples from the mixing tunnel to the analyzer 
system. This could be either a continuous sampling system or grab (bag) 
sampling system. If a critical flow venturi (CFV) is used on the dilute 
exhaust sample probe, this system must assure that the sample CFV is in 
choke flow during testing. If no CFV is used, this system must assure a 
constant volumetric flow rate through the dilute exhaust sample probe or 
must incorporate electronic flow compensation.
    (6) Background sampling system. The background sampling system 
controls the flow of samples from the background air supply to the 
analyzer system. This could be either a continuous sampling system or 
grab (bag) sampling system. This system must assure a constant 
volumetric flow rate through the background sample probe.



Sec. 90.421  Dilute gaseous exhaust sampling and analytical system description.

    (a) General. The exhaust gas sampling system described in this 
section is designed to measure the true mass of gaseous emissions in the 
exhaust of nonroad small spark-ignition engines. This system utilizes 
the Constant Volume Sampling (CVS) concept (described in Sec. 90.420) of 
measuring mass emissions of HC, NOX, CO, and CO2. 
Grab sampling for individual modes is an acceptable method of dilute 
testing for all constituents, HC, NOX, CO, and 
CO2. Continuous dilute sampling is not required for any of 
the exhaust constituents, but is allowable for all. Heated sampling is 
not required for any of the constituents, but is allowable for HC and 
NOX. The mass of gaseous emissions is determined from the 
sample concentration and total flow over the

[[Page 225]]

test period. As an option, the measurement of total fuel mass consumed 
over a cycle may be substituted for the exhaust measurement of 
CO2. General requirements are as follows:
    (1) This sampling system requires the use of a Positive Displacement 
Pump--Constant Volume Sampler (PDP-CVS) system with a heat exchanger, or 
a Critical Flow Venturi--Constant Volume Sampler (CFV-CVS) system with 
CFV sample probes and/or a heat exchanger or electronic flow 
compensation. Figure 2 in Appendix B of this subpart is a schematic 
drawing of the PDP-CVS system. Figure 3 in Appendix B of this subpart is 
a schematic drawing of the CFV-CVS system.
    (2) The HC analytical system requires:
    (i) Grab sampling (see Sec. 90.420, and Figure 2 or Figure 3 in 
Appendix B of this subpart) and analytical capabilities (see 
Sec. 90.423, and Figure 4 in Appendix B of this subpart), or
    (ii) Continuously integrated measurement of diluted HC meeting the 
minimum requirements and technical specifications contained in paragraph 
(b)(2) of this section.
    (iii) The dilute HC analytical system for nonroad small spark-
ignition engines does not require a heated flame ionization detector 
(HFID).
    (iv) If used, the HFID sample must be taken directly from the 
diluted exhaust stream through a heated probe and integrated 
continuously over the test cycle.
    (v) The heated probe must be located in the sampling system far 
enough downstream of the mixing area to ensure a uniform sample 
distribution across the CVS duct at the sampling zone.
    (3) The CO and CO2 analytical system requires:
    (i) Grab sampling (see Sec. 90.420, and Figure 2 or Figure 3 in 
Appendix B of this subpart) and analytical capabilities (see 
Sec. 90.423, and Figure 4 in Appendix B of this subpart), or
    (ii) Continuously integrated measurement of diluted CO and 
CO2 meeting the minimum requirements and technical 
specifications contained in paragraph (b)(4) of this section.
    (4) The NOX analytical system requires:
    (i) Grab sampling (see Sec. 90.420, and Figure 2 or Figure 3 in 
Appendix B of this subpart) and analytical capabilities (see 
Sec. 90.423, and Figure 4 in Appendix B of this subpart), or
    (ii) A continuously integrated measurement of diluted NOX 
meeting the minimum requirements and technical specifications contained 
in paragraph (b)(4) of this section.
    (5) Since various configurations can produce equivalent results, 
exact conformance with these drawings is not required. Additional 
components such as instruments, valves, solenoids, pumps, and switches 
may be used to provide additional information and coordinate the 
functions of the component systems. Other components, such as snubbers, 
which are not needed to maintain accuracy on some systems, may be 
excluded if their exclusion is based upon good engineering judgment.
    (6) Other sampling and/or analytical systems may be used if shown to 
yield equivalent results and if approved in advance by the 
Administrator.
    (b) Component description. The components necessary for exhaust 
0sampling must meet the following requirements:
    (1) Exhaust dilution system. The PDP-CVS must conform to all of the 
requirements listed for the exhaust gas PDP-CVS in Sec. 90.420 of this 
chapter. The CFV-CVS must conform to all of the requirements listed for 
the exhaust gas CFV-CVS in Sec. 90.420 of this chapter. In addition, the 
CVS must conform to the following requirements:
    (i) The flow capacity of the CVS must be sufficient to maintain the 
diluted exhaust stream in the dilution system at a temperature of 190 
deg.C or less at the sampling zone for hydrocarbon measurement and as 
required to prevent condensation at any point in the dilution system. 
Gaseous emission samples may be taken directly from this sampling point.
    (ii) For the CFV-CVS, either a heat exchanger or electronic flow 
compensation is required (see Figure 3 in Appendix B of this subpart).
    (iii) For the CFV-CVS when a heat exchanger is used, the gas mixture 
temperature, measured at a point immediately ahead of the critical flow 
venturi, must be within 11  deg.C of the

[[Page 226]]

average operating temperature observed during the test with the 
simultaneous requirement that condensation does not occur. The 
temperature measuring system (sensors and readout) must have an accuracy 
and precision of 2  deg.C. For systems utilizing a flow 
compensator to maintain proportional flow, the requirement for 
maintaining constant temperature is not necessary.
    (2) Continuous HC measurement system. (i) The continuous HC sample 
system (as shown in Figure 2 or 3 in Appendix B of this subpart) uses an 
``overflow'' zero and span system. In this type of system, excess zero 
or span gas spills out of the probe when zero and span checks of the 
analyzer are made.
    (ii) No other analyzers may draw a sample from the continuous HC 
sample probe, line, or system, unless a common sample pump is used for 
all analyzers and the sample line system design reflects good 
engineering practice.
    (iii) The overflow gas flow rates into the sample line must be at 
least 105 percent of the sample system flow rate.
    (iv) The overflow gases must enter the sample line as close as 
practical to the outside surface of the CVS duct or dilution system.
    (v) The continuous HC sampling system consists of a probe (which for 
a HFID analyzer must raise the sample to the specified temperature) and, 
where used, a sample transfer system (which for a HFID must maintain the 
specified temperature). The HFID continuous hydrocarbon sampling system 
(exclusive of the probe) must:
    (A) Maintain a wall temperature of 190 11  deg.C as 
measured at every separately controlled heated component (that is, 
filters, heated line sections), using permanent thermocouples located at 
each of the separate components.
    (B) Have a wall temperature of 190 11  deg.C over its 
entire length. The temperature of the system is demonstrated by 
profiling the thermal characteristics of the system where possible at 
initial installation and after any major maintenance performed on the 
system. The profiling is to be accomplished using the insertion 
thermocouple probing technique. The system temperature must be monitored 
continuously during testing at the locations and temperature described 
in Sec. 90.421(b)(2).
    (C) Maintain a gas temperature of 190 11  deg.C 
immediately before the heated filter and HFID. Determine these gas 
temperatures by a temperature sensor located immediately upstream of 
each component.
    (vi) The continuous hydrocarbon sampling probe:
    (A) Is defined as the first 25.4 to 76.2 cm of the continuous 
hydrocarbon sampling system.
    (B) Has a 0.483 cm minimum inside diameter.
    (C) Is installed in the dilution system at a point where the 
dilution air and exhaust are well mixed and provide a homogenous 
mixture.
    (D) Is sufficiently distant (radially) from other probes and the 
system wall so as to be free from the influence of any wakes or eddies.
    (E) For a continuous HFID sample probe, the probe must increases the 
gas stream temperature to 190 11  deg.C at the exit of the 
probe. Demonstrate the ability of the probe to accomplish this using the 
insertion thermocouple technique at initial installation and after any 
major maintenance. Demonstrate compliance with the temperature 
specification by continuously recording during each test the temperature 
of either the gas stream or the wall of the sample probe at its 
terminus.
    (vii) The response time of the continuous measurement system must be 
taken into account when logging test data.
    (3) Sample mixing. (i) Configure the dilution system to ensure a 
well mixed, homogeneous sample prior to the sampling probe(s).
    (ii) Make the temperature of the diluted exhaust stream inside the 
dilution system sufficient to prevent water condensation.
    (iii) Direct the engine exhaust downstream at the point where it is 
introduced into the dilution system.
    (4) Continuously integrated NOX, CO, and CO2 
measurement systems--(i) Sample probe requirements:
    (A) The sample probe for continously intergrated NOX, CO, 
and CO2 must be in the same plane as the continuous HC probe, 
but sufficiently distant (radially) from other probes and the tunnel

[[Page 227]]

wall so as to be free from the influences of any wakes or eddies.
    (B) The sample probe for continously intergrated NOX, CO, 
and CO2 must be heated and insulated over the entire length, 
to prevent water condensation, to a minimum temperature of 55  deg.C. 
Sample gas temperature immediately before the first filter in the system 
must be at least 55  deg.C.
    (ii) Conform to the continuous NOX, CO, or CO2 
sampling and analysis system to the specifications of part 86, subpart D 
of this chapter with the following exceptions and revisions:
    (A) Heat the system components requiring heating only to prevent 
water condensation, the minimum component temperature is 55  deg.C.
    (B) Coordinate analysis system response time with CVS flow 
fluctuations and sampling time/test cycle offsets, if necessary.
    (C) Use only analytical gases conforming to the specifications of 
Sec. 90.312 of this subpart for calibration, zero and span checks.
    (D) Use a calibration curve conforming to Sec. 90.321 for CO and 
CO2 and Sec. 90.318 for NOX for any range on a 
linear analyzer below 155 ppm.
    (iii) Convert the chart deflections or voltage output of analyzers 
with non-linear calibration curves to concentration values by the 
calibration curve(s) specified in Sec. 90.321 of this chapter before 
flow correction (if used) and subsequent integration takes place.



Sec. 90.422  Background sample.

    (a) Background samples are produced by drawing a sample of the 
dilution air during the exhaust collection phase of each test cycle 
mode.
    (1) An individual background sample may be produced and analyzed for 
each mode. Hence, a unique background value will be used for the 
emission calculations for each mode.
    (2) Alternatively, a single background sample may be produced by 
drawing a sample during the collection phase of each test cycle mode. 
Hence, a single cumulative background value will be used for the 
emission calculations for each mode.
    (b) For analysis of the individual sample described in paragraph 
(a)(1) of this section, a single value representing the average chart 
deflection over a 10-second stabilized period must be stored. All 
readings taken during the data logging period must be stable within 
 one percent of full scale.
    (c) Measure HC, CO, CO2, and NOX exhaust and 
background concentrations in the sample bag(s) with approximately the 
same flow rates and pressures used during calibration.



Sec. 90.423  Exhaust gas analytical system; CVS grab sample.

    (a) Schematic drawings. Figure 4 in Appendix B of this subpart is a 
schematic drawing of the exhaust gas analytical systems used for 
analyzing CVS grab ``bag'' samples from spark-ignition engines. Since 
various configurations can produce accurate results, exact conformance 
with the drawing is not required. Additional components such as 
instruments, valves, solenoids, pumps and switches may be used to 
provide additional information and coordinate the functions of the 
component systems. Other components such as snubbers, which are not 
needed to maintain accuracy in some systems, may be excluded if their 
exclusion is based upon good engineering judgment.
    (b) Major component description. The analytical system, Figure 4 in 
Appendix B of this subpart, consists of a flame ionization detector 
(FID) or a heated flame ionization detector (HFID) for the measurement 
of hydrocarbons, non-dispersive infrared analyzers (NDIR) for the 
measurement of carbon monoxide and carbon dioxide, and a 
chemiluminescence detector (CLD) (or heated CLD (HCLD)) for the 
measurement of oxides of nitrogen. The exhaust gas analytical system 
must conform to the following requirements:
    (1) The CLD (or HCLD) requires that the nitrogen dioxide present in 
the sample be converted to nitric oxide before analysis. Other types of 
analyzers may be used if shown to yield equivalent results and if 
approved in advance by the Administrator.
    (2) If CO instruments are used which are essentially free of 
CO2 and water vapor interference, the use of the conditioning 
column may be deleted. (See Sec. 90.317 and Sec. 90.320.)
    (3) A CO instrument is considered to be essentially free of 
CO2 and water

[[Page 228]]

vapor interference if its response to a mixture of three percent 
CO2 in N2, which has been bubbled through water at 
room temperature, produces an equivalent CO response, as measured on the 
most sensitive CO range, which is less than one percent of full-scale CO 
concentration on ranges above 300 ppm full scale or less than three ppm 
on ranges below 300 ppm full scale. (See Sec. 90.317.)
    (c) Alternate analytical systems. Analysis systems meeting the 
specifications and requirements of this subpart for dilute sampling may 
be used upon approval of the Administrator.
    (d) Other analyzers and equipment. Other types of analyzers and 
equipment may be used if shown to yield equivalent results and if 
approved in advance by the Administrator.



Sec. 90.424  Dilute sampling procedures--CVS calibration.

    (a) The CVS is calibrated using an accurate flowmeter and restrictor 
valve.
    (1) The flowmeter calibration must be traceable to the National 
Institute for Standards and Testing (NIST) and serves as the reference 
value (NIST ``true'' value) for the CVS calibration. (Note: In no case 
should an upstream screen or other restriction which can affect the flow 
be used ahead of the flowmeter unless calibrated throughout the flow 
range with such a device.)
    (2) The CVS calibration procedures are designed for use of a 
``metering venturi'' type flowmeter. Large radius or American Society of 
Mechanical Engineers (ASME) flow nozzles are considered equivalent if 
traceable to NIST measurements. Other measurement systems may be used if 
shown to be equivalent under the test conditions in this section and 
traceable to NIST measurements.
    (3) Measurements of the various flowmeter parameters are recorded 
and related to flow through the CVS.
    (4) Procedures using both PDP-CVS and CFV-CVS are outlined in the 
following paragraphs. Other procedures yielding equivalent results may 
be used if approved in advance by the Administrator.
    (b) After the calibration curve has been obtained, verification of 
the entire system may be performed by injecting a known mass of gas into 
the system and comparing the mass indicated by the system to the true 
mass injected. An indicated error does not necessarily mean that the 
calibration is wrong, since other factors can influence the accuracy of 
the system (for example, analyzer calibration, leaks, or HC hangup). A 
verification procedure is found in paragraph (e) of this section.
    (c) PDP-CVS calibration. (1) The following calibration procedure 
outlines the equipment, the test configuration, and the various 
parameters which must be measured to establish the flow rate of the CVS 
pump.
    (i) All the parameters related to the pump are simultaneously 
measured with the parameters related to a flowmeter which is connected 
in series with the pump.
    (ii) The calculated flow rate, in cm3/s, (at pump inlet 
absolute pressure and temperature) can then be plotted versus a 
correlation function which is the value of a specific combination of 
pump parameters.
    (iii) The linear equation which relates the pump flow and the 
correlation function is then determined.
    (iv) In the event that a CVS has a multiple speed drive, a 
calibration for each range used must be performed.
    (2) This calibration procedure is based on the measurement of the 
absolute values of the pump and flowmeter parameters that relate the 
flow rate at each point. Two conditions must be maintained to assure the 
accuracy and integrity of the calibration curve:
    (i) The temperature stability must be maintained during calibration. 
(Flowmeters are sensitive to inlet temperature oscillations; this can 
cause the data points to be scattered. Gradual changes in temperature 
are acceptable as long as they occur over a period of several minutes.)
    (ii) All connections and ducting between the flowmeter and the CVS 
pump must be absolutely void of leakage.
    (3) During an exhaust emission test the measurement of these same 
pump parameters enables the user to calculate the flow rate from the 
calibration equation.

[[Page 229]]

    (4) Connect a system as shown in Figure 5 in Appendix B of this 
subpart. Although particular types of equipment are shown, other 
configurations that yield equivalent results may be used if approved in 
advance by the Administrator. For the system indicated, the following 
measurements and accuracies are required:

                      Calibration Data Measurements
------------------------------------------------------------------------
                                                         Sensor-readout
           Parameter             Symbol      Units         tolerances
------------------------------------------------------------------------
Barometric pressure             PB        kPa          .340
 (corrected).                                           kPa.
Ambient temperature...........  TA          deg.C      .28
                                                        deg.C.
Air temperature into metering   ETI         deg.C      1.11
 venturi.                                               deg.C.
Pressure drop between the       EDP       kPa          0.012
 inlet and throat of metering                           kPa.
 venturi.
Air flow......................  QS        m3/min.      0.5
                                                        percent of NIST
                                                        value.
Air temperature at CVS pump     PTI         deg.C      1.11
 inlet.                                                 deg.C.
Pressure depression at CVS      PPI       kPa          0.055
 pump inlet.                                            kPa.
Pressure head at CVS pump       PPO       kPa          0.055
 outlet.                                                kPa.
Air temperature at CVS pump     PTO         deg.C      1.11
 outlet (optional).                                     deg.C.
Pump revolutions during test    N         Revs         1
 period.                                                Rev.
Elapsed time for test period..  t         s            0.5
                                                        s.
------------------------------------------------------------------------

    (5) After the system has been connected as shown in Figure 5 in 
Appendix B of this subpart, set the variable restrictor in the wide open 
position and run the CVS pump for 20 minutes. Record the calibration 
data.
    (6) Reset the restrictor valve to a more restricted condition in an 
increment of pump inlet depression that will yield a minimum of six data 
points for the total calibration. Allow the system to stabilize for 
three minutes and repeat the data acquisition.
    (7) Data analysis:
    (i) The air flow rate, Qs, at each test point is 
calculated in standard cubic feet per minute 20  deg.C, 101.3 kPa from 
the flowmeter data using the manufacturer's prescribed method.
    (ii) The air flow rate is then converted to pump flow, 
Vo, in cubic meter per revolution at absolute pump inlet 
temperature and pressure:
[GRAPHIC] [TIFF OMITTED] TR03JY95.031

Where:

Vo = Pump flow, m\3\/rev at Tp, Pp.
Qs = Meter air flow rate in standard cubic meters per minute, 
standard conditions are 20  deg.C, 101.3 kPa.
n = Pump speed in revolutions per minute.
Tp = Absolute pump inlet temperature in Kelvin, =PTI+273 
[ deg.K]
Pp = Absolute pump inlet pressure, kPa. = PB-PPI

Where:

PB = barometric pressure, kPa
PPI = Pump inlet depression, kPa.

    (iii) The correlation function at each test point is then calculated 
from the calibration data:
[GRAPHIC] [TIFF OMITTED] TR03JY95.032

Where:

Xo = correlation function.
p = The pressure differential from pump inlet to pump outlet 
[kPa]
      p = Pe-Pp.

Where:

Pe = Absolute pump outlet pressure [kPa], Pe = 
PB+PPI

    (iv) A linear least squares fit is performed to generate the 
calibration equation which has the form:
[GRAPHIC] [TIFF OMITTED] TR03JY95.033

Where:

Do and M are the intercept and slope constants, respectively, 
describing the regression line.
    (8) A CVS system that has multiple speeds should be calibrated on 
each speed used. The calibration curves generated for the ranges will be 
approximately parallel and the intercept values, Do, will 
increase as the pump flow range decreases.
    (9) If the calibration has been performed carefully, the calculated 
values

[[Page 230]]

from the equation will be within  0.50 percent of the 
measured value of Vo. Values of M will vary from one pump to 
another, but values of Do for pumps of the same make, model, 
and range should agree within  three percent of each other. 
Calibrations should be performed at pump start-up and after major 
maintenance to assure the stability of the pump slip rate. Analysis of 
mass injection data will also reflect pump slip stability.
    (d) CFV-CVS calibration. (1) Calibration of the CFV is based upon 
the flow equation for a critical venturi. Gas flow is a function of 
inlet pressure and temperature:
[GRAPHIC] [TIFF OMITTED] TR03JY95.034

Where:

Qs = flow rate [m\3\/min.]
Kv = calibration coefficient
P = absolute pressure [kPa]
T = absolute temperature [ deg.K]

    The calibration procedure described in paragraph (d)(3) of this 
section establishes the value of the calibration coefficient at measured 
values of pressure, temperature, and air flow.
    (2) The manufacturer's recommended procedure must be followed for 
calibrating electronic portions of the CFV.
    (3) Measurements necessary for flow calibration are as follows:

                                          Calibration Data Measurements
----------------------------------------------------------------------------------------------------------------
            Parameter                    Symbol               Units                      Tolerances
----------------------------------------------------------------------------------------------------------------
Barometric Pressure (corrected).  PB                   kPa                  .34 kPa
Air temperature, into flowmeter.  ETI                    deg.C              .28  deg.C
Pressure drop between the inlet   EDP                  in. H2 O             .05 in H2 O
 and throat of metering venturi.
Air flow........................  QS                   m3/min               .5 percent of NIST value
CFV inlet depression............  PPI                  (kPa)                .055 kPa
Temperature at venturi inlet....  TV                     deg.C              2.22  deg.C
----------------------------------------------------------------------------------------------------------------

    (4) Set up equipment as shown in Figure 6 in Appendix B of this 
subpart and eliminate leaks. (Leaks between the flow measuring devices 
and the critical flow venturi will seriously affect the accuracy of the 
calibration.)
    (5) Set the variable flow restrictor to the open position, start the 
blower, and allow the system to stabilize. Record data from all 
instruments.
    (6) Vary the flow restrictor and make at least eight readings across 
the critical flow range of the venturi.
    (7) Data analysis. The data recorded during the calibration are to 
be used in the following calculations:
    (i) Calculate the air flow rate (designated as Qs) at 
each test point in standard cubic feet per minute from the flow meter 
data using the manufacturer's prescribed method.
    (ii) Calculate values of the calibration coefficient for each test 
point:
[GRAPHIC] [TIFF OMITTED] TR03JY95.035

Where:

Qs = Flow rate in standard cubic meters per minute, at the 
standard conditions of 20  deg.C, 101.3 kPa.
Tv = Temperature at venturi inlet,  deg.K.
Pv = Pressure at venturi inlet, kPa = PB - 
PPI

Where:

PPI = Venturi inlet pressure depression, kPa.

    (iii) Plot Kv as a function of venturi inlet pressure. 
For choked flow, Kv will have a relatively constant value. As 
pressure decreases (vacuum increases), the venturi becomes unchoked and 
Kv decreases. (See Figure 7 in Appendix B to Subpart D.)
    (iv) For a minimum of eight points in the critical region, calculate 
an average Kv and the standard deviation.
    (v) If the standard deviation exceeds 0.3 percent of the average 
Kv , take corrective action.
    (e) CVS system verification. The following ``gravimetric'' technique 
may be used to verify that the CVS and analytical instruments can 
accurately measure a mass of gas that has been injected into the system. 
(Verification can also be accomplished by constant

[[Page 231]]

flow metering using critical flow orifice devices.)
    (1) Obtain a small cylinder that has been charged with 99.5 percent 
or greater propane or carbon monoxide gas (CAUTION--carbon monoxide is 
poisonous).
    (2) Determine a reference cylinder weight to the nearest 0.01 grams.
    (3) Operate the CVS in the normal manner and release a quantity of 
pure propane into the system during the sampling period (approximately 
five minutes).
    (4) The calculations are performed in the normal way except in the 
case of propane. The density of propane (0.6109 kg/m\3\/carbon atom) is 
used in place of the density of exhaust hydrocarbons.
    (5) The gravimetric mass is subtracted from the CVS measured mass 
and then divided by the gravimetric mass to determine the percent 
accuracy of the system.
    (6) Good engineering practice requires that the cause for any 
discrepancy greater than  two percent must be found and 
corrected.



Sec. 90.425  CVS calibration frequency.

    Calibrate the CVS positive displacement pump or critical flow 
venturi following initial installation, major maintenance, or as 
necessary when indicated by the CVS system verification (described in 
Sec. 90.424(e)).



Sec. 90.426  Dilute emission sampling calculations--gasoline fueled engines.

    (a) The final reported emission test results must be computed by use 
of the following formula:
[GRAPHIC] [TIFF OMITTED] TR03JY95.036

Where:

AWM = Final weighted brake-specific mass emission rate for an 
emission (HC, CO, CO2, or NOX) [g/kW-hr]
Wi = Average mass flow rate of an emission (HC, CO, 
CO2, NOX) from a test engine during mode i [g/hr]
WFi = Weighting factor for each mode i as defined in 
Sec. 90.410(a).
Pi = Gross average power generated during mode i [kW], 
calculated from the following equation,
[GRAPHIC] [TIFF OMITTED] TR03JY95.037

Where:

speed = average engine speed measured during mode i [rev./minute]
torque = average engine torque measured during mode i [N-m]
    KHi = NOX humidity correction factor for mode 
i. This correction factor only affects calculations for tion factor only 
affects calculations for NOX and is equal to one for all 
other emissions. KHi is also equal to 1 for all two-stroke 
engines.

    (b) The mass flow rate, Wi in g/hr, of an emission for 
mode i is determined from the following equations:
[GRAPHIC] [TIFF OMITTED] TR03JY95.038

Where:

Qi = Volumetric flow rate oandard conditions [m\3\/hr at 
STP].
Density = Density of a specific emission (DensityHC, 
DensityCO, DensityCO2, DensityNOx) [g/
m\3\].
DFi = Dilution factor of the dilute exhaust during mode i.
CDi = Concentration of the emission (HC, CO, NOX) 
in dilute exhaust extracted from the CVS during mode i [ppm].
CBi = Concentration of the emission (HC, CO, NOX) 
in the background sample during mode i [ppm].
STP = Standard temperature and pressure. All volumetric calculations 
made for the equations in this section are to be corrected to a standard 
temperature of 20  deg.C and 101.3 kPa.

    (c) Densities for emissions that are to be measured for this test 
procedure are:

DensityHC = 576.8 g/m\3\
DensityNOX = 1912 g/m\3\
DensityCO = 1164 g/m\3\
DensityCO2 = 1829 g/m\3\

    (1) The value of DensityHC above is calculated based on 
the assumption that the fuel used has a carbon to hydrogen ratio of 
1:1.85. For other fuels DensityHC can be calculated from the 
following formula:

[[Page 232]]

[GRAPHIC] [TIFF OMITTED] TR03JY95.039

Where:

MHC = The molecular weight of the hydrocarbon molecule 
divided by the number of carbon atoms in the molecule [g/mole]
RSTP = Ideal gas constant for a gas at STP=0.024065 [m\3\-
mole].

    (2) The idealized molecular weight of the exhaust hydrocarbons, 
i.e., the molecular weight of the hydrocarbon molecule divided by the 
number of carbon atoms in the molecule, MHC, can be 
calculated from the following formula:
[GRAPHIC] [TIFF OMITTED] TR03JY95.040

Where:

MC = Molecular weight of carbon=12.01 [g/mole]
MH = Molecular weight of hydrogen=1.008 [g/mole]
MO = Molecular weight of oxygen=16.00 [g/mole]
 = Hydrogen to carbon ratio of the test fuel
 = Oxygen to carbon ratio of the test fuel

    (3) The value of DensityNOX above assumes that 
NOX is entirely in the form of NO2
    (d) The dilution factor, DF, is the ratio of the volumetric flow 
rate of the background air to that of the raw engine exhaust. The 
following formula is used to determine DF:
[GRAPHIC] [TIFF OMITTED] TR03JY95.041

Where:

CDHC = Concentration of HC in the dilute sample [ppm]
CDCO = Concentration of CO in the dilute sample [ppm]
CDCO2 = Concentration of CO2 in the dilute sample 
[ppm]

    (e) The humidity correction factor KH is an adjustment 
made to the measured NOX. This corrects for the sensitivity 
that a spark-ignition engine has to the humidity of its combustion air. 
The following formula is used to determine KH for 
NOX calculations:
[GRAPHIC] [TIFF OMITTED] TR03JY95.042

Where:

H = Absolute humidity of the engine intake air [grams of water per 
kilogram of dry air].

    (f) Calculate the absolute humidity of the engine intake air H using 
the following formula:
[GRAPHIC] [TIFF OMITTED] TR03JY95.043

Where:

Pdew = Saturated vapor pressure at the dew point temperature 
[kPa]
Pb = Barometric pressure [kPa].

    (g) Compute the final reported brake-specific fuel consumption 
(BSFC) by use of the following formula:
[GRAPHIC] [TIFF OMITTED] TR03JY95.044

Where:

BSFC = brake-specific fuel consumption in grams of fuel per brake 
kilowatt-hour [g/kW-hr].
GFUELi = mass flow rate of engine fuel during mode i [g/hr]
WFi = Weighting factors for each mode according to 
Sec. 90.410(a)
Pi = Gross average power generated during mode i [kW], 
calculated from the following equation,
[GRAPHIC] [TIFF OMITTED] TR03JY95.045

Where:

speed = average engine speed measured during mode i [rev./minute]
torque = average engine torque measured during mode i [N-m]

    (h) The fuel mass flow rate, Fi, can be either measured 
or calculated using the following formula:
[GRAPHIC] [TIFF OMITTED] TR03JY95.046

Where:

MFUEL = Mass of fuel consumed by the engine during the mode 
[g]
T = Duration of the sampling period [hr]

    (i) The mass of fuel consumed during the mode sampling period, 
MFUEL, can

[[Page 233]]

be calculated from the following equation:
[GRAPHIC] [TIFF OMITTED] TR03JY95.047

Where:

Gs = Mass of carbon measured during the mode sampling period 
[g]
R2 = The fuel carbon weight fraction, which is the mass of 
carbon in fuel per mass of fuel [g/g]

    The grams of carbon measured during the mode, Gs, can be 
calculated from the following equation:
[GRAPHIC] [TIFF OMITTED] TR03JY95.048

Where:

HCmass=mass of hydrocarbon emissions for the mode sampling 
period [grams]
CO2mass=mass of carbon monoxide emissions for the mode 
sampling period [grams]
CO2mass=mass of carbon dioxide emissions for the mode 
sampling period [grams]
=The atomic hydrogen to carbon ratio of the fuel



Sec. 90.427  Catalyst thermal stress resistance evaluation.

    (a) The purpose of the evaluation procedure specified in this 
section is to determine the effect of thermal stress on catalyst 
conversion efficiency for Phase 1 engines. The thermal stress is imposed 
on the test catalyst by exposing it to quiescent heated air in an oven. 
The evaluation of the effect of such stress on catalyst performance is 
based on the resultant degradation of the efficiency with which the 
conversions of specific pollutants are promoted. The application of this 
evaluation procedure involves the several steps that are described in 
the following paragraphs.
    (b) Determination of initial conversion efficiency. (1) A synthetic 
exhaust gas mixture having the composition specified in Sec. 90.329 is 
heated to a temperature of 450  deg.C  5  deg.C and passed 
through the new test catalyst or, optionally, a test catalyst that has 
been exposed to temperatures less than or equal to 500  deg.C for less 
than or equal to two hours, under flow conditions that are 
representative of anticipated in-use conditions.
    (2) The concentration of each pollutant of interest, that is, 
hydrocarbons, carbon monoxide, or oxides of nitrogen, in the effluent of 
the catalyst is determined by means of the instrumentation that is 
specified for exhaust gas analysis in subpart D of this part.
    (3) The conversion efficiency for each pollutant is determined by:
    (i) Subtracting the effluent concentration from the initial 
concentration;
    (ii) Dividing this result by the initial concentration; and
    (iii) Multiplying this result by 100 percent.
    (c) Imposition of thermal stress. (1) The catalyst is placed in an 
oven that has been pre-heated to 1000  deg.C and the temperature of the 
air in the oven is maintained at 1000  deg.C  10  deg.C for 
six hours.
    (2) The catalyst is removed from the oven and allowed to cool to 
room temperature.
    (d) Determination of final conversion efficiency. The steps listed 
in paragraph (b) of this section are repeated.
    (e) Determination of conversion efficiency degradation.
    (1) The final conversion efficiency determined in paragraph (c) of 
this section is subtracted from the initial conversion efficiency 
determined in paragraph (b) of this section.
    (2) This result is divided by the initial conversion efficiency.
    (3) This result is multiplied by 100 percent.
    (f) Determination of compliance with degradation limit. The percent 
degradation determined in paragraph (e) of this section must not be 
greater than 20 percent.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15244, Mar. 30, 1999]

[[Page 234]]


               Appendix A to Subpart E of Part 90--Tables

      Table 1--Parameters to be Measured or Calculated and Recorded
------------------------------------------------------------------------
                    Parameter                              Units
------------------------------------------------------------------------
Airflow rate (dry), if applicable................  g/h
Fuel flow rate...................................  g/h
Engine Speed.....................................  rpm
Engine Torque Output.............................  N m
Power Output.....................................  kW
Air inlet temperature............................    deg.C
Air humidity.....................................  mg/kg
Coolant temperature (liquid cooled)..............    deg.C
Exhaust mixing chamber surface temperature, if       deg.C
 applicable.
Exhaust sample line temperature, if applicable...    deg.C
Total Accumulated hours of Engine Operation......  h
Barometric Pressure..............................  kPa
------------------------------------------------------------------------


                                                       Table 2--Test Cycles for Class I-V Engines
--------------------------------------------------------------------------------------------------------------------------------------------------------
                      Mode Speed                          1        2        3        4        5        6        7        8        9        10       11
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Rated Speed
                                                                    Intermediate Speed                Idle
Mode Points--A Cycle.................................  .......  .......  .......  .......  .......        1        2        3        4        5        6
Load Percent--A Cycle................................  .......  .......  .......  .......  .......      100       75       50       25       10        0
Weighting............................................  .......  .......  .......  .......  .......       9%      20%      29%      30%       7%       5%
Mode Points--B Cycle.................................        1        2        3        4        5  .......  .......  .......  .......  .......        6
Load Percent--B Cycle................................      100       75       50       25       10  .......  .......  .......  .......  .......        0
Weighting............................................       9%      20%      29%      30%       7%  .......  .......  .......  .......  .......       5%
Mode Points--C Cycle.................................        1  .......  .......  .......  .......  .......  .......  .......  .......  .......        2
Load Percent--C Cycle................................      100  .......  .......  .......  .......  .......  .......  .......  .......  .......        0
Weighting............................................      90%  .......  .......  .......  .......  .......  .......  .......  .......  .......      10%
--------------------------------------------------------------------------------------------------------------------------------------------------------


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                Subpart F--Selective Enforcement Auditing



Sec. 90.501  Applicability.

    The requirements of subpart F shall be applicable to all nonroad 
engines and vehicles subject to the provisions of subpart A of part 90.



Sec. 90.502  Definitions.

    The definitions in subpart A of this part apply to this subpart. The 
following definitions shall also apply to this subpart.
    Acceptable quality level (AQL) means the maximum percentage of 
failing engines that can be considered a satisfactory process average 
for sampling inspections.
    Configuration means any subclassification of an engine family which 
can be described on the basis of gross power, emission control system, 
governed speed, fuel system, engine calibration, and other parameters as 
designated by the Administrator.
    Inspection criteria means the pass and fail numbers associated with 
a particular sampling plan.
    Test engine means an engine in a test sample.
    Test sample means the collection of engines selected from the 
population of an engine family for emission testing.



Sec. 90.503  Test orders.

    (a) The Administrator shall require any testing under this subpart 
by means of a test order addressed to the manufacturer.
    (b) The test order will be signed by the Assistant Administrator for 
Air and Radiation or his or her designee. The test order will be 
delivered in person by an EPA enforcement officer or EPA authorized 
representative to a company representative or sent by registered mail, 
return receipt requested, to the manufacturer's representative

[[Page 242]]

who signed the application for certification submitted by the 
manufacturer, pursuant to the requirements of the applicable section of 
subpart B of this part. Upon receipt of a test order, the manufacturer 
shall comply with all of the provisions of this subpart and instructions 
in the test order.
    (c) Information included in test order. (1) The test order will 
specify the engine family to be selected for testing, the manufacturer's 
engine assembly plant or associated storage facility or port facility 
(for imported engines) from which the engines must be selected, the time 
and location at which engines must be selected, and the procedure by 
which engines of the specified family must be selected. The test order 
may specify the configuration to be audited and/or the number of engines 
to be selected per day. Engine manufacturers will be required to select 
a minimum of four engines per day unless an alternate selection 
procedure is approved pursuant to Sec. 90.507(a), or unless total 
production of the specified configuration is less than four engines per 
day. If total production of the specified configuration is less than 
four engines per day, the manufacturer will select the actual number of 
engines produced per day.
    (2) The test order may include alternate families to be selected for 
testing at the Administrator's discretion in the event that engines of 
the specified family are not available for testing because those engines 
are not being manufactured during the specified time, or are not being 
stored at the specified assembly plant, associated storage facilities or 
port of entry.
    (3) If the specified family is not being manufactured at a rate of 
at least two engines per day in the case of manufacturers specified in 
Sec. 90.508(g)(1), or one engine per day in the case of manufacturers 
specified in Sec. 90.508(g)(2), over the expected duration of the audit, 
the Assistant Administrator or his or her designated representative may 
select engines of the alternate family for testing.
    (4) In addition, the test order may include other directions or 
information essential to the administration of the required testing.
    (d) A manufacturer may submit a list of engine families and the 
corresponding assembly plants, associated storage facilities, or (in the 
case of imported engines) port facilities from which the manufacturer 
prefers to have engines selected for testing in response to a test 
order. In order that a manufacturer's preferred location be considered 
for inclusion in a test order for a particular engine family, the list 
must be submitted prior to issuance of the test order. Notwithstanding 
the fact that a manufacturer has submitted the list, the Administrator 
may order selection at other than a preferred location.
    (e) Upon receipt of a test order, a manufacturer shall proceed in 
accordance with the provisions of this subpart.
    (f)(1) During a given model year, the Administrator shall not issue 
to a manufacturer more Selective Enforcement Auditing (SEA) test orders 
than an annual limit determined by the following:
    (i) for manufacturers with a projected annual production of less 
than 100,000 engines bound for the United States market for that model 
year, the number is two;
    (ii) for manufacturers with a projected annual production of 100,000 
or more engines bound for the United States market for that model year, 
by dividing the manufacturer's total number of certified engine families 
by five and rounding to the nearest whole number, unless the number of 
engine families is less than eight, in which case the number is two.
    (2) If a manufacturer submits to EPA in writing prior to or during 
the model year a reliable sales projection update or adds engine 
families or deletes engine families from its production, that 
information will be used for recalculating the manufacturer's annual 
limit of SEA test orders.
    (3) Any SEA test order for which the family or configuration, as 
appropriate, fails under Sec. 90.510 or for which testing is not 
completed will not be counted against the annual limit.
    (4) When the annual limit has been met, the Administrator may issue 
additional test orders to test those families or configurations for 
which evidence

[[Page 243]]

exists indicating nonconformity, or for which the Administrator has 
reason to believe are not being appropriately represented or tested in 
Production Line Testing conducted under subpart H of this part, if 
applicable. An SEA test order issued pursuant to this provision will 
include a statement as to the reason for its issuance.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15244, Mar. 30, 1999]



Sec. 90.504  Testing by the Administrator.

    (a) The Administrator may require by test order under Sec. 90.503 
that engines of a specified family be selected in a manner consistent 
with the requirements of Sec. 90.507 and submitted to the Administrator 
at the place designated for the purpose of conducting emission tests. 
These tests will be conducted in accordance with Sec. 90.508 to 
determine whether engines manufactured by the manufacturer conform with 
the regulations with respect to which the certificate of conformity was 
issued.
    (b) Designating official data. (1) Whenever the Administrator 
conducts a test on a test engine or the Administrator and manufacturer 
each conduct a test on the same test engine, the results of the 
Administrator's test will comprise the official data for that engine.
    (2) Whenever the manufacturer conducts all tests on a test engine, 
the manufacturer's test data will be accepted as the official data, 
provided that if the Administrator makes a determination based on 
testing conducted under paragraph (a) of this section that there is a 
substantial lack of agreement between the manufacturer's test results 
and the Administrator's test results, no manufacturer's test data from 
the manufacturer's test facility will be accepted for purposes of this 
subpart.
    (c) If testing conducted under paragraph (a) of this section is 
unacceptable under Sec. 90.503, the Administrator shall:
    (1) Notify the manufacturer in writing of the Administrator's 
determination that the test facility is inappropriate for conducting the 
tests required by this subpart and the reasons therefor; and
    (2) Reinstate any manufacturer's data upon a showing by the 
manufacturer that the data acquired under paragraph (a) of this section 
was erroneous and the manufacturer's data was correct.
    (d) The manufacturer may request in writing that the Administrator 
reconsider his or her determination in paragraph (b)(2) of this section 
based on data or information which indicates that changes have been made 
to the test facility and these changes have resolved the reasons for 
disqualification.



Sec. 90.505  Maintenance of records; submittal of information.

    (a) The manufacturer of any new nonroad engine subject to any of the 
provisions of this subpart shall establish, maintain, and retain the 
following adequately organized and indexed records:
    (1) General records. A description of all equipment used to test 
engines, as specified in subpart D of this part, in accordance with 
Sec. 90.508 pursuant to a test order issued under this subpart.
    (2) Individual records. These records pertain to each audit 
conducted pursuant to this subpart and shall include:
    (i) The date, time, and location of each test;
    (ii) The number of hours of service accumulated on the engine when 
the test began and ended;
    (iii) The names of all supervisory personnel involved in the conduct 
of the audit;
    (iv) A record and description of any repairs performed prior to and/
or subsequent to approval by the Administrator, giving the date, 
associated time, justification, name(s) of the authorizing personnel, 
and names of all supervisory personnel responsible for the conduct of 
the repair;
    (v) The date the engine was shipped from the assembly plant, 
associated storage facility or port facility and date the engine was 
received at the testing facility;
    (vi) A complete record of all emission tests performed pursuant to 
this subpart (except tests performed directly by EPA), including all 
individual worksheets and/or other documentation relating to each test, 
or exact copies thereof, to be in accordance with the record 
requirements specified in

[[Page 244]]

Sec. Sec. 90.405, 90.406, 90.418, and/or 90.425 as applicable.
    (vii) A brief description of any significant audit events commencing 
with the test engine selection process, but not described under 
paragraph (a)(2) of this section, including such extraordinary events as 
engine damage during shipment.
    (3) The manufacturer shall record test equipment description, 
pursuant to paragraph (a)(1) of this section, for each test cell that 
can be used to perform emission testing under this subpart.
    (b) The manufacturer shall retain all records required to be 
maintained under this subpart for a period of one year after completion 
of all testing in response to a test order. Records may be retained as 
hard copy or reduced to microfilm, floppy disc, and so forth, depending 
upon the manufacturer's record retention procedure, provided that in 
every case all the information contained in the hard copy is retained.
    (c) The manufacturer shall, upon request by the Administrator, 
submit the following information with regard to engine production:
    (1) Projected U.S. sales data for each engine configuration within 
each engine family for which certification is requested;
    (2) Number of engines, by configuration and assembly plant, 
scheduled for production for the time period designated in the request;
    (3) Number of engines, by configuration and by assembly plant, 
storage facility or port facility, scheduled to be stored at facilities 
for the time period designated in the request; and
    (4) Number of engines, by configuration and assembly plant, produced 
during the time period designated in the request that are complete for 
introduction into commerce.
    (d) Nothing in this section limits the Administrator's discretion in 
requiring the manufacturer to retain additional records or submit 
information not specifically required by this section.
    (e) The manufacturer shall address all reports, submissions, 
notifications, and requests for approvals made under this subpart to: 
Director, Manufacturers Operations Division, U.S. Environmental 
Protection Agency, 6405-J, 401 M Street S.W., Washington, D.C. 20460.



Sec. 90.506  Right of entry and access.

    (a) To allow the Administrator to determine whether a manufacturer 
is complying with the provisions of this subpart, a test order is issued 
which authorizes EPA enforcement officers or their authorized 
representatives upon presentation of credentials to enter during 
operating hours any of the following places:
    (1) Any facility where any engine to be introduced into commerce, 
including ports of entry, or any emission-related component is 
manufactured, assembled, or stored;
    (2) Any facility where any tests conducted pursuant to a test order 
or any procedures or activities connected with these tests are or were 
performed;
    (3) Any facility where any engine which is being tested, was tested, 
or will be tested is present; and
    (4) Any facility where any record or other document relating to any 
of the above is located.
    (b) Upon admission to any facility referred to in paragraph (a) of 
this section, EPA enforcement officers or EPA authorized representatives 
are authorized to perform the following inspection-related activities:
    (1) To inspect and monitor any aspects of engine assembly, storage, 
testing and other procedures, and the facilities in which these 
procedures are conducted;
    (2) To inspect and monitor any aspect of engine test procedures or 
activities, including, but not limited to, engine selection, 
preparation, service accumulation, emission test cycles, and maintenance 
and verification of test equipment calibration;
    (3) To inspect and make copies of any records or documents related 
to the assembly, storage, selection and testing of an engine in 
compliance with a test order; and
    (4) To inspect and photograph any part or aspect of any engine and 
any component used in the assembly thereof that is reasonably related to 
the purpose of the entry.
    (c) EPA enforcement officers or EPA authorized representatives are 
authorized to obtain reasonable assistance

[[Page 245]]

without cost from those in charge of a facility to help the officers 
perform any function listed in this subpart, and they are authorized to 
request the recipient of a test order to make arrangements with those in 
charge of a facility operated for the manufacturer's benefit to furnish 
reasonable assistance without cost to EPA, whether or not the recipient 
controls the facility.
    (1) Reasonable assistance includes, but is not limited to, clerical, 
copying, interpretation and translation services, the making available 
on an EPA enforcement officer's or EPA authorized representative's 
request of personnel of the facility being inspected during their 
working hours to inform the EPA enforcement officer or EPA authorized 
representative of how the facility operates and to answer the officer's 
questions, and the performance on request of emission tests on any 
engine which is being, has been, or will be used for SEA testing.
    (2) A manufacturer may be compelled to cause the personal appearance 
of any employee at such a facility before an EPA enforcement officer or 
EPA authorized representative by written request for his or her 
appearance, signed by the Assistant Administrator for Air and Radiation, 
served on the manufacturer. Any such employee who has been instructed by 
the manufacturer to appear will be entitled to be accompanied, 
represented, and advised by counsel.
    (d) EPA enforcement officers or EPA authorized representatives are 
authorized to seek a warrant or court order authorizing the EPA 
enforcement officers or EPA authorized representatives to conduct 
activities related to entry and access as authorized in this section, as 
appropriate, to execute the functions specified in this section. EPA 
enforcement officers or authorized representatives may proceed ex parte 
to obtain a warrant whether or not the EPA enforcement officers or EPA 
authorized representatives first attempted to seek permission of the 
recipient of the test order or the party in charge of the facilities in 
question to conduct activities related to entry and access as authorized 
in this section.
    (e) A recipient of a test order shall permit an EPA enforcement 
officer(s) or EPA authorized representative(s) who presents a warrant or 
court order to conduct activities related to entry and access as 
authorized in this section and as described in the warrant or court 
order. The recipient shall also cause those in charge of its facility or 
a facility operated for its benefit to permit entry and access as 
authorized in this section pursuant to a warrant or court order whether 
or not the recipient controls the facility. In the absence of a warrant 
or court order, an EPA enforcement officer(s) or EPA authorized 
representative(s) may conduct activities related to entry and access as 
authorized in this section only upon the consent of the recipient of the 
test order or the party in charge of the facilities in question.
    (f) It is not a violation of this part or of the Clean Air Act for 
any person to refuse to permit an EPA enforcement officer(s) or an EPA 
authorized representative(s) to conduct activities related to entry and 
access as authorized in this section if the officer or representative 
appears without a warrant or court order.
    (g) A manufacturer is responsible for locating its foreign testing 
and manufacturing facilities in jurisdictions in which local foreign law 
does not prohibit an EPA enforcement officer(s) or an EPA authorized 
representative(s) from conducting the entry and access activities 
specified in this section. EPA will not attempt to make any inspections 
which it has been informed that local foreign law prohibits.



Sec. 90.507  Sample selection.

    (a) Engines comprising a test sample will be selected at the 
location and in the manner specified in the test order. If a 
manufacturer determines that the test engines cannot be selected in the 
manner specified in the test order, an alternative selection procedure 
may be employed, provided the manufacturer requests approval of the 
alternative procedure prior to the start of test sample selection, and 
the Administrator approves the procedure.
    (b) The manufacturer shall assemble the test engines of the family 
selected for testing using its normal mass production process for 
engines to be distributed into commerce. If, between

[[Page 246]]

the time the manufacturer is notified of a test order and the time the 
manufacturer finishes selecting test engines, the manufacturer 
implements any change(s) in its production processes, including quality 
control, which may reasonably be expected to affect the emissions of the 
engines selected, then the manufacturer shall, during the audit, inform 
the Administrator of such changes. If the test engines are selected at a 
location where they do not have their operational and emission control 
systems installed, the test order will specify the manner and location 
for selection of components to complete assembly of the engines. The 
manufacturer shall assemble these components onto the test engines using 
normal assembly and quality control procedures as documented by the 
manufacturer.
    (c) No quality control, testing, or assembly procedures will be used 
on the test engine or any portion thereof, including parts and 
subassemblies, that have not been or will not be used during the 
production and assembly of all other engines of that family, unless the 
Administrator approves the modification in assembly procedures pursuant 
to paragraph (b) of this section.
    (d) The test order may specify that an EPA enforcement officer(s) or 
authorized representative(s), rather than the manufacturer, select the 
test engines according to the method specified in the test order.
    (e) The order in which test engines are selected determines the 
order in which test results are to be used in applying the sampling plan 
in accordance with Sec. 90.510.
    (f) The manufacturer shall keep on hand all untested engines, if 
any, comprising the test sample until a pass or fail decision is reached 
in accordance with Sec. 90.510(e). The manufacturer may ship any tested 
engine which has not failed in accordance with Sec. 90.510(b). However, 
once the manufacturer ships any test engine, it relinquishes the 
prerogative to conduct retests as provided in Sec. 90.508(i).



Sec. 90.508  Test procedures.

    (a) For nonroad engines subject to the provisions of this subpart, 
the prescribed test procedures are the appropriate small SI engine test 
procedures as described in subpart E of this part.
    (b)(1) The manufacturer shall not adjust, repair, prepare, or modify 
the engines selected for testing and shall not perform any emission 
tests on engines selected for testing pursuant to the test order unless 
this adjustment, repair, preparation, modification, and/or tests are 
documented in the manufacturer's engine assembly and inspection 
procedures and are actually performed or unless these adjustments and/or 
tests are required or permitted under this subpart or are approved in 
advance by the Administrator.
    (2) The Administrator may adjust or cause to be adjusted any engine 
parameter which the Administrator has determined to be subject to 
adjustment for certification and Selective Enforcement Audit testing in 
accordance with Sec. 90.112(c), to any setting within the physically 
adjustable range of that parameter, as determined by the Administrator 
in accordance with Sec. 90.112(a), prior to the performance of any 
tests. However, if the idle speed parameter is one which the 
Administrator has determined to be subject to adjustment, the 
Administrator shall not adjust it to any setting which causes a lower 
engine idle speed than would have been possible within the physically 
adjustable range of the idle speed parameter if the manufacturer had 
accumulated 12 hours of service on the engine under paragraph (c) of 
this section, all other parameters being identically adjusted for the 
purpose of the comparison. The manufacturer may be requested to supply 
information needed to establish an alternate minimum idle speed. The 
Administrator, in making or specifying these adjustments, may consider 
the effect of the deviation from the manufacturer's recommended setting 
on emission performance characteristics as well as the likelihood that 
similar settings will occur on in-use engines. In determining 
likelihood, the Administrator may consider factors such as, but not 
limited to, the effect of the adjustment on engine performance 
characteristics and surveillance information from similar in-use 
engines.
    (c) Service Accumulation. Prior to performing exhaust emission 
testing on an SEA test engine, the manufacturer

[[Page 247]]

may accumulate on each engine a number of hours of service equal to the 
greater of 12 hours or the number of hours the manufacturer accumulated 
during certification on the emission data engine corresponding to the 
family specified in the test order.
    (1) Service accumulation must be performed in a manner using good 
engineering judgment to obtain emission results representative of normal 
production engines. This service accumulation must be consistent with 
the new engine break-in instructions contained in the applicable owner's 
manual.
    (2) The manufacturer shall accumulate service at a minimum rate of 
12 hours per engine during each 24-hour period, unless otherwise 
approved by the Administrator.
    (i) The first 24 hour period for service shall begin as soon as 
authorized checks, inspections, and preparations are completed on each 
engine.
    (ii) The minimum service or mileage accumulation rate does not apply 
on weekends or holidays.
    (iii) If the manufacturer's service or target is less than the 
minimum rate specified (12 hours per day), then the minimum daily 
accumulation rate shall be equal to the manufacturer's service target.
    (3) Service accumulation shall be completed on a sufficient number 
of test engines during consecutive 24-hour periods to assure that the 
number of engines tested per day fulfills the requirements of paragraphs 
(g)(1) and (g)(2) of this section.
    (d) The manufacturer shall not perform any maintenance on test 
engines after selection for testing, nor shall the Administrator allow 
deletion of any engine from the test sequence, unless requested by the 
manufacturer and approved by the Administrator before any engine 
maintenance or deletion.
    (e) The manufacturer shall expeditiously ship test engines from the 
point of selection to the test facility. If the test facility is not 
located at or in close proximity to the point of selection, the 
manufacturer shall assure that test engines arrive at the test facility 
within 24 hours of selection, except that the Administrator may approve 
more time for shipment based upon a request by the manufacturer 
accompanied by a satisfactory justification.
    (f) If an engine cannot complete the service accumulation or an 
emission test because of a malfunction, the manufacturer may request 
that the Administrator authorize either the repair of that engine or its 
deletion from the test sequence.
    (g) Whenever a manufacturer conducts testing pursuant to a test 
order issued under this subpart, the manufacturer shall notify the 
Administrator within one working day of receipt of the test order as to 
which test facility will be used to comply with the test order. If no 
test cells are available at a desired facility, the manufacturer must 
provide alternate testing capability satisfactory to the Administrator.
    (1) A manufacturer with projected nonroad engine sales for the 
United States market for the applicable year of 7,500 or greater shall 
complete emission testing at a minimum rate of two engines per 24-hour 
period, including each voided test.
    (2) A manufacturer with projected nonroad engine sales for the 
United States market for the applicable year of less than 7,500 shall 
complete emission testing at a minimum rate of one engine per 24-hour 
period, including each voided test.
    (3) The Administrator may approve a lower daily rate of emission 
testing based upon a request by a manufacturer accompanied by a 
satisfactory justification.
    (h) The manufacturer shall perform test engine selection, shipping, 
preparation, service accumulation, and testing in such a manner as to 
assure that the audit is performed in an expeditious manner.
    (i) Retesting. (1) The manufacturer may retest any engines tested 
during a Selective Enforcement Audit once a fail decision for the audit 
has been reached in accordance with Sec. 90.510(e).
    (2) The Administrator may approve retesting at other times based 
upon a request by the manufacturer accompanied by a satisfactory 
justification.
    (3) The manufacturer may retest each engine a total of three times. 
The manufacturer shall test each engine or vehicle the same number of 
times. The

[[Page 248]]

manufacturer may accumulate additional service before conducting a 
retest, subject to the provisions of paragraph (c) of this section.
    (j) A manufacturer may test engines with the test procedure 
specified in subpart E of this part to demonstrate compliance with the 
exhaust emission standards; however, if alternate procedures were used 
in certification pursuant to Sec. 90.120, then those alternate 
procedures shall be used.



Sec. 90.509  Calculation and reporting of test results.

    (a) Initial test results are calculated following the applicable 
test procedure specified in paragraph (a) of Sec. 90.508. The 
manufacturer shall round these results, in accordance with ASTM E29-93a, 
to the number of decimal places contained in the applicable emission 
standard expressed to one additional significant figure. ASTM E29-93a 
has been incorporated by reference. See Sec. 90.7.
    (b)(1) Final test results are calculated by summing the initial test 
results derived in paragraph (a) of this section for each test engine, 
dividing by the number of tests conducted on the engine, and rounding to 
the same number of decimal places contained in the applicable standard. 
For Phase 2 engines only, this result shall be expressed to one 
additional significant figure.
    (2) Final deteriorated test results (for Phase 2 test engines only) 
are calculated by applying the appropriate deterioration factors, from 
the certification process for the engine family, to the final test 
results, and rounding to the same number of decimal places contained in 
the applicable standard.
    (c) Within five working days after completion of testing of all 
engines pursuant to a test order, the manufacturer shall submit to the 
Administrator a report which includes the following information:
    (1) The location and description of the manufacturer's exhaust 
emission test facilities which were utilized to conduct testing reported 
pursuant to this section;
    (2) The applicable standards or compliance levels against which the 
engines were tested;
    (3) A description of the engine and its associated emission-related 
component selection method used;
    (4) For each test conducted;
    (i) Test engine description, including:
    (A) Configuration and engine family identification;
    (B) Year, make and build date;
    (C) Engine identification number; and
    (D) Number of hours of service accumulated on engine prior to 
testing;
    (ii) Location where service accumulation was conducted and 
description of accumulation procedure and schedule;
    (iii) Test number, date, test procedure used, initial test results 
before and after rounding and final test results for all exhaust 
emission tests, whether valid or invalid, and the reason for 
invalidation, if applicable;
    (iv) A complete description of any modification, repair, 
preparation, maintenance, and/or testing which was performed on the test 
engine and has not been reported pursuant to any other paragraph of this 
subpart and will not be performed on all other production engines;
    (v) Where an engine was deleted from the test sequence by 
authorization of the Administrator, the reason for the deletion;
    (vi) Any other information the Administrator may request relevant to 
the determination as to whether the new engines being manufactured by 
the manufacturer do in fact conform with the regulations with respect to 
which the certificate of conformity was issued; and
    (5) The following statement and endorsement:
    This report is submitted pursuant to sections 213 and 208 of the 
Clean Air Act. This Selective Enforcement Audit was conducted in 
complete conformance with all applicable regulations under 40 CFR part 
90 et seq. and the conditions of the test order. No emission-related 
changes to production processes or quality control procedures for the 
engine family tested have been made between receipt of the test order 
and conclusion of the audit. All data and information reported herein 
is, to the best of (Company Name) knowledge, true and accurate. I am 
aware of

[[Page 249]]

the penalties associated with violations of the Clean Air Act and the 
regulations thereunder. (Authorized Company Representative.)

[60 FR 34598, July 3, 1995, as amended at 64 FR 15244, Mar. 30, 1999]



Sec. 90.510  Compliance with acceptable quality level and passing and failing criteria for selective enforcement audits.

    (a) The prescribed acceptable quality level is 40 percent.
    (b) For Phase I engines, a failed engine is an engine whose final 
test results pursuant to Sec. 90.509(b), for one or more of the 
applicable pollutants exceed the emission standard. For Phase 2 engines, 
a failed engine is an engine whose final deteriorated test results 
pursuant to Sec. 90.509(b), for one or more of the applicable pollutants 
exceed the emission standard (FEL, if applicable).
    (c) The manufacturer shall test engines comprising the test sample 
until a pass decision is reached for all pollutants or a fail decision 
is reached for one pollutant. A pass decision is reached when the 
cumulative number of failed engines, as defined in paragraph (b) of this 
section, for each pollutant is less than or equal to the pass decision 
number, as defined in paragraph (d) of this section, appropriate to the 
cumulative number of engines tested. A fail decision is reached when the 
cumulative number of failed engines for one or more pollutants is 
greater than or equal to the fail decision number, as defined in 
paragraph (d) of this section, appropriate to the cumulative number of 
engines tested.
    (d) The pass and fail decision numbers associated with the 
cumulative number of engines tested are determined by using the tables 
in Appendix A to this subpart, ``Sampling Plans for Selective 
Enforcement Auditing of Small Nonroad Engines,'' appropriate to the 
projected sales as made by the manufacturer in its report to EPA under 
Sec. 90.505(c)(1). In the tables in Appendix A to this subpart, sampling 
plan ``stage'' refers to the cumulative number of engines tested. Once a 
pass or fail decision has been made for a particular pollutant, the 
number of engines with final test results exceeding the emission 
standard for that pollutant shall not be considered any further for the 
purposes of the audit.
    (e) Passing or failing of an SEA occurs when the decision is made on 
the last engine test required to make a decision under paragraph (c) of 
this section.
    (f) The Administrator may terminate testing earlier than required in 
paragraph (c) of this section.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15244, Mar. 30, 1999]



Sec. 90.511  Suspension and revocation of certificates of conformity.

    (a) The certificate of conformity is suspended with respect to any 
engine failing pursuant to Sec. 90.510(b) effective from the time that 
testing of that engine is completed.
    (b) The Administrator may suspend the certificate of conformity for 
a family which does not pass an SEA, pursuant to paragraph 
Sec. 90.510(c), based on the first test or all tests conducted on each 
engine. This suspension will not occur before ten days after failure of 
the audit.
    (c) If the results of testing pursuant to these regulations indicate 
that engines of a particular family produced at one plant of a 
manufacturer do not conform to the regulations with respect to which the 
certificate of conformity was issued, the Administrator may suspend the 
certificate of conformity with respect to that family for engines 
manufactured by the manufacturer at all other plants.
    (d) Notwithstanding the fact that engines described in the 
application may be covered by a certificate of conformity, the 
Administrator may suspend such certificate in whole or in part if the 
Administrator finds any one of the following infractions to be 
substantial:
    (1) The manufacturer refuses to comply with the provisions of a test 
order issued by the Administrator under Sec. 90.503.
    (2) The manufacturer refuses to comply with any of the requirements 
of this subpart.
    (3) The manufacturer submits false or incomplete information in any 
report or information provided to the Administrator under this subpart.

[[Page 250]]

    (4) The manufacturer renders inaccurate any test data submitted 
under this subpart.
    (5) An EPA enforcement officer or EPA authorized representative is 
denied the opportunity to conduct activities related to entry and access 
as authorized in this subpart and a warrant or court order is presented 
to the manufacturer or the party in charge of a facility in question.
    (6) An EPA enforcement officer or EPA authorized representative is 
unable to conduct activities related to entry and access as authorized 
in Sec. 90.506 because a manufacturer has located a facility in a 
foreign jurisdiction where local law prohibits those activities.
    (e) The Administrator shall notify the manufacturer in writing of 
any suspension or revocation of a certificate of conformity in whole or 
in part, except that the certificate is immediately suspended with 
respect to any failed engines as provided for in paragraph (a) of this 
section.
    (f) The Administrator may revoke a certificate of conformity for a 
family when the certificate has been suspended pursuant to paragraph (b) 
or (c) of this section if the proposed remedy for the nonconformity, as 
reported by the manufacturer to the Administrator, is one requiring a 
design change or changes to the engine and/or emission control system as 
described in the application for certification of the affected family.
    (g) Once a certificate has been suspended for a failed engine, as 
provided for in paragraph (a) of this section, the manufacturer shall 
take the following actions:
    (1) Before the certificate is reinstated for that failed engine;
    (i) Remedy the nonconformity; and
    (ii) Demonstrate that the engine conforms to applicable standards by 
retesting the engine in accordance with these regulations.
    (2) Submit a written report to the Administrator, after successful 
completion of testing on the failed engine, which contains a description 
of the remedy and test results for each engine in addition to other 
information that may be required by this regulation.
    (h) Once a certificate for a failed family has been suspended 
pursuant to paragraph (b) or (c) of this section, the manufacturer shall 
take the following actions before the Administrator will consider 
reinstating the certificate:
    (1) Submit a written report to the Administrator which identifies 
the reason for the noncompliance of the engines, describes the proposed 
remedy, including a description of any proposed quality control and/or 
quality assurance measures to be taken by the manufacturer to prevent 
future occurrences of the problem, and states the date on which the 
remedies will be implemented.
    (2) Demonstrate that the engine family for which the certificate of 
conformity has been suspended does in fact comply with these regulations 
by testing engines selected from normal production runs of that engine 
family, at the plant(s), port facility(ies) or associated storage 
facility(ies) specified by the Administrator, in accordance with the 
conditions specified in the initial test order. If the manufacturer 
elects to continue testing individual engines after suspension of a 
certificate, the certificate is reinstated for an engine actually 
determined to be in conformance with the applicable standards through 
testing in accordance with the applicable test procedures, provided that 
the Administrator has not revoked the certificate pursuant to paragraph 
(f) of this section.
    (i) Once the certificate has been revoked for a family and the 
manufacturer desires to continue introduction into commerce of a 
modified version of that family, the following actions shall be taken 
before the Administrator may consider issuing a certificate for that 
modified family:
    (1) If the Administrator determines that the proposed change(s) in 
engine design may have an effect on emission performance deterioration, 
the Administrator shall notify the manufacturer, within five working 
days after receipt of the report in paragraph (f) of this section, 
whether subsequent testing under this subpart will be sufficient to 
evaluate the proposed change or changes or whether additional testing 
will be required; and

[[Page 251]]

    (2) After implementing the change or changes intended to remedy the 
nonconformity, the manufacturer shall demonstrate that the modified 
engine family does in fact conform with these regulations by testing 
engines selected from normal production runs of that modified engine 
family in accordance with the conditions specified in the initial test 
order. If the subsequent audit results in passing of the audit, the 
Administrator shall reissue the certificate or issue a new certificate, 
as the case may be, to include that family, provided that the 
manufacturer has satisfied the testing requirements of paragraph (i)(1) 
of this section. If the subsequent audit is failed, the revocation 
remains in effect. Any design change approvals under this subpart are 
limited to the family affected by the test order.
    (j) At any time subsequent to an initial suspension of a certificate 
of conformity for a test engine pursuant to paragraph (a) of this 
section, but not later than 15 days or such other period as may be 
allowed by the Administrator after notification of the Administrator's 
decision to suspend or revoke a certificate of conformity in whole or in 
part pursuant to paragraphs (b), (c), or (f) of this section, a 
manufacturer may request a hearing as to whether the tests have been 
properly conducted or any sampling methods have been properly applied.
    (k) Any suspension of a certificate of conformity under paragraph 
(d) of this section shall:
    (1) Be made only after the manufacturer concerned has been offered 
an opportunity for a hearing conducted in accordance with Secs. 90.512, 
90.513, and 90.514 and
    (2) Not apply to engines no longer in the possession of the 
manufacturer.
    (l) After the Administrator suspends or revokes a certificate of 
conformity pursuant to this section and prior to the commencement of a 
hearing under Sec. 90.512, if the manufacturer demonstrates to the 
Administrator's satisfaction that the decision to suspend, revoke, or 
void the certificate was based on erroneous information, the 
Administrator shall reinstate the certificate.
    (m) To permit a manufacturer to avoid storing non-test engines when 
conducting an audit of a family subsequent to a failure of an SEA and 
while reauditing the failed family it may request that the Administrator 
conditionally reinstate the certificate for that family. The 
Administrator may reinstate the certificate subject to the condition 
that the manufacturer commits to recall all engines of that family 
produced from the time the certificate is conditionally reinstated if 
the family fails the subsequent audit at the level of the standard and 
to remedy any nonconformity at no expense to the owner.



Sec. 90.512  Request for public hearing.

    (a) If the manufacturer disagrees with the Administrator's decision 
to suspend, revoke or void a certificate or disputes the basis for an 
automatic suspension pursuant to Sec. 90.511(a), the manufacturer may 
request a public hearing.
    (b) The manufacturer's request shall be filed with the Administrator 
not later than 15 days after the Administrator's notification of his or 
her decision to suspend, revoke or void, unless otherwise specified by 
the Administrator. The manufacturer shall simultaneously serve two 
copies of this request upon the Director of the Engine Programs and 
Compliance Division and file two copies with the Hearing Clerk of the 
Agency. Failure of the manufacturer to request a hearing within the time 
provided constitutes a waiver of the right to a hearing. Subsequent to 
the expiration of the period for requesting a hearing as of right, the 
Administrator may, in his or her discretion and for good cause shown, 
grant the manufacturer a hearing to contest the suspension, revocation 
or voiding.
    (c) A manufacturer shall include in the request for a public 
hearing:
    (1) A statement as to which engine configuration(s) within a family 
is to be the subject of the hearing;
    (2) A concise statement of the issues to be raised by the 
manufacturer at the hearing, except that in the case of the hearing 
requested under Sec. 90.511(j), the hearing is restricted to the 
following issues:

[[Page 252]]

    (i) Whether tests have been properly conducted (specifically, 
whether the tests were conducted in accordance with applicable 
regulations under this part and whether test equipment was properly 
calibrated and functioning);
    (ii) Whether sampling plans have been properly applied 
(specifically, whether sampling procedures specified in Appendix A of 
this subpart were followed and whether there exists a basis for 
distinguishing engines produced at plants other than the one from which 
engines were selected for testing which would invalidate the 
Administrator's decision under Sec. 90.511(c));
    (3) A statement specifying reasons why the manufacturer believes it 
will prevail on the merits of each of the issues raised; and
    (4) A summary of the evidence which supports the manufacturer's 
position on each of the issues raised.
    (d) A copy of all requests for public hearings will be kept on file 
in the Office of the Hearing Clerk and will be made available to the 
public during Agency business hours.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15245, Mar. 30, 1999]



Sec. 90.513  Administrative procedures for public hearing.

    (a) The Presiding Officer shall be an Administrative Law Judge 
appointed pursuant to 5 U.S.C. 3105 (see also 5 CFR part 930 as 
amended).
    (b) The Judicial Officer shall be an officer or employee of the 
Agency appointed as a Judicial Officer by the Administrator, pursuant to 
this section, who shall meet the qualifications and perform functions as 
follows:
    (1) Qualifications. A Judicial Officer may be a permanent or 
temporary employee of the Agency who performs other duties for the 
Agency. The Judicial Officer shall not be employed by the Office of 
Enforcement or have any connection with the preparation or presentation 
of evidence for a hearing held pursuant to this subpart. The Judicial 
Officer 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.
    (2) Functions. The Administrator may consult with the Judicial 
Officer or delegate all or part of the Administrator's authority to act 
in a given case under this section to a Judicial Officer, provided that 
this delegation does not preclude the Judicial Officer from referring 
any motion or case to the Administrator when the Judicial Officer 
determines such referral to be appropriate.
    (c) For the purposes of this section, one or more Judicial Officers 
may be designated. As work requires, a Judicial Officer may be 
designated to act for the purposes of a particular case.
    (d) Summary decision. (1) In the case of a hearing requested under 
Sec. 90.511(j), when it clearly appears from the data and other 
information contained in the request for a hearing that no genuine and 
substantial question of fact exists with respect to the issues specified 
in Sec. 90.512(c)(2), the Administrator shall enter an order denying the 
request for a hearing and reaffirming the original decision to suspend 
or revoke a certificate of conformity, if this decision has been made 
pursuant to Sec. 90.511(e) at any time prior to the decision to deny the 
request for a hearing.
    (2) In the case of a hearing requested under Sec. 90.512 to 
challenge a proposed suspension of a certificate of conformity for the 
reasons specified in Sec. 90.511(d), when it clearly appears from the 
data and other information contained in the request for the hearing that 
no genuine and substantial question of fact exists with respect to the 
issue of whether the refusal to comply with the provisions of a test 
order or any other requirement of Sec. 90.503 was caused by conditions 
and circumstances outside the control of the manufacturer, the 
Administrator shall enter an order denying the request for a hearing and 
suspending the certificate of conformity.
    (3) Any order issued under paragraph (d)(1) or (d)(2) of this 
section has the force and effect of a final decision of the 
Administrator, as issued pursuant to Sec. 90.515.
    (4) If the Administrator determines that a genuine and substantial 
question of fact does exist with respect to any of the issues referred 
to in paragraphs (d)(1) and (d)(2) of this section, the Administrator 
shall grant the request for a hearing and publish a notice

[[Page 253]]

of public hearing in the Federal Register or by such other means as the 
Administrator finds appropriate to provide notice to the public.
    (e) Filing and service. (1) An original and two copies of all 
documents or papers required or permitted to be filed pursuant to this 
section and Sec. 90.512(c) must be filed with the Hearing Clerk of the 
Agency. Filing is considered timely if mailed, as determined by the 
postmark, to the Hearing Clerk within the time allowed by this section 
and Sec. 90.512(b). If filing is to be accomplished by mailing, the 
documents must be sent to the address set forth in the notice of public 
hearing referred to in paragraph (d)(4) of this section.
    (2) To the maximum extent possible, testimony will be presented in 
written form. Copies of written testimony will be served upon all 
parties as soon as practicable prior to the start of the hearing. A 
certificate of service will be provided on or accompany each document or 
paper filed with the Hearing Clerk. Documents to be served upon the 
Director of the Manufacturers Operations Division must be sent by 
registered mail to: Director, Manufacturers Operations Division, U.S. 
Environmental Protection Agency, 6405-J, 401 M Street S.W., Washington, 
D.C. 20460. Service by registered mail is complete upon mailing.
    (f) Computation of time. (1) In computing any period of time 
prescribed or allowed by this section, except as otherwise provided, the 
day of the act or event from which the designated period of time begins 
to run is not included. Saturdays, Sundays, and federal legal holidays 
are included in computing the period allowed for the filing of any 
document or paper, except that when the period expires on a Saturday, 
Sunday, or federal legal holiday, the period is extended to include the 
next following business day.
    (2) A prescribed period of time within which a party is required or 
permitted to do an act is computed from the time of service, except that 
when service is accomplished by mail, three days will be added to the 
prescribed period.
    (g) Consolidation. The Administrator or the Presiding Officer in his 
or her discretion may consolidate two or more proceedings to be held 
under this section for the purpose of resolving one or more issues 
whenever it appears that consolidation will expedite or simplify 
consideration of these issues. Consolidation does not affect the right 
of any party to raise issues that could have been raised if 
consolidation had not occurred.
    (h) Hearing date. To the extent possible, hearings under Sec. 90.512 
will be scheduled to commence within 14 days of receipt of the 
application in Sec. 90.512.



Sec. 90.514  Hearing procedures.

    The procedures provided in Sec. 86.1014-84 (i) to (s) apply for 
hearings requested pursuant to Sec. 90.512, suspension, revocation, or 
voiding of a certificate of conformity.



Sec. 90.515  Appeal of hearing decision.

    The procedures provided in Sec. 86.1014-84 (t) to (aa) apply for 
appeals filed with respect to hearings held pursuant to Sec. 90.514.



Sec. 90.516  Treatment of confidential information.

    The provisions for treatment of confidential information described 
in Sec. 90.4 apply to this subpart.

    Appendix A to Subpart F of Part 90--Sampling Plans for Selective 
              Enforcement Auditing of Small Nonroad Engines

                   Table 1--Sampling Plan Code Letter
------------------------------------------------------------------------
                                                                  Code
                  Annual engine family sales                     letter
------------------------------------------------------------------------
50-99........................................................         A
100-299......................................................         B
300-499......................................................          C
500 or greater...............................................         D
------------------------------------------------------------------------


                                   Table 2--Sample Plan for Code Letter ``A''
                                          [Sample inspection criteria]
----------------------------------------------------------------------------------------------------------------
                                                                       Pass     Fail              Pass     Fail
                               Stage                                   No.      No.     Stage     No.      No.1
----------------------------------------------------------------------------------------------------------------
 1.................................................................    (\1\)    (\2\)       16        6       11
 2.................................................................    (\1\)    (\2\)       17        7       12

[[Page 254]]

 
 3.................................................................    (\1\)    (\2\)       18        7       12
 4.................................................................        0    (\2\)       19        8       13
 5.................................................................        0    (\2\)       20        8       13
 6.................................................................        1        6       21        9       14
 7.................................................................        1        7       22       10       14
 8.................................................................        2        7       23       10       15
 9.................................................................        2        8       24       11       15
10.................................................................        3        8       25       11       16
11.................................................................        3        8       26       12       16
12.................................................................        4        9       27       12       17
13.................................................................        5       10       28       13       17
14.................................................................        5       10       29       14       17
15.................................................................        6       11       30       16      17
----------------------------------------------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.


              Table 3--Sampling Plan for Code Letter ``B''
                      [Sample Inspection Criteria]
------------------------------------------------------------------------
                                                          Pass     Fail
                         Stage                            No.      No.
------------------------------------------------------------------------
 1....................................................    (\1\)    (\2\)
 2....................................................    (\1\)    (\2\)
 3....................................................    (\1\)    (\2\)
 4....................................................    (\1\)    (\2\)
 5....................................................        0    (\2\)
 6....................................................        1        6
 7....................................................        1        7
 8....................................................        2        7
 9....................................................        2        8
10....................................................        3        8
11....................................................        3        9
12....................................................        4        9
13....................................................        4       10
14....................................................        5       10
15....................................................        5       11
16....................................................        6       12
17....................................................        6       12
18....................................................        7       13
19....................................................        8       13
10....................................................        8       14
21....................................................        9       14
22....................................................        9       15
23....................................................       10       15
24....................................................       10       16
25....................................................       11       16
26....................................................       11       17
27....................................................       12       17
28....................................................       12       18
29....................................................       13       18
30....................................................       13       19
31....................................................       14       19
32....................................................       14       20
33....................................................       15       20
34....................................................       16       21
35....................................................       16       21
36....................................................       17       22
37....................................................       17       22
38....................................................       18       22
39....................................................       18       22
40....................................................       21      22
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.


              Table 4.--Sampling Plan for Code Letter ``C''
                      [Sample Inspection Criteria]
------------------------------------------------------------------------
                                                          Pass     Fail
                         Stage                            No.      No.
------------------------------------------------------------------------
 1....................................................    (\1\)    (\2\)
 2....................................................    (\1\)    (\2\)
 3....................................................    (\1\)    (\2\)
 4....................................................    (\1\)    (\2\)
 5....................................................        0    (\2\)
 6....................................................        0        6
 7....................................................        1        7
 8....................................................        2        7
 9....................................................        2        8
10....................................................        3        9
11....................................................        3        9
12....................................................        4       10
13....................................................        4       10
14....................................................        5       11
15....................................................        5       11
16....................................................        6       12
17....................................................        6       12
18....................................................        7       13
19....................................................        7       13
20....................................................        8       14
21....................................................        8       14
22....................................................        9       15
23....................................................       10       15
24....................................................       10       16
25....................................................       11       16
26....................................................       11       17
27....................................................       12       17
28....................................................       12       18
29....................................................       13       18
30....................................................       13       19
31....................................................       14       19
32....................................................       14       20
33....................................................       15       20
34....................................................       15       21
35....................................................       16       21
36....................................................       16       22
37....................................................       17       22
38....................................................       18       23
39....................................................       18       23
40....................................................       19       24
41....................................................       19       24
42....................................................       20       25
43....................................................       20       25
44....................................................       21       26
45....................................................       21       27
46....................................................       22       27

[[Page 255]]

 
47....................................................       22       27
48....................................................       23       27
49....................................................       23       27
50....................................................       26       27
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.


              Table 5.--Sampling Plan for Code Letter ``D''
                      [Sample Inspection Criteria]
------------------------------------------------------------------------
                                                          Pass     Fail
                         Stage                            No.      No.
------------------------------------------------------------------------
 1....................................................    (\1\)    (\2\)
 2....................................................    (\1\)    (\2\)
 3....................................................    (\1\)    (\2\)
 4....................................................    (\1\)    (\2\)
 5....................................................        0    (\2\)
 6....................................................        0        6
 7....................................................        1        7
 8....................................................        2        8
 9....................................................        2        8
10....................................................        3        9
11....................................................        3        9
12....................................................        4       10
13....................................................        4       10
14....................................................        5       11
15....................................................        5       11
16....................................................        6       12
17....................................................        6       12
18....................................................        7       13
19....................................................        7       13
20....................................................        8       14
21....................................................        8       14
22....................................................        9       15
23....................................................        9       15
24....................................................       10       16
25....................................................       11       16
26....................................................       11       17
27....................................................       12       17
28....................................................       12       18
29....................................................       13       19
30....................................................       13       19
31....................................................       14       20
32....................................................       14       20
33....................................................       15       21
34....................................................       15       21
35....................................................       16       22
36....................................................       16       22
37....................................................       17       23
38....................................................       17       23
39....................................................       18       24
40....................................................       18       24
41....................................................       19       25
42....................................................       19       26
43....................................................       20       26
44....................................................       21       27
45....................................................       21       27
46....................................................       22       28
47....................................................       22       28
48....................................................       23       29
49....................................................       23       29
50....................................................       24       30
51....................................................       24       30
52....................................................       25       31
53....................................................       25       31
54....................................................       26       32
55....................................................       26       32
56....................................................       27       33
57....................................................       27       33
58....................................................       28       33
59....................................................       28       33
60....................................................       32       33
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.



             Subpart G--Importation of Nonconforming Engines



Sec. 90.601  Applicability.

    (a) Except where otherwise indicated, this subpart is applicable to 
engines and vehicles which are offered for importation or imported into 
the United States and for which the Administrator has promulgated 
regulations under subpart B of this part prescribing emission standards, 
but which are not covered by certificates of conformity issued under 
section 213 and section 206(a) of the Clean Air Act (that is, which are 
nonconforming engines as defined below) and under subpart B of this part 
at the time of importation or conditional importation, as applicable. 
Compliance with regulations under this subpart shall not relieve any 
person or entity from compliance with other applicable provisions of the 
Clean Air Act.
    (b) Regulations prescribing further procedures for the importation 
of small SI engines into the Customs territory of the United States, as 
defined in 19 U.S.C. 1202, are set forth in U.S. Customs Service 
regulations.



Sec. 90.602  Definitions.

    The definitions in subpart A of this part apply to this subpart. The 
following definitions also apply to this subpart.
    Certificate of conformity. The document issued by the Administrator 
under section 213 and section 206(a) of the Act.
    Nonconforming engine. An engine which is not covered by a 
certificate of conformity prior to final or conditional admission (or 
for which such coverage

[[Page 256]]

has not been adequately demonstrated to EPA).
    Original engine manufacturer (OEM). The entity which originally 
manufactured the engine.
    Original production (OP) year. The calendar year in which the engine 
was originally produced by the OEM.
    Original production (OP) years old. The age of an engine as 
determined by subtracting the original production year of the engine 
from the calendar year of importation.
    Production changes. Those changes in the engine configuration, 
equipment or calibration which are made by an OEM in the course of 
engine production and required to be reported under Sec. 90.123.
    United States. United States includes the Customs territory of the 
United States as defined in 19 U.S.C. 1202, and the Virgin Islands, 
Guam, American Samoa and the Commonwealth of the Northern Mariana 
Islands.



Sec. 90.603  [Reserved]



Sec. 90.604  General requirements.

    (a) A nonconforming engine offered for importation into the United 
States may only be imported for purposes other than resale under 
Sec. 90.611, or under the provisions of Sec. 90.612, provided that an 
exemption or exclusion is granted by the Administrator.
    (b) Final admission shall not be granted unless:
    (1) The engine is imported for purposes other than resale under 
Sec. 90.611; or
    (2) The engine is exempted or excluded under Sec. 90.612.
    (c) An engine offered for importation may be admitted into the 
United States. In order to obtain admission, the importer must submit to 
the Administrator a written request for approval containing the 
following:
    (1) Identification of the importer and the importer's address, 
telephone number, and taxpayer identification number;
    (2) Identification of the engine owner, the owner's address, 
telephone number, and taxpayer identification number;
    (3) Identification of the engine including make, model, 
identification number, and original production year;
    (4) Information indicating under what provision of these regulations 
the engine is to be imported;
    (5) Identification of the place where the subject engine is to be 
stored until EPA approval of the importer's application to the 
Administrator for final admission;
    (6) Authorization for EPA enforcement officers to conduct 
inspections or testing otherwise permitted by the Act or regulations 
thereunder; and
    (7) Such other information as is deemed necessary by the 
Administrator.



Sec. 90.605-90.610  [Reserved]



Sec. 90.611  Importation for purposes other than resale.

    (a) Any individual may import on a one-time basis three or fewer 
nonconforming engines for purposes other than resale. Such importation 
by individuals is permitted without modification to the engines and 
without prior written approval of EPA. Importations under this provision 
shall be made by completing such applications as required by the 
Administrator. Such applications shall contain:
    (1) Identification of the importer of the engine and the importer's 
address, telephone number, and taxpayer identification number;
    (2) Identification of the engine owner, the owner's address, 
telephone number, and taxpayer identification number;
    (3) The number of engines imported under Sec. 90.611 by the 
individual;
    (4) A statement that the individual has not previously imported any 
engines under Sec. 90.611;
    (5) A statement that the individual is not importing the engines for 
the purpose of resale;
    (6) For each engine imported, identification of the engine including 
make, model, identification number, and original production year;
    (7) Information indicating under what provision of these regulations 
the engine is to be imported;
    (8) Authorization for EPA enforcement officers to conduct 
inspections permitted by the Act or regulations thereunder;
    (9) Such other information as is deemed necessary by the 
Administrator.

[[Page 257]]

    (b) EPA will not require a U.S. Customs Service bond for a 
nonconforming engine which is imported under Sec. 90.611.



Sec. 90.612  Exemptions and exclusions.

    (a) Individuals shall be eligible for importing engines into the 
United States under the provisions of this section, unless otherwise 
specified.
    (b) Notwithstanding other requirements of this subpart, an engine 
entitled to one of the temporary exemptions of this paragraph may be 
conditionally admitted into the United States if prior written approval 
for the conditional admission is obtained from the Administrator. 
Conditional admission is to be under U.S. Customs Service bond. The 
Administrator may request that the U.S. Customs Service require a 
specific bond amount to ensure compliance with the requirements of the 
Act and this subpart. A written request for approval from the 
Administrator is to contain the identification required in 
Sec. 90.604(c) and information that demonstrates that the importer is 
entitled to the exemption. Noncompliance with provisions of this section 
may result in the forfeiture of the total amount of the bond or 
exportation of the engine. The following temporary exemptions are 
permitted by this paragraph:
    (1) Exemption for repairs or alterations. Upon written approval by 
EPA, an owner of engines may conditionally import under bond such 
engines solely for purpose of repair(s) or alteration(s). The engines 
may not be operated in the United States other than for the sole purpose 
of repair or alteration. They may not be sold or leased in the United 
States and are to be exported upon completion of the repair(s) or 
alteration(s).
    (2) Testing exemption. A test engine may be conditionally imported 
by a person subject to the requirements of Sec. 90.905. A test engine 
may be operated in the United States provided that the operation is an 
integral part of the test. This exemption is limited to a period not 
exceeding one year from the date of importation unless a request is made 
by the appropriate importer concerning the engine in accordance with 
Sec. 90.905(f) for a subsequent one-year period.
    (3) Display exemptions.
    (i) An engine intended solely for display may be conditionally 
imported subject to the requirements of Sec. 90.907.
    (ii) A display engine may be imported by any person for purposes 
related to a business or the public interest. Such purposes do not 
include collections normally inaccessible or unavailable to the public 
on a daily basis, display of an engine at a dealership, private use, or 
other purpose that the Administrator determines is not appropriate for 
display exemptions. A display engine may not be sold in the United 
States and may not be operated in the United States except for the 
operation incident and necessary to the display purpose.
    (iii) A temporary display exemption will be granted for 12 months 
(one year) or for the duration of the display purpose, whichever is 
shorter. Two extensions of up to 12 months (one year) each are available 
upon approval by the Administrator. In no circumstances, however, may 
the total period of exemption exceed 36 months (three years).
    (c) Notwithstanding any other requirement of this subpart, an engine 
may be finally admitted into the United States under this paragraph if 
prior written approval for such final admission is obtained from the 
Administrator. Conditional admission of these engines under this subpart 
is not permitted for the purpose of obtaining such written approval from 
the Administrator. A request for approval is to contain the 
identification information required in Sec. 90.604(c) and information 
that demonstrates that the importer is entitled to the exemption or 
exclusion. The following exemptions or exclusions are permitted by this 
paragraph:
    (1) National security exemption. An engine may be imported under the 
national security exemption found at Sec. 90.908.
    (2) Hardship exemption. The Administrator may exempt on a case-by-
case basis an engine from federal emission requirements to accommodate 
unforeseen cases of extreme hardship or extraordinary circumstances.
    (3) Exemption for engines identical to United States certified 
versions. 

[[Page 258]]

    (i) A person (including businesses) is eligible for importing an 
engine into the United States under the provisions of this paragraph. An 
exemption will be granted if the engine:
    (A) is owned by the importer;
    (B) is not offered for importation for the purpose of resale; and
    (C) is proven to be identical, in all material respects, to an 
engine certified by the original equipment manufacturer (OEM) for sale 
in the United States or is proven to have been modified to be identical, 
in all material respects, to an engine certified by the OEM for sale in 
the United States according to complete written instructions provided by 
the OEM's United States representative, or his/her designee.
    (ii) Proof of Conformity. (A) Documentation submitted pursuant to 
this section for the purpose of proving conformity of individual engines 
is to contain sufficiently organized data or evidence demonstrating that 
the engine identified pursuant to Sec. 90.604(c) is identical, in all 
material respects, to an engine identified in an OEM's application for 
certification.
    (B) If the documentation does not contain all the information 
required by this part, or is not sufficiently organized, EPA will notify 
the importer of any areas of inadequacy, and that the documentation will 
not receive further consideration until the required information or 
organization is provided.
    (C) If EPA determines that the documentation does not clearly or 
sufficiently demonstrate that an engine is eligible for importation, EPA 
will notify the importer in writing.
    (D) If EPA determines that the documentation clearly and 
sufficiently demonstrates that an engine is eligible for importation, 
EPA will grant approval for importation and notify the importer in 
writing.
    (d) Foreign diplomatic and military personnel may import a 
nonconforming engine without bond. At the time of admission, the 
importer shall submit to the Administrator the written report required 
in Sec. 90.604(a) and a statement from the U.S. Department of State 
confirming qualification for this exemption. Foreign military personnel 
may, in lieu of a statement from the U.S. Department of State, submit to 
the Administrator a copy of their orders for duty in the United States. 
The engine may not be sold in the United States and must be exported if 
the individual's diplomatic status is no longer applicable, as 
determined by the Department of State, or the foreign military orders 
for duty in the United States are no longer applicable, unless 
subsequently brought into conformity with U.S. emission requirements.
    (e) Competition exclusion. A nonconforming engine may be 
conditionally admitted by any person provided the importer demonstrates 
to the Administrator that the engine is used to propel a nonroad vehicle 
used solely for competition and obtains prior written approval from the 
Administrator. A nonconforming engine imported pursuant to this 
paragraph may not be operated in the United States except for that 
operation incident and necessary for the competition purpose, unless 
subsequently brought into conformity with United States emission 
requirements in accordance with Sec. 90.612(c)(3).
    (f) Exclusions/exemptions based on date of original manufacture. (1) 
Notwithstanding any other requirements of this subpart, engines 
originally manufactured prior to model year 1997 are excluded from the 
requirements of the Act in accordance with section 213 of the Act and 
may be imported by any person.
    (2) Notwithstanding other requirements of this subpart, an engine 
not subject to an exclusion under Sec. 90.612(f)(1) but greater than 20 
original production (OP) years old is entitled to an exemption from the 
requirements of the Act, provided that it has not been modified in those 
20 OP years. At the time of admission, the importer shall submit to the 
Administrator the written report required in Sec. 90.604(c).
    (g) Applications for exemptions and exclusions provided for in 
paragraphs (b), (c), and (e) of this section are to be mailed to: U.S. 
Environmental Protection Agency, Office of Mobile Sources, Engine 
Compliance Programs Group (6403-J), Washington, DC 20460, Attention: 
Imports.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15245, Mar. 30, 1999]

[[Page 259]]



Sec. 90.613  Prohibited acts; penalties.

    (a) The importation of an engine which is not covered by a 
certificate of conformity other than in accordance with this subpart and 
the entry regulations of the U.S. Customs Service is prohibited. Failure 
to comply with this subpart is a violation of section 213(d) and section 
203 of the Act.
    (b) Unless otherwise permitted by this subpart, during a period of 
conditional admission, the importer of an engine shall not:
    (1) Register, license, or operate the engine in the United States; 
or
    (2) Sell or offer the engine for sale.
    (c) An engine conditionally admitted pursuant to Sec. 90.612(b), 
(d), or (e) and not granted final admission within the period of time 
specified for such conditional admission in the written prior approval 
obtained from EPA, or within such additional time as designated by the 
Administrator, is deemed to be unlawfully imported into the United 
States in violation of section 213(d) and section 203 of the Act, unless 
the engine has been delivered to the U.S. Customs Service for export or 
other disposition under applicable Customs laws and regulations. An 
engine not so delivered is subject to seizure by the U.S. Customs 
Service.
    (d) An importer who violates section 213(d) and section 203 of the 
Act is subject to a civil penalty under section 205 of the Act of not 
more than $25,000 for each engine subject to the violation. In addition 
to the penalty provided in the Act, where applicable, under the 
exemption provisions of Sec. 90.612(b), a person or entity who fails to 
deliver the engine to the U.S. Customs Service is liable for liquidated 
damages in the amount of the bond required by applicable Customs laws 
and regulations.



Sec. 90.614  Treatment of confidential information.

    The provisions for treatment of confidential information described 
in Sec. 90.4 apply to this subpart.



         Subpart H--Manufacturer Production Line Testing Program

    Source: 64 FR 15245, Mar. 30, 1999, unless otherwise noted.



Sec. 90.701  Applicability.

    (a) The requirements of this subpart are applicable to all Phase 2 
nonroad nonhandheld engines families subject to the provisions of 
subpart A of this part unless otherwise exempted in this subpart.
    (b) The procedures described in this subpart are optional for small 
volume engine manufacturers and small volume engine families as defined 
in this part. Small volume engine manufacturers and small volume engine 
families for which the manufacturer opts not to conduct testing under 
this subpart pursuant to this paragraph shall remain subject to the 
Selective Enforcement Auditing procedures of subpart F of this part.
    (c) Engine families for which the manufacturer opts to conduct in-
use testing pursuant to subpart M of this part are exempt from this 
subpart, but shall remain subject to the Selective Enforcement Auditing 
procedures of subpart F of this part.



Sec. 90.702  Definitions.

    The definitions in subpart A of this part apply to this subpart. The 
following definitions also apply to this subpart.
    Configuration means any subclassification of an engine family which 
can be described on the basis of gross power, emission control system, 
governed speed, injector size, engine calibration, and other parameters 
as designated by the Administrator.
    Test sample means the collection of engines selected from the 
population of an engine family for emission testing.



Sec. 90.703  Production line testing by the manufacturer.

    (a) Manufacturers of small SI engines shall test production line 
engines from each engine family according to the provisions of this 
subpart.
    (b) Production line engines must be tested using the test procedure 
specified in subpart E of this part except that the Administrator may 
approve minor variations that the Administrator deems necessary to 
facilitate efficient and economical testing where the manufacturer 
demonstrates to the satisfaction of the Administrator that such 
variations will not significantly

[[Page 260]]

impact the test results. Any adjustable engine parameter must be set to 
values or positions that are within the range recommended to the 
ultimate purchaser, unless otherwise specified by the Administrator. The 
Administrator may specify values within or without the range recommended 
to the ultimate purchaser.



Sec. 90.704  Maintenance of records; submission of information.

    (a) The manufacturer of any new small SI engine subject to any of 
the provisions of this subpart must establish, maintain, and retain the 
following adequately organized and indexed records:
    (1) General records. A description of all equipment used to test 
engines in accordance with Sec. 90.703. Subpart D of this part sets 
forth relevant equipment requirements in Secs. 90.304, 90.305, 90.306, 
90.307, 90.308, 90.309, 90.310 and 90.313.
    (2) Individual records. These records pertain to each production 
line test conducted pursuant to this subpart and include:
    (i) The date, time, and location of each test;
    (ii) The number of hours of service accumulated on the test engine 
when the test began and ended;
    (iii) The names of all supervisory personnel involved in the conduct 
of the production line test;
    (iv) A record and description of any adjustment, repair, preparation 
or modification performed prior to and/or subsequent to approval by the 
Administrator pursuant to Sec. 90.707(b)(1), giving the date, associated 
time, justification, name(s) of the authorizing personnel, and names of 
all supervisory personnel responsible for the conduct of the repair;
    (v) If applicable, the date the engine was shipped from the assembly 
plant, associated storage facility or port facility, and the date the 
engine was received at the testing facility;
    (vi) A complete record of all emission tests performed pursuant to 
this subpart (except tests performed directly by EPA), including all 
individual worksheets and/or other documentation relating to each test, 
or exact copies thereof, in accordance with the record requirements 
specified in Secs. 90.405 and 90.406; and
    (vii) A brief description of any significant events during testing 
not otherwise described under paragraph (a)(2) of this section, 
commencing with the test engine selection process and including such 
extraordinary events as engine damage during shipment.
    (3) The manufacturer must establish, maintain and retain general 
records, pursuant to paragraph (a)(1) of this section, for each test 
cell that can be used to perform emission testing under this subpart.
    (b) The manufacturer must retain all records required to be 
maintained under this subpart for a period of one year after completion 
of all testing required for the engine family in a model year. Records 
may be retained as hard copy (i.e., on paper) or reduced to microfilm, 
floppy disk, or some other method of data storage, depending upon the 
manufacturer's record retention procedure; provided, that in every case, 
all the information contained in the hard copy is retained.
    (c) The manufacturer must, upon request by the Administrator, submit 
the following information with regard to engine production:
    (1) Projected production or actual production for each engine 
configuration within each engine family for which certification has been 
requested and/or approved;
    (2) Number of engines, by configuration and assembly plant, 
scheduled for production or actually produced.
    (d) Nothing in this section limits the Administrator's discretion to 
require a manufacturer to establish, maintain, retain or submit to EPA 
information not specified by this section and otherwise permitted by 
law.
    (e) All reports, submissions, notifications, and requests for 
approval made under this subpart must be addressed to: Manager, Engine 
Compliance Programs Group (6403J), U.S. Environmental Protection Agency, 
Washington, DC 20460.
    (f) The manufacturer must electronically submit the results of its 
production line testing using EPA's standardized format. The 
Administrator may

[[Page 261]]

exempt manufacturers from this requirement upon written request with 
supporting justification.



Sec. 90.705  Right of entry and access.

    (a) To allow the Administrator to determine whether a manufacturer 
is complying with the provisions of this subpart or other subparts of 
this part, one or more EPA enforcement officers may enter during 
operating hours and upon presentation of credentials any of the 
following places:
    (1) Any facility, including ports of entry, where any engine to be 
introduced into commerce or any emission-related component is 
manufactured, assembled, or stored;
    (2) Any facility where any test conducted pursuant to this or any 
other subpart or any procedure or activity connected with such test is 
or was performed;
    (3) Any facility where any test engine is present; and
    (4) Any facility where any record required under Sec. 90.704 or 
other document relating to this subpart or any other subpart of this 
part is located.
    (b) Upon admission to any facility referred to in paragraph (a) of 
this section, EPA enforcement officers are authorized to perform the 
following inspection-related activities:
    (1) To inspect and monitor any aspect of engine manufacture, 
assembly, storage, testing and other procedures, and to inspect and 
monitor the facilities in which these procedures are conducted;
    (2) To inspect and monitor any aspect of engine test procedures or 
activities, including test engine selection, preparation and service 
accumulation, emission test cycles, and maintenance and verification of 
test equipment calibration;
    (3) To inspect and make copies of any records or documents related 
to the assembly, storage, selection, and testing of an engine; and
    (4) To inspect and photograph any part or aspect of any engine and 
any component used in the assembly thereof that is reasonably related to 
the purpose of the entry.
    (c) EPA enforcement officers are authorized to obtain reasonable 
assistance without cost from those in charge of a facility to help the 
officers perform any function listed in this subpart and they are 
authorized to request the manufacturer to make arrangements with those 
in charge of a facility operated for the manufacturer's benefit to 
furnish reasonable assistance without cost to EPA.
    (1) Reasonable assistance includes, but is not limited to, clerical, 
copying, interpretation and translation services; the making available 
on an EPA enforcement officer's request of personnel of the facility 
being inspected during their working hours to inform the EPA enforcement 
officer of how the facility operates and to answer the officer's 
questions; and the performance on request of emission tests on any 
engine which is being, has been, or will be used for production line or 
other testing.
    (2) By written request, signed by the Assistant Administrator for 
Air and Radiation, and served on the manufacturer, a manufacturer may be 
compelled to cause the personal appearance of any employee at such a 
facility before an EPA enforcement officer. Any such employee who has 
been instructed by the manufacturer to appear will be entitled to be 
accompanied, represented, and advised by counsel.
    (d) EPA enforcement officers are authorized to seek a warrant or 
court order authorizing the EPA enforcement officers to conduct the 
activities authorized in this section, as appropriate, to execute the 
functions specified in this section. EPA enforcement officers may 
proceed ex parte to obtain a warrant or court order whether or not the 
EPA enforcement officers first attempted to seek permission from the 
manufacturer or the party in charge of the facility(ies) in question to 
conduct the activities authorized in this section.
    (e) A manufacturer must permit an EPA enforcement officer(s) who 
presents a warrant or court order to conduct the activities authorized 
in this section as described in the warrant or court order. The 
manufacturer must also cause those in charge of its facility or a 
facility operated for its benefit to permit entry and access as 
authorized in this section pursuant to a warrant or court order whether 
or not the manufacturer controls the facility. In

[[Page 262]]

the absence of a warrant or court order, an EPA enforcement officer(s) 
may conduct the activities authorized in this section only upon the 
consent of the manufacturer or the party in charge of the facility(ies) 
in question.
    (f) It is not a violation of this part or the Clean Air Act for any 
person to refuse to permit an EPA enforcement officer(s) to conduct the 
activities authorized in this section if the officer(s) appears without 
a warrant or court order.
    (g) A manufacturer is responsible for locating its foreign testing 
and manufacturing facilities in jurisdictions where local law does not 
prohibit an EPA enforcement officer(s) from conducting the entry and 
access activities specified in this section. EPA will not attempt to 
make any inspections which it has been informed local foreign law 
prohibits.



Sec. 90.706  Engine sample selection.

    (a) At the start of each model year, the small SI engine 
manufacturer will begin to randomly select engines from each engine 
family for production line testing at a rate of one percent of the 
projected production of that family. Each engine will be selected from 
the end of the assembly line.
    (1) For newly certified engine families: After two engines are 
tested, the manufacturer will calculate the required sample size for the 
model year for each pollutant (HC+NOX(NMHC+NOX) 
and CO) according to the Sample Size Equation in paragraph (b) of this 
section.
    (2) For carry-over engine families: After one engine is tested, the 
manufacturer will combine the test with the last test result from the 
previous model year and then calculate the required sample size for the 
model year for each pollutant according to the Sample Size Equation in 
paragraph (b) of this section.
    (b)(1) Manufacturers will calculate the required sample size for the 
model year for each pollutant for each engine family using the Sample 
Size Equation in this paragraph. N is calculated for each pollutant from 
each test result. The higher of the two values for the number N 
indicates the number of tests required for the model year for an engine 
family. N is recalculated for each pollutant after each test. Test 
results used to calculate the variables in the following Sample Size 
Equation must be final deteriorated test results as specified in 
Sec. 90.709(c).
[GRAPHIC] [TIFF OMITTED] TR30MR99.001

Where:

N = required sample size for the model year.
95 = 95% confidence coefficient. It is dependent on the 
actual number of tests completed, n, as specified in the table in 
paragraph (b)(2) of this section. It defines one-tail, 95% confidence 
intervals.
 = actual test sample standard deviation calculated from the 
following equation:
[GRAPHIC] [TIFF OMITTED] TR30MR99.002

xi = emission test result for an individual engine.
x = mean of emission test results of the actual sample.
FEL = Family Emission Limit or standard if no FEL.
n = The actual number of tests completed in an engine family.

    (2) The following table specifies the Actual Number of Tests (n) & 
1-tail Confidence Coefficients (t95):

----------------------------------------------------------------------------------------------------------------
                               n                                   t95        n        t95        n        t95
----------------------------------------------------------------------------------------------------------------
2.............................................................      6.31        12      1.80        22      1.72
3.............................................................      2.92        13      1.78        23      1.72

[[Page 263]]

 
4.............................................................      2.35        14      1.77        24      1.71
5.............................................................      2.13        15      1.76        25      1.71
6.............................................................      2.02        16      1.75        26      1.71
7.............................................................      1.94        17      1.75        27      1.71
8.............................................................      1.90        18      1.74        28      1.70
9.............................................................      1.86        19      1.73        29      1.70
10............................................................      1.83        20      1.73        30      1.70
11............................................................      1.81        21      1.72  X (NMHC+NOX) and CO is less than or equal to the 
FEL or standard if no FEL, the manufacturer may stop testing that engine 
family.
    (7) If, at any time throughout the model year, the sample mean, x, 
for HC + NOX (NMHC+NOX) or CO is greater than the 
FEL or standard if no FEL, the manufacturer must continue testing that 
engine family at the appropriate maximum sampling rate.
    (8) The maximum required sample size for an engine family 
(regardless of the required sample size, N, as calculated in paragraph 
(b)(1) of this section) is the lesser of thirty tests per model year or 
one percent of projected annual production for that engine family for 
that model year.
    (9) Manufacturers may elect to test additional engines. Additional 
engines, whether tested in accordance with the testing procedures 
specified in Sec. 90.707 or not, may not be included in the Sample Size 
and Cumulative Sum equation calculations as defined in paragraph (b)(1) 
of this section and Sec. 90.708(a), respectively. However, such 
additional test results may be used as appropriate to ``bracket'' or 
define the boundaries of the production duration of any emission 
nonconformity determined under this subpart. Such additional test data 
must be identified and provided to EPA with the submittal of the 
official CumSum results.
    (c) The manufacturer must produce and assemble the test engines 
using its normal production and assembly process for engines to be 
distributed into commerce.
    (d) No quality control, testing, or assembly procedures shall be 
used on any test engine or any portion thereof, including parts and 
subassemblies, that have not been or will not be used during the 
production and assembly of all other engines of that family, unless the 
Administrator approves the modification in production or assembly 
procedures in advance.

[64 FR 15245, Mar. 30, 1999; 64 FR 34313, June 25, 1999; 64 FR 35256, 
June 30, 1999; 64 FR 36423, July 6, 1999]



Sec. 90.707  Test procedures.

    (a)(1) For small SI engines subject to the provisions of this 
subpart, the prescribed test procedures are specified in subpart E of 
this part.
    (2) The Administrator may, on the basis of a written application by 
a manufacturer, prescribe test procedures other than those specified in 
paragraph (a)(1) of this section for any small SI engine the 
Administrator determines is not susceptible to satisfactory testing 
using procedures specified in paragraph (a)(1) of this section.
    (b)(1) The manufacturer may not adjust, repair, prepare, or modify 
any test engine and may not perform any emission test on any test engine 
unless

[[Page 264]]

this adjustment, repair, preparation, modification and/or test is 
documented in the manufacturer's engine assembly and inspection 
procedures and is actually performed by the manufacturer on every 
production line engine or unless this adjustment, repair, preparation, 
modification and/or test is required or permitted under this subpart or 
is approved in advance by the Administrator.
    (2) The Administrator may adjust or cause to be adjusted any engine 
parameter which the Administrator has determined to be subject to 
adjustment for certification, Production Line Testing and Selective 
Enforcement Audit testing, to any setting within the physically 
adjustable range of that parameter, as determined by the Administrator, 
prior to the performance of any test. However, if the idle speed 
parameter is one which the Administrator has determined to be subject to 
adjustment, the Administrator may not adjust it or require that it be 
adjusted to any setting which causes a lower engine idle speed than 
would have been possible within the physically adjustable range of the 
idle speed parameter if the manufacturer had accumulated 12 hours of 
service on the engine under paragraph (c) of this section, all other 
parameters being identically adjusted for the purpose of the comparison. 
The manufacturer may be requested to supply information necessary to 
establish an alternate minimum idle speed. The Administrator, in making 
or specifying these adjustments, may consider the effect of the 
deviation from the manufacturer's recommended setting on emission 
performance characteristics as well as the likelihood that similar 
settings will occur on in-use engines. In determining likelihood, the 
Administrator may consider factors such as, but not limited to, the 
effect of the adjustment on engine performance characteristics and 
information from similar in-use engines.
    (c) Service accumulation. (1) Unless otherwise approved by the 
Administrator, prior to performing exhaust emission production line 
testing, the manufacturer may accumulate up to 12 hours of service on 
each test engine. For catalyst-equipped engines, the manufacturer must 
accumulate a number of hours equal to the number of hours accumulated to 
represent stabilized emissions on the engine used to obtain 
certification.
    (2) Service accumulation must be performed in a manner using good 
engineering judgment to obtain emission results representative of 
production line engines.
    (d) Unless otherwise approved by the Administrator, the manufacturer 
may not perform any maintenance on test engines after selection for 
testing.
    (e) If an engine is shipped to a remote facility for production line 
testing, and an adjustment or repair is necessary because of shipment, 
the engine manufacturer must perform the necessary adjustment or repair 
only after the initial test of the engine, except in cases where the 
Administrator has determined that the test would be impossible or unsafe 
to perform or would permanently damage the engine. Engine manufacturers 
must report to the Administrator, in the quarterly report required by 
Sec. 90.709(e), all adjustments or repairs performed on test engines 
prior to each test.
    (f) If an engine cannot complete the service accumulation or an 
emission test because of a malfunction, the manufacturer may request 
that the Administrator authorize either the repair of that engine or its 
deletion from the test sequence.
    (g) Testing. A manufacturer must test engines with the test 
procedure specified in subpart E of this part to demonstrate compliance 
with the applicable FEL (or standard where there is no FEL). If 
alternate or special test procedures pursuant to regulations at 
Sec. 90.120 are used in certification, then those alternate procedures 
must be used in production line testing.
    (h) Retesting. (1) If an engine manufacturer reasonably determines 
that an emission test of an engine is invalid because of a procedural 
error, test equipment problem, or engine performance problem that causes 
the engine to be unable to safely perform a valid test, the engine may 
be retested. A test is not invalid simply because the emission results 
are high relative to other engines of the family. Emission results from 
all tests must be reported to EPA.

[[Page 265]]

The engine manufacturer must also include a detailed explanation of the 
reasons for invalidating any test in the quarterly report required in 
Sec. 90.709(e). If a test is invalidated because of an engine 
performance problem, the manufacturer must document in detail the nature 
of the problem and the repairs performed in order to use the after-
repair test results for the original test results.
    (2) Routine retests may be conducted if the manufacturer conducts 
the same number of tests on all engines in the family. The results of 
these tests must be averaged according to procedures of Sec. 90.709.



Sec. 90.708  Cumulative Sum (CumSum) procedure.

    (a) (1) Manufacturers must construct separate CumSum Equations for 
each regulated pollutant (HC+NOX (NMHC+NOX) and 
CO) for each engine family. Test results used to calculate the variables 
in the CumSum Equations must be final deteriorated test results as 
defined in Sec. 90.709(c). The CumSum Equation is constructed as 
follows:

Ci=max[0 0R (Ci-1+Xi-(FEL+F))]

Where:

Ci=The current CumSum statistic.
Ci-1=The previous CumSum statistic. Prior to any 
testing, the CumSum statistic=0 (i.e. C0=0).
Xi=The current emission test result for an individual engine.
FEL=Family Emission Limit (the standard if no FEL).
F=.25 x .

    (2) After each test pursuant to paragraph (a)(1) of this section, 
Ci is compared to the action limit, H, the quantity which the 
CumSum statistic must exceed, in two consecutive tests, before the 
engine family may be determined to be in noncompliance for a regulated 
pollutant for purposes of Sec. 90.710.

Where:

H=The Action Limit. It is 5.0 x , and is a function of the 
standard deviation, .
=is the sample standard deviation and is recalculated after 
each test.

    (b) After each engine is tested, the CumSum statistic shall be 
promptly updated according to the CumSum Equation in paragraph (a) of 
this section.
    (c)(1) If, at any time during the model year, a manufacturer amends 
the application for certification for an engine family as specified in 
Sec. 90.122(a) by performing an engine family modification (i.e. a 
change such as a running change involving a physical modification to an 
engine, a change in specification or setting, the addition of a new 
configuration, or the use of a different deterioration factor) with no 
changes to the FEL (where applicable), all previous sample size and 
CumSum statistic calculations for the model year will remain unchanged.
    (2) If, at any time during the model year, a manufacturer amends the 
application for certification for an engine family as specified in 
Sec. 90.122 (a) by modifying its FEL (where applicable) for future 
production, as a result of an engine family modification, the 
manufacturer must continue its calculations by inserting the new FEL 
into the sample size equation as specified in Sec. 90.706(b)(1) and into 
the CumSum equation in paragraph (a) of this section. All previous 
calculations remain unchanged. If the sample size calculation indicates 
that additional tests are required, then those tests must be performed. 
CumSum statistic calculations must not indicate that the family has 
exceeded the action limit for two consecutive tests. Where applicable, 
the manufacturer's final credit report as required by Sec. 90.210 must 
break out the credits that result from each FEL and corresponding CumSum 
analysis for the set of engines built to each FEL.
    (3) If, at any time during the model year, a manufacturer amends the 
application for certification for an engine family as specified in 
Sec. 90.122 (a) (or for an affected part of the year's production in 
cases where there were one or more mid-year engine family 
modifications), by modifying its FEL (where applicable) for past and/or 
future production, without performing an engine modification, all 
previous sample size and CumSum statistic calculations for the model 
year must be recalculated using the new FEL. If the sample size 
calculation indicates that additional tests are required, then those 
tests must be performed. The CumSum statistic recalculation must not 
indicate that the family has exceeded the action

[[Page 266]]

limit for two consecutive tests. Where applicable, the manufacturer's 
final credit report as required by Sec. 90.210 must break out the 
credits that result from each FEL and corresponding CumSum analysis for 
the set of engines built to each FEL.



Sec. 90.709  Calculation and reporting of test results.

    (a) Initial test results are calculated following the applicable 
test procedure specified in Sec. 90.707 (a). The manufacturer rounds 
these results to the number of decimal places contained in the 
applicable emission standard expressed to one additional significant 
figure.
    (b) Final test results are calculated by summing the initial test 
results derived in paragraph (a) of this section for each test engine, 
dividing by the number of tests conducted on the engine, and rounding to 
the same number of decimal places contained in the applicable standard 
expressed to one additional significant figure.
    (c) The final deteriorated test results for each test engine are 
calculated by applying the appropriate deterioration factors, derived in 
the certification process for the engine to the final test results, and 
rounding to the same number of decimal places contained in the 
applicable standard.
    (d) If, at any time during the model year, the CumSum statistic 
exceeds the applicable action limit, H, in two consecutive tests for any 
regulated pollutant, (HC+NOX (NMHC+NOX) or CO) the 
engine family may be determined to be in noncompliance and the 
manufacturer must notify EPA by contacting its official EPA 
certification representative within ten working days of such exceedance 
by the CumSum statistic.
    (e) Within 45 calendar days of the end of each quarter, each engine 
manufacturer must submit to the Administrator a report which includes 
the following information:
    (1) The location and description of the manufacturer's or other's 
exhaust emission test facilities which were utilized to conduct testing 
reported pursuant to this section;
    (2) Total production and sample sizes, N and n, for each engine 
family;
    (3) The FEL (standard, if no FEL) against which each engine family 
was tested;
    (4) A description of the process to obtain engines on a random 
basis;
    (5) A description of the test engines;
    (6) For each test conducted:
    (i) A description of the test engine, including:
    (A) Configuration and engine family identification;
    (B) Year, make, and build date;
    (C) Engine identification number; and
    (D) Number of hours of service accumulated on engine prior to 
testing;
    (ii) Location where service accumulation was conducted and 
description of accumulation procedure and schedule;
    (iii) Test number, date, test procedure used, initial test results 
before and after rounding, final test results before and after rounding 
and final deteriorated test results for all exhaust emission tests, 
whether valid or invalid, and the reason for invalidation, if 
applicable;
    (iv) A complete description of any adjustment, modification, repair, 
preparation, maintenance, and/or testing which was performed on the test 
engine, was not reported pursuant to any other paragraph of this 
subpart, and will not be performed on all other production engines;
    (v) A CumSum analysis, as required in Sec. 90.708, of the production 
line test results for each engine family; and
    (vi) Any other information the Administrator may request relevant to 
the determination whether the new engines being manufactured by the 
manufacturer do in fact conform with the regulations with respect to 
which the certificate of conformity was issued;
    (7) For each failed engine as defined in Sec. 90.710(a), a 
description of the remedy and test results for all retests as required 
by Sec. 90.711(g);
    (8) The date of the end of the engine manufacturer's model year 
production for each engine family; and
    (9) The following signed statement and endorsement by an authorized 
representative of the manufacturer:

    This report is submitted pursuant to Sections 213 and 208 of the 
Clean Air Act. This

[[Page 267]]

production line testing program was conducted in complete conformance 
with all applicable regulations under 40 CFR Part 90. No emission-
related changes to production processes or quality control procedures 
for the engine family tested have been made during this production line 
testing program that affect engines from the production line. All data 
and information reported herein is, to the best of (Company Name) 
knowledge, true and accurate. I am aware of the penalties associated 
with violations of the Clean Air Act and the regulations thereunder. 
(Authorized Company Representative.)



Sec. 90.710  Compliance with criteria for production line testing.

    (a) A failed engine is one whose final deteriorated test results 
pursuant to Sec. 90.709(c), for HC+NOX (NMHC+NOX) 
or CO exceeds the applicable Family Emission Limit (FEL) or standard if 
no FEL.
    (b) An engine family shall be determined to be in noncompliance, if 
at any time throughout the model year, the CumSum statistic, 
Ci, for HC+NOX (NMHC+NOX) or CO, is 
greater than the action limit, H, for that pollutant, for two 
consecutive tests.



Sec. 90.711  Suspension and revocation of certificates of conformity.

    (a) The certificate of conformity is suspended with respect to any 
engine failing pursuant to Sec. 90.710(a) effective from the time that 
testing of that engine is completed.
    (b) The Administrator may suspend the certificate of conformity for 
an engine family which is determined to be in noncompliance pursuant to 
Sec. 90.710(b). This suspension will not occur before thirty days after 
the engine family is determined to be in noncompliance and the 
Administrator has notified the manufacturer of its intent to suspend. 
During this thirty day period the Administrator will work with the 
manufacturer to achieve appropriate production line changes to avoid the 
need to halt engine production, if possible. The Administrator will 
approve or disapprove any such production line changes proposed to 
address a family that has been determined to be in noncompliance under 
this subpart within 15 days of receipt. If the Administrator does not 
approve or disapprove such a proposed change within such time period, 
the proposed change shall be considered approved.
    (c) If the results of testing pursuant to the regulations in this 
subpart indicate that engines of a particular family produced at one 
plant of a manufacturer do not conform to the regulations in this part 
with respect to which the certificate of conformity was issued, the 
Administrator may suspend the certificate of conformity with respect to 
that family for engines manufactured by the manufacturer at all other 
plants.
    (d) Notwithstanding the fact that engines described in the 
application for certification may be covered by a certificate of 
conformity, the Administrator may suspend such certificate immediately 
in whole or in part if the Administrator finds any one of the following 
infractions to be substantial:
    (1) The manufacturer refuses to comply with any of the requirements 
of this subpart.
    (2) The manufacturer submits false or incomplete information in any 
report or information provided to the Administrator under this subpart.
    (3) The manufacturer renders inaccurate any test data submitted 
under this subpart.
    (4) An EPA enforcement officer is denied the opportunity to conduct 
activities authorized in this subpart and a warrant or court order is 
presented to the manufacturer or the party in charge of the facility in 
question.
    (5) An EPA enforcement officer is unable to conduct activities 
authorized in Sec. 90.705 because a manufacturer has located its 
facility in a foreign jurisdiction where local law prohibits those 
activities.
    (e) The Administrator shall notify the manufacturer in writing of 
any suspension or revocation of a certificate of conformity in whole or 
in part, except that the certificate is immediately suspended with 
respect to any failed engines as provided for in paragraph (a) of this 
section.
    (f) The Administrator may revoke a certificate of conformity for an 
engine family after the certificate has been suspended pursuant to 
paragraph (b) or (c) of this section if the proposed remedy for the 
nonconformity, as reported

[[Page 268]]

by the manufacturer to the Administrator, is one requiring a design 
change or changes to the engine and/or emission control system as 
described in the application for certification of the affected engine 
family.
    (g) Once a certificate has been suspended for a failed engine, as 
provided for in paragraph (a) of this section, the manufacturer must 
take the following actions before the certificate is reinstated for that 
failed engine:
    (1) Remedy the nonconformity;
    (2) Demonstrate that the engine conforms to the applicable standards 
(FELs, where applicable) by retesting the engine in accordance with 
these regulations; and
    (3) Submit a written report to the Administrator, described in 
Sec. 90.709(e)(7), after successful completion of testing on the failed 
engine, which contains a description of the remedy and test results for 
each engine in addition to other information that may be required by 
this part.
    (h) Once a certificate for a failed engine family has been suspended 
pursuant to paragraph (b) or (c) of this section, the manufacturer must 
take the following actions before the Administrator will consider 
reinstating the certificate:
    (1) Submit a written report to the Administrator which identifies 
the reason for the noncompliance of the engines, describes the proposed 
remedy, including a description of any proposed quality control and/or 
quality assurance measures to be taken by the manufacturer to prevent 
future occurrences of the problem, and states the date on which the 
remedies will be implemented; and
    (2) Demonstrate that the engine family for which the certificate of 
conformity has been suspended does in fact comply with the regulations 
of this part by testing as many engines as needed so that the CumSum 
statistic, as calculated in Sec. 90.708(a), falls below the action 
limit. Such testing must comply with the provisions of this part. If the 
manufacturer elects to continue testing individual engines after 
suspension of a certificate, the certificate is reinstated for any 
engine actually determined to be in conformance with the Family Emission 
Limits (or standards if no FEL) through testing in accordance with the 
applicable test procedures, provided that the Administrator has not 
revoked the certificate pursuant to paragraph (f) of this section.
    (i) Once the certificate has been revoked for an engine family, if 
the manufacturer desires to continue introduction into commerce of a 
modified version of that family, the following actions must be taken 
before the Administrator may issue a certificate for that modified 
family:
    (1) If the Administrator determines that the proposed change(s) in 
engine design may have an effect on emission performance deterioration, 
the Administrator shall notify the manufacturer within five working days 
after receipt of the report in paragraph (h)(1) of this section whether 
subsequent testing under this subpart will be sufficient to evaluate the 
proposed change or changes or whether additional testing will be 
required;
    (2) After implementing the change or changes intended to remedy the 
nonconformity, the manufacturer must demonstrate that the modified 
engine family does in fact conform with the regulations of this part by 
testing as many engines as needed from the modified engine family so 
that the CumSum statistic, as calculated in Sec. 90.708(a) using the 
newly assigned FEL if applicable, falls below the action limit; and
    (3) When the requirements of paragraphs (i)(1) and (i)(2) of this 
section are met, the Administrator shall reissue the certificate or 
issue a new certificate, as the case may be, to include that family. As 
long as the CumSum statistic remains above the action limit, the 
revocation remains in effect.
    (j) At any time subsequent to a suspension of a certificate of 
conformity for a test engine pursuant to paragraph (a) of this section, 
but not later than 15 days (or such other period as may be allowed by 
the Administrator) after notification of the Administrator's decision to 
suspend or revoke a certificate of conformity in whole or in part 
pursuant to paragraph (b), (c), or (f) of this section, a manufacturer 
may request a hearing as to whether the tests have

[[Page 269]]

been properly conducted or any sampling methods have been properly 
applied.
    (k) Any suspension of a certificate of conformity under paragraph 
(d) of this section shall:
    (1) Be made only after the manufacturer concerned has been offered 
an opportunity for a hearing conducted in accordance with Secs. 90.712 
and 90.713; and
    (2) Not apply to engines no longer in the possession of the 
manufacturer.
    (l) After the Administrator suspends or revokes a certificate of 
conformity pursuant to this section and prior to the commencement of a 
hearing under Sec. 90.712, if the manufacturer demonstrates to the 
Administrator's satisfaction that the decision to suspend or revoke the 
certificate was based on erroneous information, the Administrator shall 
reinstate the certificate.
    (m) To permit a manufacturer to avoid storing non-test engines while 
conducting subsequent testing of the noncomplying family, a manufacturer 
may request that the Administrator conditionally reinstate the 
certificate for that family. The Administrator may reinstate the 
certificate subject to the following condition: the manufacturer must 
commit to performing offsetting measures that remedy the nonconformity 
at no expense to the owners, and which are approved in advance by the 
Administrator for all engines of that family produced from the time the 
certificate is conditionally reinstated if the CumSum statistic does not 
fall below the action limit.



Sec. 90.712  Request for public hearing.

    (a) If the manufacturer disagrees with the Administrator's decision 
to suspend or revoke a certificate or disputes the basis for an 
automatic suspension pursuant to Sec. 90.711(a), the manufacturer may 
request a public hearing.
    (b) The manufacturer's request shall be filed with the Administrator 
not later than 15 days after the Administrator's notification of his or 
her decision to suspend or revoke, unless otherwise specified by the 
Administrator. The manufacturer shall simultaneously serve two copies of 
this request upon the Manager of the Engine Compliance Programs Group 
and file two copies with the Hearing Clerk for the Agency. Failure of 
the manufacturer to request a hearing within the time provided 
constitutes a waiver of the right to a hearing. Subsequent to the 
expiration of the period for requesting a hearing as of right, the 
Administrator may, in his or her discretion and for good cause shown, 
grant the manufacturer a hearing to contest the suspension or 
revocation.
    (c) A manufacturer shall include in the request for a public 
hearing:
    (1) A statement as to which engine configuration(s) within a family 
is to be the subject of the hearing; and
    (2) A concise statement of the issues to be raised by the 
manufacturer at the hearing, except that in the case of the hearing 
requested under Sec. 90.711(j), the hearing is restricted to the 
following issues:
    (i) Whether tests have been properly conducted (specifically, 
whether the tests were conducted in accordance with applicable 
regulations under this part and whether test equipment was properly 
calibrated and functioning);
    (ii) Whether sampling plans and statistical analyses have been 
properly applied (specifically, whether sampling procedures and 
statistical analyses specified in this subpart were followed and whether 
there exists a basis for distinguishing engines produced at plants other 
than the one from which engines were selected for testing which would 
invalidate the Administrator's decision under Sec. 90.711(c));
    (3) A statement specifying reasons why the manufacturer believes it 
will prevail on the merits of each of the issues raised; and
    (4) A summary of the evidence which supports the manufacturer's 
position on each of the issues raised.
    (d) A copy of all requests for public hearings will be kept on file 
in the Office of the Hearing Clerk and will be made available to the 
public during Agency business hours.



Sec. 90.713  Administrative procedures for public hearing.

    The administrative procedures for a public hearing requested under 
this subpart shall be those procedures set forth in the regulations 
found at Secs. 90.513 through 90.516. References in

[[Page 270]]

Sec. 90.513 to Sec. 90.511(j), Sec. 90.512(c)(2), Sec. 90.511(e), 
Sec. 90.512, Sec. 90.511(d), Sec. 90.503, Sec. 90.512(c) and 
Sec. 90.512(b) shall be deemed to mean Sec. 90.711(j), 
Sec. 90.712(c)(2), Sec. 90.711(e), Sec. 90.712, Sec. 90.711(d), 
Sec. 90.703, and Sec. 90.712(c) and Sec. 90.712(b), respectively. 
References to ``test orders'' in Sec. 90.513 are not applicable.



  Subpart I--Emission-Related Defect Reporting Requirements, Voluntary 
                Emission Recall Program, Ordered Recalls



Sec. 90.801  Applicability.

    (a) The requirements of subpart I are applicable to all nonroad 
engines and vehicles subject to the provisions of subpart A of part 90. 
The requirement to report emission-related defects affecting a given 
class or category of engines will remain applicable for five years from 
the end of the calendar year in which such engines were manufactured.
    (b) Phase 2 engines subject to provisions of subpart B of this part 
are subject to recall regulations specified in 40 CFR part 85, subpart 
S, except as otherwise provided in this section.
    (c) Reference to section 214 of the Clean Air Act in 40 CFR 
85.1801(a) is deemed to mean section 216 of the Clean Air Act.
    (d) Reference to section 202 of the Act in 40 CFR 85.1802(a) is 
deemed to mean section 213 of the Act.
    (e) Reference to ``family particulate emission limits'' as defined 
in part 86 promulgated under section 202 of the Act'' in 40 CFR 
85.1803(a) and 85.1805(a)(1) is deemed to mean ``family emission 
limits'' as defined in subpart C of this part 90 promulgated under 
section 213 of the Act''.
    (f) Reference to ``vehicles or engines'' throughout 40 CFR part 85, 
subpart S is deemed to mean ``Phase 2 nonroad small SI engines at or 
below 19 kW.''
    (g) In addition to the requirements in 40 CFR 85.1805(a)(9) for 
Phase 2 engines include a telephone number provided by the manufacturer, 
which may be used to report difficulty in obtaining recall repairs.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15251, Mar. 30, 1999]



Sec. 90.802  Definitions.

    The definitions in subpart A of this part apply to this subpart. All 
terms not defined herein or in subpart A have the meaning given them in 
the Act. The definitions of 40 CFR 85.1801 also apply to this part.
    Emission-related defect means a defect in design, materials, or 
workmanship in a device, system, or assembly described in the approved 
application for certification which affects any applicable parameter or 
specification enumerated in 40 CFR part 85, Appendix VIII.
    Voluntary emission recall means a repair, adjustment, or 
modification program voluntarily initiated and conducted by a 
manufacturer to remedy any emission-related defect for which 
notification of engine owners has been provided.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15251, Mar. 30, 1999]



Sec. 90.803  Emission defect information report.

    (a) A manufacturer must file a defect information report whenever, 
on the basis of data obtained subsequent to the effective date of these 
regulations:
    (1) The manufacturer determines, in accordance with procedures 
established by the manufacturer to identify either safety-related or 
performance defects, that a specific emission-related defect exists; and
    (2) A specific emission-related defect exists in 25 or more engines 
of a given engine family manufactured in the same certificate or model 
year.
    (b) No report must be filed under this section for any emission-
related defect corrected prior to the sale of the affected engines to 
ultimate purchasers.
    (c) The manufacturer must submit defect information reports to EPA's 
Engine Compliance Programs Group not more than 15 working days after an 
emission-related defect is found to affect 25 or more engines 
manufactured in the same certificate or model year. Information required 
by paragraph (d) of this section that is either not available within 15 
working days or is significantly revised must be submitted to EPA's 
Engine Compliance Programs Group as it becomes available.

[[Page 271]]

    (d) Each defect report must contain the following information in 
substantially the format outlined below:
    (1) The manufacturer's corporate name.
    (2) A description of the defect.
    (3) A description of each class or category of engines potentially 
affected by the defect including make, model, model year, calendar year 
produced, and any other information required to identify the engines 
affected.
    (4) For each class or category of engine described in response to 
paragraph (d)(3) of this section, the following must also be provided:
    (i) The number of engines known or estimated to have the defect and 
an explanation of the means by which this number was determined.
    (ii) The address of the plant(s) at which the potentially defective 
engines were produced.
    (5) An evaluation of the emissions impact of the defect and a 
description of any operational problems which a defective engine might 
exhibit.
    (6) Available emission data which relate to the defect.
    (7) An indication of any anticipated manufacturer follow-up.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15251, Mar. 30, 1999]



Sec. 90.804  Voluntary emissions recall.

    (a) When any manufacturer initiates a voluntary emissions recall 
campaign involving 25 or more engines, the manufacturer must submit a 
report describing the manufacturer's voluntary emissions recall plan as 
prescribed by this section within 15 working days of the date owner 
notification was begun. The report must contain the following:
    (1) A description of each class or category of engines recalled 
including the number of engines to be recalled, the model year, the 
make, the model, and such other information as may be required to 
identify the engines recalled;
    (2) A description of the specific modifications, alterations, 
repairs, corrections, adjustments, or other changes to be made to 
correct the engines affected by the emission-related defect;
    (3) A description of the method by which the manufacturer will 
notify engine owners and, if applicable, the method by which the 
manufacturer will determine the names and addresses of engine owners;
    (4) A description of the proper maintenance or use, if any, upon 
which the manufacturer conditions eligibility for repair under the 
recall plan, an explanation of the manufacturer's reasons for imposing 
any such conditions, and a description of the proof to be required of an 
engine owner to demonstrate compliance with any such conditions;
    (5) A description of the procedure to be followed by engine owners 
to obtain correction of the nonconformity. This may include designation 
of the date on or after which the owner can have the nonconformity 
remedied, the time reasonably necessary to perform the labor to remedy 
the defect, and the designation of facilities at which the defect can be 
remedied;
    (6) A description of the class of persons other than dealers and 
authorized warranty agents of the manufacturer who will remedy the 
defect;
    (7) When applicable, three copies of any letters of notification to 
be sent engine owners;
    (8) A description of the system by which the manufacturer will 
assure that an adequate supply of parts is available to perform the 
repair under the plan, and that the supply remains both adequate and 
responsive to owner demand;
    (9) Three copies of all necessary instructions to be sent to those 
persons who are to perform the repair under the recall plan;
    (10) A description of the impact of the proposed changes on fuel 
consumption, performance, and safety of each class or category of 
engines to be recalled;
    (11) A sample of any label to be applied to engines which 
participated in the voluntary recall campaign.
    (b) The manufacturer must submit at least one report on the progress 
of the recall campaign. Such report must be submitted no later than 18 
months from the date notification was begun and include the following 
information:
    (1) The methods used to notify both engine owners, dealers and other 
individuals involved in the recall campaign;

[[Page 272]]

    (2) The number of engines known or estimated to be affected by the 
emission-related defect and an explanation of the means by which this 
number was determined;
    (3) The number of engines actually receiving repair under the plan; 
and
    (4) The number of engines determined to be ineligible for remedial 
action due to a failure to properly maintain or use such engines.



Sec. 90.805  Reports, voluntary recall plan filing, record retention.

    (a) Send the defect report, voluntary recall plan, and the voluntary 
recall progress report to: Group Manager, Engine Compliance Programs 
Group, (6403-J), Environmental Protection Agency, Washington, DC 20460.
    (b) Retain the information gathered by the manufacturer to compile 
the reports for not less than five years from the date of the 
manufacture of the engines. The manufacturer must make this information 
available to duly authorized officials of the EPA upon request.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15251, Mar. 30, 1999]



Sec. 90.806  Responsibility under other legal provisions preserved.

    The filing of any report under the provisions of this subpart does 
not affect a manufacturer's responsibility to file reports or 
applications, obtain approval, or give notice under any provision of 
law.



Sec. 90.807  Disclaimer of production warranty applicability.

    (a) The act of filing an Emission Defect Information Report is 
inconclusive as to the existence of a defect subject to the warranty 
provided by subpart L of this part.
    (b) A manufacturer may include on each page of its Emission Defect 
Information Report a disclaimer stating that the filing of a Defect 
Information Report pursuant to these regulations is not conclusive as to 
the applicability of the warranty provided by subpart L of this part.



Sec. 90.808  Ordered recall provisions.

    (a) Effective with respect to Phase 2 small SI engines:
    (1) If the Administrator determines that a substantial number of any 
class or category of engines, although properly maintained and used, do 
not conform to the regulations prescribed under section 213 of the Act 
when in actual use throughout their useful life (as defined under 
Sec. 90.105), the Administrator shall immediately notify the 
manufacturer of such nonconformity and require the manufacturer to 
submit a plan for remedying the nonconformity of the engines with 
respect to which such notification is given.
    (i) The manufacturer's plan shall provide that the nonconformity of 
any such engines which are properly used and maintained will be remedied 
at the expense of the manufacturer.
    (ii) If the manufacturer disagrees with such determination of 
nonconformity and so advises the Administrator, the Administrator shall 
afford the manufacturer and other interested persons an opportunity to 
present their views and evidence in support thereof at a public hearing. 
Unless, as a result of such hearing, the Administrator withdraws such 
determination of nonconformity, the Administrator shall, within 60 days 
after the completion of such hearing, order the manufacturer to provide 
prompt notification of such nonconformity in accordance with paragraph 
(a)(2) of this section. The manufacturer shall comply in all respects 
with the requirements of this subpart.
    (2) Any notification required to be given by the manufacturer under 
paragraph (a)(1) of this section with respect to any class or category 
of engines shall be given to dealers, ultimate purchasers, and 
subsequent purchasers (if known) in such manner and containing such 
information as required in subparts I and M of this part.
    (3)(i) Prior to an EPA ordered recall, the manufacturer may perform 
a voluntary emissions recall pursuant to regulations at Sec. 90.804. 
Such manufacturer is subject to the reporting and recordkeeping 
requirements of Sec. 90.805.
    (ii) Once EPA determines that a substantial number of engines fail 
to conform with the requirements of section 213 of the Act or this part, 
the manufacturer will not have the option of a voluntary recall.

[[Page 273]]

    (b) The manufacturer bears all cost obligation a dealer incurs as a 
result of a requirement imposed by paragraph (a) of this section. The 
transfer of any such cost obligation from a manufacturer to a dealer 
through franchise or other agreement is prohibited.
    (c) Any inspection of an engine for purposes of paragraph (a)(1) of 
this section, after its sale to the ultimate purchaser, is to be made 
only if the owner of such vehicle or engine voluntarily permits such 
inspection to be made, except as may be provided by any state or local 
inspection program.

[64 FR 15251, Mar. 30, 1999]



 Subpart J--Exclusion and Exemption of Nonroad Engines from Regulations



Sec. 90.901  Applicability.

    The requirements of subpart J are applicable to all nonroad engines 
and vehicles subject to the provisions of subpart A of part 90.



Sec. 90.902  Definitions.

    The definitions in subpart A of this part apply to this subpart. The 
following definitions also apply to this subpart:
    Exemption means exemption from the prohibitions of Sec. 90.1003.
    Export exemption means an exemption granted under Sec. 90.1004(b) 
for the purpose of exporting new nonroad engines.
    National security exemption means an exemption granted under 
Sec. 90.1004(b) for the purpose of national security.
    Manufacturer-owned nonroad engine means an uncertified nonroad 
engine owned and controlled by a nonroad engine manufacturer and used in 
a manner not involving lease or sale by itself or in a vehicle employed 
from year to year in the ordinary course of business for product 
development, production method assessment, and market promotion 
purposes.
    Testing exemption means an exemption granted under Sec. 90.1004(b) 
for the purpose of research, investigations, studies, demonstrations or 
training, but not including national security.



Sec. 90.903  Exclusions, application of section 216 (10) and (11) of the Act.

    (a) For the purpose of determining the applicability of section 
216(10) of the Act, an internal combustion engine (including the fuel 
system) that is not used in a motor vehicle is deemed a nonroad engine, 
if it meets the definition in subpart A of this part. For the purpose of 
determining the applicability of section 216(11) of the Act, a vehicle 
powered by a nonroad engine is deemed a nonroad vehicle, if it meets the 
definition in subpart A of this part.
    (b) EPA will maintain a list of models of nonroad engines and models 
of nonroad vehicles that have been determined to be excluded because 
they are used solely for competition. This list will be available to the 
public and may be obtained by writing to the following address: Group 
Manager, Engine Compliance Programs Group, Engine Programs and 
Compliance Division (6403J) Environmental Protection Agency, 401 M 
Street SW., Washington, DC 20460.
    (c) Upon written request with supporting documentation, EPA will 
make written determinations as to whether certain engines are or are not 
nonroad engines. Engines that are determined not to be nonroad engines 
are excluded from regulations under this part.

[61 FR 52102, Oct. 4, 1996]



Sec. 90.904  Who may request an exemption.

    (a) Any person may request a testing exemption under Sec. 90.905.
    (b) Any nonroad engine manufacturer may request a national security 
exemption under Sec. 90.908.
    (c) For nonroad engine manufacturers, nonroad engines manufactured 
for export purposes are exempt without application, subject to the 
provisions of Sec. 90.909.
    (d) For eligible manufacturers, as determined by Sec. 90.906, 
manufacturer-owned nonroad engines are exempt without application, 
subject to the provisions of Sec. 90.906.
    (e) For any person, display nonroad engines are exempt without 
application, subject to the provisions of Sec. 90.907.

[[Page 274]]



Sec. 90.905  Testing exemption.

    (a) Any person requesting a testing exemption must demonstrate the 
following:
    (1) That the proposed test program has a purpose which constitutes 
an appropriate basis for an exemption in accordance with 
Sec. 90.1004(b), and in accordance with subsection (b) of this section;
    (2) That the proposed test program necessitates the granting of an 
exemption, in accordance with subsection (c) of this section;
    (3) That the proposed test program exhibits reasonableness in scope, 
in accordance with subsection (d) of this section; and
    (4) That the proposed test program exhibits a degree of control 
consonant with the purpose of the program and EPA's monitoring 
requirements, in accordance with subsection (e) of this section.
    (b) With respect to the purpose of the proposed test program, an 
appropriate purpose would be research, investigations, studies, 
demonstrations, or training, but not national security. A concise 
statement of purpose is a required item of information.
    (c) With respect to the necessity that an exemption be granted, 
necessity arises from an inability to achieve the stated purpose in a 
practicable manner without performing or causing to be performed one or 
more of the prohibited acts under Sec. 90.1003. In appropriate 
circumstances, time constraints may be a sufficient basis for necessity, 
but the cost of certification alone, in the absence of extraordinary 
circumstances, is not a basis for necessity.
    (d) With respect to reasonableness, a test program must exhibit a 
duration of reasonable length and affect a reasonable number of engines. 
In this regard, required items of information include:
    (1) An estimate of the program's duration; and
    (2) The maximum number of nonroad engines involved.
    (e) With respect to control, the test program must incorporate 
procedures consistent with the purpose of the test and be capable of 
affording EPA monitoring capability. As a minimum, required items of 
information include:
    (1) The technical nature of the test;
    (2) The site of the test;
    (3) The duration and accumulated engine operation associated with 
the test;
    (4) The ownership arrangement with regard to the engines involved in 
the test;
    (5) The intended final disposition of the engines;
    (6) The manner in which the engines used in the test will be 
identified, and that identification recorded, and made available; and
    (7) The means or procedure whereby test results will be recorded.
    (f) A manufacturer of new nonroad engines may request a testing 
exemption to cover nonroad engines intended for use in test programs 
planned or anticipated over the course of a subsequent one-year period. 
Unless otherwise required by the Director, Engine Programs and 
Compliance Division, a manufacturer requesting such an exemption need 
only furnish the information required by paragraphs (a)(1) and (d)(2) of 
this section along with a description of the recordkeeping and control 
procedures that will be employed to assure that the engines are used for 
purposes consistent with Sec. 90.1004(b).

[60 FR 34598, July 3, 1995, as amended at 64 FR 15252, Mar. 30, 1999]



Sec. 90.906  Manufacturer-owned exemption and precertification exemption.

    (a) Any manufacturer owned nonroad engine, as defined by 
Sec. 90.902, is exempt from Sec. 90.1003, without application, if the 
manufacturer complies with the following terms and conditions:
    (1) The manufacturer must establish, maintain, and retain the 
following adequately organized and indexed information on each exempted 
engine:
    (i) Engine identification number;
    (ii) Use of the engine on exempt status; and
    (iii) Final disposition of any engine removed from exempt status.
    (2) The manufacturer must provide right of entry and access to these 
records to EPA authorized representatives as required by Sec. 90.506.
    (3) Unless the requirement is waived or an alternative procedure is 
approved

[[Page 275]]

by the Director, Engine Programs and Compliance Division, the 
manufacturer must permanently affix a label to each nonroad engine on 
exempt status. This label should:
    (i) Be affixed in a readily visible portion of the engine;
    (ii) Be attached in such a manner that it cannot be removed without 
destruction or defacement;
    (iii) State in the English language and in block letters and 
numerals of a color that contrasts with the background of the label, the 
following information:
    (A) The label heading ``Emission Control Information;''
    (B) Full corporate name and trademark of manufacturer;
    (C) Engine displacement, engine family identification, and model 
year of engine; or person or office to be contacted for further 
information about the engine;
    (D) The statement ``This nonroad engine is exempt from the 
prohibitions of 40 CFR 90.1003.''
    (4) No provision of paragraph (a)(3) of this section prevents a 
manufacturer from including any other information it desires on the 
label.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15252, Mar. 30, 1999]



Sec. 90.907  Display exemption.

    Where an uncertified nonroad engine is a display engine to be used 
solely for display purposes, will only be operated incident and 
necessary to the display purpose, and will not be sold unless an 
applicable certificate of conformity has been received or the engine has 
been finally admitted pursuant to subpart G of this part, no request for 
exemption of the engine is necessary.



Sec. 90.908  National security exemption.

    (a)(1) Any nonroad engine, otherwise subject to this part, which is 
used in a vehicle or equipment that exhibits substantial features 
ordinarily associated with military combat such as armor and/or 
permanently affixed weaponry and which will be owned and/or used by an 
agency of the federal government with responsibility for national 
defense, will be considered exempt from this part for purposes of 
national security. No request for exemption is necessary.
    (2) Manufacturers may request a national security exemption for any 
nonroad engine, otherwise subject to this part, which does not meet the 
conditions described in paragraph (a)(1) of this section. A manufacturer 
requesting a national security exemption must state the purpose for 
which the exemption is required and the request must be endorsed by an 
agency of the federal government charged with responsibility for 
national defense.
    (b) EPA will maintain a list of models of nonroad engines (and the 
vehicles or equipment which use them) that have been granted a national 
security exemption under paragraph (a)(2) of this section. This list 
will be available to the public and may be obtained by writing to the 
following address: Group Manager, Engine Compliance Programs Group, 
Engine Programs and Compliance Division (6403J) Environmental Protection 
Agency, 401 M Street SW., Washington, DC 20460.

[61 FR 52102, Oct. 4, 1996]



Sec. 90.909  Export exemptions.

    (a) A new nonroad engine intended solely for export, and so labeled 
or tagged on the outside of the container and on the engine itself, is 
subject to the provisions of Sec. 90.1003, unless the importing country 
has new nonroad engine emission standards which differ from EPA 
standards.
    (b) For the purpose of paragraph (a) of this section, a country 
having no standards, whatsoever, is deemed to be a country having 
emission standards which differ from EPA standards.
    (c) EPA will maintain a list of foreign countries that have in force 
nonroad emission standards identical to U.S. EPA standards and have so 
notified EPA. This list may be obtained by writing to the following 
address: Group Manager, Engine Compliance Programs Group, Engine 
Programs and Compliance Division (6403-J), Environmental Protection 
Agency, Washington, DC 20460. New nonroad engines exported to such 
countries must comply with U.S. EPA certification regulations.
    (d) It is a condition of any exemption for the purpose of export 
under

[[Page 276]]

Sec. 90.1004(b) that such exemption be void ab initio with respect to a 
new nonroad engine intended solely for export if such nonroad engine is 
sold, or offered for sale, to an ultimate purchaser in the United States 
for purposes other than export.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15252, Mar. 30, 1999]



Sec. 90.910  Granting of exemptions.

    (a) If upon completion of the review of an exemption request made 
pursuant to Sec. 90.905 or Sec. 90.908, EPA determines it is appropriate 
to grant such an exemption, a memorandum of exemption is to be prepared 
and submitted to the person requesting the exemption. The memorandum is 
to set forth the basis for the exemption, its scope, and such terms and 
conditions as are deemed necessary. Such terms and conditions generally 
include, but are not limited to, agreements by the applicant to conduct 
the exempt activity in the manner described to EPA, create and maintain 
adequate records accessible to EPA at reasonable times, employ labels 
for the exempt engines setting forth the nature of the exemption, take 
appropriate measures to assure that the terms of the exemption are met, 
and advise EPA of the termination of the activity and the ultimate 
disposition of the engines.
    (b) Any exemption granted pursuant to paragraph (a) of this section 
is deemed to cover any subject engine only to the extent that the 
specified terms and conditions are complied with. A breach of any term 
or condition causes the exemption to be void ab initio with respect to 
any engine. Consequently, the causing or the performing of an act 
prohibited under Sec. 90.1003(a) (1) or (3), other than in strict 
conformity with all terms and conditions of this exemption, renders the 
person to whom the exemption is granted, and any other person to whom 
the provisions of Sec. 90.1003 are applicable, liable to suit under 
sections 204 and 205 of the Act.



Sec. 90.911  Submission of exemption requests.

    Requests for exemption or further information concerning exemptions 
and/or the exemption request review procedure should be addressed to: 
Group Manager, Engine Compliance Programs Group, Engine Programs and 
Compliance Division (6403J), Environmental Protection Agency, 
Washington, DC 20460.

[64 FR 15252, Mar. 30, 1999]



Sec. 90.912  Treatment of confidential information.

    The provisions for treatment of confidential information described 
in Sec. 90.4 apply to this subpart.



      Subpart K--Prohibited Acts and General Enforcement Provisions



Sec. 90.1001  Applicability.

    The requirements of subpart K are applicable to all nonroad engines 
and vehicles subject to the provisions of subpart A of part 90.



Sec. 90.1002  Definitions.

    The definitions in subpart A of this part apply to this subpart. All 
terms not defined herein or in subpart A have the meaning given them in 
the Act.



Sec. 90.1003  Prohibited acts.

    (a) The following acts and the causing thereof are prohibited:
    (1)(i) In the case of a manufacturer of new nonroad engines or 
vehicles for distribution in commerce, the sale, the offering for sale, 
or the introduction, or delivery for introduction, into commerce, of any 
new nonroad engine manufactured after the applicable effective date 
under this part unless such engine is covered by a certificate of 
conformity issued (and in effect) under regulations found in this part.
    (ii) In the case of any person, except as provided by regulation of 
the Administrator, the importation into the United States of any new 
nonroad engine manufactured after the applicable effective date under 
this part unless such engine is covered by a certificate of conformity 
issued (and in effect) under regulations found in this part.
    (2) (i) For a person to fail or refuse to permit access to or 
copying of records or to fail to make reports or provide information 
required under Sec. 90.1004.

[[Page 277]]

    (ii) For a person to fail or refuse to permit entry, testing or 
inspection authorized under Secs. 90.126, 90.506, 90.705, 90.1004, or 
90.1207.
    (iii) For a person to fail or refuse to perform tests or to have 
tests performed as required under Secs. 90.119, 90.504, 90.703, 90.1004, 
90.1204.
    (iv) For a person to fail to establish or maintain records as 
required under Secs. 90.209, 90.704, 90.805, or 90.1004.
    (v) For a person to fail to submit a remedial plan as required under 
Sec. 90.808.
    (3)(i) For a person to remove or render inoperative a device or 
element of design installed on or in a nonroad engine in compliance with 
regulations under this part prior to its sale and delivery to the 
ultimate purchaser, or for a person knowingly to remove or render 
inoperative such a device or element of design after the sale and 
delivery to the ultimate purchaser; or
    (ii) For a person to manufacture, sell or offer to sell, or install, 
a part or component intended for use with, or as part of, a nonroad 
engine, where a principal effect of the part or component is to bypass, 
defeat, or render inoperative a device or element of design installed on 
or in a nonroad engine in compliance with regulations issued under this 
part, and where the person knows or should know that the part or 
component is being offered for sale or installed for this use or put to 
such use.
    (4) For a manufacturer of a new nonroad engine subject to standards 
prescribed under this part:
    (i) To sell, offer for sale, or introduce or deliver into commerce, 
a nonroad engine unless the manufacturer has complied with the 
requirements of Sec. 90.1103.
    (ii) To sell, offer for sale, or introduce or deliver into commerce, 
a nonroad engine unless a label or tag is affixed to the engine in 
accordance with regulations under this part.
    (iii) To fail or refuse to comply with the requirements of 
Sec. 90.808.
    (iv) To provide directly or indirectly in any communication to the 
ultimate purchaser or a subsequent purchaser that the coverage of a 
warranty under the Act is conditioned upon use of a part, component, or 
system manufactured by the manufacturer or a person acting for the 
manufacturer or under its control, or conditioned upon service performed 
by such persons, except as provided in subpart L of this part.
    (v) To fail or refuse to comply with the terms and conditions of the 
warranty under subpart L of this part.
    (5) For a manufacturer of new nonroad vehicles to distribute in 
commerce, sell, offer for sale, or introduce into commerce, nonroad 
vehicles which contain an engine not covered by a certificate of 
conformity (except as specified in paragraph (b)(4) of this section) or 
which contain a handheld engine in a nonhandheld vehicle.
    (6) For a person to circumvent or attempt to circumvent the 
residence time requirements of Paragraph (a) (2)(iii) of this Section of 
the nonroad engine definition in Sec. 90.3.
    (b) For the purposes of enforcement of this part, the following 
apply:
    (1) Nothing in paragraph (a) of this section is to be construed to 
require the use of manufacturer parts in maintaining or repairing a 
nonroad engine.
    (2) Actions for the purpose of repair or replacement of a device or 
element of design or any other item are not considered prohibited acts 
under Sec. 90.1003(a) if the actions are a necessary and temporary 
procedure, the device or element is replaced upon completion of the 
procedure, and the action results in the proper functioning of the 
device or element of design.
    (3) Actions for the purpose of a conversion of a nonroad engine for 
use of a clean alternative fuel (as defined in Title II of the Act) are 
not considered prohibited acts under Sec. 90.1003(a) if:
    (i) The vehicle complies with the applicable standard when operating 
on the alternative fuel, and the device or element is replaced upon 
completion of the conversion procedure, and
    (ii) In the case of engines converted to dual fuel or flexible use, 
the action results in proper functioning of the device or element when 
the nonroad engine operates on conventional fuel.
    (4) Certified nonroad engines shall be used in all equipment or 
vehicles that are self-propelled, portable, transportable, or are 
intended to be propelled while performing their function, unless the 
manufacturer of the equipment or vehicle can prove that the vehicle or 
equipment will be used in a manner

[[Page 278]]

consistent with paragraph (2) of the definition of Nonroad engine in 
Sec. 90.3. Nonroad vehicle and equipment manufacturers may continue to 
use noncertified nonroad engines built prior to the applicable 
implementation date of the Phase 1 rule until noncertified engine 
inventories are depleted; further after the applicable implementation of 
the Phase 2 regulations in this part, nonroad vehicle and equipment 
manufacturers may continue to use Phase 1 engines until Phase 1 engine 
inventories are depleted. Stockpiling (i.e., build up of an inventory of 
uncertified engines or Phase 1 engines beyond normal business practices 
to avoid or delay compliance with the Phase 1 or Phase 2 regulations in 
this part, respectively) will be considered a violation of this section.
    (5) A new nonroad engine, intended solely to replace an engine in a 
piece of nonroad equipment that was originally produced with an engine 
manufactured prior to the applicable implementation date as described in 
Secs. 90.2, 90.103 and 90.106, or with an engine that was originally 
produced in a model year in which less stringent standards under this 
part were in effect, shall not be subject to the requirements of 
Sec. 90.106 or prohibitions and provisions of paragraphs (a)(1) and 
(b)(4) of this section provided that:
    (i) The engine manufacturer has ascertained that no engine produced 
by itself or the manufacturer of the engine that is being replaced, if 
different, and certified to the requirements of this subpart, is 
available with the appropriate physical or performance characteristics 
to repower the equipment; and
    (ii) The engine manufacturer or its agent takes ownership and 
possession of the old engine in partial exchange for the replacement 
engine; and
    (iii) The replacement engine is clearly labeled with the following 
language, or similar alternate language approved in advance by the 
Administrator:

THIS ENGINE DOES NOT COMPLY WITH FEDERAL NONROAD OR ON-HIGHWAY EMISSION 
REQUIREMENTS. SALE OR INSTALLATION OF THIS ENGINE FOR ANY PURPOSE OTHER 
THAN AS A REPLACEMENT ENGINE IN A NONROAD VEHICLE OR PIECE OF NONROAD 
EQUIPMENT WHOSE ORIGINAL ENGINE WAS NOT CERTIFIED, OR WAS CERTIFIED TO 
LESS STRINGENT EMISSION STANDARDS THAN THOSE THAT APPLY TO THE YEAR OF 
MANUFACTURE OF THIS ENGINE, IS A VIOLATION OF FEDERAL LAW SUBJECT TO 
CIVIL PENALTY;


and
    (iv) Where the replacement engine is intended to replace an engine 
built after the applicable implementation date of regulations under this 
part, but built to less stringent emission standards than are currently 
applicable, the replacement engine shall be identical in all material 
respects to a certified configuration of the same or later model year as 
the engine being replaced.
    (6)(i) Regulations elsewhere in this part notwithstanding, for three 
model years after the phase-in of Class I and Class II Phase 2 
standards; i.e. through August 1, 2010 for Class I engines and through 
model year 2008 for Class II engines, small volume equipment 
manufacturers as defined in this part may continue to use, and engine 
manufacturers may continue to supply, engines certified to Phase 1 
standards (or identified and labeled by their manufacturer to be 
identical to engines previously certified under Phase 1 standards), 
provided the equipment manufacturer has demonstrated to the satisfaction 
of the Administrator that no certified Phase 2 engine is available with 
suitable physical or performance characteristics to power a piece of 
equipment in production prior to the initial effective date of Phase 2 
standards, as indicated in 90.103(a). The equipment manufacturer must 
also certify to the Administrator that the equipment model has not 
undergone any redesign which could have facilitated conversion of the 
equipment to accommodate a Phase 2 engine.
    (ii) Regulations elsewhere in this part notwithstanding, for the 
duration of the Phase 2 rule in this part, equipment manufacturers who 
certify to the Administrator that annual eligible production of a 
particular model of equipment will not exceed 500 for a Class I model in 
production prior to August 1, 2007 or a Class II model in production 
prior to the 2001 model year, may continue to use in that model, and 
engine manufacturers may continue to supply,

[[Page 279]]

engines certified to Phase 1 requirements, (or identified and labeled by 
their manufacturer to be identical to engines previously certified under 
Phase 1 standards). To be eligible for this provision, the equipment 
manufacturer must have demonstrated to the satisfaction of the 
Administrator that no certified Phase 2 engine is available with 
suitable physical or performance characteristics to power the equipment. 
The equipment manufacturer must also certify to the Administrator that 
the equipment model has not undergone any redesign which could have 
facilitated conversion of the equipment to accommodate a Phase 2 engine.
    (iii) An equipment manufacturer which is unable to obtain suitable 
Phase 2 engines and which can not obtain relief under any other 
provision of this part, may, prior to the date on which the manufacturer 
would become in noncompliance with the requirement to use Phase 2 
engines, apply to the Administrator to be allowed to continue using 
Phase 1 engines, through August 1, 2008 for Class 1 engines and through 
the 2006 model year for Class II engines, subject to the following 
criteria:
    (A) The inability to obtain Phase 2 engines is despite the 
manufacturer's best efforts and is the result of an extraordinary action 
on the part of the engine manufacturer that was outside the control of 
and could not be reasonably foreseen by the equipment manufacturer; such 
as canceled production or shipment, last minute certification failure, 
unforeseen engine cancellation, plant closing, work stoppage or other 
such circumstance; and
    (B) the inability to market the particular equipment will bring 
substantial economic hardship to the equipment manufacturer resulting in 
a major impact on the equipment manufacturer's solvency.
    (iv) The written permission from the Administrator to the equipment 
manufacturer shall serve as permission for the engine manufacturer to 
provide such Phase 1 engines required by the equipment manufacturers 
under this paragraph (b)(6) of this section. As Phase 1 engines, these 
engines are exempt from Production Line Testing requirements under 
subpart H of this part and in-use testing provisions under subpart M of 
this part, and are excluded from the certification averaging, banking 
and trading program of subpart C of this part.

[60 FR 34598, July 3, 1995, as amended at 62 FR 42644, Aug. 7, 1997; 64 
FR 15252, Mar. 30, 1999]



Sec. 90.1004  General enforcement provisions.

    (a) Information collection provisions. (1) Every manufacturer of new 
nonroad engines and other persons subject to the requirements of this 
part must establish and maintain records, perform tests where such 
testing is not otherwise reasonably available under this part, make 
reports and provide information the Administrator may reasonably require 
to determine whether the manufacturer or other person has acted or is 
acting in compliance with this part or to otherwise carry out the 
provisions of this part, and must, upon request of an officer or 
employee duly designated by the Administrator, permit the officer or 
employee at reasonable times to have access to and copy such records. 
The manufacturer shall comply in all respects with the requirements of 
subpart I of this part.
    (2) For purposes of enforcement of this part, an officer or employee 
duly designated by the Administrator, upon presenting appropriate 
credentials, is authorized:
    (i) To enter, at reasonable times, any establishment of the 
manufacturer, or of any person whom the manufacturer engaged to perform 
any activity required under paragraph (a)(1) of this section, for the 
purposes of inspecting or observing any activity conducted pursuant to 
paragraph (a)(1) of this section; and
    (ii) To inspect records, files, papers, processes, controls, and 
facilities used in performing an activity required by paragraph (a)(1) 
of this section, by the manufacturer or by a person whom the 
manufacturer engaged to perform the activity.
    (b) Exemption provision. The Administrator may exempt a new nonroad 
engine from Sec. 90.1003 upon such terms and conditions as the 
Administrator may find necessary for the purpose of export, research, 
investigations, studies,

[[Page 280]]

demonstrations, or training, or for reasons of national security.
    (c) Importation provision. (1) A new nonroad engine or vehicle 
offered for importation or imported by a person in violation of 
Sec. 90.1003 is to be refused admission into the United States, but the 
Secretary of the Treasury and the Administrator may, by joint 
regulation, provide for deferring a final determination as to admission 
and authorizing the delivery of such a nonroad engine offered for import 
to the owner or consignee thereof upon such terms and conditions 
(including the furnishing of a bond) as may appear to them appropriate 
to insure that the nonroad engine will be brought into conformity with 
the standards, requirements, and limitations applicable to it under this 
part.
    (2) If a nonroad engine is finally refused admission under this 
paragraph, the Secretary of the Treasury shall cause disposition thereof 
in accordance with the customs laws unless it is exported, under 
regulations prescribed by the Secretary, within 90 days of the date of 
notice of the refusal or additional time as may be permitted pursuant to 
the regulations.
    (3) Disposition in accordance with the customs laws may not be made 
in such manner as may result, directly or indirectly, in the sale, to 
the ultimate purchaser, of a new nonroad engine that fails to comply 
with applicable standards of the Administrator under this part.
    (d) Export provision. A new nonroad engine intended solely for 
export, and so labeled or tagged on the outside of the container and on 
the engine itself, shall be subject to the provisions of Sec. 90.1003, 
except that if the country that is to receive the engine has emission 
standards that differ from the standards prescribed under subpart B of 
this part, then the engine must comply with the standards of the country 
that is to receive the engine.



Sec. 90.1005  Injunction proceedings for prohibited acts.

    (a) The district courts of the United States have jurisdiction to 
restrain violations of Sec. 90.1003.
    (b) Actions to restrain such violations must be brought by and in 
the name of the United States. In an action, subpoenas for witnesses who 
are required to attend a district court in any district may run into any 
other district.



Sec. 90.1006  Penalties.

    (a) Violations. A violation of the requirements of this subpart is a 
violation of the applicable provisions of the Act and is subject to the 
penalty provisions thereunder.
    (1) A person who violates Sec. 90.1003(a)(1), (a)(4), or (a)(5), or 
a manufacturer or dealer who violates Sec. 90.1003(a)(3)(i), is subject 
to a civil penalty of not more than $25,000 for each violation.
    (2) A person other than a manufacturer or dealer who violates 
Sec. 90.1003(a)(3)(i) or any person who violates Sec. 90.1003(a)(3)(ii) 
is subject to a civil penalty of not more than $2,500 for each 
violation.
    (3) A violation with respect to Sec. 90.1003(a)(1), (a)(3)(i), 
(a)(4), or (a)(5) constitutes a separate offense with respect to each 
nonroad engine.
    (4) A violation with respect to Sec. 90.1003(a)(3)(ii) constitutes a 
separate offense with respect to each part or component. Each day of a 
violation with respect to Sec. 90.1003(a)(6) constitutes a separate 
offense.
    (5) A person who violates Sec. 90.1003(a)(2) or (a)(6) is subject to 
a civil penalty of not more than $25,000 per day of violation.
    (b) Civil actions. The Administrator may commence a civil action to 
assess and recover any civil penalty under paragraph (a) of this 
section.
    (1) An action under this paragraph may be brought in the district 
court of the United States for the district in which the violation is 
alleged to have occurred, the defendant resides, or the Administrator's 
principal place of business is located, and in which the court has 
jurisdiction to assess a civil penalty.
    (2) In determining the amount of a civil penalty to be assessed 
under this paragraph, the court is to take into account the gravity of 
the violation, the economic benefit or savings (if any) resulting from 
the violation, the size of the violator's business, the violator's 
history of compliance with Title II of

[[Page 281]]

the Act, action taken to remedy the violation, the effect of the penalty 
on the violator's ability to continue in business, and such other 
matters as justice may require.
    (3) In any such action, subpoenas for witnesses who are required to 
attend a district court in any district may run into any other district.
    (c) Administrative assessment of certain penalties. (1) 
Administrative penalty authority. In lieu of commencing a civil action 
under paragraph (b) of this section, the Administrator shall assess any 
civil penalty prescribed in paragraph (a) of this section, except that 
the maximum amount of penalty sought against each violator in a penalty 
assessment proceeding can not exceed $200,000, unless the Administrator 
and the Attorney General jointly determine that a matter involving a 
larger penalty amount is appropriate for administrative penalty 
assessment. Any such determination by the Administrator and the Attorney 
General is not subject to judicial review. Assessment of a civil penalty 
is made by an order made on the record after opportunity for a hearing 
held in accordance with the procedures found at part 22 of this chapter. 
The Administrator may compromise, or remit, with or without conditions, 
any administrative penalty which may be imposed under this section.
    (2) Determining amount. In determining the amount of any civil 
penalty assessed under this subsection, the Administrator is to take 
into account the gravity of the violation, the economic benefit or 
savings (if any) resulting from the violation, the size of the 
violator's business, the violator's history of compliance with Title II 
of the Act, action taken to remedy the violation, the effect of the 
penalty on the violator's ability to continue in business, and such 
other matters as justice may require.
    (3) Effect of administrator's action. (i) Action by the 
Administrator under this paragraph does not affect or limit the 
Administrator's authority to enforce any provisions of this part; except 
that any violation with respect to which the Administrator has commenced 
and is diligently prosecuting an action under this part, or for which 
the Administrator has issued a final order not subject to further 
judicial review and for which the violator has paid a penalty assessment 
under this part may not be the subject of a civil penalty action under 
paragraph (b) of this section.
    (ii) No action by the Administrator under this part affects a 
person's obligation to comply with a section of this part.
    (4) Finality of order. An order issued under this part becomes final 
30 days after its issuance unless a petition for judicial review is 
filed under paragraph (c)(5) of this section.
    (5) Judicial review. (i) A person against whom a civil penalty is 
assessed in accordance with this part may seek review of the assessment 
in the United States District Court for the District of Columbia or for 
the district in which the violation is alleged to have occurred, in 
which such person resides, or where the person's principle place of 
business is located, within the 30-day period beginning on the date a 
civil penalty order is issued. The person must simultaneously send a 
copy of the filing by certified mail to the Administrator and the 
Attorney General.
    (ii) The Administrator must file in the court within 30 days a 
certified copy, or certified index, as appropriate, of the record on 
which the order was issued. The court is not to set aside or remand any 
order issued in accordance with the requirements of this paragraph 
unless substantial evidence does not exist in the record, taken as a 
whole, to support the finding of a violation or unless the 
Administrator's assessment of the penalty constitutes an abuse of 
discretion, and the court is not to impose additional civil penalties 
unless the Administrator's assessment of the penalty constitutes an 
abuse of discretion. In any proceedings, the United States may seek to 
recover civil penalties assessed under this section.
    (6) Collection. (i) If any person fails to pay an assessment of a 
civil penalty imposed by the Administrator as provided in this part 
after the order making the assessment has become final or after a court 
in an action brought under paragraph (c)(5) of this section has entered 
a final judgment in favor of the Administrator, the Administrator

[[Page 282]]

is to request that the Attorney General bring a civil action in an 
appropriate district court to recover the amount assessed (plus interest 
at rates established pursuant to section 6621(a)(2) of the Internal 
Revenue Code of 1986 from the date of the final order or the date of 
final judgment, as the case may be). In such an action, the validity, 
amount, and appropriateness of the penalty are not subject to review.
    (ii) A person who fails to pay on a timely basis the amount of an 
assessment of a civil penalty as described in paragraph (c)(6)(i) of 
this section is required to pay, in addition to that amount and 
interest, the United States' enforcement expenses, including attorney's 
fees and costs for collection proceedings, and a quarterly nonpayment 
penalty for each quarter during which the failure to pay persists. The 
nonpayment penalty is an amount equal to 10 percent of the aggregate 
amount of that person's penalties and nonpayment penalties which are 
unpaid as of the beginning of such quarter.



        Subpart L--Emission Warranty and Maintenance Instructions



Sec. 90.1101  Applicability.

    The requirements of subpart L are applicable to all nonroad engines 
and vehicles subject to the provisions of subpart A of part 90.



Sec. 90.1102  Definitions.

    The definitions of subpart A of this part apply to this subpart.



Sec. 90.1103  Emission warranty, warranty period.

    (a) Warranties imposed by this subpart shall be for the first two 
years of engine use from the date of sale to the ultimate purchaser.
    (b) The manufacturer of each new nonroad engine must warrant to the 
ultimate purchaser and each subsequent purchaser that the engine is 
designed, built and equipped so as to conform at the time of sale with 
applicable regulations under section 213 of the Act, and the engine is 
free from defects in materials and workmanship which cause such engine 
to fail to conform with applicable regulations for its warranty period.
    (c) In the case of a nonroad engine part, the manufacturer or 
rebuilder of the part may certify according to Sec. 85.2112 of this 
chapter that use of the part will not result in a failure of the engine 
to comply with emission standards promulgated in this part.
    (d) For the purposes of this section, the owner of any nonroad 
engine warranted under this part is responsible for the proper 
maintenance of the engine as stated in the manufacturer's written 
instructions. Proper maintenance generally includes replacement and 
service, at the owner's expense at a service establishment or facility 
of the owner's choosing, such items as spark plugs, points, condensers, 
and any other part, item, or device related to emission control (but not 
designed for emission control) under the terms of the last sentence of 
section 207(a)(3) of the Act, unless such part, item, or device is 
covered by any warranty not mandated by this Act.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15253, Mar. 30, 1999]



Sec. 90.1104  Furnishing of maintenance instructions to ultimate purchaser.

    (a) The manufacturer must furnish or cause to be furnished to the 
ultimate purchaser of each new nonroad engine written instructions for 
the maintenance needed to assure proper functioning of the emission 
control system.
    (b) The manufacturer must provide in boldface type on the first page 
of the written maintenance instructions notice that maintenance, 
replacement, or repair of the emission control devices and systems may 
be performed by any nonroad engine repair establishment or individual.
    (c) The instructions under paragraph (b) of this section will not 
include any condition on the ultimate purchaser's using, in connection 
with such engine, any component or service (other than a component or 
service provided without charge under the terms of the purchase 
agreement) which is identified by brand, trade, or corporate name. Such 
instructions also will not directly or indirectly distinguish between 
service performed by the franchised dealers of such manufacturer or any 
other service

[[Page 283]]

establishments with which such manufacturer has a commercial 
relationship and service performed by independent nonroad engine repair 
facilities with which such manufacturer has no commercial relationship.
    (d) The prohibition of paragraph (c) of this section may be waived 
by the Administrator if:
    (1) The manufacturer satisfies the Administrator that the engine 
will function properly only if the component or service so identified is 
used in connection with such engine; and
    (2) The Administrator finds that such a waiver is in the public 
interest.
    (e) If a manufacturer includes in an advertisement a statement 
respecting the cost or value of emission control devices or systems, the 
manufacturer shall set forth in the statement the cost or value 
attributed to these devices or systems by the Secretary of Labor 
(through the Bureau of Labor Statistics). The Secretary of Labor, and 
his or her representatives, has the same access for this purpose to the 
books, documents, papers, and records of a manufacturer as the 
Comptroller General has to those of a recipient of assistance for 
purposes of section 311 of the Act.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15253, Mar. 30, 1999]



                   Subpart M--Voluntary In-Use Testing

    Source: 64 FR 15254, Mar. 30, 1999, unless otherwise noted.



Sec. 90.1201  Applicability.

    The provisions of this subpart from Sec. 90.1201 through 
Sec. 90.1249 are applicable to all nonhandheld Phase 2 engines subject 
to the provisions of subpart A of this part.



Sec. 90.1202  Definitions.

    For the purposes of this subpart, except as otherwise provided, the 
definitions in subparts A and C of this part apply to this subpart.



Sec. 90.1203  Voluntary Manufacturer In-Use Testing Program.

    (a) Manufacturers may elect to participate in the voluntary in-use 
testing program by notifying the Administrator in writing of their 
intent to conduct emissions testing on in-use engines prior to the 
beginning of each model year. The notification must include a list of 
engine families the manufacturer has selected to include in the testing 
program.
    (b) Each engine family included in the voluntary in-use testing 
program is exempted from the Production Line Testing requirements 
according to Sec. 90.701(c) for two model years, the current model year 
and the subsequent model year. Manufacturers may only include up to 
twenty percent of their eligible engine families in this in-use testing 
program each model year.
    (c) The manufacturer must randomly select or procure a minimum of 
three engines, from each family included in the voluntary program, for 
emissions testing. These three engines may be selected or procured from:
    (1) Existing consumer or independently owned fleets,
    (2) Existing manufacturer owned fleets, or
    (3) The production line and placed into either manufacturer or 
consumer owned fleets. Although a minimum of three engines must be 
emissions tested from each engine family in this testing program, a 
manufacturer may elect to emissions test more than three engines per 
family.
    (d) The manufacturer or the manufacturer's designee must:
    (1) Age the selected engines in equipment representing the top 50 
percent, by production, of available equipment for the engine family.
    (2) Age the selected engines to at least 75 percent of each engines' 
useful life as determined pursuant to Sec. 90.105.
    (3) Age the engine/equipment combination in actual field conditions 
encountered with typical use of the equipment as described in the 
owner's manual or other literature sold with the equipment or engine.
    (e) Documents obtained in the procurement or aging process must be 
maintained as required in Sec. 90.121.
    (f) The manufacturer must complete testing within three calendar 
years from the time they notified the Administrator of their intent to 
participate

[[Page 284]]

in the voluntary in-use testing program, unless otherwise approved by 
the Administrator; the Administrator will give such approval upon 
acceptance of documentation demonstrating that appropriate in-use 
testing will take a longer period of time.



Sec. 90.1204  Maintenance, aging and testing of engines.

    (a) Prior to aging the engines and after appropriate stabilization, 
manufacturers may optionally conduct emissions testing on the engines, 
according to the test procedures described in subpart E of this part. 
These tests to serve as baseline references.
    (b) Manufacturers must obtain information regarding the accumulated 
usage, maintenance, operating conditions, and storage of the test 
engines.
    (1) The manufacturer may take reasonable measures to assure that the 
engines and equipment were properly used and maintained during the field 
aging process, but additional maintenance to that indicated in the 
owners manual or other literature sold with the equipment or engine is 
prohibited.
    (2) Unless otherwise approved by the Administrator, once a 
manufacturer begins aging and/or testing an engine, the manufacturer may 
not remove that engine from the selected sample unless that engine 
experiences catastrophic mechanical failure or safety concerns requiring 
major engine repair.
    (c) The manufacturer may perform minimal set-to-spec maintenance on 
components of a test engine that are not subject to parameter 
adjustment. Components subject to parameter adjustment must be sealed 
and tamperproof and may not be adjusted for testing. Unless otherwise 
approved by the Administrator, maintenance to any test engine may 
include only that which is listed in the owner's instructions for 
engines with the amount of service and age of the test engine.
    (d) After aging each engine to at least 75 percent of the engine's 
useful life as determined pursuant to Sec. 90.105, at least one valid 
emission test, according to the test procedure outlined in subpart E of 
this part, is required for each test engine. Data from other emission 
testing or performance testing performed on a test engine must be 
supplied to EPA, and may not be used for the purpose of determining the 
need for maintenance on an engine.
    (e) Documents obtained in the procurement, aging, maintenance, or 
testing process must be maintained as required in Sec. 90.121.



Sec. 90.1205  In-use test program reporting requirements.

    (a) The manufacturer shall submit to the Administrator within ninety 
(90) days of completion of testing for a given model year's engines, all 
emission testing results generated from the voluntary in-use testing 
program. The following information must be reported for each test 
engine:
    (1) Engine family;
    (2) Model;
    (3) Application;
    (4) Engine serial number;
    (5) Date of manufacture;
    (6) Hours of use;
    (7) Date and time of each test attempt;
    (8) Results (if any) of each test attempt;
    (9) Schedules, descriptions and justifications of all maintenance 
and/or adjustments performed;
    (10) Schedules, descriptions and justifications of all modifications 
and/or repairs; and
    (11) A listing of any test engines that were deleted from the aging 
process or testing process and technical justifications to support the 
deletion.
    (b) All testing reports and requests for approvals made under this 
subpart shall be addressed to: Manager, Engine Compliance Programs Group 
(6403-J), U.S. Environmental Protection Agency, Washington, D.C. 20460.



Sec. 90.1206  [Reserved]



Sec. 90.1207  Entry and access.

    (a) To allow the Administrator to determine whether a manufacturer 
is complying with the provisions under this subpart, EPA enforcement 
officers or their authorized representatives, upon presentation of 
credentials, shall be permitted entry, during operating hours, into any 
of the following places:

[[Page 285]]

    (1) Any facility where engines undergo or are undergoing aging, 
maintenance, repair, preparation for aging, selection for aging or 
emission testing.
    (2) Any facility where records or documents related to any of 
activities described in paragraph (a)(1) of this section are kept.
    (3) Any facility where any engine that is being tested or aged, was 
tested or aged or will be tested or aged is present.
    (b) Upon admission to any facility referred to in paragraph (a) of 
this section, EPA enforcement officers or EPA authorized representatives 
are authorized to perform those activities set forth in Sec. 90.705 (b) 
and also to inspect and make copies of records related to engine aging 
(service accumulation) and maintenance.
    (c) The provisions of Sec. 90.705(c), (d), (e), (f) and (g) also 
apply to entry and access under this subpart.



Secs. 90.1208--90.1249  [Reserved]



PART 91--CONTROL OF EMISSIONS FROM MARINE SPARK-IGNITION ENGINES--Table of Contents




                           Subpart A--General

Sec.
91.1  Applicability.
91.2  Applicable date.
91.3  Definitions.
91.4  Acronyms and abbreviations.
91.5  Table and figure numbering; position.
91.6  Reference materials.
91.7  Treatment of confidential information.

       Subpart B--Emission Standards and Certification Provisions

91.101  Applicability.
91.102  Definitions.
91.103  Averaging, banking, and trading of exhaust emission credits.
91.104  Exhaust emission standards for outboard and personal watercraft 
          engines.
91.105  Useful life period, recall, and warranty periods.
91.106  Certificate of conformity.
91.107  Application for certification.
91.108  Certification.
91.109  Requirement of certification--closed crankcase.
91.110  Requirement of certification--prohibited controls.
91.111  Requirement of certification--prohibition of defeat devices.
91.112  Requirement of certification--adjustable parameters.
91.113  Requirement of certification--emission control information label 
          and engine identification number.
91.114  Requirement of certification--supplying production engines upon 
          request.
91.115  Certification procedure--determining engine power and engine 
          families.
91.116  Certification procedure--test engine selection.
91.117  Certification procedure--service accumulation.
91.118  Certification procedure--testing.
91.119  Certification procedure--use of special test procedures.
91.120  Compliance with Family Emission Limits over useful life.
91.121  Certification procedure--recordkeeping.
91.122  Amending the application and certificate of conformity.
91.123  Denial, revocation of certificate of conformity.
91.124  Request for hearing.
91.125  Hearing procedures.
91.126  Right of entry and access.

          Subpart C--Averaging, Banking, and Trading Provisions

91.201  Applicability.
91.202  Definitions.
91.203  General provisions.
91.204  Averaging.
91.205  Banking.
91.206  Trading.
91.207  Credit calculation and manufacturer compliance with emission 
          standards.
91.208  Certification.
91.209  Maintenance of records.
91.210  End-of-year and final reports.
91.211  Notice of opportunity for hearing.

              Subpart D--Emission Test Equipment Provisions

91.301  Scope; applicability.
91.302  Definitions.
91.303  Acronyms and abbreviations.
91.304  Test equipment overview.
91.305  Dynamometer specifications and calibration accuracy.
91.306  Dynamometer torque cell calibration.
91.307  Engine cooling system.
91.308  Lubricating oil and test fuel.
91.309  Engine intake air temperature measurement.
91.310  Engine intake air humidity measurement.
91.311  Test conditions.
91.312  Analytical gases.
91.313  Analyzers required.
91.314  Analyzer accuracy and specifications.
91.315  Analyzer initial calibration.
91.316  Hydrocarbon analyzer calibration.

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91.317  Carbon monoxide analyzer calibration.
91.318  Oxides of nitrogen analyzer calibration.
91.319  NOX converter check.
91.320  Carbon dioxide analyzer calibration.
91.321  NDIR analyzer calibration.
91.322  Calibration of other equipment.
91.323  Analyzer bench checks.
91.324  Analyzer leakage check.
91.325  Analyzer interference checks.
91.326  Pre- and post-test analyzer calibration.
91.327  Sampling system requirements.
91.328  Measurement equipment accuracy/calibration frequency table.
91.329  Catalyst thermal stress test.

Appendix A to Subpart D of Part 91--Figures
Appendix B to Subpart D of Part 91--Figures

               Subpart  E--Gaseous Exhaust Test Procedures

91.401  Scope; applicability.
91.402  Definitions.
91.403  Symbols and abbreviations.
91.404  Test procedure overview.
91.405  Recorded information.
91.406  Engine parameters to be measured and recorded.
91.407  Engine inlet and exhaust systems.
91.408  Pre-test procedures.
91.409  Engine dynamometer test run.
91.410  Engine test cycle.
91.411  Post-test analyzer procedures.
91.412  Data logging.
91.413  Exhaust sample procedure--gaseous components.
91.414  Raw gaseous exhaust sampling and analytical system description.
91.415  Raw gaseous sampling procedures.
91.416  Intake air flow measurement specifications.
91.417  Fuel flow measurement specifications.
91.418  Data evaluation for gaseous emissions.
91.419  Raw emission sampling calculations.
91.420  CVS concept of exhaust gas sampling system.
91.421  Dilute gaseous exhaust sampling and analytical system 
          description.
91.423  Exhaust gas analytical system; CVS grab sample.
91.424  Dilute sampling procedure--CVS calibration.
91.425  CVS calibration frequency.
91.426  Dilute emission sampling calculations.
91.427  Catalyst thermal stress resistance evaluation.

Appendix A to Subpart E of Part 91--Tables
Appendix B to Subpart E of Part 91--Figures

         Subpart F--Manufacturer Production Line Testing Program

91.501  Applicability.
91.502  Definitions.
91.503  Production line testing by the manufacturer.
91.504  Maintenance of records; submittal of information.
91.505  Right of entry and access.
91.506  Engine sample selection.
91.507  Test procedures.
91.508  Cumulative Sum (CumSum) procedure.
91.509  Calculation and reporting of test results.
91.510  Compliance with criteria for production line testing.
91.511  Suspension and revocation of certificates of conformity.
91.512  Request for public hearing.
91.513  Administrative procedures for public hearing.
91.514  Hearing procedures.
91.515  Appeal of hearing decision.
91.516  Treatment of confidential information.

          Subpart G--Selective Enforcement Auditing Regulations

91.601  Applicability.
91.602  Definitions.
91.603  Applicability of part 91, subpart F.
91.604  Test orders.
91.605  Testing by the Administrator.
91.606  Sample selection.
91.607  Test procedures.
91.608  Compliance with acceptable quality level and passing and failing 
          criteria for selective enforcement audits.

Appendix A to Subpart G of Part 91--Sampling Plans for Selective 
          Enforcement Auditing of Marine Engines

         Subpart H--Importation of Nonconforming Marine Engines

91.701  Applicability.
91.702  Definitions.
91.703  Admission.
91.704  Exemptions and exclusions.
91.705  Prohibited acts; penalties.
91.706  Treatment of confidential information.

            Subpart I--In-Use Testing and Recall Regulations

91.801  Applicability.
91.802  Definitions.
91.803  Manufacturer in-use testing program.
91.804  Maintenance, procurement and testing of in-use engines.
91.805  In-use test program reporting requirements.
91.806  Voluntary emissions recall.

[[Page 287]]

  Subpart J--Emission-Related Defect Reporting Requirements, Voluntary 
                         Emission Recall Program

91.901  Applicability.
91.902  Definitions.
91.903  Applicability to part 85, subpart T.
91.904  Voluntary emission recall.
91.905  Reports, voluntary recall plan filing, record retention.
91.906  Responsibility under other legal provisions preserved.
91.907  Disclaimer of production warranty applicability.

         Subpart K--Exclusion and Exemption of Marine SI Engines

91.1001  Applicability.
91.1002  Definitions.
91.1003  Exclusions based on section 216(10) of the Act.
91.1004  Who may request an exemption.
91.1005  Testing exemption.
91.1006  Manufacturer-owned exemption and precertification exemption.
91.1007  Display exemption.
91.1008  National security exemption.
91.1009  Export exemptions.
91.1010  Granting of exemptions.
91.1011  Submission of exemption requests.
91.1012  Treatment of confidential information.

      Subpart L--Prohibited Acts and General Enforcement Provisions

91.1101  Applicability.
91.1102  Definitions.
91.1103  Prohibited acts.
91.1104  General enforcement provisions.
91.1105  Injunction proceedings for prohibited acts.
91.1106  Penalties.
91.1107  Warranty provisions.
91.1108  In-use compliance provisions.

        Subpart M--Emission Warranty and Maintenance Instructions

91.1201  Applicability.
91.1202  Definitions.
91.1203  Emission warranty, warranty period.
91.1204  Furnishing of maintenance and use instructions to ultimate 
          purchaser.

         Subpart N--In-Use Credit Program for New Marine Engines

91.1301  Applicability.
91.1302  Definitions.
91.1303  General provisions.
91.1304  Averaging.
91.1305  Banking.
91.1306  Trading.
91.1307  Credit calculation.
91.1308  Maintenance of records.
91.1309  Reporting requirements.
91.1310  Notice of opportunity for hearing.

    Authority: Secs. 203, 204, 205, 206, 207, 208, 209, 213, 215, 216, 
and 301(a) of the Clean Air Act, as amended (42 U.S.C. 7522, 7523, 7524, 
7525, 7541, 7542, 7543, 7547, 7549, 7550, and 7601(a)).

    Source: 61 FR 52102, Oct. 4, 1996, unless otherwise noted.

    Effective Date Note: At 61 FR 52102, Oct. 4, 1996, part 91 was 
added. This part contains information collection and recordkeeping 
requirements and will not become effective until approval has been given 
by the Office of Management and Budget.



                           Subpart A--General



Sec. 91.1  Applicability.

    (a) This part and all its subparts apply to marine spark-ignition 
engines used to propel marine vessels as defined in the General 
Provisions of the United States Code, 1 U.S.C.3 (1992), unless otherwise 
indicated.
    (b) Sterndrive and inboard engines are exempt from this part.
    (c) Existing technology OB/PWC are exempt from Sec. 91.112 and 
subparts D, E, F, G, I (Secs. 91.803 through 91.805), J, M and N through 
model year 2003.



Sec. 91.2  Applicable date.

    This part applies to marine spark-ignition engines beginning with 
the 1998 model year, except where otherwise specified.



Sec. 91.3  Definitions.

    The following definitions apply to this part 91. All terms not 
defined herein have the meaning given them in the Act.
    Act means the Clean Air Act, as amended, 42 U.S.C. 7401 et seq.
    Adjustable parameter means any device, system, or element of design 
which is physically capable of being adjusted (including those which are 
difficult to access) and which, if adjusted, may affect emissions or 
engine performance during emission testing or normal in-use operation.
    Administrator means the Administrator of the Environmental 
Protection Agency or his or her authorized representative.

[[Page 288]]

    Auxiliary emission control device means any element of design that 
senses temperature, engine speed, engine RPM, transmission gear, or any 
other parameter for the purpose of activating, modulating, delaying, or 
deactivating the operation of any part of the emission control system.
    Certification means, with respect to new SI marine engines, 
obtaining a certificate of conformity for an engine family complying 
with the marine SI engine emission standards and requirements specified 
in this part.
    Emission control system means any device, system, or element of 
design which controls or reduces the emission of substances from an 
engine.
    Engine as used in this part, refers to marine SI engine.
    Engine family means a group of engines, as specified in Sec. 91.115.
    EPA enforcement officer means any officer, employee, or authorized 
representative of the U.S. Environmental Protection Agency so designated 
in writing by the Administrator (or by his or her designee).
    Exhaust emissions means matter emitted into the atmosphere from any 
opening downstream from the exhaust port of a marine engine.
    Existing technology OB/PWC means an outboard engine or a personal 
watercraft engine which was in production for the 1997 or any previous 
model years and that did not utilize newer technologies such as four-
stroke technology, direct-injection two-stroke technology, catalyst 
technology, or other technology used to comply with emission standards 
which the Administrator determines is a new type of OB/PWC technology.
    Family Emission Limit (FEL) means an emission level that is declared 
by the manufacturer to serve in lieu of an emission standard for 
certification and for the averaging, banking, and trading program. A FEL 
must be expressed to the same number of decimal places as the applicable 
emission standard.
    Fuel system means all components involved in the transport, 
metering, and mixture of the fuel from the fuel tank to the combustion 
chamber(s) including the following: Fuel tank, fuel tank cap, fuel pump, 
fuel lines, oil injection metering system, carburetor or fuel injection 
components, and all fuel system vents.
    Gross power means the power measured at the crankshaft or its 
equivalent (for outboards, the power may be measured at the propeller 
shaft), the engine being equipped only with the standard accessories 
(such as oil pumps, coolant pumps, and so forth) necessary for its 
operation on the test bed.
    Identification number means a unique specification (for example, 
model number/serial number combination) which allows a particular marine 
SI engine to be distinguished from other similar engines.
    Inboard engine means a four stroke marine SI engine that is designed 
such that the propeller shaft penetrates the hull of the marine vessel 
while the engine and the remainder of the drive unit is internal to the 
hull of the marine vessel.
    Marine spark-ignition engine means any engine used to propel a 
marine vessel, which utilizes the spark-ignition combustion cycle.
    Marine engine manufacturer means any person engaged in the 
manufacturing or assembling of new marine SI engines or the importing of 
such engines for resale, or who acts for and is under the control of any 
such person in connection with the distribution of such engines. A 
marine SI engine manufacturer does not include any dealer with respect 
to new marine SI engines received by such person in commerce.
    Marine vessel means every description of watercraft or another 
artificial contrivance used, or capable of being used, as a means of 
transportation on water, as defined in 1 U.S.C. 3 (1992).
    Marine vessel manufacturer means any person engaged in the 
manufacturing or assembling of new marine vessels or importing such 
marine vessels for resale, or who acts for and is under the control of 
any such person in connection with the distribution of such vehicles. A 
marine vessel manufacturer does not include any dealer with respect to 
new marine vessels received by such person in commerce.
    Model year means the manufacturer's annual new model production 
period which includes January 1 of the calendar year for which the model 
year is

[[Page 289]]

named, ends no later than December 31 of the calendar year, and does not 
begin earlier than January 2 of the previous calendar year. Where a 
manufacturer has no annual new model production period, model year means 
the calendar year.
    New, for purposes of this part, means a nonroad engine, nonroad 
vehicle, or nonroad equipment the equitable or legal title to which has 
never been transferred to an ultimate purchaser. Where the equitable or 
legal title to the engine, vehicle or equipment is not transferred to an 
ultimate purchaser until after the engine, vehicle, or equipment is 
placed into service, then the engine, vehicle, or equipment will no 
longer be new after it is placed into service. A nonroad engine, 
vehicle, or equipment is placed into service when it is used for its 
functional purposes. With respect to imported nonroad engines, nonroad 
vehicles, or nonroad equipment, the term ``new'' means an engine, 
vehicle, or piece of equipment that is not covered by a certificate of 
conformity issued under this part at the time of importation, and that 
is manufactured after the effective date of a regulation issued under 
this part which is applicable to such engine, vehicle, or equipment, or 
which would be applicable to such engine, vehicle, or equipment had it 
been manufactured for importation into the United States.
    Nonroad engine has the meaning as defined in 40 CFR 89.2.
    Nonroad vehicle has the meaning as defined in 40 CFR 89.2.
    Nonroad equipment has the meaning as defined in 40 CFR 89.2.
    Operating hours means:
    (1) For engine storage areas or facilities, all times during which 
personnel other than custodial personnel are at work in the vicinity of 
the storage area or facility and have access to it.
    (2) For all other areas or facilities, all times during which an 
assembly line is in operation or all times during which testing, 
maintenance, service accumulation, production or compilation of records, 
or any other procedure or activity related to certification testing, to 
translation of designs from the test stage to the production stage, or 
to engine manufacture or assembly is being carried out in a facility.
    Outboard engine is a marine SI engine that, when properly mounted on 
a marine vessel in the position to operate, houses the engine and drive 
unit external to the hull of the marine vessel.
    Personal watercraft engine (PWC) is a marine SI engine that does not 
meet the definition of outboard engine, inboard engine or sterndrive 
engine, except that the Administrator in his or her discretion may 
classify a PWC as an inboard or sterndrive engine if it is comparable in 
technology and emissions to an inboard or sterndrive engine.
    Presentation of credentials means the display of the document 
designating a person as an EPA enforcement officer or EPA authorized 
representative.
    Scheduled maintenance means any adjustment, repair, removal, 
disassembly, cleaning, or replacement of components or systems required 
by the manufacturer to be performed on a periodic basis to prevent part 
failure or marine vessel or engine malfunction, or those actions 
anticipated as necessary to correct an overt indication of malfunction 
or failure for which periodic maintenance is not appropriate.
    Sterndrive engine means a four stroke marine SI engine that is 
designed such that the drive unit is external to the hull of the marine 
vessel, while the engine is internal to the hull of the marine vessel.
    Test engine means the engine or group of engines that a manufacturer 
uses during certification, production line and in-use testing to 
determine compliance with emission standards.
    Ultimate purchaser means, with respect to any new marine SI engine 
the first person who in good faith purchases such new marine SI engine 
for purposes other than resale.
    Used solely for competition means exhibiting features that are not 
easily removed and that would render its use other than in competition 
unsafe, impractical, or highly unlikely.
    Warranty period means the period of time the engine or part is 
covered by the warranty provisions.



Sec. 91.4  Acronyms and abbreviations.

    The following acronyms and abbreviations apply to this part 91.

AECD--Auxiliary emission control device

[[Page 290]]

ASME--American Society of Mechanical Engineers
ASTM--American Society for Testing and Materials
CAA--Clean Air Act
CAAA--Clean Air Act Amendments of 1990
CLD--chemiluminescent detector
CO--Carbon monoxide
CO2--Carbon dioxide
EPA--Environmental Protection Agency
FEL--Family Emission Limit
g/kw-hr--grams per kilowatt hour
HC--hydrocarbons
HCLD--heated chemiluminescent detector
HFID--heated flame ionization detector
ICI--Independent Commercial Importer
MY--Model Year
NDIR--non-dispersive infrared analyzer
NIST--National Institute for Standards and Testing
NO--Nitric oxide
NO2--Nitrogen dioxide
NOX--Oxides of nitrogen
OB--Outboard engine
O2--Oxygen
OEM--Original engine manufacturer
PMD--paramagnetic detector
PWC--personal watercraft
RPM--revolutions per minute
SAE--Society of Automotive Engineers
SEA--Selective Enforcement Auditing
SI--Spark-ignition
U.S.C.--United States Code
VOC--Volatile organic compounds
ZROD--zirconium dioxide sensor



Sec. 91.5  Table and figure numbering; position.

    (a) Tables for each subpart appear in an appendix at the end of the 
subpart. Tables are numbered consecutively by order of appearance in the 
appendix. The table title will indicate the topic.
    (b) Figures for each subpart appear in an appendix at the end of the 
subpart. Figures are numbered consecutively by order or appearance in 
the appendix. The figure title will indicate the topic.



Sec. 91.6  Reference materials.

    (a) Incorporation by reference. The documents in paragraph (b) of 
this section have been incorporated by reference. The 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 
inspected at U.S. EPA, OAR, Air and Radiation Docket and Information 
Center, 401 M Street, SW., Washington, DC 20460, or at the Office of the 
Federal Register, 800 N. Capitol St. NW., 7th Floor, Suite 700, 
Washington, DC 20001.
    (b) The following paragraphs and tables set forth the material that 
has been incorporated by reference in this part.
    (1) ASTM material. The following table sets forth material from the 
American Society for Testing and Materials which has been incorporated 
by reference. The first column lists the number and name of the 
material. The second column lists the section(s) of this part, other 
than Sec. 91.6, in which the matter is referenced. The second column is 
presented for information only and may not be all inclusive. Copies of 
these materials may be obtained from American Society for Testing and 
Materials, 1916 Race St., Philadelphia, PA 19103.

------------------------------------------------------------------------
   Document number and name             40 CFR part 91 reference
------------------------------------------------------------------------
ASTM D86-93:
    Standard Test Method for   Appendix A to Subpart D.
     Distillation of
     Petroleum Products.
ASTM D323-90:
    Standard Test Method for   Appendix A to Subpart D.
     Vapor Pressure of
     Petroleum Products (Reid
     Method).
ASTM D1319-93:
    Standard Test Method for   Appendix A to Subpart D.
     Hydrocarbon Types in
     Liquid Petroleum
     Products by Fluorescent
     Indicator Adsorption.
ASTM D2622-92:
    Standard Test Method for   Appendix A to Subpart D.
     Sulfur in Petroleum
     Products by X-Ray
     Spectrometry.
ASTM D2699-92:
    Standard Test Method for   Appendix A to Subpart D.
     Knock Characteristics of
     Motor Fuels by the
     Research Method.
ASTM D2700-92:
    Standard Test Method for   Appendix A to Subpart D.
     Knock Characteristics of
     Motor and Aviation Fuels
     by the Motor Method.
ASTM D3231-89:
    Standard Test Method for   Appendix A to Subpart D.
     Phosphorus in Gasoline.

[[Page 291]]

 
ASTM D3606-92:
    Standard Test Method for   Appendix A to Subpart D.
     Determination of Benzene
     and Toluene in Finished
     Motor and Aviation
     Gasoline by Gas
     Chromatography.
ASTM E29-93a:
    Standard Practice for      91.207; 91.120; 91.509; 91.1307.
     Using Significant Digits
     in Test Data to
     Determine Conformance
     with Specifications.
------------------------------------------------------------------------

    (2) SAE material. The following table sets forth material from the 
Society of Automotive Engineers which has been incorporated by 
reference. The first column lists the number and name of the material. 
The second column lists the section(s) of this part, other than 
Sec. 91.7, in which the matter is referenced. The second column is 
presented for information only and may not be all inclusive. Copies of 
these materials may be obtained from Society of Automotive Engineers 
International, 400 Commonwealth Dr., Warrendale, PA 15096-0001.

------------------------------------------------------------------------
   Document number and name             40 CFR part 91 reference
------------------------------------------------------------------------
SAE J1228/ISO 8665 November    91.104, 91.115; 91.118; 91.207; 91.1307.
 1991 Small Craft-Marine
 Propulsion Engine and
 Systems-Power Measurements
 and Declarations.
SAE J1930 June 1993            91.113.
 Electrical/Electronic
 Systems Diagnostic Terms,
 Definitions, Abbreviations
 and Acronyms.
SAE Paper 770141 Optimization  91.316
 of a Flame Ionization
 Detector for Determination
 of Hydrocarbon in Diluted
 Automotive Exhausts, Glenn
 D. Reschke, 1977.
------------------------------------------------------------------------



Sec. 91.7  Treatment of confidential information.

    (a) Any manufacturer may assert that some or all of the information 
submitted pursuant to this part is entitled to confidential treatment as 
provided by part 2, subpart B, of this chapter.
    (b) Any claim of confidentiality must accompany the information at 
the time it is submitted to EPA.
    (c) To assert that information submitted pursuant to this subpart is 
confidential, a manufacturer must indicate clearly the items of 
information claimed confidential by marking, circling, bracketing, 
stamping, or otherwise specifying the confidential information. 
Furthermore, EPA requests, but does not require, that the submitter also 
provide a second copy of its submittal from which all confidential 
information has been deleted. If a need arises to publicly release 
nonconfidential information, EPA will assume that the submitter has 
accurately deleted the confidential information from this second copy.
    (d) If a claim is made that some or all of the information submitted 
pursuant to this subpart is entitled to confidential treatment, the 
information covered by that confidentiality claim will be disclosed by 
the Administrator only to the extent and by means of the procedures set 
forth in part 2, subpart B, of this chapter.
    (e) Information provided without a claim of confidentiality at the 
time of submission may be made available to the public by EPA without 
further notice to the submitter, in accordance with 
Sec. 2.204(c)(2)(i)(A) of this chapter.



       Subpart B--Emission Standards and Certification Provisions



Sec. 91.101  Applicability.

    The requirements of this subpart B are applicable to all new marine 
spark-ignition engines subject to the provisions of subpart A of this 
part 91.



Sec. 91.102  Definitions.

    The definitions in subpart A of this part 91 apply to this subpart. 
All terms not defined herein or in subpart A of this part have the 
meaning given them in the Act.



Sec. 91.103  Averaging, banking, and trading of exhaust emission credits.

    Regulations regarding averaging, banking, and trading provisions 
along

[[Page 292]]

with applicable recordkeeping requirements are found in subpart C of 
this part.



Sec. 91.104  Exhaust emission standards for outboard and personal watercraft engines.

    (a) New marine spark-ignition outboard and personal watercraft 
engines for use in the U.S. must meet the following exhaust emission 
standards for HC+NOX. The exhaust emission standard for each 
model year is provided below. It is also used as input to the 
calculation procedure in Sec. 91.207 to determine compliance with the 
corporate average HC+NOX exhaust emission standard.

                         Hydrocarbon Plus Oxides of Nitrogen Exhaust Emission Standards
                                            [grams per kilowatt-hour]
----------------------------------------------------------------------------------------------------------------
                                                         P  4.3 kW HC+NOX emission   P > 4.3 kW HC+NOX emission
                      Model year                          standard by model year       standard by model year
----------------------------------------------------------------------------------------------------------------
1998..................................................                     278.00   (0.917  x  (151 + 557/P0.9))
                                                                                     + 2.44
1999..................................................                     253.00   (0.833  x  (151 + 557/P0.9))
                                                                                     + 2.89
2000..................................................                     228.00   (0.750  x  (151 + 557/P0.9))
                                                                                     + 3.33
2001..................................................                     204.00   (0.667  x  (151 + 557/P0.9))
                                                                                     + 3.78
2002..................................................                     179.00   (0.583  x  (151 + 557/P0.9))
                                                                                     + 4.22
2003..................................................                     155.00   (0.500  x  (151 + 557/P0.9))
                                                                                     + 4.67
2004..................................................                     130.00   (0.417  x  (151 + 557/P0.9))
                                                                                     + 5.11
2005..................................................                     105.00   (0.333  x  (151 + 557/P0.9))
                                                                                     + 5.56
2006 and later........................................                      81.00   (0.250  x  (151 + 557/P0.9))
                                                                                     + 6.00
----------------------------------------------------------------------------------------------------------------

where:

P = the average power of an engine family in kW (sales weighted). The 
power of each configuration is the rated output in kilowatts as 
determined by SAE J1228. This procedure has been incorporated by 
reference. See Sec. 91.6.

    (b) Exhaust emissions are measured using the procedures set forth in 
subpart E of this part.
    (c) Manufacturers must designate a Family Emission Limit (FEL) for 
HC+NOX for every engine family. The FEL may be equal to the 
emission standard in paragraph (a) of this section. The FEL established 
through certification serves as the emission standard for the engine 
family and emissions may not exceed the FEL levels for HC+NOX 
for all engines sold in the engine family, for their useful life.
    (d) A manufacturer must comply with a corporate average 
HC+NOX emission standard as determined in accordance with 
subpart C Sec. 91.207.



Sec. 91.105  Useful life period, recall, and warranty periods.

    (a) The useful life for PWC engines is a period of 350 hours of 
operation or 5 years of use, whichever first occurs. The useful life for 
Outboard marine spark-ignition engines is a period of 350 hours of 
operation or 10 years of use, whichever first occurs.
    (b) PWC engines are subject to recall testing for a period of 350 
hours of operation or 5 years of use, whichever first occurs. Outboard 
marine spark-ignition engines are subject to recall testing for a period 
of 350 hours of operation or 10 years of use, whichever first occurs. 
However, for purposes of this part only, if the Administrator should 
issue a nonconformity determination, then only those engines that are 
within the useful life as of the date of the nonconformity determination 
are subject to recall repair requirements.
    (c) Warranty periods are set out in subpart M of this part.



Sec. 91.106  Certificate of conformity.

    (a) Every manufacturer of a new marine SI engine produced during or 
after the 1998 model year for outboard engines and the 1999 model year 
for PWC engines, must obtain a certificate of conformity covering each 
engine family. The certificate of conformity must be obtained from the 
Administrator prior to selling, offering for sale, introducing into 
commerce, or importing into the United States the new marine SI engine.

[[Page 293]]

    (b) The certificate of conformity is valid for the model year for 
which it is designated.



Sec. 91.107  Application for certification.

    (a) For each engine family, the engine manufacturer must submit to 
the Administrator a completed application for a certificate of 
conformity, except that with respect to an existing technology OB/PWC 
engine a manufacturer may, in lieu of providing such application, submit 
to the Administrator summary testing and other information as determined 
by the Administrator.
    (b) The application must be approved and signed by the authorized 
representative of the manufacturer.
    (c) The application must be updated and corrected by amendment as 
provided in Sec. 91.122 to accurately reflect the manufacturer's 
production.
    (d) Required content. Each application must include the following 
information:
    (1) A description of the basic engine design including, but not 
limited to, the engine family specifications;
    (2) An explanation of how the emission control system operates, 
including a detailed description of all emission control system 
components (detailed component calibrations are not required to be 
included, however they must be provided if requested), each auxiliary 
emission control device (AECD), and all fuel system components to be 
installed on any production or test engine(s);
    (3) Proposed test fleet selection and the rationale for the test 
fleet selection;
    (4) Special or alternative test procedures, if applicable;
    (5) The description of the operating cycle and the service 
accumulation period necessary to break in the test engine(s) and 
stabilize emission levels and any maintenance scheduled;
    (6) A description of all adjustable operating parameters, including 
the following:
    (i) The nominal or recommended setting and the associated production 
tolerances;
    (ii) The intended physically adjustable range;
    (iii) The limits or stops used to establish adjustable ranges;
    (iv) Production tolerances of the limits or stops used to establish 
each physically adjustable range; and
    (v) Information relating to why the physical limits or stops used to 
establish the physically adjustable range of each parameter, or any 
other means used to inhibit adjustment, are effective in preventing 
adjustment of parameters to settings outside the manufacturer's intended 
physically adjustable ranges on in-use engines;
    (7) Regarding the averaging, banking, and trading provisions, the 
information specified in Sec. 91.208;
    (8) The proposed maintenance and use instructions the manufacturer 
will furnish to the ultimate purchaser of each new engine and the 
proposed emission control label;
    (9) All test data, for HC, CO and NOX, obtained by the 
manufacturer on each test engine;
    (10) A statement that the test engine(s), as described in the 
manufacturer's application for certification, has been tested in 
accordance with the applicable test procedures, utilizing the fuels and 
equipment described in the application, and that on the basis of such 
tests the engine(s) conforms to the requirements of this part; and
    (11) An unconditional statement certifying that all engines in the 
engine family comply with all requirements of this part and the Clean 
Air Act.
    (e) At the Administrator's request, the manufacturer must supply 
such additional information as may be required to evaluate the 
application including, but not limited to, projected marine SI engine 
production.
    (f) (1) The Administrator may modify the information submission 
requirements of paragraph (d) of this section, provided the information 
specified therein is maintained by the engine manufacturer as required 
by Sec. 91.121, and amended, updated, or corrected as necessary.
    (2) For the purposes of this paragraph, Sec. 91.121(a)(1) includes 
all information specified in paragraph (d) of this section whether or 
not such information is actually submitted to the Administrator for any 
particular model year.

[[Page 294]]

    (3) The Administrator may review an engine manufacturer's records at 
any time.



Sec. 91.108  Certification.

    (a) If, after a review of the manufacturer's submitted application, 
or with respect to an existing technology OB/PWC engine manufacturer's 
summary information submitted pursuant to Sec. 91.107(a), information 
obtained from any inspection, and such other information as the 
Administrator may require, the Administrator determines that the 
application or summary information is complete and that the engine 
family meets the requirements of this part and the Clean Air Act, the 
Administrator shall issue a certificate of conformity for the engine 
family.
    (b) The Administrator shall give a written explanation when 
certification is denied. The manufacturer may request a hearing on a 
denial. (See Sec. 91.124 for procedure.)



Sec. 91.109  Requirement of certification--closed crankcase.

    (a) An engine's crankcase must be closed.
    (b) For purposes of this section, crankcase means the housing for 
the crankshaft and other related internal parts.



Sec. 91.110  Requirement of certification--prohibited controls.

    (a) An engine may not be equipped with an emission control device, 
system, or element of design for the purpose of complying with emission 
standards if such device, system, or element of design will cause or 
contribute to an unreasonable risk to public health, welfare, or safety 
in its operation or function.
    (b) An engine with an emission control device, system, or element of 
design may not emit any noxious or toxic substance which would not be 
emitted in the operation of such engine in the absence of the device, 
system, or element of design except as specifically permitted by 
regulation.



Sec. 91.111  Requirement of certification--prohibition of defeat devices.

    (a) An engine may not be equipped with a defeat device.
    (b) For purposes of this section, defeat device means any device, 
system, or element of design which senses operation outside normal 
emission test conditions and reduces emission control effectiveness.
    (1) Defeat device includes any auxiliary emission control device 
(AECD) that reduces the effectiveness of the emission control system 
under conditions which may reasonably be expected to be encountered in 
normal operation and use, unless such conditions are included in the 
test procedure.
    (2) Defeat device does not include such items which either operate 
only during engine starting or are necessary to protect the engine (or 
vehicle or equipment in which it is installed) against damage or 
accident during its operation.



Sec. 91.112  Requirement of certification--adjustable parameters.

    (a) Engines equipped with adjustable parameters must comply with all 
requirements of this subpart for any adjustment in the physically 
available range.
    (b) An operating parameter is not considered adjustable if it is 
permanently sealed by the manufacturer or otherwise not normally 
accessible using ordinary tools.
    (c) The Administrator may require that adjustable parameters be set 
to any specification within the adjustable range during certification, 
production line testing, selective enforcement auditing or any in-use 
testing to determine compliance with the requirements of this part.



Sec. 91.113  Requirement of certification--emission control information label and engine identification number.

    (a) The engine manufacturer must affix at the time of manufacture a 
permanent and legible label identifying each engine. The label must meet 
the following requirements:
    (1) Be attached in such a manner that it cannot be removed without 
destroying or defacing the label;
    (2) Be durable and readable for the entire engine life;
    (3) Be secured to an engine part necessary for normal engine 
operation and

[[Page 295]]

not normally requiring replacement during engine life;
    (4) Be written in English; and
    (5) Be located so as to be readily visible to the average person 
after the engine is installed in the marine vessel.
    (b) If the marine vessel obscures the label on the engine, the 
marine vessel manufacturer must attach a supplemental label so that this 
label is readily visible to the average person. The supplemental label 
must:
    (1) Be attached in such a manner that it cannot be removed without 
destroying or defacing the label;
    (2) Be secured to a marine vessel part necessary for normal 
operation and not normally requiring replacement during the marine 
vessel life; and
    (3) Be identical to the label which was obscured.
    (c) The label must contain the following information:
    (1) The heading ``Emission Control Information;''
    (2) The full corporate name and trademark of the engine 
manufacturer;
    (3) The statement, ``This (vessel's engine or engine, as applicable) 
is certified to operate on (specify operating fuel(s));''
    (4) Identification of the Exhaust Emission Control System 
(Abbreviations may be used and must conform to the nomenclature and 
abbreviations provided in SAE J1930. This procedure has been 
incorporated by reference. See Sec. 91.6.;
    (5) All engine lubricant requirements;
    (6) date of manufacture [day(optional), month and year];
    (7) The statement ``This engine conforms to [model year] U.S. EPA 
regulations for marine SI engines.'';
    (8) Family Emission Limits (FELs);
    (9) EPA standardized engine family designation;
    (10) Engine displacement [in cubic centimeters]; and
    (11) Advertised power;
    (12) Engine tuneup specifications and adjustments. These should 
indicate the proper transmission position during tuneup, and 
accessories, if any, that should be in operation;
    (13) Fuel requirements;
    (14) Other information concerning proper maintenance and use or 
indicating compliance or noncompliance with other standards may be 
indicated on the label.
    (d) If there is insufficient space on the engine to accommodate a 
label including all the information required in paragraph (c) of this 
section, the manufacturer may delete or alter the label as indicated in 
this paragraph. The information deleted from the label must appear in 
the owner's manual.
    (1) Exclude the information required in paragraphs (c) (3), (4), and 
(5) of this section. The fuel or lubricant may be specified elsewhere on 
the equipment.
    (2) Exclude the information required by paragraph (c)(6) of this 
section, if the date the engine was manufactured is stamped on the 
engine.
    (3) For existing technology OB/PWC only, exclude the information 
required by paragraphs (c) (10), (11), (13), and (14) of this section.
    (e) The Administrator may, upon request, waive or modify the label 
content requirements of paragraphs (c) and (d) of this section, provided 
that the intent of such requirements is met.
    (f) Engine Identification Number. Each engine must have a legible, 
unique engine identification number permanently affixed to or engraved 
on the engine.



Sec. 91.114  Requirement of certification--supplying production engines upon request.

    Upon the Administrator's request, the manufacturer must supply a 
reasonable number of production engines for testing and evaluation. 
These engines must be representative of typical production and supplied 
for testing at such time and place and for such reasonable periods as 
the Administrator may require.



Sec. 91.115  Certification procedure--determining engine power and engine families.

    (a) Engine power must be calculated using SAE J1228. This procedure 
has been incorporated by reference. See Sec. 91.6.
    (b) The manufacturer's product line must be divided into engine 
families as specified by paragraph (c) of this section, comprised of 
engines expected to have similar emission characteristics throughout 
their useful life periods.

[[Page 296]]

    (c) To be classed in the same engine family, engines must be 
identical in all of the following applicable respects:
    (1) The combustion cycle;
    (2) The cooling mechanism;
    (3) The cylinder configuration (inline, vee, opposed, bore spacings, 
and so forth);
    (4) The number of cylinders;
    (5) The number of catalytic converters, location; volume, and 
composition; and
    (6) The thermal reactor characteristics.
    (d) At the manufacturer's request, engines identical in all the 
respects listed in paragraph (c) of this section may be further divided 
into different engine families if the Administrator determines that they 
may be expected to have different emission characteristics. This 
determination is based upon the consideration of features such as:
    (1) The bore and stroke;
    (2) The combustion chamber configuration;
    (3) The intake and exhaust timing method of actuation (poppet valve, 
reed valve, rotary valve, and so forth);
    (4) The intake and exhaust valve or port sizes, as applicable;
    (5) The fuel system;
    (6) The exhaust system; and
    (7) The method of air aspiration.
    (e) Where engines are of a type which cannot be divided into engine 
families based upon the criteria listed in paragraph (c) of this 
section, the Administrator shall establish families for those engines 
based upon the features most related to their emission characteristics.
    (f) Upon a showing by the manufacturer that the emission 
characteristics during the useful life are expected to be similar, 
engines differing in one or more of the characteristics in paragraph (c) 
of this section may be grouped in the same engine family.
    (g) Upon a showing by the manufacturer that the emission 
characteristics during the useful life are expected to be dissimilar, 
engines identical in all the characteristics in paragraph (c) of this 
section may be divided into separate engine families.



Sec. 91.116  Certification procedure--test engine selection.

    (a) The manufacturer must select, from each engine family, a test 
engine of a configuration that the manufacturer deems to be most likely 
to exceed the Family Emission Limit (FEL).
    (b) At the manufacturer's option, the criterion for selecting the 
worst case engine may be that engine configuration which has the highest 
weighted brake-specific fuel consumption over the appropriate engine 
test cycle.
    (c) The test engine must be constructed to be representative of 
production engines.



Sec. 91.117  Certification procedure--service accumulation.

    (a)(1) Any engine required to be tested under Sec. 91.118 must be 
operated with all emission control systems operating properly for a 
period sufficient to stabilize emissions prior to such testing.
    (2) A manufacturer may elect to consider emission levels as 
stabilized when the test engine has accumulated 12 hours of service.
    (b) No maintenance, other than recommended lubrication and filter 
changes, may be performed during service accumulation without the 
Administrator's approval.
    (c) Service accumulation is to be performed in a manner using good 
engineering judgment to ensure that emissions are representative of 
production engines.
    (d) The manufacturer must maintain, and provide to the Administrator 
if requested, records stating the rationale for selecting a service 
accumulation period different than 12 hours and records describing the 
method used to accumulate hours on the test engine(s).



Sec. 91.118  Certification procedure--testing.

    (a) Manufacturer testing. The manufacturer must test the test engine 
using the specified test procedures and appropriate test cycle. All test 
results must be reported to the Administrator.
    (1) The test procedures to be used are detailed in subpart E of this 
part.
    (2) Emission test equipment provisions are described in subpart D of 
this part.

[[Page 297]]

    (b) Administrator testing. (1) The Administrator may require that 
any one or more of the test engines be submitted to the Administrator, 
at such place or places as the Administrator may designate, for the 
purposes of conducting emission tests. The Administrator may specify 
that testing will be conducted at the manufacturer's facility, in which 
case instrumentation and equipment specified by the Administrator must 
be made available by the manufacturer for test operations. Any testing 
conducted at a manufacturer's facility must be scheduled by the 
manufacturer as promptly as possible.
    (2)(i) Whenever the Administrator conducts a test on a test engine, 
the results of that test will, unless subsequently invalidated by the 
Administrator, comprise the official data for the engine and the 
manufacturer's data will not be used in determining compliance with the 
Family Emission Limit (FEL).
    (ii) Prior to the performance of such a test, the Administrator may 
adjust or cause to be adjusted any adjustable parameter of the test 
engine which the Administrator has determined to be subject to 
adjustment for testing, to any setting within the physically adjustable 
range of that parameter, to determine whether the engine conforms to the 
applicable Family Emission Limit (FEL).
    (iii) For those engine parameters which the Administrator has not 
determined to be subject to adjustment for testing, the test engine 
presented to the Administrator for testing will be calibrated within the 
production tolerances applicable to the manufacturer specification shown 
on the engine label, as specified in the application for certification.
    (c) Use of carryover test data. In lieu of testing, the manufacturer 
may submit, with the Administrator's approval, emission test data used 
to certify substantially similar engine families in previous years. This 
``carryover'' test data is only allowable if the data shows the test 
engine would fully comply with the applicable Family Emission Limit 
(FEL).
    (d) Scheduled maintenance during testing. No scheduled maintenance 
may be performed during testing of the engine.
    (e) Unscheduled maintenance on test engines. (1) Manufacturers may 
not perform any unscheduled engine, emission control system, or fuel 
system adjustment, repair, removal, disassembly, cleaning, or 
replacement on a test engine without the advance approval of the 
Administrator.
    (2) The Administrator may approve such maintenance if:
    (i) A preliminary determination has been made that a part failure or 
system malfunction, or the repair of such failure or malfunction, does 
not render the engine unrepresentative of engines in use, and does not 
require direct access to the combustion chamber; and
    (ii) A determination has been made that the need for maintenance or 
repairs is indicated by an overt malfunction such as persistent misfire, 
engine stall, overheating, fluid leakage, or loss of oil pressure.
    (3) Emission measurements may not be used as a means of determining 
the need for unscheduled maintenance under paragraph (e)(2) of this 
section.
    (4) The Administrator must have the opportunity to verify the extent 
of any overt indication of part failure (for example, misfire, stall), 
or an activation of an audible and/or visual signal, prior to the 
manufacturer performing any maintenance related to such overt indication 
or signal.
    (5) Unless approved by the Administrator prior to use, engine 
manufacturers may not use any equipment, instruments, or tools to 
identify malfunctioning, maladjusted, or defective engine components 
unless the same or equivalent equipment, instruments, or tools are 
available at dealerships and other service outlets and are used in 
conjunction with scheduled maintenance on such components.
    (6) If the Administrator determines that part failure or system 
malfunction occurrence and/or repair rendered the engine 
unrepresentative of production engines, the engine may not be used as a 
test engine.
    (7) Unless waived by the Administrator, complete emission tests are 
required before and after any engine maintenance which may reasonably be 
expected to affect emissions.

[[Page 298]]

    (f) Engine failure. A manufacturer may not use as a test engine any 
engine which incurs major mechanical failure necessitating disassembly 
of the engine. This prohibition does not apply to failures which occur 
after completion of the service accumulation period.
    (g) In lieu of providing or generating emission data under this 
section for existing technology, the Administrator may allow the 
manufacturer to demonstrate (on the basis of previous emission tests, 
development tests, or other testing information) that the engine will 
conform with the applicable FEL.
    (h)(1) Manufacturers may select an FEL for existing technology OB/
PWC through:
    (i) Model year 2000 based on the function 151+557/P 0.9 
where P=average power of an engine family in kW (sales weighted). The 
power of each configuration is the rated output in kilowatts as 
determined by SAE J1228. (This procedure has been incorporated by 
reference. See Sec. 91.6). The certificate of conformity would be 
conditioned by requirements that the manufacturer submit test data, as 
determined appropriate by the Administrator under Sec. 91.118(h) by the 
end of model year 2000; that the FEL is revised and approved by EPA to 
reflect the test data; that the credits associated with the engine 
family are recalculated based on the difference between the old FEL and 
the new FEL; and that the new FEL applies to all engines covered by the 
certificate of conformity; or
    (ii) Model year 2003 based on good engineering judgement.
    (2) Upon request by the manufacturer, the Administrator has the 
discretion to extend the time period set forth in paragraph (h)(1) of 
this section for a specific engine family up to model year 2005 if the 
Administrator determines that an engine family will be phased out of 
U.S. production by model year 2005. As a condition to being granted such 
an extension, the manufacturer must discontinue U.S. production 
according to the schedule upon which the Administrator based the 
extension. Failure to do so by the manufacturer will void the 
certificate of conformity ab initio.
    (i) A manufacturer request under paragraph (h)(2) of this section 
must be in writing and must apply to a specific engine family. The 
request must identify the engine family designation, the rationale 
supporting the FEL choice, the type of information used as a basis for 
the FEL (e.g., previous emission tests, development tests), the specific 
source of the information including when the information was generated, 
the schedule for phasing the engine family out of U.S. production, and 
any other information the Administrator may require.



Sec. 91.119  Certification procedure--use of special test procedures.

    (a) Use of special test procedures by EPA. The Administrator may 
establish special test procedures for any engine that the Administrator 
determines is not susceptible to satisfactory testing under the 
specified test procedures set forth in subpart E of this part.
    (b) Use of alternative test procedures by an engine manufacturer. 
(1) A manufacturer may elect to use an alternative test procedure 
provided that it yields results equivalent to the results from the 
specified test procedure in subpart E, its use is approved in advance by 
the Administrator, and the basis for equivalent results with the 
specified test procedures is fully described in the manufacturer's 
application.
    (2) An engine manufacturer electing to use alternate test procedures 
is solely responsible for the results obtained. The Administrator may 
reject data generated under test procedures which do not correlate with 
data generated under the specified procedures.



Sec. 91.120  Compliance with Family Emission Limits over useful life.

    (a) If all test engines representing an engine family have 
emissions, as determined in paragraph (c)(3)(iii) of this section, less 
than or equal to the applicable Family Emission Limit (FEL) for each 
pollutant as determined according to Sec. 91.104 (c), that family 
complies with the Family Emission Limit .
    (b) If any test engine representing an engine family has emissions 
(as determined in paragraph (c)(3)(iii) of this section, greater than 
the applicable

[[Page 299]]

Family Emission Limit for any pollutant as determined according to 
Sec. 91.104(c), that family will be deemed not in compliance with the 
Family Emission Limits.
    (c)(1) The engine Family Emission Limits (FELs) apply to the 
emissions of engines for their useful lives.
    (2) Since emission control efficiency generally decreases with the 
accumulation of service on the engine, deterioration factors must be 
used in combination with emission data engine test results as the basis 
for determining compliance with the standards.
    (3)(i) Paragraph (c)(3)(ii) of this section describes the procedure 
for determining compliance of an engine with family emission limits, 
based on deterioration factors supplied by the manufacturer.
    (ii) Separate exhaust emission deterioration factors, determined by 
the manufacturer, must be supplied for each engine family. The 
deterioration factors must be applied as follows:
    (A) For marine spark-ignition engines not utilizing aftertreatment 
technology (for example, catalytic converters), the official exhaust 
emission results for each emission data engine at the selected test 
point are adjusted by adding the appropriate deterioration factor to the 
results. However, if the deterioration factor supplied by the 
manufacturer is less than zero, it is zero for the purposes of this 
paragraph.
    (B) For marine spark-ignition engines utilizing aftertreatment 
technology (for example, catalytic converters), the official exhaust 
emission results for each emission data engine at the selected test 
point are adjusted by multiplying the results by the appropriate 
deterioration factor. However, if the deterioration factor supplied by 
the manufacturer is less than one, it is one for the purposes of this 
paragraph.
    (iii) The emission values to compare with the Family Emission Limits 
(FELs) are the adjusted emission values of paragraph (c)(3)(ii) of this 
section, rounded to the same number of significant figures as contained 
in the applicable standard in accordance with ASTM E 29-93a, for each 
emission data engine. This procedure has been incorporated by reference. 
See Sec. 91.6.



Sec. 91.121  Certification procedure--recordkeeping.

    (a) The engine manufacturer must maintain the following adequately 
organized records:
    (1) Copies of all applications and summary information, as 
applicable, filed with the Administrator;
    (2) A copy of all data obtained through the production line and in-
use testing programs; and
    (3) A detailed history of each test engine used for certification 
including the following:
    (i) A description of the test engine's construction, including a 
general description of the origin and buildup of the engine, steps taken 
to insure that it is representative of production engines, description 
of components specially built for the test engine, and the origin and 
description of all emission-related components;
    (ii) A description of the method used for engine service 
accumulation, including date(s) and the number of hours accumulated;
    (iii) A description of all maintenance, including modifications, 
parts changes, and other servicing performed, and the date(s), and 
reason(s) for such maintenance;
    (iv) A description of all emission tests performed, including 
routine and standard test documentation, as specified in subpart E of 
this part, date(s), and the purpose of each test;
    (v) A description of all tests performed to diagnose engine or 
emission control performance, giving the date and time of each and the 
reason(s) for the test; and
    (vi) A description of any significant event(s) affecting the engine 
during the period covered by the history of the test engine but not 
described by an entry under one of the previous paragraphs of this 
section.
    (b) Routine emission test data, such as test cell temperature and 
relative humidity at start and finish of test and raw emission results 
from each mode or test phase, must be retained for a period of one year 
after issuance of all certificates of conformity to which they relate. 
All other information specified in paragraph (a) of this section must be 
retained for a period of eight

[[Page 300]]

years after issuance of all certificates of conformity to which they 
relate.
    (c) Records may be kept in any format and on any media, provided 
that, at the Administrator's request, organized, written records in 
English are promptly supplied by the manufacturer.
    (d) The manufacturer must supply, at the Administrator's request, 
copies of any engine maintenance instructions or explanations issued by 
the manufacturer.



Sec. 91.122  Amending the application and certificate of conformity.

    (a) The marine engine manufacturer must notify the Administrator
    (1) When either an engine is to be added to a certificate of 
conformity or changes are to be made to a product line covered by a 
certificate of conformity which may potentially affect emissions, 
emissions durability, an emission related part, or the durability of an 
emission related part. Notification occurs when the manufacturer submits 
and EPA receives a request to amend the original application prior to 
either producing such engines or making such changes to a product line. 
For existing technology OB/PWC engines only, notification may occur 
periodically but must occur at least on a quarterly basis and may be 
submitted summarily as determined by the Administrator.
    (2) When an FEL is changed for an engine family, as allowed under 
Sec. 91.203. Notification occurs when the manufacturer submits and EPA 
receives a request to amend the original application. The manufacturer 
may not change an FEL unless compliance under Sec. 91.207(b) is 
maintained through the use of the revised FEL.
    (b) The request to amend the engine manufacturer's existing 
certificate of conformity must include the following information:
    (1) A full description of the engine to be added or the change(s) to 
be made in production;
    (2) The manufacturer's proposed test engine selection(s); and
    (3) Engineering evaluations or reasons why the original test engine 
or FEL is or is not still appropriate.
    (c) The Administrator may require the engine manufacturer to perform 
tests on an engine representing the engine to be added or changed.
    (d) Decision by Administrator.
    (1) Based on the submitted request and data derived from such 
testing as the Administrator may require or conduct, the Administrator 
must determine whether the proposed addition or change would still be 
covered by the certificate of conformity then in effect.
    (2) If the Administrator determines that the new or changed 
engine(s) meets the requirements of this subpart and the Act, the 
appropriate certificate of conformity will be amended.
    (3) If the Administrator determines that the new or changed engines 
would not be covered by the certificate of conformity, the Administrator 
must provide a written explanation to the engine manufacturer of his or 
her decision not to amend the certificate. The manufacturer may request 
a hearing on a denial. See Sec. 91.125.
    (4) If the Administrator determines that the revised FEL meets the 
requirements of this subpart and the Act, the appropriate certificate of 
conformity will be amended to reflect the revised FEL. The certificate 
of conformity is revised conditional upon compliance under 
Sec. 91.207(b).
    (e)(1) Alternatively, an engine manufacturer may make changes in or 
additions to production engines concurrently with requesting to amend 
the application or certification of conformity as set forth in paragraph 
(b) of this section, if the manufacturer determines that all affected 
engines will still meet applicable Family Emission Limits (FELs). The 
engine manufacturer must supply supporting documentation, test data, and 
engineering evaluations as appropriate to support its determination.
    (2) If, after a review, the Administrator determines additional 
testing is required, the engine manufacturer must provide required test 
data within 30 days or cease production of the affected engines.
    (3) If the Administrator determines that the affected engines do not 
meet

[[Page 301]]

applicable requirements, the Administrator will notify the engine 
manufacturer to cease production of the affected engines.



Sec. 91.123  Denial, revocation of certificate of conformity.

    (a) If, after review of the engine manufacturer's application, 
request for certification, information obtained from any inspection, and 
any other information the Administrator may require, the Administrator 
determines that the test engine or engine family does not meet 
applicable requirements or the Family Emission Limit (FEL), the 
Administrator will notify the manufacturer in writing, setting forth the 
basis for this determination.
    (b) Notwithstanding the fact that engines described in the 
application may comply with all other requirements of this subpart, the 
Administrator may deny the issuance of or revoke a previously issued 
certificate of conformity if the Administrator finds any one of the 
following infractions to be substantial:
    (1) The engine manufacturer submits false or incomplete information;
    (2) The engine manufacturer denies an EPA enforcement officer or EPA 
authorized representative the opportunity to conduct authorized 
inspections;
    (3) The engine manufacturer fails to supply requested information or 
amend its application to include all engines being produced;
    (4) The engine manufacturer renders inaccurate any test data which 
it submits or otherwise circumvents the intent of the Act or this part;
    (5) The engine manufacturer denies an EPA enforcement officer or EPA 
authorized representative reasonable assistance (as defined in 
Sec. 91.505); or
    (6) The engine manufacturer fails to initiate, perform or submit 
required data generated from the production line and in-use testing 
programs to EPA.
    (c) If any manufacturer knowingly commits an infraction specified in 
paragraph (b)(1), (b)(4), or (b)(6) of this section or knowingly commits 
any other fraudulent act which results in the issuance of a certificate 
of conformity, or fails to comply with the conditions specified in 
Secs. 91.203(f), 91.206(d), 91.208(c) or 91.209(g), the Administrator 
may void such certificate ab initio.
    (d) When the Administrator denies, revokes, or voids ab initio a 
certificate of conformity, the engine manufacturer will be provided a 
written determination. The manufacturer may request a hearing on the 
Administrator's decision.
    (e) Any revocation of a certificate of conformity extends no further 
than to forbid the introduction into commerce of those engines 
previously covered by the certificate which are still in the possession 
of the engine manufacturer, except in cases of such fraud or other 
misconduct that makes the certificate void ab initio.



Sec. 91.124  Request for hearing.

    (a) An engine manufacturer may request a hearing on the 
Administrator's denial or revocation or voiding ab initio of a 
certificate of conformity.
    (b) The engine manufacturer's request must be filed within 30 days 
of the Administrator's decision, be in writing, and set forth the 
manufacturer's objections to the Administrator's decision and data to 
support the objections.
    (c) If, after review of the request and supporting data, the 
Administrator finds that the request raises a substantial and factual 
issue, the Administrator will grant the engine manufacturer's request 
for a hearing.



Sec. 91.125  Hearing procedures.

    The hearing procedures set forth in Secs. 91.513, 91.514, and 91.515 
apply to this subpart.



Sec. 91.126  Right of entry and access.

    Any engine manufacturer who has applied for certification of a new 
engine or engine family subject to certification testing under this 
subpart must admit or cause to be admitted to any applicable facilities 
during operating hours any EPA enforcement officer or EPA authorized 
representative as provided in Sec. 91.505.

[[Page 302]]



          Subpart C--Averaging, Banking, and Trading Provisions



Sec. 91.201  Applicability.

    The requirements of this subpart C are applicable to all marine 
spark-ignition engines subject to the provisions of subpart A of this 
part 91.



Sec. 91.202  Definitions.

    The definitions in subpart A of this part apply to this subpart. The 
following definitions also apply to this subpart:
    Averaging for marine SI engines means the exchange of emission 
credits among engine families within a given manufacturer's product 
line.
    Banking means the retention of marine SI engine emission credits by 
the manufacturer generating the emission credits for use in future model 
year averaging or trading as permitted by these regulations.
    Eligible sales means marine SI engines sold for purposes of being 
used in the United States and include any engine introduced into 
commerce in the U.S. to be sold for use in the U.S.
    Emission credits represent the amount of emission reduction or 
exceedance, by a marine SI engine family, below or above the applicable 
emission standard, respectively. Emission reductions below the standard 
are considered as ``positive credits,'' while emission exceedances above 
the standard are considered as ``negative credits.'' In addition, 
``projected credits'' refer to emission credits based on the projected 
applicable production/sales volume of the engine family. ``Reserved 
credits'' are emission credits generated within a model year waiting to 
be reported to EPA at the end of the model year. ``Actual credits'' 
refer to emission credits based on actual applicable production/sales 
volume as contained in the end-of-year reports submitted to EPA. Some or 
all of these credits may be revoked if EPA review of the end-of-year 
reports or any subsequent audit action(s) uncovers problems or errors.
    Point of first retail sale means the point at which the engine is 
first sold directly to an end user. Generally, this point is the retail 
boat or engine dealer. If the engine is sold first to a boat or vessel 
manufacturer for installation in a boat or vessel, the boat or vessel 
manufacturer may be the point of first retail sale if the boat or vessel 
manufacturer can determine if the engine is or is not exported once they 
have sold the boat or vessel. If the boat or vessel manufacturer cannot 
determine if the engine is or is not exported once they have sold the 
boat or vessel, the engine is presumed to not be exported, unless the 
engine manufacturer can demonstrate otherwise. Engine manufacturers must 
include engines in their average if the engine is exported and 
subsequently imported into the United States installed in a boat or 
vessel and introduced into United States commerce.
    Trading means the exchange of marine engine emission credits between 
manufacturers.



Sec. 91.203  General provisions.

    (a) The certification averaging, banking, and trading provisions for 
hydrocarbon plus oxides of nitrogen emissions from eligible marine SI 
engines are described in this subpart.
    (b) A marine SI engine family must use the averaging provisions and 
may use the banking and trading provisions for hydrocarbon plus oxides 
of nitrogen emissions if it is subject to regulation under subpart B of 
this part with certain exceptions specified in paragraph (c) of this 
section.
    (c) Manufacturers of marine SI engines may not use the banking and 
trading provisions for new marine SI engines:
    (1) Which are exported, or
    (2) Which are subject to state engine emission standards unless the 
manufacturer demonstrates to the Administrator that inclusion of these 
engines in banking and trading is appropriate.
    (d) A manufacturer may certify marine SI engine families at Family 
Emission Limits (FELs) above or below the applicable emission standard, 
provided the summation of the manufacturer's projected balance of all 
credit transactions in a given model year is greater than or equal to 
zero, as determined under Sec. 91.207.
    (1) A manufacturer of an engine family with an FEL exceeding the 
applicable emission standard must obtain positive emission credits 
sufficient to

[[Page 303]]

address the associated credit shortfall via averaging, banking, or 
trading.
    (2) An engine family with an FEL below the applicable emission 
standard may generate positive emission credits for averaging, banking, 
or trading, or a combination thereof. Emission credits may not be used 
to offset an engine family's emissions that exceed its applicable FEL. 
Credits may not be used to remedy nonconformity determined by a 
production line testing, a Selective Enforcement Audit (SEA) or by 
recall (in-use) testing. However, in the case of a manufacturer 
production line testing or SEA failure, credits may be used to allow 
subsequent production of engines for the family in question if the 
manufacturer elects to recertify to a higher FEL. In the case of 
production line testing a manufacturer may revise the FEL based upon 
production line testing results obtained under subpart F and upon 
Administrator approval pursuant to Sec. 91.122(d).
    (e) Credits generated in a given model year may be used in the 
following three model years. Credits not used by the end of the third 
model year after being generated are forfeited. Credits generated in one 
model year may not be used for prior model years, unless allowed under 
Sec. 91.207.
    (f) Manufacturers must demonstrate compliance under the averaging, 
banking, and trading provisions for a particular model year by 270 days 
after the model year. An engine family generating negative credits for 
which the manufacturer does not obtain or generate an adequate number of 
positive credits from the same or previous model years will violate the 
conditions of the certificate of conformity. The certificate of 
conformity may be voided ab initio pursuant to Sec. 91.123 for this 
engine family.



Sec. 91.204  Averaging.

    (a) Negative credits from engine families with FELs above the 
applicable emission standard must be offset by positive credits from 
engine families below the applicable emission standard, as allowed under 
the provisions of this subpart. Averaging of credits in this manner is 
used to determine compliance under Sec. 91.207(b).
    (b) For model years through 2000, outboard credits may not be summed 
with personal watercraft credits, or vice versa, for purposes of 
compliance under Sec. 91.207, except manufacturers may, at their 
discretion, include personal watercraft credits with outboard credits 
upon demonstration to the satisfaction of the Administrator that the 
personal watercraft engine is installed in a hybrid vessel that is 
smaller than a typical sterndrive or inboard vessel and larger than a 
typical personal watercraft. For model year 2001 and later, 
manufacturers must sum credits generated from outboard and personal 
watercraft to determine compliance under Sec. 91.207.
    (c) Credits used in averaging may be obtained from credits generated 
by another engine family as allowed under Sec. 91.204(b), in the same 
model year, credits banked in the three previous model years, or credits 
obtained through trading.



Sec. 91.205  Banking.

    (a) A manufacturer of a marine SI engine family with an FEL below 
the applicable emission standard for a given model year may bank credits 
in that model year for use in averaging and trading in the following 
three model years. Negative credits must be banked according to the 
requirements under Sec. 91.207(c). Positive credits not used within the 
three model years after they are banked are forfeited.
    (1) Early banking. (i) For outboard engines in model year (MY) 1997, 
a manufacturer may bank positive emission credits if the following 
conditions are met: the manufacturer certifies their entire marine 
outboard engine product line for MY 1997 under the emission standards 
applicable to MY 1998, the manufacturer demonstrates compliance with the 
corporate average standard under Sec. 91.207(b), and the sum of positive 
and negative credits under Sec. 91.207 generates positive emission 
credits, when the following formula is used for purposes of the 
applicable standard in Sec. 91.207(a). The number of credits that may be 
banked under this paragraph is the number of positive emission credits 
generated under the provisions of the preceding sentence.

[[Page 304]]

Marine engines certified under the provisions of this paragraph are 
subject to all of the requirements of this part.

     Hydrocarbon Plus Oxides of Nitrogen Exhaust Emission Standards
                        [Grams per kilowatt-hour]
------------------------------------------------------------------------
                         P4.3 kW HC+NOX
                            Emission         P>4.3 kW HC+NOX emission
       Model year          standard by        standard by model year
                           model year
------------------------------------------------------------------------
1997...................             276  (0.959  x  (151 + 557/
                                          P0.9)+1.22)
------------------------------------------------------------------------

    (ii) For personal watercraft engines in model year 1998, a 
manufacturer may bank positive emission credits if the following 
conditions are met: The manufacturer certifies their entire marine 
personal watercraft engine product line for MY 1998 under the emission 
standards applicable to 1998 model year outboard engine emission 
standards, the manufacturer demonstrates compliance with the corporate 
average standard under Sec. 91.207(b), and the sum of positive and 
negative credits under Sec. 91.207 generates positive emission credits, 
when the following formula is used for purposes of the applicable 
standard Sec. 91.207(a). The number of credits that may be banked under 
this paragraph is the number of positive emission credits generated 
under the provisions of the preceding sentence. Marine engines certified 
under the provisions of this paragraph are subject to all of the 
requirements of this part.

     Hydrocarbon Plus Oxides of Nitrogen Exhaust Emission Standards
                        [Grams per kilowatt-hour]
------------------------------------------------------------------------
                         P4.3 kW HC+NOX
                            emission        P> 4.3 kW HC+NOX emission
       Model year          standard by        standard by model year
                           model year
------------------------------------------------------------------------
1998...................             276  (0.959  x  (151 + 557/P0.9)) +
                                          1.22)
------------------------------------------------------------------------

    (iii) For personal watercraft in model year 1997, a manufacturer may 
bank positive emission credits if the following conditions are met: the 
manufacturer certifies their entire marine personal watercraft engine 
product line for MY 1997 under the emission standards specified in the 
formula below for PWC, the manufacturer demonstrates compliance with the 
corporate average standard under Sec. 91.207(b), and the sum of positive 
and negative credits under Sec. 91.207 generates positive emission 
credits, when the following formula is used for purposes of the 
applicable standard in Sec. 91.207(a). The number of credits that may be 
banked under this paragraph is the number of positive emission credits 
generated under the provisions of the preceding sentence. Marine engines 
certified under the provisions of this paragraph are subject to all of 
the requirements of this part.

     Hydrocarbon Plus Oxides of Nitrogen Exhaust Emission Standards
                        [Grams per kilowatt-hour]
------------------------------------------------------------------------
                         P4.3 kW HC+NOX
                            emission        P> 4.3 kW HC+NOX emission
       Model year          standard by        standard by model year
                           model year
------------------------------------------------------------------------
1997...................             276  (0.959  x  (151 + 557/P0.9)) +
                                          1.22)
------------------------------------------------------------------------

    (b) A manufacturer may bank actual credits only after the end of the 
model year and after EPA has reviewed the manufacturer's end-of-year 
reports. During the model year and before submittal of the end-of-year 
report, credits originally designated in the certification process for 
banking will be considered reserved and may be redesignated for trading 
or averaging in the end-of-year report and final report.
    (c) Credits declared for banking from the previous model year that 
have not been reviewed by EPA may be used in averaging or trading 
transactions. However, such credits may be revoked at a later time 
following EPA review of the end-of-year report or any subsequent audit 
actions.



Sec. 91.206  Trading.

    (a) A marine SI engine manufacturer may exchange emission credits 
with other marine SI engine manufacturers in trading. These credits must 
be used in the same averaging set as generated.
    (b) Credits for trading can be obtained from credits banked in the 
three previous model years or credits generated during the model year of 
the trading transaction. Traded credits expire if they are not used in 
averaging within three model years following the model year in which 
they were generated.

[[Page 305]]

    (c) Traded credits can be used for averaging, banking, or further 
trading transactions.
    (d) In the event of a negative credit balance resulting from a 
transaction, both the buyer and the seller are liable, except in cases 
involving fraud. Certificates of all engine families participating in a 
negative trade may be voided ab initio pursuant to Sec. 91.123.



Sec. 91.207  Credit calculation and manufacturer compliance with emission standards.

    (a) For each engine family, certification emission credits (positive 
or negative) are to be calculated according to the following equation 
and rounded, in accordance with ASTM E29-93a, to the nearest gram. ASTM 
E29-93a has been incorporated by reference. See Sec. 91.6. Consistent 
units are to be used throughout the equation. The following equation is 
used to determine hydrocarbon plus oxides of nitrogen credit status for 
an engine family, whether generating positive credits or negative 
credits:
[GRAPHIC] [TIFF OMITTED] TR04OC96.004

Where:
sales = the number of eligible sales tracked to the point of first 
retail sale for the given engine family during the model year. Annual 
production projections are used to project credit availability for 
initial certification. Actual sales volume is used in determining actual 
credits for end of-year compliance determination.
t = time in model years
Power = the average power of an engine family in kW (sales weighted). 
The power of each configuration is the rated output in kilowatts as 
determined by SAE J1228. This procedure has been incorporated by 
reference. See Sec. 91.6.
max actual life = maximum actual life specific to the power rating and 
the application; max actual life = 2life
life = average actual life in years, specific to the 
power rating and the application as given below.
[GRAPHIC] [TIFF OMITTED] TR04OC96.054

Power = as defined above.
use = mean use in hours per year. For outboard 
engines,
use = 34.8 hrs /yr. For personal watercraft, 
use = 77.3 hrs/yr;
S(t) = cumulative fraction survived at time t;
S(t) = e-(t x 0.906/life)4.0
STD = the current and applicable marine SI engine emission standard in 
grams per kilowatt hour as determined in Sec. 91.104.
FEL = the family emission limit for the engine family in grams per 
kilowatt hour.

    (b) Manufacturer compliance with the corporate average emission 
standard is determined on a corporate average basis at the end of each 
model year. A manufacturer is in compliance when the sum of positive and 
negative emission credits it holds is greater than or equal to zero, 
except as allowed under paragraph (c) of this section.
    (c)(1) Outboard Engines
    (i) For model year 1998, a manufacturer is in compliance when the 
sum of positive credits and negative emission credits it holds is 
greater than or equal to zero, including
    (A) Credits generated in MY 1998 exceed 70% of the negative credits 
generated in MY 1998. The remaining negative credits (up to 30% of the 
total negative credits) must be banked.
    (ii) For model year 1999, a manufacturer is in compliance when the 
positive credits generated in MY 1999 exceed the sum of 80% of the 
negative credits generated in MY 1999 and the negative credits banked in 
1998. The remaining negative credits (up to 20% of

[[Page 306]]

the total negative credits) must be banked.
    (iii) For model year 2000, a manufacturer is in compliance when the 
sum of positive and negative emission credits it holds is greater than 
or equal to zero, including
    (A) The negative credits banked in MY 1998 and MY 1999 and
    (B) Any adjustments to credits based on adjustments to FELs 
resulting from requirements in Sec. 91.118(h)(1)(i). Manufacturers do 
not have to recalculate compliance for model years 1998 and 1999.
    (2) Personal watercraft engines. (i) For model year 1999, a 
manufacturer is in compliance when the positive credits generated in MY 
1999 exceed 50% of the negative credits generated in MY 1999. The 
remaining negative credits (up to 50% of the total negative credits) 
must be banked.
    (ii) For model year 2000, a manufacturer is in compliance when the 
sum of positive and negative emission credits it holds is greater than 
or equal to zero, including
    (A) The negative credits banked in 1999 and
    (B) Any adjustments to credits based on adjustments to FELs 
resulting from requirements in Sec. 91.118(h)(1)(i). Manufacturers do 
not have to recalculate compliance for model year 1999.
    (d) When a manufacturer is not in compliance, the manufacturer will 
be in violation of these regulations and EPA may void ab initio the 
certificates of engine families for which the manufacturer has not 
obtained sufficient positive emission credits pursuant to Sec. 91.123.



Sec. 91.208  Certification.

    (a) In the application for certification a manufacturer must:
    (1) Submit a statement that the engines for which certification is 
requested will not, to the best of the manufacturer's belief, cause the 
manufacturer to be in noncompliance under Sec. 91.207(b) when all 
credits are calculated for all the manufacturer's engine families.
    (2) Declare an FEL for each engine family for HC plus 
NOX. The FEL must have the same number of significant digits 
as the emission standard.
    (3) Indicate the projected number of credits generated/needed for 
this family; the projected applicable production/sales volume, by 
quarter; and the values required to calculate credits as given in 
Sec. 91.207.
    (4) Submit calculations in accordance with Sec. 91.207 of projected 
emission credits (positive or negative) based on quarterly production 
projections for each family.
    (5)(i) If the engine family is projected to have negative emission 
credits, state specifically the source (manufacturer/engine family or 
reserved) of the credits necessary to offset the credit deficit 
according to quarterly projected production.
    (ii) If the engine family is projected to generate credits, state 
specifically (manufacturer/engine family or reserved) where the 
quarterly projected credits will be applied.
    (b) All certificates issued are conditional upon manufacturer 
compliance with the provisions of this subpart both during and after the 
model year of production.
    (c) Failure to comply with all provisions of this subpart will be 
considered to be a failure to satisfy the conditions upon which the 
certificate was issued, and the certificate may be deemed void ab initio 
pursuant to Sec. 91.123.
    (d) The manufacturer bears the burden of establishing to the 
satisfaction of the Administrator that the conditions upon which the 
certificate was issued were satisfied or waived.
    (e) Projected credits based on information supplied in the 
certification application may be used to obtain a certificate of 
conformity. However, any such credits may be revoked based on review of 
end-of-year reports, follow-up audits, and any other verification steps 
deemed appropriate by the Administrator.



Sec. 91.209  Maintenance of records.

    (a) The manufacturer must establish, maintain, and retain the 
following adequately organized and indexed records for each engine 
produced:
    (1) EPA engine family,
    (2) Engine identification number,
    (3) Engine model year and build date,
    (4) Power rating,
    (5) Purchaser and destination, and

[[Page 307]]

    (6) Assembly plant.
    (b) The manufacturer must establish, maintain, and retain the 
following adequately organized and indexed records for each engine 
family:
    (1) EPA engine family identification code,
    (2) Family Emission Limit (FEL) or FELs where FEL changes have been 
implemented during the model year,
    (3) Power rating for each configuration tested,
    (4) Projected sales volume for the model year, and
    (5) Actual sales volume for the model year for each FEL where FEL 
changes have been implemented during the model year.
    (c) Any manufacturer producing an engine family participating in 
trading reserved credits must maintain the following records on a 
quarterly basis for each such engine family:
    (1) The engine family,
    (2) The actual quarterly and cumulative applicable production/sales 
volume,
    (3) The values required to calculate credits as given in 
Sec. 91.207,
    (4) The resulting type and number of credits generated/required,
    (5) How and where credit surpluses are dispersed, and
    (6) How and through what means credit deficits are met.
    (d) The manufacturer must retain all records required to be 
maintained under this section for a period of eight years from the due 
date for the end-of-model year report. Records may be retained as hard 
copy or reduced to microfilm, ADP diskettes, and so forth, depending on 
the manufacturer's record retention procedure; provided, that in every 
case all information contained in the hard copy is retained.
    (e) Nothing in this section limits the Administrator's discretion in 
requiring the manufacturer to retain additional records or submit 
information not specifically required by this section.
    (f) Pursuant to a request made by the Administrator, the 
manufacturer must submit to the Administrator the information that the 
manufacturer is required to retain.
    (g) EPA may void ab initio a certificate of conformity for an engine 
family for which the manufacturer fails to retain the records required 
in this section or to provide such information to the Administrator upon 
request pursuant to Sec. 91.123.



Sec. 91.210  End-of-year and final reports.

    (a) End-of-year and final reports must indicate the engine family, 
the actual sales volume, the values required to calculate credits as 
given in Sec. 91.207, and the number of credits generated/required. 
Manufacturers must also submit how and where credit surpluses were 
dispersed (or are to be banked) and/or how and through what means credit 
deficits were met. Copies of contracts related to credit trading must be 
included or supplied by the broker, if applicable. The report must 
include a calculation of credit balances to show that the credit 
summation is equal to or greater than zero.
    (b) The sales volume for end-of-year and final reports must be based 
on the location of the point of first retail sale (for example, retail 
customer or dealer) also called the final product purchase location.
    (c)(1) End-of-year reports must be submitted within 90 days of the 
end of the model year to: Manager, Engine Compliance Programs Group 
(6403-J), US Environmental Protection Agency, 401 M Street SW, 
Washington, DC 20460.
    (2) Final reports must be submitted within 270 days of the end of 
the model year to: Manager, Engine Compliance Programs Group (6403-J), 
U.S. Environmental Protection Agency, 401 M Street SW, Washington, DC 
20460.
    (d) Failure by a manufacturer to submit any end-of-year or final 
reports in the specified time for all engines is a violation of 
Sec. 91.1103(a)(2) and section 213(d) of the Clean Air Act for each 
engine.
    (e) A manufacturer generating credits for banking only who fails to 
submit end-of-year reports in the applicable specified time period (90 
days after the end of the model year) may not use the credits until such 
reports are received and reviewed by EPA. Use of projected credits 
pending EPA review is not permitted in these circumstances.
    (f) Errors discovered by EPA or the manufacturer in the end-of-year 
report, including errors in credit calculation,

[[Page 308]]

may be corrected in the final report up to 270 days from the end of the 
model year.
    (g) If EPA or the manufacturer determines that a reporting error 
occurred on an end-of-year or final report previously submitted to EPA 
under this section, the manufacturer's credits and credit calculations 
must be recalculated. Erroneous positive credits will be void except as 
provided in paragraph (h) of this section. Erroneous negative credit 
balances may be adjusted by EPA.
    (h) If within 270 days of the end of the model year, EPA review 
determines a reporting error in the manufacturer's favor (that is, 
resulting in an increased credit balance) or if the manufacturer 
discovers such an error within 270 days of the end of the model year, 
EPA shall restore the credits for use by the manufacturer.



Sec. 91.211  Notice of opportunity for hearing.

    Any voiding of the certificate under Secs. 91.203(f), 91.206(d), 
91.207(d), 91.208(c), or Sec. 91.209(g) shall be made only after the 
manufacturer concerned is offered an opportunity for a hearing conducted 
in accordance with Secs. 91.512, 91.513 and 91.514 and, if a 
manufacturer requests such a hearing, will be made only after an initial 
decision by the Presiding Officer.



              Subpart D--Emission Test Equipment Provisions



Sec. 91.301  Scope; applicability.

    (a) This subpart describes the equipment required in order to 
perform exhaust emission tests on new marine gasoline-fueled spark-
ignition propulsion engines subject to the provisions of subpart A of 
this part 91.
    (b) Exhaust gases are sampled while the test engine is operated 
using a steady state test cycle on an engine dynamometer. Exhaust gas 
sampling may be performed using either the raw gas sampling method or 
the constant volume sampling (CVS) method. The exhaust gases receive 
specific component analysis determining concentration of pollutant, 
exhaust volume, the fuel flow, and the power output during each mode. 
Emissions are reported on a gram per brake-kilowatt hour (g/kW-hr). See 
subpart E of this part for a complete description of the test procedure.
    (c) Additional information about system design, calibration 
methodologies, and so forth, for raw gas sampling can be found in part 
86, subpart D of this chapter. Examples for system design, calibration 
methodologies, and so forth, for dilute sampling can be found in part 
86, subpart N of this chapter.



Sec. 91.302  Definitions.

    The definitions in Sec. 91.3 apply to this subpart.



Sec. 91.303  Acronyms and abbreviations.

    (a) The acronyms and abbreviations in Sec. 91.5 apply to this 
subpart.
    (b) The symbols in Table 1 in appendix A of this subpart apply to 
this subpart.



Sec. 91.304  Test equipment overview.

    (a) All engines subject to this subpart are tested for exhaust 
emissions. Engines are operated on dynamometers meeting the 
specification given in Sec. 91.305.
    (b) The exhaust is tested for gaseous emissions using either a 
constant volume sampling (CVS) system as described in Sec. 91.414, or 
using the raw gas sampling system as described in Sec. 91.421. Both 
systems require analyzers (see paragraph (c) of this section) specific 
to the pollutant being measured.
    (c) Analyzers used are a non-dispersive infrared detector (NDIR) 
absorption type for carbon monoxide and carbon dioxide analysis; 
paramagnetic detector (PMD), zirconia (ZRDO), or electrochemical type 
(ECS) for oxygen analysis; a flame ionization detector (FID) or heated 
flame ionization detector (HFID) type for hydrocarbon analysis; and a 
chemiluminescent detector (CLD) or heated chemiluminescent detector 
(HCLD) for oxides of nitrogen analysis.



Sec. 91.305  Dynamometer specifications and calibration accuracy.

    (a) Dynamometer specifications. (1) The dynamometer test stand and 
other instruments for measurement of engine speed and torque must meet 
the accuracy requirements shown in Table 2 in

[[Page 309]]

appendix A to this subpart. The dynamometer must be capable of 
performing the test cycle described in Sec. 91.410.
    (b) Dynamometer calibration accuracy. (1) The dynamometer test stand 
and other instruments for measurement of engine torque and speed must 
meet the calibration frequency shown in Table 2 in appendix to this 
subpart.
    (2) A minimum of three calibration weights for each range used is 
required. The weights must be equally spaced and traceable to within 0.5 
percent of National Institute of Standards and Testing (NIST) weights. 
Laboratories located in foreign countries may certify calibration 
weights to local government bureau standards.



Sec. 91.306  Dynamometer torque cell calibration.

    (a)(1) Any lever arm used to convert a weight or a force through a 
distance into a torque must be used in a horizontal position for 
horizontal shaft dynamometers ( five degrees). For vertical 
shaft dynamometers, a pulley system may be used to convert the 
dynamometer's horizontal loading into the vertical plane.
    (2) Calculate the indicated torque (IT) for each calibration weight 
to be used by:

IT=Moment Arm (meters) X Calibration Weight (Newtons)

    (3) Attach each calibration weight specified in Sec. 91.305(b)(2) to 
the moment arm at the calibration distance determined in paragraph 
(a)(2) of this section. Record the power measurement equipment response 
(N-m) to each weight.
    (4) Compare the torque value measured to the calculated torque.
    (5) The measured torque must be within two percent of the calculated 
torque.
    (6) If the measured torque is not within two percent of the 
calculated torque, adjust or repair the system. Repeat steps in 
paragraphs (a)(1) through (a)(6) of this section with the adjusted or 
repaired system.
    (b) Option. A master load-cell or transfer standard may be used to 
verify the torque measurement system.
    (1) The master load-cell and read out system must be calibrated with 
weights specified in Sec. 91.305(b)(2).
    (2) Attach the master load-cell and loading system.
    (3) Load the dynamometer to a minimum of three equally spaced torque 
values as indicated by the master load-cell for each in-use range used.
    (4) The in-use torque measurement must be within two percent of the 
torque measured by the master system for each load used.
    (5) If the in-use torque is not within two percent of the master 
torque, adjust or repair the system. Repeat steps in paragraphs (b)(2) 
through (b)(4) of this section with the adjusted or repaired system.
    (c) Calibrated resistors may not be used for dynamometer torque 
transducer calibration, but may be used to span the transducer prior to 
engine testing.
    (d) Other engine dynamometer system calibrations such as speed are 
performed as specified by the dynamometer manufacturer or as dictated by 
good engineering practice.



Sec. 91.307  Engine cooling system.

    An engine cooling system is required with sufficient capacity to 
maintain the engine at normal operating temperatures as prescribed by 
the engine manufacturer. Auxiliary fan(s) may be used to maintain 
sufficient engine cooling during dynamometer operation.



Sec. 91.308  Lubricating oil and test fuel.

    (a) Lubricating oil. (1) Use the engine lubricating oil which meets 
the marine engine manufacturer's requirements for a particular engine 
and intended usage. Record the specifications of the lubricating oil 
used for the test.
    (2) For two-stroke engines, the fuel/oil mixture ratio must be that 
which is recommended by the manufacturer. If the flow rate of the oil in 
the engine is greater than two percent of the fuel flow rate, then the 
oil supplied to the engine must be added to the fuel flow in the 
emission calculations described in Sec. 91.419 and Sec. 91.426. Good 
engineering judgment may be used to estimate oil flow when oil injection 
is used.

[[Page 310]]

    (b) Test fuels--certification. The manufacturer must use gasoline 
having the specifications or substantially equivalent specifications 
approved by the Administrator, as specified in Table 3 in appendix A of 
this subpart for exhaust emission testing of gasoline fueled engines. 
The specification range of the fuel to be used under this paragraph must 
be reported in accordance with Sec. 91.109(d).
    (c) Test fuels--service accumulation. (1) Unleaded gasoline 
representative of commercial gasoline which will be generally available 
through retail outlets must be used in service accumulation for 
gasoline-fueled marine engines. As an alternative, the certification 
test fuels specified under paragraph (b) of this section for engine 
service accumulation. Leaded fuel may not be used during service 
accumulation.
    (2) The octane rating of the gasoline used may not be higher than 
4.0 research octane numbers above the minimum recommended by the 
manufacturer and have a minimum sensitivity of 7.5 octane numbers, where 
sensitivity is defined as research octane number minus motor octane 
number.
    (d) Other fuels may be used for testing provided:
    (1) They are commercially viable,
    (2) Information, acceptable to the Administrator, is provided to 
show that only the designated fuel would be used in customer service,
    (3) Use of a fuel listed under paragraph (b) of this section would 
have a detrimental effect on emissions or durability; and
    (4) The Administrator provides written approval of the fuel 
specifications prior to the start of testing.



Sec. 91.309  Engine intake air temperature measurement.

    (a) Engine intake air temperature measurement must be made within 
100 cm of the air-intake of the engine. The measurement location must be 
either in the supply system or in the air stream entering the engine.
    (b) The temperature measurements must be accurate to within 
2  deg.C.



Sec. 91.310  Engine intake air humidity measurement.

    This section refers to engines which are supplied with intake air 
other than the ambient air in the test cell (i.e., air which has been 
pumbed directly to the engine air intake system). For engines which use 
ambient test cell air for the engine intake air, the ambient testcell 
humidity measurement may be used.
    (a) Humidity conditioned air supply. Air that has had its absolute 
humidity altered is considered humidity-conditioned air. For this type 
of intake air supply, the humidity measurements must be made within the 
intake air supply system, and after the humidity conditioning has taken 
place.
    (b) Unconditioned air supply. Humidity measurements in unconditioned 
intake air supply must be made in the intake air stream entering the 
engine. Alternatively, the humidity measurements can be measured within 
the intake air stream entering the supply system.



Sec. 91.311  Test conditions.

    (a) General requirements. (1) Ambient temperature levels encountered 
by the test engine throughout the test sequence may not be less than 20 
deg.C nor more than 30  deg.C.
    (2) Calculate all volumes and volumetric flow rates at standard 
conditions for temperature and pressure. Use these conditions 
consistently throughout all calculations. Standard conditions for 
temperature and pressure are 25  deg.C and 101.3 kPa.
    (b) Engine test conditions. Measure the absolute temperature 
(designated as T and expressed in Kelvin) of the engine air at the inlet 
to the engine and the dry atmospheric pressure (designated as ps 
and expressed in kPa. Determine the parameter f according to the 
following provisions:
    (1) Naturally aspirated and mechanically supercharged engines:
    [GRAPHIC] [TIFF OMITTED] TR04OC96.005
    
    (2) Turbocharged engine with or without cooling of inlet air:

[[Page 311]]

[GRAPHIC] [TIFF OMITTED] TR04OC96.006

    (3) For a test to be recognized as valid, the parameter f must be 
between the limits as shown below:

[GRAPHIC] [TIFF OMITTED] TR04OC96.007



Sec. 91.312  Analytical gases.

    (a) The shelf life of a calibration gas may not be exceeded. Record 
the expiration date stated by the gas supplier for each calibration gas.
    (b) Pure gases. The required purity of the gases is defined by the 
contamination limits given in parenthesis. The following gases must be 
available for operation.
    (1) Purified nitrogen, also referred to as ``zero-grade nitrogen'' 
(Contamination1 ppm C, 1 ppm CO, 400 
ppm CO2, 0.1 ppm NO)
    (2) Purified oxygen (Purity 99.5 percent vol O2)
    (3) Hydrogen-helium mixture (402 percent hydrogen, 
balance helium) (Contamination1 ppm C, 400 ppm CO)
    (4) Purified synthetic air, also referred to as ``zero gas'' 
(Contamination1 ppm C, 1 ppm CO, 400 
ppm CO2, 0.1 ppm NO) (Oxygen content between 18-21 
percent vol.)
    (c) Calibration and span gases. (1) Calibration gas values are to be 
derived from NIST ``Standard Reference Materials'' (SRM's) or other 
local gas standards and are to be single blends as specified in this 
subsection.
    (2) Mixtures of gases having the following chemical compositions 
must be available:
    C3 H8 and purified synthetic air (dilute 
measurements); C3 H8 and purified nitrogen (raw 
measurements);
    CO and purified nitrogen;
    NOX and purified nitrogen (the amount of NO2 
contained in this calibration gas must not exceed five percent of the NO 
content);
    CO2 and purified nitrogen.
    Note: For the HFID or FID, the manufacturer may choose to use as a 
diluent span gas and the calibration gas either purified synthetic air 
or purified nitrogen. Any mixture of C3 H8 and 
purified synthetic air which contains a concentration of propane higher 
than what a gas supplier considers to be safe may be substituted with a 
mixture of C3 H8 and purified nitrogen. However, 
the manufacturer must be consistent in the choice of diluent (zero air 
or purified nitrogen) between the calibration and span gases. If a 
manufacturer chooses to use C3 H8 and purified 
nitrogen for the calibration gases, then purified nitrogen must be the 
diluent for the span gases.
    (3) The true concentration of a span gas must be within  
2 percent of the NIST gas standard. The true concentration of a 
calibration gas must be within  1 percent of the NIST gas 
standard. The use of precision blending devices (gas dividers) to obtain 
the required calibration gas concentrations is acceptable. Give all 
concentrations of calibration gas on a volume basis (volume percent or 
volume ppm).
    (4) The gas concentrations used for calibration and span may also be 
obtained by means of a gas divider, diluting with purified N2 
or with purified synthetic air. The accuracy of the mixing device must 
be such that the concentration of the diluted gases may be determined to 
within  2 percent.
    (d) Oxygen interference check gases must contain propane with 350 
ppmC  75 ppmC hydrocarbon. Determine the concentration value 
to calibration gas tolerances by chromatographic analysis of total 
hydrocarbons plus impurities or by dynamic blending. Use nitrogen as the 
predominant diluent with the balance oxygen.
    (e) Fuel for the hydrocarbon flame ionization detector (HC-FID) must 
be a blend of 402 percent hydrogen with the balance being 
helium. The mixture shall contain less than one ppm equivalent carbon 
response; 98 to 100 percent hydrogen fuel may be used with advance 
approval of the Administrator.
    (f) Hydrocarbon analyzer burner air. The concentration of oxygen 
must be within one mole percent of the oxygen concentration of the 
burner air used in the latest oxygen interference check (percent 
O2 I), see Sec. 91.316(d). If the difference in oxygen 
concentration is greater than one mole percent, then the oxygen 
interference must be checked and the analyzer adjusted if necessary, to 
meet the percent O2 I requirements. The burner air must 
contain less than two ppmC hydrocarbon.

[[Page 312]]



Sec. 91.313  Analyzers required.

    (a) Analyzers. Analyze measured gases with the following 
instruments:
    (1) Carbon monoxide (CO) analysis. (i) The carbon monoxide analyzer 
must be of the non-dispersive infrared (NDIR) absorption type.
    (ii) The use of linearizing circuits is permitted.
    (2) Carbon dioxide (CO2) analysis. (i) The carbon dioxide 
analyzer must be of the non-dispersive infrared (NDIR) absorption type.
    (ii) The use of linearizing circuits is permitted.
    (3) Oxygen (O2) analysis. Oxygen (O2) 
analyzers may be of the paramagnetic (PMD), zirconia (ZRDO) or 
electrochemical type (ECS).
    (4) Hydrocarbon (HC) analysis. (i) For Raw Gas Sampling, the 
hydrocarbon analyzer must be of the heated flame ionization (HFID) type. 
For constant volume sampling, the hydrocarbon analyzer may be of the 
flame ionization (FID) type or of the heated flame ionization (HFID) 
type.
    (ii) For the HFID system, if the temperature of the exhaust gas at 
the sample probe is below 190  deg.C, the temperature of the valves, 
pipe work, and so forth, must be controlled so as to maintain a wall 
temperature of 190  11  deg.C. If the temperature of the 
exhaust gas at the sample probe is above 190  deg.C, the temperature of 
the valves, pipe work, and so forth, must be controlled so as to 
maintain a wall temperature greater than 180  deg.C.
    (iii) For the HFID analyzer, the detector, oven, and sample-handling 
components within the oven must be suitable for continuous operation at 
temperatures to 200  deg.C. It must by capable of maintaining 
temperature within  5.5  deg.C of the set point.
    (iv) Fuel and burner air must conform to the specifications in 
Sec. 91.312.
    (v) The percent of oxygen interference must be less than three 
percent, as specified in Sec. 91.316(d).
    (5) Oxides of nitrogen (NOX) analysis. (i) This analysis 
device consists of the following items:
    (A) A NO2 to NO converter. The NO2 to NO 
converter efficiency must be at least 90 percent.
    (B) An ice bath located after the NOX converter 
(optional).
    (C) A chemiluminescent detector (CLD) or heated chemiluminescent 
detector (HCLD).
    (ii) The quench interference must be less than three percent as 
measured in Sec. 91.325.
    (b) Other gas analyzers yielding equivalent results may be used with 
advance approval of the Administrator.
    (c) The following requirements must be incorporated as indicated in 
systems used for testing under this subpart.
    (1) Carbon monoxide and carbon dioxide measurements must be made on 
a dry basis (for raw exhaust measurement only). Specific requirements 
for the means of drying the sample can be found in Sec. 91.313(e).
    (2) Calibration or span gases for the NOX measurement 
system must pass through the NO2 to NO converter.
    (d) The electromagnetic compatibility (EMC) of the equipment must be 
on a level as to minimize additional errors.
    (e) Gas drying. Chemical dryers are not an acceptable method of 
removing water from the sample. Water removal by condensation is 
acceptable. If water is removed by condensation, the sample gas 
temperature or sample dew point must be monitored either within the 
water trap or downstream and its temperature must not exceed 7  deg.C. A 
water trap performing this function is an acceptable method. Means other 
than condensation may be used only with prior approval from the 
Administrator.



Sec. 91.314  Analyzer accuracy and specifications.

    (a) Measurement accuracy--general. The analyzers must have a 
measuring range which allows them to measure the concentrations of the 
exhaust gas sample pollutants with the accuracies shown in Table 2 in 
appendix A to this subpart.
    (1) Precision. The precision of the analyzer must be, at worst, 
 1 percent of full-scale concentration for each range used. 
The precision is defined as 2.5 times the standard deviation(s) of 10 
repetitive responses to a given calibration or span gas.
    (2) Noise. The analyzer peak-to-peak response to zero and 
calibration or span gases over any 10-second period

[[Page 313]]

may not exceed two percent of full-scale chart deflection on all ranges 
used.
    (3) Zero drift. The analyzer zero-response drift during a one-hour 
period must be less than two percent of full-scale chart deflection on 
the lowest range used. The zero-response is defined as the mean response 
including noise to a zero-gas during a 30-second time interval.
    (4) Span drift. The analyzer span drift during a one-hour period 
must be less than two percent of full-scale chart deflection on the 
lowest range used. The analyzer span is defined as the difference 
between the span-response and the zero-response. The span-response is 
defined as the mean response including noise to a span gas during a 30-
second time interval.
    (b) Operating procedure for analyzers and sampling system. Follow 
the start-up and operating instructions of the instrument manufacturer. 
Adhere to the minimum requirements given in Sec. 91.316 to Sec. 91.325 
and Sec. 91.409.
    (c) Emission measurement accuracy--bag sampling. (1) Good 
engineering practice dictates that exhaust emission sample analyzer 
readings below 15 percent of full scale chart deflection should 
generally not be used.
    (2) Some high resolution read-out systems, such as computers, data 
loggers, and so forth, can provide sufficient accuracy and resolution 
below 15 percent of full scale. Such systems may be used provided that 
additional calibrations are made to ensure the accuracy of the 
calibration curves. The following procedure for calibration below 15 
percent of full scale may be used:
    Note: If a gas divider is used, the gas divider must conform to the 
accuracy requirements as follows: The use of precision blending devices 
(gas dividers) to obtain the required calibration gas concentrations is 
acceptable, provided that the blended gases are accurate to within 
 1.5 percent of NIST gas standards or other gas standards 
which have been approved by the Administrator. This accuracy implies 
that primary gases used for blending must be ``named'' to an accuracy of 
at least  1 percent, traceable to NIST or other approved gas 
standards.
    (i) Span the full analyzer range using a top range calibration gas. 
The span gases must be accurate to within  2 percent of NIST 
gas standards or other gas standards which have been approved by the 
Administrator.
    (ii) Generate a calibration curve according to, and meeting the 
requirements of the sections describing analyzer calibrations which are 
found in Secs. 91.316, 91.317, 91.318, and 91.320 of this chapter.
    (iii) Select a calibration gas (a span gas may be used for 
calibrating the CO2 analyzer) with a concentration between 
the two lowest non-zero gas divider increments. This gas must be 
``named'' to an accuracy of  2 percent of NIST gas 
standards, or other standards approved by the Administrator.
    (iv) Using the calibration curve fitted to the points generated in 
paragraphs (c)(2) (i) and (ii) of this section, check the concentration 
of the gas selected in paragraph (c)(2)(iii) of this section. The 
concentration derived from the curve must be within  2.3 
percent ( 2.8 percent for CO2 span gas) of the 
gas' original named concentration.
    (v) Provided the requirements of paragraph (c)(2)(iv) of this 
section are met, use the gas divider with the gas selected in paragraph 
(c)(2)(iii) of this section and determine the remainder of the 
calibration points. Fit a calibration curve per Secs. 91.316, 91.317, 
91.318, and 91.320 of this chapter for the entire analyzer range.
    (d) Emission measurement accuracy--continuous sampling. Analyzers 
used for continuous analysis must be operated such that the measured 
concentration falls between 15 and 100 percent of full scale chart 
deflection. Exceptions to these limits are:
    (1) The analyzer's response may be less than 15 percent or more than 
100 percent of full scale if automatic range change circuitry is used 
and the limits for range changes are between 15 and 100 percent of full 
scale chart deflection;
    (2) The analyzer's response may be less than 15 percent of full 
scale if:
    (i) Alternative in paragraph (c)(2) of this section is used to 
ensure that the accuracy of the calibration curve is maintained below 15 
percent; or
    (ii) The full scale value of the range is 155 ppmC or less; or

[[Page 314]]

    (iii) The emissions from the engine are erratic and the integrated 
chart deflection value for the cycle is greater than 15 percent of full 
scale; or
    (iv) The contribution of all data read below the 15 percent level is 
less than 10 percent by mass of the final test results.



Sec. 91.315  Analyzer initial calibration.

    (a) Warming-up time. Follow the warm-up time according to the 
recommendations of the manufacturer. If not specified, a minimum of two 
hours should be allowed for warming up the analyzers.
    (b) NDIR and HFID analyzer. Tune and maintain the NDIR analyzer per 
the instrument manufacturer recommendations. The combustion flame of the 
HFID analyzer must be optimized in order to meet the specifications in 
Sec. 91.316(b).
    (c) Zero setting and calibration. Using purified synthetic air (or 
nitrogen), set the CO, CO2, NOX and HC analyzers 
at zero. Connect the appropriate calibrating gases to the analyzers and 
record the values. The same gas flow rates shall be used as when 
sampling exhaust.
    (d) Rechecking of zero setting. Recheck the zero setting and, if 
necessary, repeat the procedure described in paragraph (c) of this 
section.



Sec. 91.316  Hydrocarbon analyzer calibration.

    (a) Calibrate the FID and HFID hydrocarbon analyzer as described in 
this section. Operate the HFID to a set point  5.5  deg.C 
between 185 and 197  deg.C.
    (b) Initial and periodic optimization of detector response. Prior to 
introduction into service and at least annually thereafter, adjust the 
FID and HFID hydrocarbon analyzer for optimum hydrocarbon response as 
specified by this paragraph. Alternative methods yielding equivalent 
results may be used, if approved in advance by the Administrator.
    (1) Follow good engineering practices for initial instrument start-
up and basic operating adjustment using the appropriate fuel (see 
Sec. 91.312) and purified synthetic air or zero-grade nitrogen.
    (2) One of the following procedures is required for FID or HFID 
optimization:
    (i) The procedure outlined in Society of Automotive Engineers (SAE) 
paper No. 770141, ``Optimization of Flame Ionization Detector for 
Determination of Hydrocarbons in Diluted Automobile Exhaust''; author, 
Glenn D. Reschke. This procedure has been incorporated by reference. See 
Sec. 91.6.
    (ii) The HFID optimization procedures outlined in Sec. 86.331-79 of 
this chapter.
    (iii) Alternative procedures may be used if approved in advance by 
the Administrator.
    (3) After the optimum flow rates have been determined, they are 
recorded for future reference.
    (c) Initial and periodic calibration. Prior to introduction into 
service and monthly thereafter, or within one month prior to the 
certification test, calibrate the FID or HFID hydrocarbon analyzer on 
all normally used instrument ranges, using the steps in this paragraph. 
Use the same flow rate and pressures as when analyzing samples. 
Introduce calibration gases directly at the analyzer. An optional method 
for dilute sampling described in Sec. 86.1310(b)(3)(i) of this chapter 
may be used.
    (1) Adjust analyzer to optimize performance.
    (2) Zero the hydrocarbon analyzer with purified synthetic air or 
zero-grade nitrogen.
    (3) Calibrate on each used operating range with calibration gases 
having nominal concentrations between 10 and 90 percent of that range. A 
minimum of six evenly spaced points covering at least 80 percent of the 
10 to 90 percent range (64 percent) is required (see following table).

------------------------------------------------------------------------
  Example calibration points (percent)     Acceptable for calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70.................  No, range covered is 50?
                                          percent, not 64 percent.
20, 30, 40, 50, 60, 70, 80, 90.........  Yes.
10, 25, 40, 55, 70, 85.................  Yes
10, 30, 50, 70, 90.....................  No, though equally spaced and
                                          entire range covered, a
                                          minimum of six points is
                                          needed
------------------------------------------------------------------------


[[Page 315]]

    (4) For each range calibrated, if the deviation from a least-squares 
best-fit straight line is two percent or less of the value at each data 
point, calculate concentration values by use of a single calibration 
factor for that range. If the deviation exceeds two percent at any 
point, use the best-fit non-linear equation which represents the data to 
within two percent of each test point to determine concentration.
    (d) Oxygen interference optimization. Choose a range where the 
oxygen interference check gases will fall in the upper 50 percent. 
Conduct the test, as outlined in this paragraph, with the oven 
temperature set as required by the instrument manufacturer. Oxygen 
interference check gas specifications are found in Sec. 91.312(d).
    (1) Zero the analyzer.
    (2) Span the analyzer with the 21 percent oxygen blend.
    (3) Recheck zero response. If it has changed more than 0.5 percent 
of full scale repeat paragraphs (d)(1) and (d)(2) of this section to 
correct the problem.
    (4) Introduce the 5 percent and 10 percent oxygen interference check 
gases.
    (5) Recheck the zero response. If it has changed more than 
 1 percent of full scale, repeat the test.
    (6) Calculate the percent of oxygen interference (designated as 
percent O2 I) for each mixture in paragraph (d)(4) of this 
section according to the following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.008

Where:
A=hydrocarbon concentration (ppmC) of the span gas used in paragraph 
(d)(2) of this section.
B=hydrocarbon concentration (ppmC) of the oxygen interference check 
gases used in paragraph (d)(4) of this section.

    (7) The percent of oxygen interference (designated as percent 
O2 I) must be less than # three percent for all 
required oxygen interference check gases prior to testing.
    (8) If the oxygen interference is greater than the specifications, 
incrementally adjust the air flow above and below the manufacturer's 
specifications, repeating paragraphs (d)(1) through (d)(7) of this 
section for each flow.
    (9) If the oxygen interference is greater than the specification 
after adjusting the air flow, vary the fuel flow and thereafter the 
sample flow, repeating paragraphs (d)(1) through (d)(7) of this section 
for each new setting.
    (10) If the oxygen interference is still greater than the 
specifications, repair or replace the analyzer, FID fuel, or burner air 
prior to testing. Repeat this section with the repaired or replaced 
equipment or gases.



Sec. 91.317  Carbon monoxide analyzer calibration.

    (a) Calibrate the NDIR carbon monoxide analyzer described in this 
section.
    (b) Initial and periodic interference check. Prior to its 
introduction into service and annually thereafter, check the NDIR carbon 
monoxide analyzer for response to water vapor and CO2:
    (1) Follow good engineering practices for instrument start-up and 
operation. Adjust the analyzer to optimize performance on the most 
sensitive range to be used.
    (2) Zero the carbon monoxide analyzer with either purified synthetic 
air or zero-grade nitrogen.

[[Page 316]]

    (3) Bubble a mixture of three percent CO2 in 
N2 through water at room temperature and record analyzer 
response.
    (4) An analyzer response of more than one percent of full scale for 
ranges above 300 ppm full scale or more than three ppm on ranges below 
300 ppm full scale requires corrective action. (Use of conditioning 
columns is one form of corrective action which may be taken.)
    (c) Initial and periodic calibration. Calibrate the NDIR carbon 
monoxide analyzer prior to its introduction into service and monthly 
thereafter.
    (1) Adjust the analyzer to optimize performance.
    (2) Zero the carbon monoxide analyzer with either purified synthetic 
air or zero-grade nitrogen.
    (3) Calibrate on each used operating range with carbon monoxide-in-
N2 calibration gases having nominal concentrations between 10 
and 90 percent of that range. A minimum of six evenly spaced points 
covering at least 80 percent of the 10 to 90 range (64 percent) is 
required (see following table).

------------------------------------------------------------------------
  Example calibration points (percent)     Acceptable for calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70.................  No, range covered is 50
                                          percent, not 64 percent.
20, 30, 40, 50, 60, 70, 80, 90.........  Yes.
10, 25, 40, 55, 70, 85.................  Yes.
10, 30, 50, 70, 90.....................  No, though equally spaced and
                                          entire range covered, a
                                          minimum of six points is
                                          needed.
------------------------------------------------------------------------

    (4) Additional calibration points may be generated. For each range 
calibrated, if the deviation from a least-squares best-fit straight line 
is two percent or less of the value at each data point, concentration 
values may be calculated by use of a single calibration factor for that 
range. If the deviation exceeds two percent at any point, use the best-
fit non-linear equation which represents the data to within two percent 
of each test point to determine concentration.



Sec. 91.318  Oxides of nitrogen analyzer calibration.

    (a) Calibrate the chemiluminescent oxides of nitrogen analyzer as 
described in this section.
    (b) Initial and periodic interference. Prior to its introduction 
into service, and monthly thereafter, check the chemiluminescent oxides 
of nitrogen analyzer for NO2 to NO converter efficiency. 
Figure 2 in appendix B of this subpart is a reference for the following 
paragraphs:
    (1) Follow good engineering practices for instrument start-up and 
operation. Adjust the analyzer to optimize performance.
    (2) Zero the oxides of nitrogen analyzer with purified synthetic air 
or zero-grade nitrogen.
    (3) Connect the outlet of the NOX generator to the sample 
inlet of the oxides of nitrogen analyzer which has been set to the most 
common operating range.
    (4) Introduce into the NOX generator analyzer-system an 
NO-in-nitrogen (N2) mixture with an NO concentration equal to 
approximately 80 percent of the most common operating range. The 
NO2 content of the gas mixture must be less than 5 percent of 
the NO concentration.
    (5) With the oxides of nitrogen analyzer in the NO mode, record the 
concentration of NO indicated by the analyzer.
    (6) Turn on the NOX generator O2 (or air) 
supply and adjust the O2 (or air) flow rate so that the NO 
indicated by the analyzer is about 10 percent less than indicated in 
paragraph (b)(5) of this section. Record the concentration of NO in this 
NO+O2 mixture as value ``c.''
    (7) Switch the NOX generator to the generation mode and 
adjust the generation rate so that the NO measured on the analyzer is 20 
percent of that measured in paragraph (b)(5) of this section. There must 
be at least 10 percent unreacted NO at this point. Record the 
concentration of residual NO as value ``d.''
    (8) Switch the oxides of nitrogen analyzer to the NOX 
mode and measure total NOX. Record this value as ``a.''
    (9) Switch off the NOX generator but maintain gas flow 
through the system.

[[Page 317]]

The oxides of nitrogen analyzer will indicate the NOX in the 
NO+O2 mixture. Record this value as ``b.''
    (10) Turn off the NOX generator O2 (or air) 
supply. The analyzer will now indicate the NOX in the 
original NO-in-N2 mixture. This value should be no more than 
5 percent above the value indicated in paragraph (b)(4) of this section.
    (11) Calculate the efficiency of the NOX converter by 
substituting the concentrations obtained into the following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.009

Where:
a=concentration obtained in paragraph (b)(8) of this section,
b=concentration obtained in paragraph (b)(9) of this section,
c=concentration obtained in paragraph (b)(6) of this section,
d=concentration obtained in paragraph (b)(7) of this section.

    If converter efficiency is not greater than 90 percent, corrective 
action is required.
    (c) Initial and periodic calibration. Prior to its introduction into 
service, and monthly thereafter, calibrate the chemiluminescent oxides 
of nitrogen analyzer on all normally used instrument ranges. Use the 
same flow rate as when analyzing samples. Proceed as follows:
    (1) Adjust analyzer to optimize performance.
    (2) Zero the oxides of nitrogen analyzer with zero-grade air or 
zero-grade nitrogen.
    (3) Calibrate on each normally used operating range with NO-in-
N2 calibration gases with nominal concentrations between 10 
and 90 percent of that range. A minimum of six evenly spaced points 
covering at least 80 percent of the 10 to 90 percent range (64 percent) 
is required (see following table).

------------------------------------------------------------------------
  Example calibration points (percent)     Acceptable for calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70.................  No, range covered is 50
                                          percent, not 64 percent.
20, 30, 40, 50, 60, 70, 80, 90.........  Yes.
10, 25, 40, 55, 70, 85.................  Yes.
10, 30, 50, 70, 90.....................  No, though equally spaced and
                                          entire range covered, a
                                          minimum of six points is
                                          needed.
------------------------------------------------------------------------

    (4) Additional calibration points may be generated. For each range 
calibrated, if the deviation from a least-squares best-fit straight line 
is two percent or less of the value at each data point, concentration 
values may be calculated by use of a single calibration factor for that 
range. If the deviation exceeds two percent at any point, use the best-
fit non-linear equation which represents the data to within two percent 
of each test point to determine concentration.
    (d) The initial and periodic interference, system check, and 
calibration test procedures specified in Sec. 86.332-79 of this chapter 
may be used in lieu of the procedures specified in this section.



Sec. 91.319  NOX converter check.

    (a) The efficiency of the converter used for the conversion of 
NO2 to NO is tested as given in paragraphs (a)(1) through 
(a)(8) of this section (see Figure 2 in appendix B to this subpart).
    (1) Using the test setup as shown in Figure 2 in appendix B to this 
subpart (see also Sec. 91.318 of this chapter) and the procedures 
described in paragraphs (a)(2) through (a)(8) of this section, test the 
efficiency of converters by means of an ozonator.
    (2) Calibrate the HCLD in the most common operating range following 
the manufacturer's specifications using zero and span gas (the NO 
content of which must amount to about 80 percent of the operating range 
and the NO2 concentration of the gas mixture less than 5 
percent of the NO concentration). The NOX analyzer must be in 
the NO mode so that the span gas does not pass through the converter. 
Record the indicated concentration.
    (3) Calculate the efficiency of the NOX converter as 
described in Sec. 91.318(b).

[[Page 318]]

    (4) Via a T-fitting, add oxygen continuously to the gas flow until 
the concentration indicated is about 20 percent less than the indicated 
calibration concentration given in paragraph (a)(2) of this section. 
Record the indicated concentration as ``c''. The ozonator is kept 
deactivated throughout the process.
    (5) Activate the ozonator to generate enough ozone to bring the NO 
concentration down to about 20 percent (minimum 10 percent) of the 
calibration concentration given in paragraph (a)(2) of this section. 
Record the indicated concentration as ``d''.
    Note: If, with the analyzer in the most common range the 
NOX converter cannot give a reduction from 80 percent to 20 
percent, then use the highest range which will give the reduction.
    (6) Switch the NO analyzer to the NOX mode, which means 
that the gas mixture (consisting of NO, NO2, O2 
and N2) now passes through the converter. Record the 
indicated concentration as ``a''.
    (7) Deactivate the ozonator. The mixture of gases described in 
paragraph (a)(6) of this section passes through the converter into the 
detector. Record the indicated concentration as ``b''.
    (8) Switched to NO mode with the ozonator deactivated, the flow of 
oxygen or synthetic air is also shut off. The NOX reading of 
the analyzer may not deviate by more than  5 percent of the 
theoretical value of the figure given in paragraph (a)(2) of this 
section.
    (b) The efficiency of the converter must be tested prior to each 
calibration of the NOX analyzer.
    (c) The efficiency of the converter may not be less than 90 percent.



Sec. 91.320  Carbon dioxide analyzer calibration.

    (a) Prior to its introduction into service, and monthly thereafter, 
or within one month prior to the certification test, calibrate the NDIR 
carbon dioxide analyzer as follows:
    (1) Follow good engineering practices for instrument start-up and 
operation. Adjust the analyzer to optimize performance.
    (2) Zero the carbon dioxide analyzer with either purified synthetic 
air or zero-grade nitrogen.
    (3) Calibrate on each normally used operating range with carbon 
dioxide-in-N2 calibration or span gases having nominal 
concentrations between 10 and 90 percent of that range. A minimum of six 
evenly spaced points covering at least 80 percent of the 10 to 90 
percent range (64 percent) is required (see following table).

------------------------------------------------------------------------
  Example calibration points (percent)     Acceptable for calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70.................  No, range covered is 50
                                          percent, not 64 percent.
20, 30, 40, 50, 60, 70, 80, 90.........  Yes.
10, 25, 40, 55, 70, 85.................  Yes.
10, 30, 50, 70, 90.....................  No, though equally spaced and
                                          entire range covered, a
                                          minimum of six points is
                                          needed.
------------------------------------------------------------------------

    (4) Additional calibration points may be generated. For each range 
calibrated, if the deviation from a least-squares best-fit straight line 
is 2 percent or less of the value at each data point, concentration 
values may be calculated by use of a single calibration factor for that 
range. If the deviation exceeds 2 percent at any point, use the best-fit 
non-linear equation which represents the data to within 2 percent of 
each test point to determine concentration.
    (b) The initial and periodic interference, system check, and 
calibration test procedures specified in Secs. 86.316, 86.319, 86.320, 
86.321, and 86.322 of this chapter may be used in lieu of the procedures 
in this section.



Sec. 91.321  NDIR analyzer calibration.

    (a) Detector optimization. If necessary, follow the manufacturer's 
instructions for initial start-up and basic operating adjustments.
    (b) Calibration curve. Develop a calibration curve for each range 
used as follows:
    (1) Zero the analyzer.
    (2) Span the analyzer to give a response of approximately 90 percent 
of full-scale chart deflection.

[[Page 319]]

    (3) Recheck the zero response. If it has changed more than 0.5 
percent of full scale, repeat the steps given in paragraphs (b)(1) and 
(b)(2) of this section.
    (4) Record the response of calibration gases having nominal 
concentrations between 10 and 90 percent of full-scale concentration. A 
minimum of six evenly spaced points covering at least 80 percent of the 
10 to 90 percent range (64 percent) is required (see following table).

------------------------------------------------------------------------
  Example calibration points (percent)     Acceptable for calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70.................  No, range covered is 50
                                          percent, not 64 percent.
20, 30, 40, 50, 60, 70, 80, 90.........  Yes.
10, 25, 40, 55, 70, 85.................  Yes.
10, 30, 50, 70, 90.....................  No, though equally spaced and
                                          entire range covered, a
                                          minimum of six points is
                                          needed.
------------------------------------------------------------------------

    (5) Generate a calibration curve. The calibration curve must be of 
fourth order or less, have five or fewer coefficients, and be of the 
form of equation (1) or (2). Include zero as a data point. Compensation 
for known impurities in the zero gas can be made to the zero-data point. 
The calibration curve must fit the data points within 2 percent of point 
or one percent of full scale, whichever is less.
[GRAPHIC] [TIFF OMITTED] TR04OC96.010

y=concentration
x=chart deflection

    (6) Option. A new calibration curve need not be generated if:
    (i) A calibration curve conforming to paragraph (b)(5) of this 
section exists;
    (ii) The responses generated in paragraph (b)(4) of this section are 
within one percent of full scale or two percent of point, whichever is 
less, of the responses predicted by the calibration curve for the gases 
used in paragraph (b)(4) of this section.
    (7) If multiple range analyzers are used, the lowest range used must 
meet the curve fit requirements below 15 percent of full scale.
    (c) Linear calibration criteria. If any range is within 2 percent of 
being linear, a linear calibration may be used. To determine if this 
criterion is met:
    (1) Perform a linear least-square regression on the data generated. 
Use an equation of the form y=mx, where x is the actual chart deflection 
and y is the concentration.
    (2) Use the equation z=y/m to find the linear chart deflection 
(designated as z) for each calibration gas concentration (designated as 
y).
    (3) Determine the linearity (designated as percent L) for each 
calibration gas by:
[GRAPHIC] [TIFF OMITTED] TR04OC96.011

    (4) The linearity criterion is met if the percent L is less than 
 2 percent for each data point generated. For each emission 
test, use a calibration curve of the form Y=mx. The slope (designated as 
m) is defined for each range by the spanning process.



Sec. 91.322  Calibration of other equipment.

    Calibrate other test equipment as often as required by the 
manufacturer or as necessary according to good engineering practice.

[[Page 320]]



Sec. 91.323  Analyzer bench checks.

    (a) Prior to initial use and after major repairs, verify that each 
analyzer complies with the specifications given in Table 2 in appendix A 
to this subpart.
    (b) If a stainless steel NO2 to NO converter is used, 
condition all new or replacement converters. The conditioning consists 
of either purging the converter with air for a minimum of four hours or 
until the converter efficiency is greater than 90 percent. The converter 
must be at operational temperature while purging. Do not use this 
procedure prior to checking converter efficiency on in-use converters.



Sec. 91.324  Analyzer leakage check.

    (a) Vacuum side leak check. (1) Check any location within the 
analysis system where a vacuum leak could affect the test results.
    (2) The maximum allowable leakage rate on the vacuum side is 0.5 
percent of the in-use flow rate for the portion of the system being 
checked. The analyzer flows and bypass flows may be used to estimate the 
in-use flow rates.
    (3) The sample probe and the connection between the sample probe and 
valve V2 (see Figure 1 in appendix B of this subpart) may be excluded 
from the leak check.
    (b) Pressure side leak check. Substantial leaks of the sample on the 
pressure side of the system may impact sample integrity if the leaks are 
of sufficient magnitude. As a safety precaution, it is good engineering 
practice to perform periodic pressure side leak checks on the sampling 
system.



Sec. 91.325  Analyzer interference checks.

    (a) Gases present in the exhaust other than the one being analyzed 
can interfere with the reading in several ways. Positive interference 
occurs in NDIR and PMD instruments when the interfering gas gives the 
same effect as the gas being measured, but to a lesser degree. Negative 
interference occurs in NDIR instruments by the interfering gas 
broadening the absorption band of the measured gas, and in CLD 
instruments by the interfering gas quenching the radiation. The 
interference checks described in this section are to be made initially 
and after any major repairs that could affect analyzer performance.
    (b) CO analyzer water and CO2 interference checks. Bubble 
through water at room temperature a CO2 span gas having a 
concentration of between 80 percent and 100 percent inclusive of full 
scale of the maximum operating range used during testing and record the 
analyzer response. For dry measurements, this mixture may be introduced 
into the sample system prior to the water trap. The analyzer response 
must not be more than one percent of full scale for ranges equal to or 
above 300 ppm or more than three ppm for ranges below 300 ppm.
    (c) NOX analyzer quench check. The two gases of concern 
for CLD (and HCLD) analyzers are CO2 and water vapor. Quench 
responses to these two gases are proportional to their concentrations 
and, therefore, require test techniques to determine quench at the 
highest expected concentrations experienced during testing.
    (1) NOX analyzer CO2 quench check. (i) Pass a 
CO2 span gas having a concentration of 80 percent to 100 
percent of full scale of the maximum operating range used during testing 
through the CO2 NDIR analyzer and record the value as ``a.''
    (ii) Dilute the CO2 span gas approximately 50 percent 
with NO span gas and pass through the CO2 NDIR and CLD (or 
HCLD). Record the CO2 and NO values as ``b'' and ``c'', 
respectively.
    (iii) Shut off the CO2 and pass only the NO span gas 
through the CLD (or HCLD). Record the NO value recorded as ``d.''
    (iv) Calculate the percent CO2 quench as follows, which 
may not exceed three percent:
[GRAPHIC] [TIFF OMITTED] TR04OC96.012


[[Page 321]]


Where:
a=Undiluted CO2 concentration (percent)
b=Diluted CO2 concentration (percent)
c=Diluted NO concentration (ppm)
d=Undiluted NO concentration (ppm)

    (2) NOX analyzer water quench check. (i) This check 
applies to wet measurements only. Pass an NO span gas having a 
concentration of 80 percent to 100 percent of full scale of a normal 
operating range through the CLD (or HCLD). Record the response as ``D.'' 
Bubble through water at room temperature the NO span gas and pass it 
through the CLD (or HCLD). Record the analyzers response as ``AR.'' 
Determine and record the analyzers absolute operating pressure and the 
bubbler water temperature. (It is important that the NO span gas 
contains minimal NO2 concentration for this check. No 
allowance for absorption of NO2 in water has been made in the 
following quench calculations.)
    (ii) Calculations for water quench must consider dilution of the NO 
span gas with water vapor and scaling of the water vapor concentration 
of the mixture to that expected during testing. Determine the mixture's 
saturated vapor pressure (designated as ``Pwb'') that corresponds to the 
bubbler water temperature. Calculate the water concentration (``Z1'', 
percent) in the mixture by the following equation:

Z1 = 100  x  (Pwb / GP)

Where:

GP=the analyzer's standard operating pressure (pascals)

    (iii) Calculate the expected dilute NO span gas and water vapor 
mixture concentration (designated as ``D1'') by the following equation:

D1 = D  x  (1Z1 / 100)



Sec. 91.326  Pre- and post-test analyzer calibration.

    Calibrate the operating range of each analyzer used during the test 
prior to and after each test in accordance with the following procedure 
(A chronic need for parameter adjustment can indicate a need for 
instrument maintenance.):
    (a) Make the calibration using a zero gas and a span gas whose 
nominal value is between 80 percent and 100 percent of full scale, 
inclusive, of the measuring range.
    (b) Use the same analyzer(s) flow rate and pressure as that used 
during exhaust emission test sampling.
    (c) Warm-up and stabilize the analyzer(s) before the calibration is 
made.
    (d) If necessary, clean and/or replace filter elements before 
calibration is made.
    (e) Calibrate analyzer(s) as follows:
    (1) Zero the analyzer using the appropriate zero gas. Adjust 
analyzer zero if necessary. Zero reading should be stable.
    (2) Span the analyzer using the appropriate span gas for the range 
being calibrated. Adjust the analyzer to the calibration set point if 
necessary.
    (3) Recheck zero and span set points.
    (4) If the response of the zero gas or span gas differs more than 
one percent of full scale, then repeat paragraphs (e)(1) through (3) of 
this section.



Sec. 91.327  Sampling system requirements.

    (a) Sample component surface temperature. For sampling systems which 
use heated components, use engineering judgment to locate the coolest 
portion of each component (pump, sample line section, filters, and so 
forth) in the heated portion of the sampling system that has a separate 
source of power or heating element. Monitor the temperature at that 
location. If several components are within an oven, then only the 
surface temperature of the component with the largest thermal mass and 
the oven temperature need be measured.
    (b) If water is removed by condensation, monitor the sample gas 
temperature or sample dew point either within the water trap or 
downstream. It may not exceed 7  deg.C.



Sec. 91.328  Measurement equipment accuracy/calibration frequency table.

    (a) The accuracy of measurements must be such that the maximum 
tolerances shown in Table 2 in appendix A to this subpart are not 
exceeded.
    (b) Calibrate all equipment and analyzers according to the 
frequencies shown in Table 2 in appendix A to this subpart.

[[Page 322]]

    (c) Prior to initial use and after major repairs, bench check each 
analyzer (see Sec. 91.323).
    (d) Calibrate as specified in Sec. 91.306 and Secs. 91.315 through 
91.322.
    (e) At least monthly, or after any maintenance which could alter 
calibration, perform the following calibrations and checks.
    (1) Leak check the vacuum side of the system (see Sec. 91.324(a)).
    (2) Verify that the automatic data collection system (if used) meets 
the requirements found in Table 2 in appendix A to this subpart.
    (3) Check the fuel flow measurement instrument to insure that the 
specifications in Table 2 in appendix A to this subpart are met.
    (f) Verify that all NDIR analyzers meet the water rejection ratio 
and the CO2 rejection ratio as specified in Sec. 91.325.
    (g) Verify that the dynamometer test stand and power output 
instrumentation meet the specifications in Table 2 in appendix A to this 
subpart.



Sec. 91.329  Catalyst thermal stress test.

    (a) Oven characteristics. The oven used for termally stressing the 
test catalyst must be capable of maintaining a temperature of 500 
 5  deg.C and 1000  10  deg.C.
    (b) Evaluation gas composition. (1) A synthetic exhaust gas mixture 
is used for evaluating the effect of thermal stress on catalyst 
conversion efficiency.
    (2) The synthetic exhaust gas mixture must have the following 
composition:

------------------------------------------------------------------------
                                                   Volume     Parts per
                  Constituent                     percent      million
------------------------------------------------------------------------
Carbon Monoxide \1\...........................            1  ...........
Oxygen........................................          1.3  ...........
Carbon Dioxide................................            9  ...........
Water Vapor...................................           10  ...........
Sulfur Dioxide................................  ...........           20
Oxides of Nitrogen............................  ...........          280
Hydrogen......................................  ...........         3500
Hydrocarbon 1,&thnsp2..............  ...........         4000
Nitrogen=Balance..............................  ...........  ...........
------------------------------------------------------------------------
\1\ Alternatively, the carbon monoxide and hydrocarbon proportions of
  the mixture may be changed to 1.2% and 4650 ppm, respectively (using
  on of these alternative concentrations requires that the other be used
  simultaneously).
\2\ Propylene/propane ratio=2/1.


[61 FR 52102, Oct. 4, 1996; 62 FR 20066, Apr. 24, 1997]
               Appendix A to Subpart D of Part 91--Tables

                                    Table 1--Symbols Used in Subparts D and E
----------------------------------------------------------------------------------------------------------------
             Symbol                             Term                                    Unit
----------------------------------------------------------------------------------------------------------------
AYM.............................  Final weighted emission test      g/kW-hr
                                   results.
C3 H8...........................  Propane.........................  ............................................
CB..............................  Concentration of emission in      ppm
                                   background sample.
CD..............................  Concentration of emission in      ppm
                                   dilute sample.
CO..............................  Carbon monoxide.................  ............................................
CO2.............................  Carbon dioxide..................  ............................................
conc............................  Concentration (ppm by volume)...  ppm
DXX.............................  Density of a specific emission    g/m3
                                   (XX).
DXX.............................  Volume concentration of a         percent
                                   specific emission (XX) on a dry
                                   basis.
DF..............................  Dilution factor of dilute
                                   exhaust.
D1..............................  Water vapor mixture               percent
                                   concentration.
f...............................  Engine specific parameter         ............................................
                                   considering atmospheric
                                   conditions.
GAIRD...........................  Intake air mass flow rate on dry  kg/h
                                   basis.
GFuel...........................  Fuel mass flow rate.............  kg/h
GP..............................  Analyzer standard operating       Pa
                                   pressure.
Gs..............................  Mass of carbon measured during a  g
                                   sampling period.
H...............................  Absolute humidity (water content  gr/kg
                                   related to dry air).
H2..............................  Hydrogen........................  ............................................
i...............................  Subscript denoting an individual  ............................................
                                   mode.
IT..............................  Indicated torque................  N-m
K...............................  Wet to dry conversion factor....  ............................................
KH..............................  Humidity correction factor......  ............................................
KV..............................  Calibration coefficient for       ............................................
                                   critical flow venturi.
MXX.............................  Molecular weight of a specific    g/mole
                                   molecule(XX).
mass............................  Pollutant mass flow.............  g/h
MFUEL...........................  Mass of fuel consumed during a    g
                                   sampling period.
N...............................  Pump revolutions during test      revs
                                   period.
N2..............................  Nitrogen........................  ............................................
NO..............................  Nitric oxide....................  ............................................

[[Page 323]]

 
NO2.............................  Nitrogen dioxide................  ............................................
NOX.............................  Oxides of nitrogen..............  ............................................
O2..............................  Oxygen..........................  ............................................
O2 I............................  Oxygen concentration of the       percent
                                   burner air.
P...............................  Absolute pressure...............  kPa
PAUX............................  Declared total power absorbed by  kW
                                   auxiliaries fitted for the test.
PB..............................  Total barometric pressure         kPa
                                   (average of the pre-test and
                                   post-test values).
Pdew............................  Test ambient saturation vapor     kPa
                                   pressure at the dew point.
Pe..............................  Absolute pump outlet pressure...  kPa
PED.............................  Pressure drop between the inlet   kPa
                                   and throat of metering venturi.
Pi..............................  Pi=PM,i + PAUX,i................  ............................................
PM..............................  Maximum power measured at the     kW
                                   test speed under test
                                   conditions.
PP..............................  Absolute pump inlet pressure....  kPa
PPI.............................  Inlet pressure depression of      kPa
                                   venturi or pump.
PPO.............................  Pressure head at CVS pump outlet  kPa
Ps..............................  Dry atmospheric pressure........  kPa
PV..............................  Absolute venturi inlet pressure.  kPa
Pwb.............................  Saturated vapor pressure........  Pa
QC..............................  Volumetric flow rate of dilute    m3/hr
                                   exhaust through CVS at STP.
QS..............................  Gas flow rate...................  m3/min
RSTP............................  Ideal gas constant at STP.......  m3/mole
R2..............................  Fuel carbon weight fraction.....  g/g
STP.............................  Standard temperature and          ............................................
                                   pressure.
t...............................  Elapsed time for test period....  sec.
T...............................  Absolute temperature at air         deg.C
                                   inlet.
Ta..............................  Ambient temperature.............    deg.C
TEI.............................  Air temperature in to metering      deg.C
                                   venturi or flowmeter.
TK..............................  Absolute temperature............  K
TP..............................  Absolute pump inlet temperature.    deg.C
TPI.............................  Air temperature at CVS pump         deg.C
                                   inlet.
TPO.............................  Air temperature at CVS pump         deg.C
                                   outlet.
TV..............................  Absolute venturi inlet              deg.C
                                   temperature.
VO..............................  Pump flow.......................  m3/rev
W...............................  Average mass flow of emissions..  g/hr
WXX.............................  Mass rate of specific emission    g/hr
                                   (XX).
WXX.............................  Volume concentration in exhaust   ppm, ppmC, %
                                   of specific emission (XX) on
                                   wet basis.
WF..............................  Weighing factor.................  ............................................
Z1..............................  Water concentration.............  percent
.......................  Fuel specific factor
                                   representing the hydrogen to
                                   carbon ratio.
----------------------------------------------------------------------------------------------------------------


                               Table 2--Measurement Accuracy Calibration Frequency
----------------------------------------------------------------------------------------------------------------
                                            Permissible deviation from reading \1\
     No.                Item          --------------------------------------------------  Calibration frequency
                                               non-idle                   idle
----------------------------------------------------------------------------------------------------------------
1...........  Engine speed...........  2%.........  2%.........  Monthly.
2...........  Torque.................  5%.........  .......................  Monthly.
3...........  Fuel consumption.......  1%.........  5%.........  Monthly.
4...........  Air consumption........  2%.........  5%.........  As required.
5...........  Coolant temperature....  2  deg.C...  Same...................  As required.
6...........  Lubricant temperature..  2  deg.C...  Same...................  As required.
7...........  Exhaust back pressure..  5%.........  Same...................  As required.
8...........  Inlet depression.......  5%.........  Same...................  As required.
9...........  Exhaust gas temperature  15  deg.C..  Same...................  As required.
10..........  Air inlet temperature    2  deg.C...  Same...................  As required.
               (combustion air).
11..........  Atmospheric pressure...  0.5%.......  Same...................  As required.
12..........  Humidity (combustion     3.0%.......  Same...................  As required.
               air) (relative).
13..........  Fuel temperature.......  2  deg.C...  Same...................  As required.
14..........  Temperature with regard  2  deg.C...  Same...................  As required.
               to dilution system.
15..........  Dilution air humidity..  3% absolute  Same...................  As required.
16..........  HC analyzer............  2% \2\.....  Same...................  Monthly.
17..........  CO analyzer............  2% \2\.....  Same...................  Monthly.
18..........  NOX analyzer...........  2% \2\.....  Same...................  Monthly.
19..........  NOX converter check....  90%....................  Same...................  Monthly.
20..........  CO2 analyzer...........  2% \2\.....  Same...................  Monthly.
----------------------------------------------------------------------------------------------------------------
\1\ All accuracy requirements pertain to the final recorded value which is inclusive of the data acquisition
  system.

[[Page 324]]

 
\2\ If reading is under 100 ppm then the accuracy shall be 2 ppm.


                    Table 3--Test Fuel Specifications
------------------------------------------------------------------------
                                                              Procedure
               Item                  Property    Tolerance    (ASTM) \1\
------------------------------------------------------------------------
Sulfur, ppm max..................         1000  ...........       D 2622
Benzene, max. percent............          1.5  ...........       D 3606
RVP, psi.........................          8.6  0.6
Octane, R+M/2....................         89.9  3.1       D 2700
IBP,  deg.C......................         32.8  11.0
10% point,  deg.C................         53.3  5.5
50% point,  deg.C................        101.7  8.3
90% point,  deg.C................        160.0  11.1
End Point, max.  deg.C...........        212.8  ...........         D 86
Phosphorus, g/l, max.............         0.02  ...........       D 3231
Lead, g/l, max...................         0.02  ...........  ...........
Manganese, g/l, max..............        0.004  ...........  ...........
Aromatics, max. percent..........           35  ...........       D 1319
Olefins, max. percent............           10  ...........       D 1319
Saturates, percent...............       remain  ...........      D 1319
------------------------------------------------------------------------
\1\ All ASTM Procedures in this table have been incorporated by
  reference. See Sec.  91.6.


[[Page 325]]

               Appendix B to Subpart D of Part 91--Figures
      [GRAPHIC] [TIFF OMITTED] TR04OC96.013
      

[[Page 326]]


[GRAPHIC] [TIFF OMITTED] TR04OC96.014


[[Page 327]]





               Subpart E--Gaseous Exhaust Test Procedures



Sec. 91.401  Scope; applicability.

    (a) This subpart describes the procedures to follow in order to 
perform exhaust emission tests on new marine gasoline-fueled spark-
ignition propulsion engines subject to the provisions of subpart A of 
this part 91. Provisions specific to raw gas sampling are in 
Secs. 91.414 through 91.419, provisions specific to constant volume 
sampling are in Secs. 91.420 through 91.426. All other sections in this 
subpart apply to both raw gas sampling and constant volume sampling 
unless indicated otherwise.
    (b) Requirements for emission test equipment and calibrating this 
equipment are found in subpart D of this part.



Sec. 91.402  Definitions.

    The definitions in Secs. 91.3, 91.102, and 91.302 apply to this 
subpart.



Sec. 91.403  Symbols and abbreviations.

    (a) The abbreviations in Sec. 91.5 apply to this subpart.
    (b) The symbols in Table 1 in appendix A to subpart D apply to this 
subpart.



Sec. 91.404  Test procedure overview.

    (a) The test consists of prescribed sequences of engine operating 
conditions to be conducted on an engine dynamometer or equivalent load 
and speed measurement device. The exhaust gases generated during engine 
operation are sampled either raw or dilute, and specific components are 
analyzed through the analytical system.
    (b) The tests are designed to determine the brake-specific emissions 
of hydrocarbons, carbon monoxide, and oxides of nitrogen. The test 
consists of one idle mode and four power modes with an exponential 
relationship between torque and speed which span the typical operating 
range of spark-ignition marine propulsion engines. These procedures 
require the determination of the concentration of each pollutant, fuel 
flow, and the power output during each mode. The measured values are 
weighted and used to calculate the grams of each pollutant emitted per 
brake kilowatt hour (g/kW-hr).
    (c)(1) When an engine is tested for exhaust emissions the complete 
engine is tested, with all emission control devices installed and 
functioning.
    (2) Additional accessories (for example, oil cooler, alternators, 
and so forth) may be installed, but such accessory loading will be 
considered parasitic in nature and observed power is used in the 
emission calculation.
    (d) All emission control systems installed on or incorporated in the 
application must be functioning during all procedures in this subpart. 
In cases of component malfunction or failure, no maintenance is allowed 
without prior approval from the Administrator in accordance with 
Sec. 91.118.



Sec. 91.405  Recorded information.

    (a) Record the information described in this section for each test 
where applicable.
    (b) Test data; general. (1) Engine identification number.
    (2) Engine emissions control system.
    (3) Test operator(s).
    (4) Number of hours of operation accumulated on the engine prior to 
beginning the warm-up portion of the test (to the nearest tenth hour).
    (5) Fuel identification.
    (6) For two-stroke engines, fuel/oil mixture ratio.
    (7) Date of most recent analytical assembly calibration.
    (8) All pertinent instrument information such as tuning, gain, 
serial numbers, detector number, and calibration curve numbers. As long 
as this information is traceable, it may be summarized by system number 
or analyzer identification numbers.
    (c) Test data; pre-test. (1) Date and time of day.
    (2) Test number.
    (3) Barometric pressure; as an option, barometric pressure can be 
measured as a modal measurement instead of or in addition to a pre- and 
post-test measurement.
    (4) Recorder chart or equivalent. Identify for each test segment 
zero traces for each range used, and span traces for each range used.
    (d) Test data; modal. (1) Recorder chart or equivalent. Identify for 
each

[[Page 328]]

test mode the emission concentration traces and the associated analyzer 
range(s).
    (2) Observed engine torque.
    (3) Observed engine rpm.
    (4) Engine intake air flow, if applicable.
    (5) Test cell temperature and humidity for each mode.
    (6) For raw gas testing; fuel flow for each mode. Fuel flow 
measurement is not required for dilute testing but is allowed. If the 
fuel flow measurement is a volume measurement system, record the fuel 
temperature in the measurement system for fuel density corrections to 
the mass flow rate. If the fuel temperature is within 3  deg.C of the 
calibration temperature, no density correction is required.
    (7) Engine intake temperature and humidity for each mode, if 
applicable.
    (8) Exhaust sample line temperature, if applicable.
    (e) Test data; post-test. (1) Recorder chart or equivalent. Identify 
the hang-up check.
    (2) Recorder chart or equivalent. Identify the zero traces for each 
range used and the span traces for each range used.
    (3) Total number of hours of operation accumulated on the engine (to 
the nearest tenth hour).
    (4) Barometric pressure, post-test segment.



Sec. 91.406  Engine parameters to be measured and recorded.

    Measure or calculate, then record, the engine parameters in Table 1 
in appendix A of this subpart.



Sec. 91.407  Engine inlet and exhaust systems.

    (a) The marine engine manufacturer is liable for emission compliance 
over the full range of restrictions that are specified by the 
manufacturer for that particular engine.
    (b) The air inlet filter system and exhaust muffler system 
combination used on the test engine must be the systems expected to 
yield the highest emission levels.



Sec. 91.408  Pre-test procedures.

    (a) Engine service accumulation and stabilization procedure. Use the 
service accumulation procedure determined by the manufacturer for 
exhaust emission stabilizing of an engine, consistent with good 
engineering practice (see Sec. 91.117).
    (1) The manufacturer determines, for each engine family, the number 
of hours at which the engine exhaust emission control system combination 
is stabilized for emission testing. However, this stabilization 
procedure may not exceed 12 hours. The manufacturer must maintain, and 
provide to the Administrator upon request, a record of the rationale 
used in making this determination. If the manufacturer can document 
that, at some time prior to the full 12 hour service accumulation 
period, the engine emissions are decreasing for the remainder of the 12 
hours, the service accumulation may be completed at that time. The 
manufacturer may elect to accumulate 12 hours on each test engine within 
an engine family without making this determination.
    (2) During service accumulation, the fuel and lubricants specified 
in Sec. 91.308 must be used.
    (3) Engine maintenance during service accumulation is allowed only 
in accordance with Sec. 91.117.
    (b) Engine pre-test preparation. (1) Drain and charge the fuel 
tank(s) with the specified test fuel (see Sec. 91.308) to 50 percent of 
the tank's nominal capacity. If an external fuel tank is used, the 
engine fuel inlet system pressure must be typical of what the engine 
will see in use.
    (2) Operate the engine on the dynamometer measuring the fuel 
consumption (fuel consumption required only for raw gas sampling method) 
and torque before and after the emission sampling equipment is 
installed, including the sample probe, using mode 1 from Table 2 in 
appendix A of this subpart. The emission sampling equipment may not 
significantly affect the operational characteristics of the engine 
(typically, the results should agree within five percent).
    (c) Analyzer pre-test procedures. (1) If necessary, warm up and 
stabilize the analyzer(s) before calibrations are performed.
    (2) Replace or clean the filter elements and then vacuum leak check 
the

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system per Sec. 91.324(a). If necessary, allow the heated sample line, 
filters, and pumps to reach operating temperature.
    (3) Perform the following system checks:
    (i) If necessary, check the sample-line temperature. Heated FID 
sample line temperature must be maintained between 110  deg.C and 230 
deg.C, a heated NOX sample line temperature must be 
maintained between 60  deg.C and 230  deg.C.
    (ii) Check that the system response time has been accounted for 
prior to sample collection data recording.
    (iii) A hang-up check is permitted.
    (4) Check analyzer zero and span before and after each test at a 
minimum. Further, check analyzer zero and span any time a range change 
is made or at the maximum demonstrated time span for stability for each 
analyzer used.
    (d) Check system flow rates and pressures and reset if necessary.



Sec. 91.409  Engine dynamometer test run.

    (a) Engine and dynamometer start-up.
    (1) Only adjustments in accordance with Sec. 91.118 may be made to 
the test engine prior to starting a test.
    (2) If necessary, warm up the dynamometer as recommended by the 
dynamometer manufacturer ore good engineering practice.
    (3) At the manufacturer's option, the engine can be run with the 
throttle in a fixed position or by using the engine's governor (if the 
engine is manufactured with a governor). In either case, the engine 
speed and load must meet the requirements specified in paragraph (b)(12) 
of this section.
    (b) Each test consists of the following:
    (1) Record the general test data as specified in Sec. 91.405.
    (2) Precondition the engine in the following manner;
    (i) Operate the engine at idle for 2 to 3 minutes;
    (ii) Operate the engine at a power greater than or equal to 50 
percent power at the rated speed for 5 to 7 minutes;
    (iii) Operate the engine at rated speed and maximum power for 25 to 
30 minutes;
    (iv) Option. For four-stroke engines, where appropriate, it is 
permitted to precondition the engine at rated speed and maximum power 
until the oil and water temperatures are stabilized. The temperatures 
are defined as stabilized if they are maintained within 2 percent of 
point for 2 minutes. The engine must be operated a minimum of 10 minutes 
for this option. This optional procedure may be substituted for step in 
paragraphs (b)(2)(iii) of this section;
    (v) Option. If the engine has been operating on service accumulation 
for a minimum of 40 minutes, the service accumulation may be substituted 
for steps in paragraphs (b)(2) (i) through (iii) of this section.
    (3) Record all pre-test data specified in Sec. 91.405(c).
    (4) Start the test cycle (see Sec. 91.410) within 10 minutes of the 
completion of the steps required by paragraph (b)(2) of this section.
    (5) During the first mode calculate the torque corresponding to 
71.6, 46.5, and 25.3 percent of the maximum observed torque for the 
rated speed (see Table 2 in appendix A of this subpart).
    (6) Once engine speed and load are set for a mode, run the engine 
for a sufficient period of time to achieve thermal stability. At the 
manufacturers option, determine and document the appropriate criterion 
for thermal stability for each engine family.
    (7) Record all modal data specified in Sec. 91.405(e) for a minimum 
time period of the last two minutes of each mode. Longer averaging 
periods are acceptable, but the data averaged must be from a continuous 
time period. The duration of time during which this data is recorded is 
referred to as the ``sampling period.'' The data collected during the 
sampling period is used for modal emission calculations.
    (8) Continuously record the analyzer's response to the exhaust gas 
during the sampling period.
    (9) Modes may be repeated.
    (10) If a delay of more than one hour occurs between the end of one 
mode and the beginning of another mode, the test is void and must be 
restarted as described at paragraph (b)(1) of this section.
    (11) The engine speed and load must be maintained within the 
requirements

[[Page 330]]

of Sec. 91.410 during the sampling period for each mode. If this 
requirement is not met, the mode is void and must be restarted.
    (12) If at any time during a mode, the test equipment malfunctions 
or the specifications in Sec. 91.410 can not be met, the test is void, 
and must be aborted. Corrective action should be taken and the test 
restarted.
    (13) Fuel flow and air flow during the idle condition may be 
determined just prior to or immediately following the dynamometer 
sequence, if longer times are required for accurate measurements. If the 
dilute sampling method (Constant Volume Sampling) is used, neither fuel 
flow nor air flow measurements are required.
    (c) Exhaust gas measurements. (1) Measure HC, CO, CO2, 
and NOX concentration in the exhaust sample.
    (2) Each analyzer range that may be used during a test segment must 
have the zero and span responses recorded prior to the start of the 
test. Only the range(s) used to measure the emissions during the test is 
required to have its zero and span recorded after the completion of the 
test. Depending on the stability of each individual analyzer, more 
frequent zero checks or spans between modes may be necessary.
    (3) It is permitted to change filter elements between test segments.
    (4) A leak check is permitted between modes.
    (5) A hang-up check is permitted between modes (see Sec. 91.413).
    (6) If, during the emission measurement portion of a mode, the value 
of the gauges downstream of the NDIR analyzer(s) G3 or G4 (See Figure 1 
in appendix B of subpart D of this part) differs by more than 
0.5 kPa, the mode is void.



Sec. 91.410  Engine test cycle.

    (a) The 5-mode cycle specified in Table 2 in appendix A to this 
subpart shall be followed in dynamometer operation tests of marine 
engines.
    (b) During each non-idle mode the specified speed and load shall be 
held to within 50 rpm or  2 percent of point, 
whichever is greater. During each idle mode the engine speed shall be 
held within 75 rpm or  5 percent of the 
manufacturers specified idle speed, whichever is greater. For direct 
drive products (no neutral gear), it is acceptable to have an accessory 
load on the engine during the idle mode provided that the engine speed 
is within  5 percent of the manufacturers specified idle 
speed and the accessory load is representative of in use operation.
    (c) If the operating conditions specified in paragraph (b) of this 
section for modes 2, 3, 4, and 5 cannot be maintained, the Administrator 
may authorize deviations from the specified load conditions. Such 
deviations shall not exceed 10 percent of the maximum torque at the test 
speed. The minimum deviations, above and below the specified load, 
necessary for stable operation shall be determined by the manufacturer 
and approved by the Administrator prior to the test run.
    (d) Do not include power generated during the idle mode (mode 5) in 
the calculation of emissions results.



Sec. 91.411  Post-test analyzer procedures.

    (a) Perform a hang-up check within 60 seconds of the completion of 
the last mode in the test. Use the following procedure:
    (1) Introduce a zero-grade gas or room air into the sample probe or 
valve V2 (see Figure 1 in appendix B of subpart D of this part) to check 
the ``hangup zero'' response. Simultaneously start a time measurement.
    (2) Select the lowest HC range used during the test.
    (3) Within four minutes of beginning the time measurement in 
paragraph (a)(1) of this section, the difference between the zero gas 
response and the hang-up zero response shall not be greater than 5.0 
percent of full scale or 10 ppmC whichever is greater.
    (b) Begin the analyzer span checks within six minutes after the 
completion of the last mode in the test. Record for each analyzer the 
zero and span response for each range used during the preceding test or 
test segment.
    (c) If during the test, the filter element(s) were replaced or 
cleaned, a vacuum check must be performed per Sec. 91.324(a) immediately 
after the span checks. If the vacuum side leak check does not meet the 
requirements of Sec. 91.324(a) the test is void.

[[Page 331]]

    (d) Read and record the post-test data specified in Sec. 91.405(e).
    (e) For a valid test, the analyzer drift between the before-segment 
and after-segment span checks for each analyzer must meet the following 
requirements:
    (1) The span drift (defined as the change in the difference between 
the zero response and the span response) must not exceed two percent of 
full-scale chart deflection for each range used.
    (2) The zero response drift must not exceed two percent of full-
scale chart deflection for each range used above 155 ppm (or ppm C), or 
three percent of full-scale chart deflection for each range below 155 
ppm (or ppm C).



Sec. 91.412  Data logging.

    (a) A computer or any other automatic data collection (ADC) 
device(s) may be used as long as the system meets the requirements of 
this subpart.
    (b) Determine from the data collection records the analyzer 
responses corresponding to the end of each mode.
    (c) Record data at a minimum of one Hz (one time per second).
    (d) Determine the final value for power by averaging the 
individually calculated power points for each value of speed and torque 
recorded during the sampling period. As an alternative, the final value 
for power can be calculated from the average values for speed and 
torque, collected during the sampling period.
    (e) Determine the final value for CO2, CO, HC, and 
NOX concentrations by averaging the concentration of each 
point taken during the sample period for each mode.



Sec. 91.413  Exhaust sample procedure--gaseous components.

    (a) Automatic data collection equipment requirements. The analyzer 
response may be read by automatic data collection (ADC) equipment such 
as computers, data loggers, etc. If ADC equipment is used the following 
is required:
    (1) For dilute grab (``bag'') analysis, the analyzer response must 
be stable at greater than 99 percent of the final reading for the dilute 
exhaust sample bag. A single value representing the average chart 
deflection over a 10-second stabilized period shall be stored.
    (2) For continuous analysis systems, a single value representing the 
average integrated concentration over a cycle shall be stored. 
Alternatively, the ADC may store the individual instantaneous values 
collected during the measurement period.
    (3) The chart deflections or average integrated concentrations 
required in paragraphs (a)(1) and (a)(2) of this section may be stored 
on long-term computer storage devices such as computer tapes, storage 
discs, punch cards, and so forth, or they may be printed in a listing 
for storage. In either case a chart recorder is not required and records 
from a chart recorder, if they exist, need not be stored.
    (4) If ADC equipment is used to interpret analyzer values, the ADC 
equipment is subject to the calibration specifications of the analyzer 
as if the ADC equipment is part of analyzer system.
    (b) Data records from any one or a combination of analyzers may be 
stored as chart recorder records.
    (c) Grab sample analysis. For dilute grab sample analysis perform 
the following sequence:
    (1) Calibrate analyzers using the procedure described in 
Sec. 91.326.
    (2) Record the most recent zero and span response as the pre-
analysis value.
    (3) Measure HC, CO, CO2, and NOX background 
concentrations in the sample bag(s) and background sample bag(s) using 
the same flow rates and pressures.
    (4) Good engineering practice dictates that analyzers used for 
continuous analysis should be operated such that the measured 
concentration falls between 15 percent and 100 percent of full scale.
    (5) A post-analysis zero and span check of each range must be 
performed and the values recorded. The number of events that may occur 
between the pre and post checks is not specified. However, the 
difference between pre-analysis zero and span values (recorded in 
paragraph (c)(5) or (c)(6) of this section) versus those recorded for 
the post-analysis check may not exceed the zero drift limit or the span 
drift limit

[[Page 332]]

of 2 percent of full scale chart deflection for any range used. 
Otherwise the test is void.
    (d) Continuous sample analysis. For continuous sample analysis, 
perform the following sequence:
    (1) Calibrate analyzers using the procedures described in 
Sec. 91.326.
    (2) Leak check portions of the sampling system that operate at 
negative gauge pressures when sampling, and allow heated sample lines, 
filters, pumps, and so forth to stabilize at operating temperature.
    (3) Option: Determine the hang-up for the FID or HFID sampling 
system:
    (i) Zero the analyzer using zero air introduced at the analyzer 
port.
    (ii) Flow zero air through the overflow sampling system. Check the 
analyzer response.
    (iii) If the overflow zero response exceeds the analyzer zero 
response by two percent or more of the FID or HFID full-scale 
deflection, hang-up is indicated and corrective action must be taken 
(see paragraph (e) of this section).
    (iv) The complete system hang-up check specified in paragraph (f) of 
this section is recommended as a periodic check.
    (4) Obtain a stable zero reading.
    (5) Good engineering practice dictates that analyzers used for 
continuous analysis should be operated such that the measured 
concentration falls between 15 percent and 100 percent of full scale.
    (6) Record the most recent zero and span response as the pre-
analysis values.
    (7) Collect background HC, CO, CO2, and NOX in 
a sample bag (for dilute exhaust sampling only, see Sec. 91.422).
    (8) Perform a post-analysis zero and span check for each range used 
at the conditions specified in paragraph (d)(1) of this section. Record 
these responses as the post-analysis values.
    (9) Neither the zero drift nor the span drift between the pre-
analysis and post-analysis checks on any range used may exceed three 
percent for HC, or two percent for NOX, CO, and 
CO2, of full scale chart deflection, or the test is void. (If 
the HC drift is greater than three percent of full-scale chart 
deflection, hydrocarbon hang-up is likely.)
    (10) Determine background levels of NOX, CO, or 
CO2 (for dilute exhaust sampling only) by the grab (``bag'') 
technique outlined in paragraph (c) of this section.
    (e) Hydrocarbon hang-up. If HC hang-up is indicated, the following 
sequence may be performed:
    (1) Fill a clean sample bag with background air.
    (2) Zero and span the HFID at the analyzer ports.
    (3) Analyze the background air sample bag through the analyzer 
ports.
    (4) Analyze the background air through the entire sample probe 
system.
    (5) If the difference between the readings obtained is two ppm or 
more, clean the sample probe and the sample line.
    (6) Reassemble the sample system, heat to specified temperature, and 
repeat the procedure in paragraphs (e)(1) through (e)(5) of this 
section.



Sec. 91.414  Raw gaseous exhaust sampling and analytical system description.

    (a) Schematic drawing. An example of a sampling and analytical 
system which may be used for testing under this subpart is shown in 
Figure 4 in appendix B of this subpart. All components or parts of 
components that are wetted by the sample or corrosive calibration gases 
shall be either chemically cleaned stainless steel or inert material 
(e.g., polytetrafluoroethylene resin). The use of ``gauge savers'' or 
``protectors'' with nonreactive diaphragms to reduce dead volumes is 
permitted.
    (b) Sample probe. (1) The sample probe shall be a straight, closed 
end, stainless steel, multi-hole probe. The inside diameter shall not be 
greater than the inside diameter of the sample line + 0.03 cm. The wall 
thickness of the probe shall not be greater than 0.10 cm. The fitting 
that attaches the probe to the exhaust pipe shall be as small as 
practical in order to minimize heat loss from the probe.
    (2) The probe shall have a minimum of three holes. The spacing of 
the radial planes for each hole in the probe must be such that they 
cover approximately equal cross-sectional areas of

[[Page 333]]

the exhaust duct. The angular spacing of the holes must be approximately 
equal. The angular spacing of any two holes in one plane may not be 
180 deg.  20 deg. (i.e., section C-C of Figure 1 in appendix 
B of this subpart). The holes should be sized such that each has 
approximately the same flow. If only three holes are used, they may not 
all be in the same radial plane.
    (3) The exhaust gas probe must be located in a position which yields 
a well mixed, homogeneous sample of the engine exhaust. The probe must 
extend radially through the exhaust duct prior to where the exhaust 
mixes with the cooling water. The cooling water flow may be rerouted if 
necessary to obtain an emission sample provided that the modification 
has no significant effect on the performance or emissions 
characteristics of the engine. The probe must pass through the 
approximate center and must extend across at least 80 percent of the 
diameter of the duct. The exact position of the probe may vary from 
engine family to engine family.
    (c) Sample transfer line. (1) The maximum inside diameter of the 
sample line shall not exceed 1.32 cm.
    (2) If valve V2 in Figure 1 of appendix B of Subpart D of this part 
is used, the sample probe must connect directly to valve V2 in Figure 1 
of appendix B of subpart D of this part. The location of optional valve 
V2 may not be greater than 1.22 m from the exhaust duct.
    (3) The location of optional valve V16 in Figure 1 of appendix B of 
subpart D of this part may not be greater than 61 cm from the sample 
pump. The leakage rate for this section on the pressure side of the 
sample pump may not exceed the leakage rate specification for the vacuum 
side of the pump.
    (d) Venting. All vents including analyzer vents, bypass flow, and 
pressure relief vents of regulators should be vented in such a manner to 
avoid endangering personnel in the immediate area.
    (e) Any variation from the specifications in this subpart including 
performance specifications and emission detection methods may be used 
only with prior approval by the Administrator.
    (f) Additional components, such as instruments, valves, solenoids, 
pumps, switches, and so forth, may be employed to provide additional 
information and coordinate the functions of the component systems.
    (g) The following requirements must be incorporated in each system 
used for raw testing under this subpart.
    (1) Take the sample for all components with one sample probe and 
split it internally to the different analyzers.
    (2) Heat the sample transport system from the engine exhaust pipe to 
the HC analyzer for the raw gas sampling method as indicated in Figure 1 
in appendix B of subpart D of this part. The NOX analyzer for 
the raw gas sampling method may be heated as indicated in Figure 1 in 
appendix B of subpart D of this part. The HC analyzer and the 
NOX analyzer for the dilute sampling method may be heated as 
indicated in Figure 1 in appendix B of subpart D of this part.



Sec. 91.415  Raw gaseous sampling procedures.

    Fit all heated sampling lines with a heated filter to extract solid 
particles from the flow of gas required for analysis. The sample line 
for HC measurement must be heated. The sample line for CO, 
CO2, and NOX may be heated or unheated.



Sec. 91.416  Intake air flow measurement specifications.

    (a) If used, the engine intake air flow measurement method used must 
have a range large enough to accurately measure the air flow over the 
engine operating range during the test. Overall measurement accuracy 
must be  2 percent of full-scale value of the measurement 
device for all modes except the idle mode. For the idle mode, the 
measurement accuracy shall be # 5 percent or less of the 
full-scale value. The Administrator must be advised of the method used 
prior to testing.
    (b) When an engine system incorporates devices that affect the air 
flow measurement (such as air bleeds, air injection, pulsed air, and so 
forth) that result in understated exhaust emission results, make 
corrections to the exhaust emission results to account for such effects.

[[Page 334]]



Sec. 91.417  Fuel flow measurement specifications.

    (a) Fuel flow measurement is required only for raw testing but is 
allowed for dilute testing.
    (b) The fuel flow rate measurement instrument must have a minimum 
accuracy of  2 percent of full-scale flow rate for each 
measurement range used.



Sec. 91.418  Data evaluation for gaseous emissions.

    For the evaluation of the gaseous emissions recording, record the 
last two minutes of each mode and determine the average values for HC, 
CO, CO2, and NOX during each mode from the average 
concentration readings determined from the corresponding calibration 
data.



Sec. 91.419  Raw emission sampling calculations.

    (a) Derive the final test results through the steps described in 
this section.
    (b) Air and fuel flow method. If both air and fuel flow mass rates 
are measured, the following equations are used to determine the weighted 
emission values for the test engine:
[GRAPHIC] [TIFF OMITTED] TR04OC96.015

Where:
WHC = Mass rate of HC in exhaust [g/hr],
GAIRD = Intake air mass flow rate on dry basis [g/hr],
GFUEL = Fuel mass flow rate [g/hr],
MHCexh = Molecular weight of hydrocarbons in the exhaust; see 
the following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.016

Where:
=Hydrocarbon/carbon atomic ratio of the fuel.
Mexh=Molecular weight of the total exhaust; see the following 
equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.017

Where:
WHC = HC volume concentration in exhaust, ppmC wet
WCO = CO percent concentration in the exhaust, wet
DCO = CO percent concentration in the exhaust, dry
WCO2 = CO2 percent concentration in the exhaust, 
wet

[[Page 335]]

DCO2 = CO2 percent concentration in the exhaust, 
dry
WNOX = NO volume concentration in exhaust, ppm wet
WH2 = H2 percent concentration in exhaust, wet
K = correction factor to be used when converting dry measurements to a 
wet basis. Therefore, wet concentration = dry concentration  x  K, where 
K is:
[GRAPHIC] [TIFF OMITTED] TR04OC96.018

DH2 = H2 percent concentration in exhaust, dry, 
calculated from the following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.019

WCO = Mass rate of CO in exhaust, [g/hr]
MCO = Molecular weight of CO = 28.01
WNOx = Mass rate of NOX in exhaust, [g/hr]
MNO2 = Molecular weight of NO2 = 46.01
KH = Factor for correcting the effects of humidity on 
NO2 formation for four-stroke gasoline engines; see the 
equation below:
[GRAPHIC] [TIFF OMITTED] TR04OC96.020

Where:
H = specific humidity of the intake air in grams of moisture per 
kilogram of dry air.
    For two-stroke gasoline engines, KH should be set to 1.
    (c) Fuel flow method. The following equations are to be used when 
fuel flow is selected as the basis for mass emission calculations using 
the raw gas method.
[GRAPHIC] [TIFF OMITTED] TR04OC96.021

Where:
WHC = Mass rate of HC in exhaust, [g/hr]
MF = Molecular weight of test fuel; see following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.022

GFUEL = Fuel mass flow rate, [g/hr]
TC = Total carbon; see following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.023

WHC = HC volume concentration in exhaust, ppmC wet
WCO = CO percent concentration in the exhaust, wet
DCO = CO percent concentration in the exhaust, dry
WCO2 = CO2 percent concentration in the exhaust, 
wet
DCO2 = CO2 percent concentration in the exhaust, 
dry
WNOx = NO volume concentration in exhaust, ppm wet
WH2 = H2 percent concentration in exhaust, wet
K = correction factor to be used when converting dry measurements to a 
wet basis. Therefore, wet concentration = dry concentration  x  K, where 
K is:

[[Page 336]]

[GRAPHIC] [TIFF OMITTED] TR04OC96.024

DH2 = H2 percent concentration in exhaust, dry, 
calculated from the following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.025

WCO = Mass rate of CO in exhaust, [g/hr]
MCO = Molecular weight of CO = 28.01
WNOx = Mass rate of NOX in exhaust, [g/hr]
MNO2 = Molecular weight of NO2 = 46.01
KH = Factor for correcting the effects of humidity on 
NO2 formation for four-stroke gasoline engines; see the 
equation below:
[GRAPHIC] [TIFF OMITTED] TR04OC96.026

Where:
H = specific humidity of the intake air in grams of moisture per 
kilogram of dry air.
    For two-stroke gasoline engines, KH should be set to 1.
    (d) The final reported emission test results must be computed by 
using the following formula for each individual gas component:
[GRAPHIC] [TIFF OMITTED] TR04OC96.027

Where:
Ywm = Weighted mass emission level (HC, CO, NOx) 
for a test [g/kW-hr].
Wi = Average mass flow rate (WHC, WCO, 
WNOx) of an emission from the test engine during mode i, [g/
hr].
fi = Weighting factors for each mode according to 
Sec. 91.410(a)
Pi = Average power measured during mode i, [kW], calculated 
according to the formula given in Sec. 91.423(b). Power for the idle 
mode shall always be zero for this calculation.
    (e) The final reported weighted brake-specific fuel consumption 
(WBSFC) shall be computed by use of the following formula:
[GRAPHIC] [TIFF OMITTED] TR04OC96.028

Where:
WBSFC = Weighted brake-specific fuel consumption in grams of fuel per 
kilowatt-hour (g/kW-hr).
Fi = Fuel mass flow rate of the engine during mode i, [g/hr].
fi = Weighting factors for each mode according to 
Sec. 91.410(a)
Pi = Average power measured during mode i, [kW], calculated 
according to the formula given in Sec. 91.423(b). Power for the idle 
mode shall always be zero for this calculation.



Sec. 91.420  CVS concept of exhaust gas sampling system.

    (a) A dilute exhaust sampling system is designed to directly measure 
the true mass of emissions in engine exhaust without the necessity of 
measuring either fuel flow or intake air flow. This is accomplished by 
diluting the exhaust produced by an engine under test with ambient 
background air and measuring the total diluted exhaust flow rate and the 
concentration of emissions within the dilute flow. Total mass flow of an 
emission is then easily calculated.
    (b) A constant volume sampler (CVS) is typically used to control the 
total amount of dilute flow through the system. As the name implies, a 
CVS restricts flow to a known value dependent only on the dilute exhaust 
temperature and pressure.
    (c) For the testing described in this subpart, a CVS must consist 
of: A mixing tunnel into which the engine exhaust and dilutant 
(background) air are dumped; a dilute exhaust flow metering system; a 
dilute exhaust sample port; a background sample port; a dilute exhaust 
sampling system; and a background sampling system.
    (1) Mixing tunnel. The mixing tunnel must be constructed such that 
complete mixing of the engine exhaust and background air is assured 
prior to the sampling probe.
    (2) Exhaust flow metering system. A dilute exhaust flow metering 
system must be used to control the total flow rate of the dilute engine 
exhaust as described in Sec. 91.421.
    (3) Exhaust sample port. A dilute exhaust sample port must be 
located in or downstream of the mixing tunnel at a point where complete 
mixing of the

[[Page 337]]

engine exhaust and background air is assured.
    (4) Background sample port. A dilute background sample port must be 
located in the stream of background air before it is mixed with the 
engine exhaust. The background probe must draw a representative sample 
of the background air during each sampling mode.
    (5) Exhaust sampling system. The dilute exhaust sampling system 
controls the flow of samples from the mixing tunnel to the analyzer 
system. This could be either a continuous sampling system or grab (bag) 
sampling system. If a critical flow venturi (CFV) is used on the dilute 
exhaust sample probe, this system must assure that the sample CFV is in 
choke flow during testing. If no CFV is used, this system must assure a 
constant volumetric flow rate through the dilute exhaust sample probe or 
must incorporate electronic flow compensation.
    (6) Background sampling system. The background sampling system 
controls the flow of samples from the background air supply to the 
analyzer system. This could be either a continuous sampling system or 
grab (bag) sampling system. This system must assure a constant 
volumetric flow rate through the background sample probe.



Sec. 91.421  Dilute gaseous exhaust sampling and analytical system description.

    (a) General. The exhaust gas sampling system described in this 
section is designed to measure the true mass emissions of engine 
exhaust. This system utilizes the Constant volume Sampling (CVS) concept 
(described in Sec. 91.420) of measuring mass emissions of HC, 
NOx, CO, and CO2. Grab sampling for individual 
modes is an acceptable method of dilute testing for all constituents, 
HC, NOx, CO, and CO2. Continuous dilute sampling 
is not required for any of the exhaust constituents, but is allowable 
for all. Heated sampling is not required for any of the constituents, 
but is allowable for HC and NOx. The mass of gaseous 
emissions is determined from the sample concentration and total flow 
over the test period. As an option, the measurement of total fuel mass 
consumed over a cycle may be substituted for the exhaust measurement of 
CO2. General requirements are as follows:
    (1) This sampling system requires the use of a Positive Displacement 
Pump--Constant Volume Sampler (PDP-CVS) system with a heat exchanger, or 
a Critical Flow Venturi--Constant Volume Sampler (CFV-CVS) system with 
CVS sample probes and/or a heat exchanger or electronic flow 
compensation. Figure 2 in appendix B of this subpart is a schematic 
drawing of the PDP-CVS system. Figure 3 in appendix B of this subpart is 
a schematic drawing of the CFV-CVS system.
    (2) The HC analytical system requires:
    (i) Grab sampling (see Sec. 91.420, and Figure 2 or Figure 3 in 
appendix B of this subpart) and analytical capabilities (see 
Sec. 91.423, and Figure 4 in appendix B of this subpart), or
    (ii) Continuously integrated measurement of diluted HC meeting the 
minimum requirements and technical specifications contained in paragraph 
(b)(2) of this section.
    (iii) The dilute HC analytical system for marine spark-ignition 
engines does not require a heated flame ionization detector (HFID).
    (iv) If used, the HFID sample must be taken directly from the 
diluted exhaust stream through a heated probe and integrated 
continuously over the test cycle.
    (v) The heated probe must be located in the sampling system far 
enough downstream of the mixing area to ensure a uniform sample 
distribution across the CVS duct at the sampling zone.
    (3) The CO and CO2 analytical system requires:
    (i) Grab sampling (see Sec. 91.420, and Figure 2 or Figure 3 in 
appendix B of this subpart) and analytical capabilities (see 
Sec. 91.423, and Figure 4 in appendix B of this subpart), or
    (ii) Continuously integrated measurement of diluted CO and 
CO2 meeting the minimum requirements and technical 
specifications contained in paragraph (b)(4) of this section.
    (4) The NOX analytical system requires:
    (i) Grab sampling (see Sec. 91.420, and Figure 2 or Figure 3 in 
appendix B of

[[Page 338]]

this subpart) and analytical capabilities (see Sec. 91.423, and Figure 4 
in appendix B of this subpart), or
    (ii) A continuously integrated measurement of diluted NOX 
meeting the minimum requirements and technical specifications contained 
in paragraph (b)(4) of this section.
    (5) Since various configurations can produce equivalent results, 
exact conformance with these drawings is not required. Additional 
components such as instruments, valves, solenoids, pumps, and switches 
may be used to provide additional information and coordinate the 
functions of the component systems. Other components, such as snubbers, 
which are not needed to maintain accuracy on some systems, may be 
excluded if their exclusion is based upon good engineering judgment.
    (6) Other sampling and/or analytical systems may be used if shown to 
yield equivalent results and if approved in advance by the 
Administrator.
    (b) Component description. The components necessary for exhaust 
sampling must meet the following requirements:
    (1) Exhaust dilution system. The PDP-CVS must conform to all of the 
requirements listed for the exhaust gas PDP-CVS in Sec. 91.420 of this 
chapter. The CFV-CVS must conform to all of the requirements listed for 
the exhaust gas CFV-CVS in Sec. 91.420. In addition, the CVS must 
conform to the following requirements:
    (i) The flow capacity of the CVS must be sufficient to maintain the 
diluted exhaust stream in the dilution system at a temperature of 190 
deg.C or less at the sampling zone for hydrocarbon measurement and as 
required to prevent condensation at any point in the dilution system. 
Gaseous emission samples may be taken directly from this sampling point.
    (ii) For the CFV-CVS, either a heat exchanger or electronic flow 
compensation is required (see Figure 3 in appendix B of this subpart).
    (iii) For the CFV-CVS when a heat exchanger is used, the gas mixture 
temperature, measured at a point immediately ahead of the critical flow 
venturi, must be within 11  deg.C of the average operating 
temperature observed during the test with the simultaneous requirement 
that condensation does not occur. The temperature measuring system 
(sensors and readout) must have an accuracy and precision of 
2  deg.C. For systems utilizing a flow compensator to 
maintain proportional flow, the requirement for maintaining constant 
temperature is not necessary.
    (2) Continuous HC measurement system. (i) The continuous HC sample 
system (as shown in Figure 2 or 3 in appendix B of this subpart) uses an 
``overflow'' zero and span system. In this type of system, excess zero 
or span gas spills out of the probe when zero and span checks of the 
analyzer are made.
    (ii) No other analyzers may draw a sample from the continuous HC 
sample probe, line, or system, unless a common sample pump is used for 
all analyzers and the sample line system design reflects good 
engineering practice.
    (iii) The overflow gas flow rates into the sample line must be at 
least 105 percent of the sample system flow rate.
    (iv) The overflow gases must enter the sample line as close as 
practical to the outside surface of the CVS duct or dilution system.
    (v) The continuous HC sampling system consists of a probe (which for 
a HFID analyzer must raise the sample to the specified temperature) and, 
where used, a sample transfer system (which for a HFID must maintain the 
specified temperature). The HFID continuous hydrocarbon sampling system 
(exclusive of the probe) must:
    (A) Maintain a wall temperature of 190  11  deg.C as 
measured at every separately controlled heated component (that is, 
filters, heated line sections), using permanent thermocouples located at 
each of the separate components.
    (B) Have a wall temperature of 190  11  deg.C over its 
entire length. The temperature of the system is demonstrated by 
profiling the thermal characteristics of the system where possible at 
initial installation and after any major maintenance performed on the 
system. The profiling is to be accomplished using the insertion 
thermocouple probing technique. The system temperature must be monitored 
continuously during testing at the locations and temperature described 
in Sec. 91.421(b)(2).

[[Page 339]]

    (C) Maintain a gas temperature of 190  11  deg.C 
immediately before the heated filter and HFID. Determine these gas 
temperatures by a temperature sensor located immediately upstream of 
each component.
    (vi) The continuous hydrocarbon sampling probe:
    (A) Is defined as the first 25.4 to 76.2 cm of the continuous 
hydrocarbon sampling system.
    (B) Has a 0.483 cm minimum inside diameter.
    (C) Is installed in the dilution system at a point where the 
dilution air and exhaust are well mixed and provide a homogenous 
mixture.
    (D) Is sufficiently distant (radially) from other probes and the 
system wall so as to be free from the influence of any wakes or eddies.
    (E) For a continuous HFID sample probe, the probe must increase the 
gas stream temperature to 190  11  deg.C at the exit of the 
probe. Demonstrate the ability of the probe to accomplish this using the 
insertion thermocouple technique at initial installation and after any 
major maintenance. Demonstrate compliance with the temperature 
specification by continuously recording during each test the temperature 
of either the gas stream or the wall of the sample probe at its 
terminus.
    (vii) The response time of the continuous measurement system must be 
taken into account when logging test data.
    (3) Sample mixing. (i) configure the dilution system to ensure a 
well mixed, homogeneous sample prior to the sampling probe(s).
    (ii) Make the temperature of the diluted exhaust stream inside the 
dilution system sufficient to prevent water condensation.
    (iii) Direct the engine exhaust downstream at the point where it is 
introduced into the dilution system.
    (4) Continuously integrated NOX, CO, and CO2 
measurement systems. (i) Sample probe requirements:
    (A) The sample probe for continuously integrated NOX, CO, 
and CO2 must be in the same plane as the continuous HC probe, 
but sufficiently distant (radially) from other probes and the tunnel 
wall so as to be free from the influences of any wakes or eddies.
    (B) The sample probe for continuously integrated NOX, CO, 
and CO2 must be heated and insulated over the entire length, 
to prevent water condensation, to a minimum temperature of 55  deg.C. 
Sample gas temperature immediately before the first filter in the system 
must be at least 55  deg.C.
    (ii) Conform to the continuous NOX, CO, or CO2 
sampling and analysis system to the specifications of part 86, subpart D 
of this chapter with the following exceptions and revisions:
    (A) Heat the system components requiring heating only to prevent 
water condensation, the minimum component temperature is 55  deg.C.
    (B) Coordinate analysis system response time with CVS flow 
fluctuations and sampling time/test cycle offsets, if necessary.
    (C) Use only analytical gases conforming to the specifications of 
Sec. 91.312 for calibration, zero and span checks.
    (D) Use a calibration curve conforming to Sec. 91.321 for CO and 
CO2 and Sec. 91.318 for NOX for any range on a 
linear analyzer below 155 ppm.
    (iii) Convert the chart deflections or voltage output of analyzers 
with non-linear calibration curves to concentration values by the 
calibration curve(s) specified in Sec. 91.321 before flow correction (if 
used) and subsequent integration takes place.



Sec. 91.423  Exhaust gas analytical system; CVS grab sample.

    (a) Schematic drawings. Figure 4 in appendix B of this subpart is a 
schematic drawing of the exhaust gas analytical system used for 
analyzing CVS grab ``bag'' samples from spark-ignition engines. Since 
various configurations can produce accurate results, exact conformance 
with the drawing is not required. Additional components such as 
instruments, valves, solenoids, pumps and switches may be used to 
provide additional information and coordinate the functions of the 
component systems. Other components such as snubbers, which are not 
needed to maintain accuracy in some systems, may be excluded if their 
exclusion is based on good engineering judgement.
    (b) Major component description. The analytical system, Figure 4 in 
Appendix B of this subpart, consists of a

[[Page 340]]

flame ionization detector (FID) or a heated flame ionization detector 
(HFID) for the measurement of hydrocarbons, nondispersive infrared 
analyzers (NDIR) for the measurement of carbon monoxide and carbon 
dioxide, and a chemiluminescence detector (CLD) (or heated CLD (HCLD)) 
for the measurement of oxides of nitrogen. The exhaust gas analytical 
system shall conform to the following requirements:
    (1) The CLD (or HCLD) requires that the nitrogen dioxide present in 
the sample be converted to nitric oxide before analysis. Other types of 
analyzers may be used if shown to yield equivalent results and if 
approved in advance by the Administrator.
    (2) If CO instruments are used which are essentially free of 
CO2 and water vapor interference, the use of the conditioning 
column may be deleted. (See Secs. 91.317 and 91.320.)
    (3) A CO instrument will be considered to be essentially free of 
CO2 and water vapor interference if its response to a mixture 
of three percent CO2 in N2, which has been bubbled 
through water at room temperature, produces an equivalent CO response, 
as measured on the most sensitive CO range, which is less than one 
percent of full scale CO concentration on ranges above 300 ppm full 
scale or less than 3 ppm on ranges below 300 ppm full scale. (See 
Sec. 91.317.)
    (c) Alternate analytical systems. Analysis systems meeting the 
specifications and requirements of this subpart for dilute sampling may 
be used upon approval of the Administrator.
    (d) Other analyzers and equipment. Other types of analyzers and 
equipment may be used if shown to yield equivalent results and if 
approved in advance by the Administrator.



Sec. 91.424  Dilute sampling procedure--CVS calibration.

    (a) The CVS is calibrated using an accurate flowmeter and restrictor 
valve. (1) The flowmeter calibration shall be traceable to the National 
Institute for Standards and Testing (NIST), and will serve as the 
reference value (NIST ``true'' value) for the CVS calibration.)
    Note: In no case should an upstream screen or other restriction 
which can affect the flow be used ahead of the flowmeter unless 
calibrated throughout the flow range with such a device.)
    (2) The CVS calibration procedures are designed for use of a 
``metering venturi'' type flowmeter. Large radius or American Society of 
Mechanical Engineers (ASME) flow nozzles are considered equivalent if 
traceable to NIST measurements. Other measurement systems may be used if 
shown to be equivalent under the test conditions in this section and 
traceable to NIST measurements.
    (3) Measurements of the various flowmeter parameters are recorded 
and related to flow through the CVS.
    (4) Procedures used by EPA for both PDP-CVS and CFV-CVS are outlined 
below. Other procedures yielding equivalent results may be used if 
approved in advance by the Administrator.
    (b) After the calibration curve has been obtained, verification of 
the entire system may be performed by injecting a known mass of gas into 
the system and comparing the mass indicated by the system to the true 
mass injected. An indicated error does not necessarily mean that the 
calibration is wrong, since other factors can influence the accuracy of 
the system (e.g., analyzer calibration, leaks, or HC hangup). A 
verification procedure is found in paragraph (e) of this section.
    (c) PDP-CVS calibration. (1) The following calibration procedure 
outlines the equipment, the test configuration, and the various 
parameters which must be measured to establish the flow rate of the CVS 
pump.
    (i) All the parameters related to the pump are simultaneously 
measured with the parameters related to a flowmeter which is connected 
in series with the pump.
    (ii) The calculated flow rate, in cm3/s, (at pump inlet 
absolute pressure and temperature) can then be plotted versus a 
correlation function which is the value of a specific combination of 
pump parameters.
    (iii) The linear equation which relates the pump flow and the 
correlation function is then determined.
    (iv) In the event that a CVS has a multiple speed drive, a 
calibration for each range used must be performed.
    (2) This calibration procedure is based on the measurement of the 
absolute values of the pump and flowmeter parameters that relate the 
flow rate at

[[Page 341]]

each point. Two conditions must be maintained to assure the accuracy and 
integrity of the calibration curve:
    (i) The temperature stability must be maintained during calibration. 
(Flowmeters are sensitive to inlet temperature oscillations; this can 
cause the data points to be scattered. Gradual changes in temperature 
are acceptable as long as they occur over a period of several minutes.)
    (ii) All connections and ducting between the flowmeter and the CVS 
pump must be absolutely void of leakage.
    (3) During an exhaust emission test the measurement of these same 
pump parameters enables the user to calculate the flow rate from the 
calibration equation.
    (4) Connect a system as shown in Figure 5 in appendix B of this 
subpart. Although particular types of equipment are shown, other 
configurations that yield equivalent results may be used if approved in 
advance by the Administrator. For the system indicated, the following 
measurements and accuracies are required:

                                          Calibration Data Measurements
----------------------------------------------------------------------------------------------------------------
                                                                                              Sensor-readout
              Parameter                         Symbol                   Units                  tolerances
----------------------------------------------------------------------------------------------------------------
Barometric pressure (corrected)......  PB.....................  kPa....................   0.34 kPa
Ambient temperature..................  TEI....................    deg.C................   0.28
                                                                                          deg.C
Air temperature into metering venturi  TEI....................    deg.C................   1.11
                                                                                          deg.C
Pressure drop between the inlet and    PED....................  kPa....................   0.012 kPa
 throat of metering venturi.
Air flow.............................  QS.....................  m3/min.................   0.5
                                                                                          percent of NIST value
Air temperature at CVS pump inlet....  PTI....................    deg.C................   1.11
                                                                                          deg.C
Pressure depression at CVS pump inlet  PPI....................  kPa....................   0.055 kPa
Pressure head at CVS pump outlet.....  PPO....................  kPa....................   0.055 kPa
Air temperature at CVS pump outlet     PTO....................    deg.C................  &
                                                                                          1.11  deg.C
Pump revolutions during test period..  N......................  Revs...................   1 Rev.
Elapsed time for test period.........  t......................  s......................   0.5 s.
----------------------------------------------------------------------------------------------------------------

    (5) After the system has been connected as shown in Figure 5 of 
appendix B of this subpart, set the variable restrictor in the wide open 
position and run the CVS pump for 20 minutes. Record the calibration 
data.
    (6) Reset the restrictor valve to a more restricted condition in an 
increment of pump inlet depression that will yield a minimum of six data 
points for the total calibration. Allow the system to stabilize for 3 
minutes and repeat the data acquisition.
    (7) Data analysis:
    (i) The air flow rate, Qs, at each test point is 
calculated in standard cubic feet per minute 20  deg.C, 101.3 kPa from 
the flowmeter data using the manufacturer's prescribed method.
    (ii) The air flow rate is then converted to pump flow, 
Vo, in cubic meter per revolution at absolute pump inlet 
temperature and pressure:
[GRAPHIC] [TIFF OMITTED] TR04OC96.029

Where:
VO=Pump flow, m3/rev at TP, 
PP,
QS=Meter air flow rate in standard cubic meters per minute, 
standard conditions are 20  deg.C, 101.3 kPa.
n=Pump speed in revolutions per minute.
Tp=Pump inlet temperature in Kelvin,=PTI+273 
[ deg.K].
PP=Absolute pump inlet pressure, kPa.
=PP-PPI
Where:
PP=barometric pressure, kPa.
PPI=Pump inlet depression, kPa.

    (iii) The correlation function at each test point is then calculated 
from the calibration data:
[GRAPHIC] [TIFF OMITTED] TR04OC96.030

Where:
XO=correlation function.
p = The pressure differential from pump inlet to 
pump outlet, kPa.
=PE-PP.
PE=Absolute pump outlet pressure, [kPa]
=PB+PPO
Where:

[[Page 342]]

PPO=Pressure head at pump outlet, kPa (inches fluid).

    (iv) A linear least squares fit is performed to generate the 
calibration equation which has the form:

VO = DO - M(XO)

DO and M are the intercept and slope constants, respectively, 
describing the regression line.

    (8) A CVS system that has multiple speeds should be calibrated on 
each speed used. The calibration curves generated for the ranges will be 
approximately parallel and the intercept values, DO, will increase as 
the pump flow range decreases.
    (9) If the calibration has been performed carefully, the calculated 
values from the equation will be within  0.50 percent of the 
measured value of VO. Values of M will vary from one pump to 
another, but values of DO for pumps of the same make, model 
and range should agree within  three percent of each other. 
Calibrations should be performed at pump start-up and after major 
maintenance to assure the stability of the pump slip rate. Analysis of 
mass injection data will also reflect pump slip stability.
    (d) CFV-CVS calibration. (1) Calibration of the CFV is based upon 
the flow equation for a critical venturi.
    (i) Gas flow is a function of inlet pressure and temperature:
    [GRAPHIC] [TIFF OMITTED] TR04OC96.031
    
QS=flow rate [m3/min.].
KV=calibration coefficient.
P=absolute pressure [kPa].
TK=absolute temperature [ deg.K].

    (ii) The calibration procedure described in paragraph (d)(3) of this 
section establishes the value of the calibration coefficient at measured 
values of pressure, temperature and air flow.
    (2) The manufacturer's recommended procedure shall be followed for 
calibrating electronic portions of the CFV.
    (3) Measurements necessary for flow calibration are as follows:

                                          Calibration Data Measurements
----------------------------------------------------------------------------------------------------------------
              Parameter                         Symbol                   Units                  Tolerances
----------------------------------------------------------------------------------------------------------------
Barometric Pressure (corrected)......  PB.....................  kPa....................   0.34 kPa
Air Temperature into flow meter......  TEI....................    deg.C................   0.28
                                                                                          deg.C
Pressure drop between the inlet and    PED....................  kPa....................   0.012 kPa
 throat of metering venturi.
Air flow.............................  QS.....................  m3/min.................   0.5
                                                                                          percent of NIST value
CVS inlet depression.................  PPI....................  kPa....................   0.055 kPa
Pressure head at CVS pump outlet.....  PPO....................  kPa....................   0.055 kPa
Temperature at venturi inlet.........  TV.....................    deg.C................   2.22
                                                                                          deg.C
----------------------------------------------------------------------------------------------------------------

    (4) Set up equipment as shown in Figure 6 in appendix B of this 
subpart and eliminate leaks. (Leaks between the flow measuring devices 
and the critical flow venturi will seriously affect the accuracy of the 
calibration.)
    (5) Set the variable flow restrictor to the open position, start the 
blower, and allow the system to stabilize. Record data from all 
instruments.
    (6) Vary the flow restrictor and make at least eight readings across 
the critical flow range of the venturi.
    (7) Data analysis. The data recorded during the calibration are to 
be used in the following calculations:
    (i) The air flow rate (designated as Qs) at each test 
point is calculated in standard cubic feet per minute from the flow 
meter data using the manufacturer's prescribed method.
    (ii) Calculate values of the calibration coefficient for each test 
point:
[GRAPHIC] [TIFF OMITTED] TR04OC96.032

QS=Flow rate in standard cubic meter per minute, at the 
standard conditions of 20  deg.C, 101.3 kPa.
TV=Temperature at venturi inlet,  deg.K.
PV=Pressure at venturi inlet, kPA
=PB-PPI

Where:

PPI = Venturi inlet pressure depression, kPa.

    (iii) Plot KV as a function of venturi inlet pressure. 
For choked flow, KV will have a relatively constant value. As

[[Page 343]]

pressure decreases (vacuum increases), the venturi becomes unchoked and 
KV decreases. (See Figure 7 in appendix B of this subpart)
    (iv) For a minimum of eight points in the critical region calculate 
an average KV and the standard deviation.
    (v) If the standard deviation exceeds 0.3 percent of the average 
KV, take corrective action.
    (e) CVS system verification. The following ``gravimetric'' technique 
can be used to verify that the CVS and analytical instruments can 
accurately measure a mass of gas that has been injected into the system. 
(Verification can also be accomplished by constant flow metering using 
critical flow orifice devices.)
    (1) Obtain a small cylinder that has been charged with 99.5 percent 
or greater propane or carbon monoxide gas (CAUTION--carbon monoxide is 
poisonous).
    (2) Determine a reference cylinder weight to the nearest 0.01 grams.
    (3) Operate the CVS in the normal manner and release a quantity of 
pure propane into the system during the sampling period (approximately 
five minutes).
    (4) The calculations are performed in the normal way except in the 
case of propane. The density of propane (0.6109 kg/m\3\carbon atom is 
used in place of the density of exhaust hydrocarbons.
    (5) The gravimetric mass is subtracted from the CVS measured mass 
and then divided by the gravimetric mass to determine the percent 
accuracy of the system.
    (6) Good engineering practice requires that the cause for any 
discrepancy greater than  2 percent must be found and 
corrected.



Sec. 91.425  CVS calibration frequency.

    Calibrate the CVS positive displacement pump or critical flow 
venturi following initial installation, major maintenance or as 
necessary when indicated by the CVS system verification (described in 
Sec. 91.424(e)).



Sec. 91.426  Dilute emission sampling calculations.

    (a) The final reported emission test results must be computed by use 
of the following formula:
[GRAPHIC] [TIFF OMITTED] TR04OC96.033

Where:

Awm=Weighted mass emission level (HC, CO, CO2, or 
NOX) for a test [g/kW-hr].
Wi=Average mass flow rate of an emission from a test engine 
during mode i [g/hr].
WFi = Weighting factor for each mode i as defined in 
Sec. 91.410(a).
Pi = Gross average power generated during mode i [kW] 
calculated from the following equation (power for the idle mode shall 
always be zero for this calculation):
[GRAPHIC] [TIFF OMITTED] TR04OC96.034

speed = average engine speed measured during mode i [rev./minute]
torque = average engine torque measured during mode i [N-m]
KHi = Humidity correction factor for mode i. This correction 
factor only affects calculations for NOX and is equal to one 
for all other emissions. KHi is also equal to one for all 
two-stroke engines.
    (b) The mass flow rate (Wi) of an emission for mode i is 
determined from the following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.035

Where:
Qi = Volumetric flow rate of the dilute exhaust through the 
CVS at standard conditions [m3/hr at STP].
D = Density of a specific emission (DHC, DCO, 
DCO2, DNOx) in the exhaust [g/m3].
DFi = Dilution factor of the dilute exhaust during mode i.
CDi = Concentration of the emission (HC, CO, NOX) 
in the dilute exhaust extracted from the CVS during mode i [ppm].
CBi = Concentration of the emission (HC, CO, NOX) 
in the background sample during mode i [ppm].
STP = Standard temperature and pressure. All volumetric calculations 
made for the equations in this section are to be corrected to a standard 
temperature of 20  deg.C and 101.3 kPa.

    (c) Densities for emissions that are to be measured for this test 
procedure are:

DHC = 576.8 g/m3
DNOX = 1912 g/m3
DCO = 1164 g/m3
DCO2 = 1829 g/m3


[[Page 344]]


    (1) The value of DHC above is calculated based on the 
assumption that the fuel used has a carbon to hydrogen ratio of 1:1.85. 
For other fuels, DHC can be calculated from the following 
formula:
[GRAPHIC] [TIFF OMITTED] TR04OC96.036

Where:
MHC = Molecular weight of the hydrocarbon molecule divided by 
the number of carbon atoms in the molecule [g/mole].
RSTP = Ideal gas constant for a gas at STP = 0.024065 
[m3-mole].

    (2) The idealized molecular weight of the exhaust hydrocarbons, ie., 
the molecular weight of the hydrocarbon molecule divided by the number 
of carbon atoms in the molecule, MHC can be calculated from 
the following formula:
[GRAPHIC] [TIFF OMITTED] TR04OC96.037

Where:
MC = Molecular weight of carbon = 12.01 [g/mole].
MH = Molecular weight of hydrogen = 1.008 [g/mole].
 = Hydrogen to carbon ratio of the test fuel.

    (3) The value of DNOx above assumes that NOX 
in entirely in the form of NO2.
    (d) The dilution factor (DF) is the ratio of the volumetric flow 
rate of the background air to that of the raw engine exhaust. The 
following formula is used to determine DF:
[GRAPHIC] [TIFF OMITTED] TR04OC96.038

Where:
CDHC = Concentration of HC in the dilute sample [ppm].
CDCO = Concentration of CO in the dilute sample [ppm].
CDCO2 = Concentration of CO2 in the dilute sample 
[ppm].

    (e) The humidity correction factor KH is an adjustment 
made to the measured NOX. This corrects for the sensitivity 
that a spark-ignition engine has to the humidity of its combustion air. 
The following formula is used to determine KH for 
NOX calculations:
[GRAPHIC] [TIFF OMITTED] TR04OC96.039

Where:
H = Absolute humidity of the engine intake air [grams of water per 
kilogram of dry air].

    (f) The absolute humidity of the engine intake air H is calculated 
using the following formula:
[GRAPHIC] [TIFF OMITTED] TR04OC96.040

Where:
Pdew = Saturated vapor pressure at the dew point temperature 
[kPa].
Pb = Barometric pressure [kPa].

    (g) The fuel mass flow rate Fi can be either measured or 
calculated using the following formula:
[GRAPHIC] [TIFF OMITTED] TR04OC96.041

Where:
Mf = Mass of fuel consumed by the engine during the mode [g].
T = Duration of the sampling period [hr].

    (h) The mass of fuel consumed during the mode sampling period, 
MFUEL can be calculated from the following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.042

Where:
GS = Mass of carbon measured during the mode sampling period 
[g].
R2 = The fuel carbon weight fraction, which is the mass of 
carbon in fuel per mass of fuel [g/g].

    (i) The grams of carbon measured during the mode GS can 
be calculated from the following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.043


[[Page 345]]


Where:
HCmass = mass of hydrocarbon emissions for the mode sampling 
period [g].
COmass = mass of carbon monoxide emissions for the mode 
sampling period [g].
CO2mass = mass of carbon dioxide emissions for the mode 
sampling period [g].
 = The atomic hydrogen to carbon ratio of the fuel.



Sec. 91.427  Catalyst thermal stress resistance evaluation.

    (a)(1) The purpose of the evaluation procedure specified in this 
section is to determine the effect of thermal stress on catalyst 
conversion efficiency. The thermal stress is imposed on the test 
catalyst by exposing it to quiescent heated air in an oven. The 
evaluation of the effect of such stress on catalyst performance is based 
on the resultant degradation of the efficiency with which the 
conversions of specific pollutants are promoted. The application of this 
evaluation procedure involves the several steps that are described in 
the following paragraphs.
    (2) The engine manufacturer need not submit catalyst conversion 
efficiency data for pollutants that the catalyst being tested was not 
designed to reduce/oxidize. The engine manufacturer must specify the 
pollutants that the catalyst will be converting and submit catalyst 
conversion efficiency data on only those pollutants.
    (b) Determination of initial conversion efficiency.
    (1) A synthetic exhaust gas mixture having the composition specified 
in Sec. 91.329 is heated to a temperature of 450 # 5  deg.C 
and passed through the new test catalyst or, optionally, a test catalyst 
that has been exposed to temperatures less than or equal to 500  deg.C 
for less than or equal to two hours, under flow conditions that are 
representative of anticipated in-use conditions.
    (2) The concentration of each pollutant of interest, that is, 
hydrocarbons, carbon monoxide, or oxides of nitrogen, in the effluent of 
the catalyst is determined by means of the instrumentation that is 
specified for exhaust gas analysis in subpart D of this part.
    (3) The conversion efficiency for each pollutant is determined by:
    (i) Subtracting the effluent concentration from the initial 
concentration,
    (ii) Dividing this result by the initial concentration,
    (iii) Multiplying this result by 100 percent.
    (c) Imposition of thermal stress.
    (1) The catalyst is placed in an oven that has been pre-heated to 
1000  deg.C and the temperature of the air in the oven is maintained at 
1000 # 10  deg.C for six hours. Optionally, the catalyst may 
instead be placed in an oven having a 90% nitrogen/10% water vapor 
environment that has been pre-heated to at least 850  deg.C and the 
temperature of the nitrogen/water vapor environment in the oven is 
maintained at 850  deg.C # 10  deg.C for six hours.
    (2) The catalyst is removed from the oven and allowed to cool to 
room temperature.
    (d) Determination of final conversion efficiency. The steps listen 
in paragraph (b) of this section are repeated.
    (e) Determination of conversion efficiency degradation.
    (1) The final conversion efficiency determined in paragraph (c) of 
this section is subtracted from the initial conversion efficiency 
determined in paragraph (b) of this section.
    (2) This result is divided by the initial conversion efficiency.
    (3) This result is multiplied by 100 percent.
    (f) Determination of compliance with degradation limit. The percent 
degradation determined in paragraph (e) of this section must not be 
greater than 20 percent.

               Appendix A to Subpart E of Part 91--Tables

      Table 1--Parameters To Be Measured or Calculated and Recorded
------------------------------------------------------------------------
                  Parameter                              Units
------------------------------------------------------------------------
Airflow rate (dry), if applicable...........  g/h
Fuel flow rate..............................  g/h
Engine speed................................  rpm
Engine torque output........................  N&. m
Power output................................  kW
Air inlet temperature.......................    deg.C
Air humidity................................  mg/kg
Coolant temperature (liquid cooled).........    deg.C
Exhaust mixing chamber surface temperature,     deg.C
 if applicable.
Exhaust sample line temperature, if             deg.C
 applicable.

[[Page 346]]

 
Total accumulated hours of engine operation.  h
Barometric pressure.........................  kPa
------------------------------------------------------------------------


      Table 2--Test Cycle and Weighting Factors for Marine Engines
------------------------------------------------------------------------
                                                     Engine
                                         Engine     torque as
                                       speed as a       a
                                       percentage  percentage     Mode
               Mode No.                 of engine  of maximum  weighting
                                          rated     torque at    factor
                                          speed       rated
                                                      speed
------------------------------------------------------------------------
1....................................         100       100         0.06
2....................................          80        71.6       0.14
3....................................          60        46.5       0.15
4....................................          40        25         0.25
5....................................        idle         0         0.40
------------------------------------------------------------------------


[[Page 347]]

               Appendix B to Subpart E of Part 91--Figures
      [GRAPHIC] [TIFF OMITTED] TR04OC96.044
      

[[Page 348]]


[GRAPHIC] [TIFF OMITTED] TR04OC96.045


[[Page 349]]


[GRAPHIC] [TIFF OMITTED] TR04OC96.046


[[Page 350]]


[GRAPHIC] [TIFF OMITTED] TR04OC96.047


[[Page 351]]


[GRAPHIC] [TIFF OMITTED] TR04OC96.048


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[GRAPHIC] [TIFF OMITTED] TR04OC96.049


[[Page 353]]


[GRAPHIC] [TIFF OMITTED] TR04OC96.050



         Subpart F--Manufacturer Production Line Testing Program



Sec. 91.501  Applicability.

    (a) The requirements of this subpart F are applicable to all marine 
spark-ignition engines subject to the provisions of subpart A of this 
part 91.
    (1) This subpart F applies to marine spark-ignition outboard engines 
beginning with model year 1999.
    (2) This subpart F applies to marine spark-ignition personal 
watercraft engines beginning with model year 2000.
    (b) The Administrator may waive the provisions of this subpart for a 
manufacturer or a specific engine family, as

[[Page 354]]

specified in paragraphs (b) (1), (2) and (3) of this section.
    (1) The provisions of this subpart are waived for existing 
technology OB/PWC through model year 2003.
    (2) Upon request by a manufacturer, the Administrator may waive the 
provisions of this subpart for existing technology OB/PWC for a specific 
engine family through model year 2005 if the Administrator determines 
that the engine family will be phased out of production for sale in the 
U.S. by the end of model year 2005. As a condition to receiving such a 
waiver for either model year 2004, 2005 or both, the manufacturer must 
discontinue production of engines for sale in the U.S. according to a 
schedule determined by the Administrator upon granting this waiver. 
Failure to do so by the manufacturer will void ab initio the applicable 
certificate of conformity.
    (3) A manufacturer request under paragraph (b)(2) of this section 
must be in writing and apply to a specific engine family. The request 
must identify the engine family designation, a written rationale 
supporting the FEL choice, the type of information used as a basis for 
the FEL (e.g., previous emission tests, development tests), the specific 
source of the information including when the information was generated, 
the requested schedule for phasing the engine family out of production, 
and any other information the Administrator may require.

[61 FR 52102, Oct. 4, 1996, as amended at 62 FR 15808, Apr. 2, 1997]



Sec. 91.502  Definitions.

    The definitions in subpart A of this part apply to this subpart. The 
following definitions also apply to this subpart.
    Configuration means any subclassification of an engine family which 
can be described on the basis of gross power, emission control system, 
governed speed, injector size, engine calibration, and other parameters 
as designated by the Administrator.
    Test sample means the collection of engines selected from the 
population of an engine family for emission testing.



Sec. 91.503  Production line testing by the manufacturer.

    (a) Manufacturers of marine SI engines shall test production line 
engines from each engine family according to the provisions of this 
subpart.
    (b) Production line engines must be tested using the test procedure 
specified in subpart E of this part that was used in certification 
unless an alternate procedure is approved by the Administrator. Any 
adjustable engine parameter must be set to values or positions that are 
within the range recommended to the ultimate purchaser, unless otherwise 
specified by the Administrator. The Administrator may specify values 
within or without the range recommended to the ultimate purchaser.



Sec. 91.504  Maintenance of records; submittal of information.

    (a) The manufacturer of any new marine SI engine subject to any of 
the provisions of this subpart must establish, maintain, and retain the 
following adequately organized and indexed records:
    (1) General records. A description of all equipment used to test 
engines in accordance with Sec. 91.503. Subpart D of this part sets 
forth relevant equipment requirements in Secs. 91.306, 91.308, 91.309, 
and 91.313.
    (2) Individual records. These records pertain to each production 
line test conducted pursuant to this subpart and include:
    (i) The date, time, and location of each test;
    (ii) The number of hours of service accumulated on the test engine 
when the test began and ended;
    (iii) The names of all supervisory personnel involved in the conduct 
of the production line test;
    (iv) A record and description of any adjustment, repair, preparation 
or modification performed prior to and/or subsequent to approval by the 
Administrator pursuant to Sec. 91.507(b)(1), giving the date, associated 
time, justification, name(s) of the authorizing personnel, and names of 
all supervisory personnel responsible for the conduct of the repair;
    (v) If applicable, the date the engine was shipped from the assembly 
plant,

[[Page 355]]

associated storage facility or port facility, and the date the engine 
was received at the testing facility;
    (vi) A complete record of all emission tests performed pursuant to 
this subpart (except tests performed directly by EPA), including all 
individual worksheets and/or other documentation relating to each test, 
or exact copies thereof, in accordance with the record requirements 
specified in Sec. 91.405.
    (vii) A brief description of any significant events during testing 
not otherwise described under paragraph (a)(2) of this section, 
commencing with the test engine selection process and including such 
extraordinary events as engine damage during shipment.
    (3) The manufacturer must establish, maintain and retain general 
records, pursuant to paragraph (a)(1) of this section, for each test 
cell that can be used to perform emission testing under this subpart.
    (b) The manufacturer must retain all records required to be 
maintained under this subpart for a period of one year after completion 
of all testing required for the engine family in a model year. Records 
may be retained as hard copy (i.e., on paper) or reduced to microfilm, 
floppy disk, or some other method of data storage, depending upon the 
manufacturer's record retention procedure; provided, that in every case, 
all the information contained in the hard copy is retained.
    (c) The manufacturer must, upon request by the Administrator, submit 
the following information with regard to engine production:
    (1) Projected production or actual production for each engine 
configuration within each engine family for which certification has been 
requested and/or approved,
    (2) Number of engines, by configuration and assembly plant, 
scheduled for production or actually produced.
    (d) Nothing in this section limits the Administrator's discretion to 
require a manufacturer to establish, maintain, retain or submit to EPA 
information not specified by this section.
    (e) All reports, submissions, notifications, and requests for 
approval made under this subpart must be addressed to: Manager, Engine 
Compliance Programs Group 6403J, U.S. Environmental Protection Agency, 
401 M Street SW., Washington, DC 20460.
    (f) The manufacturer must electronically submit the results of its 
production line testing using an EPA information format. The 
Administrator may exempt manufacturers from this requirement upon 
written request with supporting justification.



Sec. 91.505  Right of entry and access.

    (a) To allow the Administrator to determine whether a manufacturer 
is complying with the provisions of this or other subparts of this part, 
one or more EPA enforcement officers may enter during operating hours 
and upon presentation of credentials any of the following places:
    (1) Any facility, including ports of entry, where any engine to be 
introduced into commerce or any emission-related component is 
manufactured, assembled, or stored;
    (2) Any facility where any test conducted pursuant to this or any 
other subpart or any procedure or activity connected with such test is 
or was performed;
    (3) Any facility where any test engine is present; and
    (4) Any facility where any record required under Sec. 91.504 or 
other document relating to this subpart or any other subpart of this 
part is located.
    (b) Upon admission to any facility referred to in paragraph (a) of 
this section, EPA enforcement officers are authorized to perform the 
following inspection-related activities:
    (1) To inspect and monitor any aspect of engine manufacture, 
assembly, storage, testing and other procedures, and to inspect and 
monitor the facilities in which these procedures are conducted;
    (2) To inspect and monitor any aspect of engine test procedures or 
activities, including test engine selection, preparation and service 
accumulation, emission test cycles, and maintenance and verification of 
test equipment calibration;
    (3) To inspect and make copies of any records or documents related 
to the assembly, storage, selection, and testing of an engine; and
    (4) To inspect and photograph any part or aspect of any engine and 
any

[[Page 356]]

component used in the assembly thereof that is reasonably related to the 
purpose of the entry.
    (c) EPA enforcement officers are authorized to obtain reasonable 
assistance without cost from those in charge of a facility to help the 
officers perform any function listed in this subpart and they are 
authorized to request the manufacturer to make arrangements with those 
in charge of a facility operated for the manufacturer's benefit to 
furnish reasonable assistance without cost to EPA.
    (1) Reasonable assistance includes, but is not limited to, clerical, 
copying, interpretation and translation services; the making available 
on an EPA enforcement officer's request of personnel of the facility 
being inspected during their working hours to inform the EPA enforcement 
officer of how the facility operates and to answer the officer's 
questions; and the performance on request of emission tests on any 
engine which is being, has been, or will be used for production line or 
other testing.
    (2) By written request, signed by the Assistant Administrator for 
Air and Radiation, and served on the manufacturer, a manufacturer may be 
compelled to cause the personal appearance of any employee at such a 
facility before an EPA enforcement officer. Any such employee who has 
been instructed by the manufacturer to appear will be entitled to be 
accompanied, represented, and advised by counsel.
    (d) EPA enforcement officers are authorized to seek a warrant or 
court order authorizing the EPA enforcement officers to conduct the 
activities authorized in this section, as appropriate, to execute the 
functions specified in this section. EPA enforcement officers may 
proceed ex parte to obtain a warrant or court order whether or not the 
EPA enforcement officers first attempted to seek permission from the 
manufacturer or the party in charge of the facility(ies) in question to 
conduct the activities authorized in this section.
    (e) A manufacturer must permit an EPA enforcement officer(s) who 
presents a warrant or court order to conduct the activities authorized 
in this section as described in the warrant or court order. The 
manufacturer must also cause those in charge of its facility or a 
facility operated for its benefit to permit entry and access as 
authorized in this section pursuant to a warrant or court order whether 
or not the manufacturer controls the facility. In the absence of a 
warrant or court order, an EPA enforcement officer(s) may conduct the 
activities authorized in this section only upon the consent of the 
manufacturer or the party in charge of the facility(ies) in question.
    (f) It is not a violation of this part or the Clean Air Act for any 
person to refuse to permit an EPA enforcement officer(s) to conduct the 
activities authorized in this section if the officer(s) appears without 
a warrant or court order.
    (g) A manufacturer is responsible for locating its foreign testing 
and manufacturing facilities in jurisdictions where local law does not 
prohibit an EPA enforcement officer(s) from conducting the entry and 
access activities specified in this section. EPA will not attempt to 
make any inspections which it has been informed local foreign law 
prohibits.



Sec. 91.506  Engine sample selection.

    (a) At the start of each model year, the marine SI engine 
manufacturer will begin to randomly select engines from each engine 
family for production line testing at a rate of one percent. Each engine 
will be selected from the end of the assembly line.
    (1) For newly certified engine families: After two engines are 
tested, the manufacturer will calculate the required sample size for the 
model year according to the Sample Size Equation in paragraph (b) of 
this section.
    (2) For carry-over engine families: After one engine is tested, the 
manufacturer will combine the test with the last test result from the 
previous model year and then calculate the required sample size for the 
model year according to the Sample Size Equation in paragraph (b) of 
this section.
    (b)(1) Manufacturers will calculate the required sample size for the 
model year for each engine family using the Sample Size Equation below. 
N is calculated from each test result. The number N indicates the number 
of tests

[[Page 357]]

required for the model year for an engine family. N, is recalculated 
after each test. Test results used to calculate the variables in the 
Sample Size Equation must be final deteriorated test results as 
specified in Sec. 91.509(c).
[GRAPHIC] [TIFF OMITTED] TR04OC96.051

where:
N=required sample size for the model year.
t95=95% confidence coefficient. It is dependent on the actual 
number of tests completed, n, as specified in the table in paragraph 
(b)(2) of this section. It defines one-tail, 95 percent confidence 
intervals.
=actual test sample standard deviation calculated from the 
following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.052

xi=emission test result for an individual engine
x=mean of emission test results of the actual sample
FEL=Family Emission Limit
n=The actual number of tests completed in an engine family

    (2) Actual Number of Tests (n) & 1-tail Confidence Coefficients 
(t95)

------------------------------------------------------------------------
        n          t95           n          t95          n          t95
------------------------------------------------------------------------
2                  6.31  12                 1.80  22                1.72
3                  2.92  13                 1.78  23                1.72
4                  2.35  14                 1.77  24                1.71
5                  2.13  15                 1.76  25                1.71
6                  2.02  16                 1.75  26                1.71
7                  1.94  17                 1.75  27                1.71
8                  1.90  18                 1.74  28                1.70
9                  1.86  19                 1.73  29                1.70
10                 1.83  20                 1.73  30                1.70
11                 1.81  21                 1.72                   1.645
------------------------------------------------------------------------

    (3) A manufacturer must distribute the testing of the remaining 
number of engines needed to meet the required sample size N, evenly 
throughout the remainder of the model year.
    (4) After each new test, the required sample size, N, is 
recalculated using updated sample means, sample standard deviations and 
the appropriate 95% confidence coefficient.
    (5) A manufacturer must continue testing and updating each engine 
family's sample size calculations according to paragraphs (b)(1) through 
(b)(4) of this section until a decision is made to stop testing as 
described in paragraph (b)(6) of this section or a noncompliance 
decision is made pursuant to Sec. 91.510(b).
    (6) If, at any time throughout the model year, the calculated 
required sample size, N, for an engine family is less than or equal to 
the actual sample size, n, and the sample mean, x, for HC+NOX 
is less than or equal to the FEL, the manufacturer may stop testing that 
engine family.
    (7) If, at any time throughout the model year, the sample mean, x, 
for HC+NOX is greater than the FEL, the manufacturer must 
continue testing that engine family at the appropriate maximum sampling 
rate.
    (8) The maximum required sample size for an engine family 
(regardless of the required sample size, N, as calculated in paragraph 
(b)(1) of this section) is the lesser of thirty tests per model year or 
one percent of projected annual production for that engine family for 
that model year.
    (9) Manufacturers may elect to test additional randomly chosen 
engines. All additional randomly chosen engines tested in accordance 
with the testing procedures specified in Sec. 91.507 must be included in 
the Sample Size and Cumulative Sum equation calculations as defined in 
paragraph (b)(1) of this section and Sec. 91.508(a), respectively.
    (c) The manufacturer must produce and assemble the test engines 
using its normal production and assembly process for engines to be 
distributed into commerce.
    (d) No quality control, testing, or assembly procedures will be used 
on any test engine or any portion thereof, including parts and 
subassemblies, that have not been or will not be used during the 
production and assembly of all other engines of that family, unless the 
Administrator approves the modification in production or assembly 
procedures.



Sec. 91.507  Test procedures.

    (a)(1) For marine SI engines subject to the provisions of this 
subpart, the prescribed test procedures are specified in subpart E of 
this part.
    (2) The Administrator may, on the basis of a written application by 
a

[[Page 358]]

manufacturer, prescribe test procedures other than those specified in 
paragraph (a)(1) of this section for any marine engine he or she 
determines is not susceptible to satisfactory testing using procedures 
specified in paragraph (a)(1) of this section.
    (b)(1) The manufacturer may not adjust, repair, prepare, or modify 
any test engine and may not perform any emission test on any test engine 
unless this adjustment, repair, preparation, modification and/or test is 
documented in the manufacturer's engine assembly and inspection 
procedures and is actually performed by the manufacturer or unless this 
adjustment, repair, preparation, modification and/or test is required or 
permitted under this subpart or is approved in advance by the 
Administrator.
    (2) The Administrator may adjust or require to be adjusted any 
engine parameter which the Administrator has determined to be subject to 
adjustment for certification, production line testing and Selective 
Enforcement Audit testing, to any setting within the physically 
adjustable range of that parameter, as determined by the Administrator, 
prior to the performance of any test. However, if the idle speed 
parameter is one which the Administrator has determined to be subject to 
adjustment, the Administrator may not adjust it or require that it be 
adjusted to any setting which causes a lower engine idle speed than 
would have been possible within the physically adjustable range of the 
idle speed parameter if the manufacturer had accumulated 12 hours of 
service on the engine under paragraph (c) of this section, all other 
parameters being identically adjusted for the purpose of the comparison. 
The manufacturer may be requested to supply information necessary to 
establish an alternate minimum idle speed. The Administrator, in making 
or specifying these adjustments, may consider the effect of the 
deviation from the manufacturer's recommended setting on emission 
performance characteristics as well as the likelihood that similar 
settings will occur on in-use engines. In determining likelihood, the 
Administrator may consider factors such as, but not limited to, the 
effect of the adjustment on engine performance characteristics and 
information from similar in-use engines.
    (c) Service accumulation. (1) Prior to performing exhaust emission 
production line testing, the manufacturer may accumulate on each test 
engine a number of hours of service equal to the greater of 12 hours or 
the number of hours the manufacturer accumulated during certification on 
the emission data engine for each engine family.
    (2) Service accumulation must be performed in a manner using good 
engineering judgment to obtain emission results representative of 
production line engines.
    (d) The manufacturer may not perform any maintenance on test engines 
after selection for testing.
    (e) If an engine is shipped to a remote facility for production line 
testing, and an adjustment or repair is necessary because of shipment, 
the engine manufacturer must perform the necessary adjustment or repair 
only after the initial test of the engine, except in cases where the 
Administrator has determined that the test would be impossible or unsafe 
to perform or would permanently damage the engine. Engine manufacturers 
must report to the Administrator, in the quarterly report required by 
Sec. 91.509(e), all adjustments or repairs performed on test engines 
prior to each test.
    (f) If an engine cannot complete the service accumulation or an 
emission test because of a malfunction, the manufacturer may request 
that the Administrator authorize either the repair of that engine or its 
deletion from the test sequence.
    (g) Testing. A manufacturer must test engines with the test 
procedure specified in subpart E of this part to demonstrate compliance 
with the applicable FEL. If alternate procedures were used in 
certification, then those alternate procedures must be used in 
production line testing.
    (h) Retesting. (1) If an engine manufacturer reasonably determines 
that an emission test of an engine is invalid, the engine may be 
retested. Emission results from all tests must be reported to EPA. The 
engine manufacturer must also include a detailed explanation of the 
reasons for invalidating any test in the quarterly report required in

[[Page 359]]

Sec. 91.509(e). In the event a retest is performed, a request may be 
made to the Administrator, within ten days of the end of the production 
quarter, for permission to substitute the after-repair test results for 
the original test results. The Administrator will either affirm or deny 
the request by the engine manufacturer within ten working days from 
receipt of the request.



Sec. 91.508  Cumulative Sum (CumSum) procedure.

    (a) Manufacturers must construct the following CumSum Equation for 
HC+NOX for each engine family. Test results used to calculate 
the variables in the CumSum Equation must be final deteriorated test 
results as defined in Sec. 91.509(c).

Ci = max[0 0R (Ci-1 + Xi - (FEL + F))]

Where:

Ci = The current CumSum statistic
Ci-1 = The previous CumSum statistic. Prior to any testing, 
the CumSum statistic = 0 (i.e. C0 = 0)
Xi = The current emission test result for an individual 
engine
FEL = Family Emission Limit
F = 0.25 x 

    After each test, Ci is compared to the action limit, H, 
the quantity which the CumSum statistic must exceed, in two consecutive 
tests, before the engine family may be determined to be in noncompliance 
for purposes of Sec. 91.510.

H = The Action Limit. It is 5.0 x , and is a function of the 
standard deviation, .
 = is the sample standard deviation and is recalculated after 
each test.

    (b) After each engine is tested, the CumSum statistic shall be 
promptly updated according to the CumSum Equation in paragraph (a) of 
this section.
    (c)(1) If, at any time during the model year, a manufacturer amends 
the application for certification for an engine family as specified in 
paragraph (a) of Sec. 91.122 by performing an engine family modification 
(i.e. a change such as a running change involving a physical 
modification to an engine, a change in specification or setting, the 
addition of a new configuration, or the use of a different deterioration 
factor) with no changes to the FEL, all previous sample size and CumSum 
statistic calculations for the model year will remain unchanged.
    (2) If, at any time during the model year, a manufacturer amends the 
application for certification for an engine family as specified in 
paragraph (a) of Sec. 91.122 by modifying its FEL as a result of an 
engine family modification, the manufacturer must continue its 
calculations by inserting the new FEL into the sample size equation as 
specified in Sec. 91.506(b)(1) and into the CumSum equation in paragraph 
(a) of this section. All previous calculations remain unchanged. If the 
sample size calculation indicates that additional tests are required, 
then those tests must be performed. The CumSum statistic recalculation 
must not indicate that the family has exceeded the action limit for two 
consecutive tests. The manufacturer's final credit report as required by 
Sec. 91.210 must break out the credits that result from each FEL and 
corresponding CumSum analysis for each FEL set.
    (3) If, at any time during the model year, a manufacturer amends the 
application for certification for an engine family as specified in 
paragraph (a) of Sec. 91.122 by modifying its FEL without performing an 
engine modification, all previous sample size and CumSum statistic 
calculations for the model year must be recalculated using the new FEL. 
If the sample size calculation indicates that additional tests are 
required, then those tests must be performed. The CumSum statistic 
recalculation must not indicate that the family has exceeded the action 
limit for two consecutive tests.
    (4) If, at any time after the end of the model year but prior to the 
manufacturer's final credit report submittal as specified in 
Sec. 91.210, a manufacturer changes an FEL for an entire family, or for 
an affected part of the year's production, as specified in paragraph (a) 
of Sec. 91.122, in cases where there were one or more mid-year engine 
family modifications, all previous sample size and CumSum statistic 
calculations for the model year, or part of the model year affected by 
an engine family change, must be recalculated using the new FEL. The 
sample size equation must not indicate a larger number of

[[Page 360]]

tests than were appropriately performed using the previous FEL and the 
CumSum statistic recalculation must not exceed the action limit in two 
consecutive tests. The manufacturer's final credit report as required by 
Sec. 91.210 must break out the credits that result from each FEL and 
corresponding CumSum analysis for each FEL set.



Sec. 91.509  Calculation and reporting of test results.

    (a) Initial test results are calculated following the applicable 
test procedure specified in paragraph (a) of Sec. 91.507. The 
manufacturer rounds these results, in accordance with ASTM E29-93a, to 
the number of decimal places contained in the applicable emission 
standard expressed to one additional significant figure. (ASTM E29-93a 
has been incorporated by reference. See Sec. 91.6.)
    (b) Final test results are calculated by summing the initial test 
results derived in paragraph (a) of this section for each test engine, 
dividing by the number of tests conducted on the engine, and rounding in 
accordance with ASTM E29-93a to the same number of decimal places 
contained in the applicable standard expressed to one additional 
significant figure.
    (c) The final deteriorated test results for each test engine are 
calculated by applying the appropriate deterioration factors, derived in 
the certification process for the engine family, to the final test 
results, and rounding in accordance with ASTM E29-93a to the same number 
of decimal places contained in the applicable standard expressed to one 
additional significant figure.
    (d) If, at any time during the model year, the CumSum statistic 
exceeds the applicable action limit, H, in two consecutive tests, the 
engine family may be determined to be in noncompliance and the 
manufacturer must notify EPA within two working days of such exceedance 
by the CumSum statistic.
    (e) Within 30 calendar days of the end of each quarter, each engine 
manufacturer must submit to the Administrator a report which includes 
the following information:
    (1) The location and description of the manufacturer's or other's 
exhaust emission test facilities which were utilized to conduct testing 
reported pursuant to this section;
    (2) Total production and sample sizes, N and n, for each engine 
family;
    (3) The FEL against which each engine family was tested;
    (4) A description of the process to obtain engines on a random 
basis;
    (5) A description of the test engines;
    (6) For each test conducted,
    (i) A description of the test engine, including:
    (A) Configuration and engine family identification,
    (B) Year, make, and build date,
    (C) Engine identification number, and
    (D) Number of hours of service accumulated on engine prior to 
testing;
    (ii) Location where service accumulation was conducted and 
description of accumulation procedure and schedule;
    (iii) Test number, date, test procedure used, initial test results 
before and after rounding, and final test results for all exhaust 
emission tests, whether valid or invalid, and the reason for 
invalidation, if applicable;
    (iv) A complete description of any adjustment, modification, repair, 
preparation, maintenance, and/or testing which was performed on the test 
engine, was not reported pursuant to any other paragraph of this 
subpart, and will not be performed on all other production engines;
    (v) A CumSum analysis, as required in Sec. 91.508, of the production 
line test results for each engine family;
    (vi) Any other information the Administrator may request relevant to 
the determination whether the new engines being manufactured by the 
manufacturer do in fact conform with the regulations with respect to 
which the certificate of conformity was issued;
    (7) For each failed engine as defined in Sec. 91.510(a), a 
description of the remedy and test results for all retests as required 
by Sec. 91.511(g);
    (8) The date of the end of the engine manufacturer's model year 
production for each engine family; and
    (9) The following signed statement and endorsement by an authorized 
representative of the manufacturer:


[[Page 361]]


    This report is submitted pursuant to sections 213 and 208 of the 
Clean Air Act. This production line testing program was conducted in 
complete conformance with all applicable regulations under 40 CFR part 
91 et seq. No emission-related changes to production processes or 
quality control procedures for the engine family tested have been made 
during this production line testing program that affect engines from the 
production line. All data and information reported herein is, to the 
best of (Company Name) knowledge, true and accurate. I am aware of the 
penalties associated with violations of the Clean Air Act and the 
regulations thereunder. (Authorized Company Representative.)



Sec. 91.510  Compliance with criteria for production line testing.

    (a) A failed engine is one whose final deteriorated test results 
pursuant to Sec. 91.509(c), for HC + NOX exceeds the 
applicable Family Emission Limit (FEL).
    (b) An engine family may be determined to be in noncompliance, if at 
any time throughout the model year, the CumSum statistic, Ci, 
for HC+NOX, is greater than the action limit, H, for two 
consecutive tests.



Sec. 91.511  Suspension and revocation of certificates of conformity.

    (a) The certificate of conformity is automatically suspended with 
respect to any engine failing pursuant to paragraph (a) of Sec. 91.510 
effective from the time that testing of that engine is completed.
    (b) The Administrator may suspend the certificate of conformity for 
an engine family which is determined to be in noncompliance pursuant to 
Sec. 90.510(b). This suspension will not occur before fifteen days after 
the engine family is determined to be in noncompliance.
    (c) If the results of testing pursuant to these regulations indicate 
that engines of a particular family produced at one plant of a 
manufacturer do not conform to the regulations with respect to which the 
certificate of conformity was issued, the Administrator may suspend the 
certificate of conformity with respect to that family for engines 
manufactured by the manufacturer at all other plants.
    (d) Notwithstanding the fact that engines described in the 
application for certification may be covered by a certificate of 
conformity, the Administrator may suspend such certificate immediately 
in whole or in part if the Administrator finds any one of the following 
infractions to be substantial:
    (1) The manufacturer refuses to comply with any of the requirements 
of this subpart.
    (2) The manufacturer submits false or incomplete information in any 
report or information provided to the Administrator under this subpart.
    (3) The manufacturer renders inaccurate any test data submitted 
under this subpart.
    (4) An EPA enforcement officer is denied the opportunity to conduct 
activities authorized in this subpart and a warrant or court order is 
presented to the manufacturer or the party in charge of the facility in 
question.
    (5) An EPA enforcement officer is unable to conduct activities 
authorized in Sec. 91.505 because a manufacturer has located its 
facility in a foreign jurisdiction where local law prohibits those 
activities.
    (e) The Administrator shall notify the manufacturer in writing of 
any suspension or revocation of a certificate of conformity in whole or 
in part. A suspension or revocation is effective upon receipt of the 
notification or fifteen days from the time an engine family is 
determined to be in noncompliance pursuant to Sec. 91.510(b), whichever 
is later, except that the certificate is immediately suspended with 
respect to any failed engines as provided for in paragraph (a) of this 
section.
    (f) The Administrator may revoke a certificate of conformity for an 
engine family after the certificate has been suspended pursuant to 
paragraph (b) or (c) of this section if the proposed remedy for the 
nonconformity, as reported by the manufacturer to the Administrator, is 
one requiring a design change or changes to the engine and/or emission 
control system as described in the application for certification of the 
affected engine family.
    (g) Once a certificate has been suspended for a failed engine, as 
provided for in paragraph (a) of this section, the manufacturer must 
take the following actions before the certificate is reinstated for that 
failed engine:
    (1) Remedy the nonconformity;

[[Page 362]]

    (2) Demonstrate that the engine conforms to the Family Emission 
Limit by retesting the engine in accordance with these regulations; and
    (3) Submit a written report to the Administrator, after successful 
completion of testing on the failed engine, which contains a description 
of the remedy and test results for each engine in addition to other 
information that may be required by this part.
    (h) Once a certificate for a failed engine family has been suspended 
pursuant to paragraph (b), (c) or (d) of this section, the manufacturer 
must take the following actions before the Administrator will consider 
reinstating the certificate:
    (1) Submit a written report to the Administrator which identifies 
the reason for the noncompliance of the engines, describes the proposed 
remedy, including a description of any proposed quality control and/or 
quality assurance measures to be taken by the manufacturer to prevent 
future occurrences of the problem, and states the date on which the 
remedies will be implemented.
    (2) Demonstrate that the engine family for which the certificate of 
conformity has been suspended does in fact comply with the regulations 
of this part by testing as many engines as needed so that the CumSum 
statistic, as calculated in Sec. 91.508(a), falls below the action 
limit. Such testing must comply with the provisions of this part. If the 
manufacturer elects to continue testing individual engines after 
suspension of a certificate, the certificate is reinstated for any 
engine actually determined to be in conformance with the Family Emission 
Limits through testing in accordance with the applicable test 
procedures, provided that the Administrator has not revoked the 
certificate pursuant to paragraph (f) of this section.
    (i) Once the certificate has been revoked for an engine family, if 
the manufacturer desires to continue introduction into commerce of a 
modified version of that family, the following actions must be taken 
before the Administrator may issue a certificate for that modified 
family:
    (1) If the Administrator determines that the proposed change(s) in 
engine design may have an effect on emission performance deterioration, 
the Administrator shall notify the manufacturer, within five working 
days after receipt of the report in paragraph (h)(1) of this section, 
whether subsequent testing under this subpart will be sufficient to 
evaluate the proposed change or changes or whether additional testing 
will be required; and
    (2) After implementing the change or changes intended to remedy the 
nonconformity, the manufacturer must demonstrate that the modified 
engine family does in fact conform with the regulations of this part by 
testing as many engines as needed from the modified engine family so 
that the CumSum statistic, as calculated in Sec. 91.508(a) using the 
newly assigned FEL if applicable, falls below the action limit. When 
both of these requirements are met, the Administrator shall reissue the 
certificate or issue a new certificate, as the case may be, to include 
that family. As long as the CumSum statistic remains above the action 
limit, the revocation remains in effect.
    (j) At any time subsequent to a suspension of a certificate of 
conformity for a test engine pursuant to paragraph (a) of this section, 
but not later than 15 days (or such other period as may be allowed by 
the Administrator) after notification of the Administrator's decision to 
suspend or revoke a certificate of conformity in whole or in part 
pursuant to paragraphs (b), (c), or (f) of this section, a manufacturer 
may request a hearing as to whether the tests have been properly 
conducted or any sampling methods have been properly applied.
    (k) Any suspension of a certificate of conformity under paragraph 
(d) of this section:
    (1) Shall be made only after the manufacturer concerned has been 
offered an opportunity for a hearing conducted in accordance with 
Secs. 91.512, 91.513, and 91.514 and
    (2) Need not apply to engines no longer in the possession of the 
manufacturer.
    (l) After the Administrator suspends or revokes a certificate of 
conformity pursuant to this section and prior to the commencement of a 
hearing under

[[Page 363]]

Sec. 91.512, if the manufacturer demonstrates to the Administrator's 
satisfaction that the decision to suspend or revoke the certificate was 
based on erroneous information, the Administrator shall reinstate the 
certificate.
    (m) To permit a manufacturer to avoid storing non-test engines while 
conducting subsequent testing of the noncomplying family, a manufacturer 
may request that the Administrator conditionally reinstate the 
certificate for that family. The Administrator may reinstate the 
certificate subject to the following condition: the manufacturer must 
commit to recall all engines of that family produced from the time the 
certificate is conditionally reinstated if the CumSum statistic does not 
fall below the action limit and must commit to remedy any nonconformity 
at no expense to the owner.



Sec. 91.512  Request for public hearing.

    (a) If the manufacturer disagrees with the Administrator's decision 
to suspend or revoke a certificate or disputes the basis for an 
automatic suspension pursuant to Sec. 91.511(a), the manufacturer may 
request a public hearing.
    (b) The manufacturer's request shall be filed with the Administrator 
not later than 15 days after the Administrator's notification of his or 
her decision to suspend or revoke, unless otherwise specified by the 
Administrator. The manufacturer shall simultaneously serve two copies of 
this request upon the Manager of the Engine Compliance Programs Group 
and file two copies with the Hearing Clerk for the Agency. Failure of 
the manufacturer to request a hearing within the time provided 
constitutes a waiver of the right to a hearing. Subsequent to the 
expiration of the period for requesting a hearing as of right, the 
Administrator may, in his or her discretion and for good cause shown, 
grant the manufacturer a hearing to contest the suspension or 
revocation.
    (c) A manufacturer shall include in the request for a public 
hearing:
    (1) A statement as to which engine configuration(s) within a family 
is to be the subject of the hearing;
    (2) A concise statement of the issues to be raised by the 
manufacturer at the hearing, except that in the case of the hearing 
requested under Sec. 91.511(j), the hearing is restricted to the 
following issues:
    (i) Whether tests have been properly conducted (specifically, 
whether the tests were conducted in accordance with applicable 
regulations under this part and whether test equipment was properly 
calibrated and functioning);
    (ii) Whether sampling plans and statistical analyses have been 
properly applied (specifically, whether sampling procedures and 
statistical analyses specified in this subpart were followed and whether 
there exists a basis for distinguishing engines produced at plants other 
than the one from which engines were selected for testing which would 
invalidate the Administrator's decision under Sec. 91.511(c));
    (3) A statement specifying reasons why the manufacturer believes it 
will prevail on the merits of each of the issues raised; and
    (4) A summary of the evidence which supports the manufacturer's 
position on each of the issues raised.
    (d) A copy of all requests for public hearings will be kept on file 
in the Office of the Hearing Clerk and will be made available to the 
public during Agency business hours.



Sec. 91.513  Administrative procedures for public hearing.

    (a) The Presiding Officer shall be an Administrative Law Judge 
appointed pursuant to 5 U.S.C. 3105 (see also 5 CFR part 930 as 
amended).
    (b) The Judicial Officer shall be an officer or employee of the 
Agency appointed as a Judicial Officer by the Administrator, pursuant to 
this section, who shall meet the qualifications and perform functions as 
follows:
    (1) Qualifications. A Judicial Officer may be a permanent or 
temporary employee of the Agency who performs other duties for the 
Agency. The Judicial Officer shall not be employed by the Office of 
Enforcement and Compliance Assurance or have any connection with the 
preparation or presentation of evidence for a hearing held pursuant to 
this subpart. The Judicial Officer shall be a graduate of an accredited 
law school and a member in good standing

[[Page 364]]

of a recognized Bar Association of any state or the District of 
Columbia.
    (2) Functions. The Administrator may consult with the Judicial 
Officer or delegate all or part of the Administrator's authority to act 
in a given case under this section to a Judicial Officer, provided that 
this delegation does not preclude the Judicial Officer from referring 
any motion or case to the Administrator when the Judicial Officer 
determines such referral to be appropriate.
    (c) For the purposes of this section, one or more Judicial Officers 
may be designated by the Administrator. As work requires, a Judicial 
Officer may be designated to act for the purposes of a particular case.
    (d) Summary decision. (1) In the case of a hearing requested under 
Sec. 91.511(j), when it clearly appears from the data and other 
information contained in the request for a hearing that no genuine and 
substantial question of fact or law exists with respect to the issues 
specified in Sec. 91.512(c)(2), the Administrator may enter an order 
denying the request for a hearing and reaffirming the original decision 
to suspend or revoke a certificate of conformity.
    (2) In the case of a hearing requested under Sec. 91.512 to 
challenge a suspension of a certificate of conformity for the reason(s) 
specified in Sec. 91.511(d), when it clearly appears from the data and 
other information contained in the request for the hearing that no 
genuine and substantial question of fact or law exists with respect to 
the issue of whether the refusal to comply with this subpart was caused 
by conditions and circumstances outside the control of the manufacturer, 
the Administrator may enter an order denying the request for a hearing 
and suspending the certificate of conformity.
    (3) Any order issued under paragraph (d)(1) or (d)(2) of this 
section has the force and effect of a final decision of the 
Administrator, as issued pursuant to Sec. 91.515.
    (4) If the Administrator determines that a genuine and substantial 
question of fact or law does exist with respect to any of the issues 
referred to in paragraphs (d)(1) and (d)(2) of this section, the 
Administrator shall grant the request for a hearing and publish a notice 
of public hearing in the Federal Register or by such other means as the 
Administrator finds appropriate to provide notice to the public.
    (e) Filing and service. (1) An original and two copies of all 
documents or papers required or permitted to be filed pursuant to this 
section and Sec. 91.512(c) must be filed with the Hearing Clerk of the 
Agency. Filing is considered timely if mailed, as determined by the 
postmark, to the Hearing Clerk within the time allowed by this section 
and Sec. 91.512(b). If filing is to be accomplished by mailing, the 
documents must be sent to the address set forth in the notice of public 
hearing referred to in paragraph (d)(4) of this section.
    (2) To the maximum extent possible, testimony will be presented in 
written form. Copies of written testimony will be served upon all 
parties as soon as practicable prior to the start of the hearing. A 
certificate of service will be provided on or accompany each document or 
paper filed with the Hearing Clerk. Documents to be served upon the 
Manager of the Engine Compliance Programs Group must be sent by 
registered mail to: Manager, Engine Compliance Programs Group 6403-J, 
U.S. Environmental Protection Agency, 401 M Street SW., Washington, DC 
20460. Service by registered mail is complete upon mailing.
    (f) Computation of time. (1) In computing any period of time 
prescribed or allowed by this section, except as otherwise provided, the 
day of the act or event from which the designated period of time begins 
to run is not included. Saturdays, Sundays, and federal legal holidays 
are included in computing the period allowed for the filing of any 
document or paper, except that when the period expires on a Saturday, 
Sunday, or federal legal holiday, the period is extended to include the 
next following business day.
    (2) A prescribed period of time within which a party is required or 
permitted to do an act is computed from the time of service, except that 
when service is accomplished by mail, three days will be added to the 
prescribed period.
    (g) Consolidation. The Administrator or the Presiding Officer in his 
or her discretion may consolidate two or more proceedings to be held 
under this

[[Page 365]]

section for the purpose of resolving one or more issues whenever it 
appears that consolidation will expedite or simplify consideration of 
these issues. Consolidation does not affect the right of any party to 
raise issues that could have been raised if consolidation had not 
occurred.
    (h) Hearing date. To the extent possible hearings under Sec. 91.512 
will be scheduled to commence within 14 days of receipt of the request 
for a hearing.



Sec. 91.514  Hearing procedures.

    The procedures provided in Sec. 86.1014-84(i) to (s) apply for 
hearings requested pursuant to Sec. 91.512 regarding suspension, 
revocation, or voiding of a certificate of conformity.



Sec. 91.515  Appeal of hearing decision.

    The procedures provided in Sec. 86.1014-84(t) to (aa) apply for 
appeals filed with respect to hearings held pursuant to Sec. 91.514.



Sec. 91.516  Treatment of confidential information.

    Except for information required by Sec. 91.509(e)(2) and Sec. 91.509 
(e)(6)(vi), information submitted to EPA pursuant to Sec. 91.509(e) 
shall be made available to the public upon request by EPA 
notwithstanding any claim of confidentiality made by the submitter. The 
provisions for treatment of confidential information described in 
Sec. 91.7 apply to the information required by Sec. 91.509(e)(2) and all 
other information submitted pursuant to this subpart.



          Subpart G--Selective Enforcement Auditing Regulations



Sec. 91.601  Applicability.

    The requirements of subpart G are applicable to all marine SI 
engines subject to the provisions of subpart A of part 91.



Sec. 91.602  Definitions.

    The definitions in subpart A and subpart F of this part apply to 
this subpart. The following definitions also apply to this subpart.
    Acceptable quality level (AQL) means the maximum percentage of 
failing engines that can be considered a satisfactory process average 
for sampling inspections.
    Inspection criteria means the pass and fail numbers associated with 
a particular sampling plan.



Sec. 91.603  Applicability of part 91, subpart F.

    (a) For purposes of selective enforcement audits conducted under 
this subpart, marine SI engines subject to provisions of subpart B of 
this part are subject to regulations specified in subpart F of this 
part, except:
    (1) Section 91.501 does not apply.
    (2) Section 91.503 does not apply. See Sec. 91.605.
    (3) Section 91.506 does not apply. See Sec. 91.606.
    (4) Section 91.507 does not apply. See Sec. 91.607.
    (5) Section 91.508 does not apply.
    (6) Paragraphs (d) and (e)(6)(v) and references to ``sample sizes, N 
and n'' of Sec. 91.509 do not apply.
    (7) The introductory text in Sec. 91.509 does not apply. The 
following text applies:
    ``Within 5 working days after completion of testing of all engines 
pursuant to a test order.''
    (8) The introductory text of Sec. 91.509(e)(9) does not apply. The 
following text applies:
    The following signed statement and endorsement by an authorized 
representative of the manufacturer:

    This report is submitted pursuant to Sections 213 and 208 of the 
Clean Air Act. This Selective Enforcement Audit was conducted in 
complete conformance with all applicable regulations under 40 CFR Part 
91 et seq and the conditions of the test order. No emission-related 
changes to production processes or quality control procedures for the 
engine family tested have been made between receipt of the test order 
and conclusion of the audit. All data and information reported herein 
is, to the best of (Company Name) knowledge, true and accurate. I am 
aware of the penalties associated with violations of the Clean Air Act 
and the regulations thereunder. (Authorized Company Representative.)

    (9) Section 91.510 does not apply. See Sec. 91.608.

[[Page 366]]



Sec. 91.604  Test orders.

    (a) A test order addressed to the manufacturer is required for any 
testing under this subpart.
    (b) The test order is signed by the Assistant Administrator for Air 
and Radiation or his or her designee. The test order must be delivered 
in person by an EPA enforcement officer or EPA authorized representative 
to a company representative or sent by registered mail, return receipt 
requested, to the manufacturer's representative who signed the 
application for certification submitted by the manufacturer, pursuant to 
the requirements of the applicable section of subpart B of this part. 
Upon receipt of a test order, the manufacturer must comply with all of 
the provisions of this subpart and instructions in the test order.
    (c) Information included in test order. (1) The test order will 
specify the engine family to be selected for testing, the manufacturer's 
engine assembly plant or associated storage facility or port facility 
(for imported engines) from which the engines must be selected, the time 
and location at which engines must be selected, and the procedure by 
which engines of the specified family must be selected. The test order 
may specify the configuration to be audited and/or the number of engines 
to be selected per day. Engine manufacturers are required to select a 
minimum of four engines per day unless an alternate selection procedure 
is approved pursuant to Sec. 91.606(a), or unless total production of 
the specified configuration is less than four engines per day. If total 
production of the specified configuration is less than four engines per 
day, the manufacturer selects the actual number of engines produced per 
day.
    (2) The test order may include alternate families to be selected for 
testing at the Administrator's discretion in the event that engines of 
the specified family are not available for testing because those engines 
are not being manufactured during the specified time or are not being 
stored at the specified assembly plant, associated storage facilities, 
or port of entry.
    (3) If the specified family is not being manufactured at a rate of 
at least two engines per day in the case of manufacturers specified in 
40 CFR 89.607(g)(1), or one engine per day in the case of manufacturers 
specified in 40 CFR 89.607(g)(2), over the expected duration of the 
audit, the Assistant Administrator or her or his designated 
representative may select engines of the alternate family for testing.
    (4) In addition, the test order may include other directions or 
information essential to the administration of the required testing.
    (d) A manufacturer may submit a list of engine families and the 
corresponding assembly plants, associated storage facilities, or (in the 
case of imported engines) port facilities from which the manufacturer 
prefers to have engines selected for testing in response to a test 
order. In order that a manufacturer's preferred location be considered 
for inclusion in a test order for a particular engine family, the list 
must be submitted prior to issuance of the test order. Notwithstanding 
the fact that a manufacturer has submitted the list, the Administrator 
may order selection at other than a preferred location.
    (e) Upon receipt of a test order, a manufacturer must proceed in 
accordance with the provisions of this subpart.



Sec. 91.605  Testing by the Administrator.

    (a) The Administrator may require by test order under Sec. 91.604 
that engines of a specified family be selected in a manner consistent 
with the requirements of Sec. 91.606 and submitted to the Administrator 
at the place designated for the purpose of conducting emission tests. 
These tests will be conducted in accordance with Sec. 91.607 to 
determine whether engines manufactured by the manufacturer conform with 
the regulations with respect to which the certificate of conformity was 
issued.
    (b) Designating official data. (1) Whenever the Administrator 
conducts a test on a test engine or the Administrator and manufacturer 
each conduct a test on the same test engine, the results of the 
Administrator's test comprise the official data for that engine.
    (2) Whenever the manufacturer conducts all tests on a test engine, 
the manufacturer's test data is accepted as the official data, provided 
that if the

[[Page 367]]

Administrator makes a determination based on testing conducted under 
paragraph (a) of this section that there is a substantial lack of 
agreement between the manufacturer's test results and the 
Administrator's test results, no manufacturer's test data from the 
manufacturer's test facility will be accepted for purposes of this 
subpart.
    (c) If testing conducted under Sec. 91.604 is unacceptable under 
paragraph (b)(2) of this section, the Administrator must:
    (1) Notify the manufacturer in writing of the Administrator's 
determination that the test facility is inappropriate for conducting the 
tests required by this subpart and the reasons therefor; and
    (2) Reinstate any manufacturer's data upon a showing by the 
manufacturer that the data acquired under Sec. 91.604 was erroneous and 
the manufacturer's data was correct.
    (d) The manufacturer may request in writing that the Administrator 
reconsider the determination in paragraph (b)(2) of this section based 
on data or information which indicates that changes have been made to 
the test facility and these changes have resolved the reasons for 
disqualification.



Sec. 91.606  Sample selection.

    (a) Engines comprising a test sample will be selected at the 
location and in the manner specified in the test order. If a 
manufacturer determines that the test engines cannot be selected in the 
manner specified in the test order, an alternative selection procedure 
may be employed, provided the manufacturer requests approval of the 
alternative procedure prior to the start of test sample selection, and 
the Administrator approves the procedure.
    (b) The manufacturer must produce and assemble the test engines of 
the family selected for testing using its normal production and assembly 
process for engines to be distributed into commerce. If, between the 
time the manufacturer is notified of a test order and the time the 
manufacturer finishes selecting test engines, the manufacturer 
implements any change(s) in its production or assembly processes, 
including quality control, which may reasonably be expected to affect 
the emissions of the engines selected, then the manufacturer must, 
during the audit, inform the Administrator of such changes. If the test 
engines are selected at a location where they do not have their 
operational and emission control systems installed, the test order will 
specify the manner and location for selection of components to complete 
assembly of the engines. The manufacturer must assemble these components 
onto the test engines using normal assembly and quality control 
procedures as documented by the manufacturer.
    (c) No quality control, testing, or assembly procedures will be used 
on the test engine or any portion thereof, including parts and 
subassemblies, that have not been or will not be used during the 
production and assembly of all other engines of that family, unless the 
Administrator approves the modification in production or assembly 
procedures pursuant to paragraph (b) of this section.
    (d) The test order may specify that an EPA enforcement officer(s) or 
authorized representative(s), rather than the manufacturer, select the 
test engines according to the method specified in the test order.
    (e) The order in which test engines are selected determines the 
order in which test results are to be used in applying the sampling plan 
in accordance with Sec. 91.608.
    (f) The manufacturer must keep on hand all untested engines, if any, 
comprising the test sample until a pass or fail decision is reached in 
accordance with Sec. 91.608(e). The manufacturer may ship any tested 
engine which has not failed the requirements as set forth in 
Sec. 91.608(b). However, once the manufacturer ships any test engine, it 
relinquishes the prerogative to conduct retests as provided in 
Sec. 91.607(i).



Sec. 91.607  Test procedures.

    (a)(1) For marine SI engines subject to the provisions of this 
subpart, the prescribed test procedures are the test procedures as 
specified in subpart E of this part.
    (2) The Administrator may, on the basis of a written application by 
a manufacturer, prescribe test procedures other than those specified in

[[Page 368]]

paragraph (a)(1) of this section for any marine engine he or she 
determines is not susceptible to satisfactory testing using the 
procedures specified in paragraph (a)(1) of this section.
    (b)(1) The manufacturer may not adjust, repair, prepare, or modify 
the engines selected for testing and may not perform any emission tests 
on engines selected for testing pursuant to the test order unless this 
adjustment, repair, preparation, modification, and/or tests are 
documented in the manufacturer's engine assembly and inspection 
procedures and are actually performed or unless these adjustments and/or 
tests are required or permitted under this subpart or are approved in 
advance by the Administrator.
    (2) The Administrator may adjust or cause to be adjusted any engine 
parameter which the Administrator has determined to be subject to 
adjustment for certification and Selective Enforcement Audit testing in 
accordance with Sec. 91.112, to any setting within the physically 
adjustable range of that parameter, as determined by the Administrator 
in accordance with Sec. 91.112, prior to the performance of any tests. 
However, if the idle speed parameter is one which the Administrator has 
determined to be subject to adjustment, the Administrator may not adjust 
it to any setting which causes a lower engine idle speed than would have 
been possible within the physically adjustable range of the idle speed 
parameter if the manufacturer had accumulated 12 hours of service on the 
engine under paragraph (c) of this section, all other parameters being 
identically adjusted for the purpose of the comparison. The manufacturer 
may be requested to supply information needed to establish an alternate 
minimum idle speed. The Administrator, in making or specifying these 
adjustments, may consider the effect of the deviation from the 
manufacturer's recommended setting on emission performance 
characteristics as well as the likelihood that similar settings will 
occur on in-use engines. In determining likelihood, the Administrator 
may consider factors such as, but not limited to, the effect of the 
adjustment on engine performance characteristics and information from 
similar in-use engines.
    (c) Service accumulation. Prior to performing exhaust emission 
testing on an SEA test engine, the manufacturer may accumulate on each 
engine a number of hours of service equal to the greater of 12 hours or 
the number of hours the manufacturer accumulated during certification on 
the emission data engine corresponding to the family specified in the 
test order.
    (1) Service accumulation must be performed in a manner using good 
engineering judgment to obtain emission results representative of normal 
production engines. This service accumulation must be consistent with 
the new engine break-in instructions contained in the applicable owner's 
manual.
    (2) The manufacturer must accumulate service at a minimum rate of 6 
hours per engine during each 24-hour period, unless otherwise approved 
by the Administrator.
    (i) The first 24-hour period for service begins as soon as 
authorized checks, inspections, and preparations are completed on each 
engine.
    (ii) The minimum service accumulation rate does not apply on 
weekends or holidays.
    (iii) If the manufacturer's service or target is less than the 
minimum rate specified (6 hours per day), then the minimum daily 
accumulation rate is equal to the manufacturer's service target.
    (3) Service accumulation must be completed on a sufficient number of 
test engines during consecutive 24-hour periods to assure that the 
number of engines tested per day fulfills the requirements of paragraphs 
(g)(1) and (g)(2) of this section.
    (d) The manufacturer may not perform any maintenance on test engines 
after selection for testing, nor may the Administrator allow deletion of 
any engine from the test sequence, unless requested by the manufacturer 
and approved by the Administrator before any engine maintenance or 
deletion.
    (e) The manufacturer must expeditiously ship test engines from the 
point of selection to the test facility. If the test facility is not 
located at or in close proximity to the point of selection, the 
manufacturer must assure that test engines arrive at the test facility 
within 24 hours of selection. The

[[Page 369]]

Administrator may approve more time for shipment based upon a request by 
the manufacturer accompanied by a satisfactory justification.
    (f) If an engine cannot complete the service accumulation or an 
emission test because of a malfunction, the manufacturer may request 
that the Administrator authorize either the repair of that engine or its 
deletion from the test sequence.
    (g) Whenever a manufacturer conducts testing pursuant to a test 
order issued under this subpart, the manufacturer must notify the 
Administrator within one working day of receipt of the test order as to 
which test facility will be used to comply with the test order. If no 
test cells are available at a desired facility, the manufacturer must 
provide alternate testing capability satisfactory to the Administrator.
    (1) A manufacturer with projected nonroad engine sales for the 
United States market for the applicable year of 7,500 or greater must 
complete emission testing at a minimum rate of two engines per 24-hour 
period, including each voided test and each smoke test.
    (2) A manufacturer with projected nonroad engine sales for the 
United States market for the applicable year of less than 7,500 must 
complete emission testing at a minimum rate of one engine per 24-hour 
period, including each voided test and each smoke test.
    (3) The Administrator may approve a lower daily rate of emission 
testing based upon a request by a manufacturer accompanied by a 
satisfactory justification.
    (h) The manufacturer must perform test engine selection, shipping, 
preparation, service accumulation, and testing in such a manner as to 
assure that the audit is performed in an expeditious manner.
    (i) Retesting. (1) The manufacturer may retest any engines tested 
during a Selective Enforcement Audit once a fail decision for the audit 
has been reached in accordance with Sec. 91.608(e).
    (2) The Administrator may approve retesting at other times based 
upon a request by the manufacturer accompanied by a satisfactory 
justification.
    (3) The manufacturer may retest each engine a total of three times. 
The manufacturer must test each engine or vehicle the same number of 
times. The manufacturer may accumulate additional service before 
conducting a retest, subject to the provisions of paragraph (c) of this 
section.
    (j) A manufacturer must test engines with the test procedure 
specified in subpart E of this part to demonstrate compliance with the 
exhaust emission standard (or applicable FEL) for HC+NOX. If 
alternate procedures were used in certification pursuant to Sec. 91.119, 
then those alternate procedures must be used.



Sec. 91.608  Compliance with acceptable quality level and passing and failing criteria for selective enforcement audits.

    (a) The prescribed acceptable quality level is 40 percent.
    (b) A failed engine is one whose final test results pursuant to 
Sec. 91.509(b), for HC+NOX, exceed the applicable family 
emission level.
    (c) The manufacturer must test engines comprising the test sample 
until a pass decision is reached for HC+NOX or a fail 
decision is reached for HC+NOX. A pass decision is reached 
when the cumulative number of failed engines, as defined in paragraph 
(b) of this section, for HC+NOX is less than or equal to the 
pass decision number, as defined in paragraph (d) of this section, 
appropriate to the cumulative number of engines tested. A fail decision 
is reached when the cumulative number of failed engines for 
HC+NOX is greater than or equal to the fail decision number, 
as defined in paragraph (d) of this section, appropriate to the 
cumulative number of engines tested.
    (d) The pass and fail decision numbers associated with the 
cumulative number of engines tested are determined by using the tables 
in Appendix A to this subpart, ``Sampling Plans for Selective 
Enforcement Auditing of Marine Engines,'' appropriate to the projected 
sales as made by the manufacturer in its report to EPA under 
Sec. 91.504(c)(1). In the tables in Appendix A to this subpart, sampling 
plan ``stage'' refers to the cumulative number of engines tested. Once a 
pass or fail decision has been made for HC+NOX, the number of 
engines with

[[Page 370]]

final test results exceeding the emission standard for HC+NOX 
shall not be considered any further for the purposes of the audit.
    (e) Passing or failing of an SEA occurs when the decision is made on 
the last engine required to make a decision under paragraph (c) of this 
section.
    (f) The Administrator may terminate testing earlier than required in 
paragraph (c) of this section.

    Appendix A to Subpart G of Part 91--Sampling Plans for Selective 
                 Enforcement Auditing of Marine Engines

                   Table 1--Sampling Plan Code Letter
------------------------------------------------------------------------
         Annual engine family sales                   Code letter
------------------------------------------------------------------------
20-50.......................................  AA.1
120-99......................................  A.
100-299.....................................  B.
300-299.....................................  C.
500 or greater..............................  D.
------------------------------------------------------------------------
\1\ A manufacturer may optionally use either the sampling plan for code
  letter ``AA'' or sampling plan for code letter ``A'' for Selective
  Enforcement Audits of engine families with annual sales between 20 and
  50 engines. Additionally, the manufacturer may switch between these
  plans during the audit.


              Table 2--Sampling Plan for Code Letter ``AA''
                      [Sample inspection criteria]
------------------------------------------------------------------------
   Stage       Pass No.    Fail No.      Stage     Pass No.    Fail No.
------------------------------------------------------------------------
       1          (1)          (2)          11           4           8
       2          (1)          (2)          12           4           9
       3            0          (2)          13           5           9
       4            0          (2)          14           5          10
       5            1            5          15           6          10
       6            1            6          16           6          10
       7            2            6          17           7          10
       8            2            7          18           8          10
       9            3            7          19           8          10
      10            3            8          20           9          10
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.


              Table 3--Sampling Plan for Code Letter ``A''
                      [Sample inspection criteria]
------------------------------------------------------------------------
   Stage       Pass No.    Fail No.      Stage     Pass No.    Fail No.
------------------------------------------------------------------------
       1          (1)          (2)          16           6          11
       2          (1)          (2)          17           7          12
       3          (1)          (2)          18           7          12
       4            0          (2)          19           8          13
       5            0          (2)          20           8          13
       6            1            6          21           9          14
       7            1            7          22          10          14
       8            2            7          23          10          15
       9            2            8          24          11          15
      10            3            8          25          11          16
      11            3            8          26          12          16
      12            4            9          27          12          17
      13            5           10          28          13          17
      14            5           10          29          14          17
      15            6           11          30          16          17
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.


              Table 4--Sampling Plan for Code Letter ``B''
                      [Sample inspection criteria]
------------------------------------------------------------------------
         Stage                   Pass No.                Fail No.
------------------------------------------------------------------------
              1                      (1)                      (2)
              2                      (1)                      (2)
              3                      (1)                      (2)
              4                      (1)                      (2)
              5                        0                      (2)
              6                        1                        6
              7                        1                        7
              8                        2                        7
              9                        2                        8
             10                        3                        8
             11                        3                        9
             12                        4                        9
             13                        4                       10
             14                        5                       10
             15                        5                       11
             16                        6                       12
             17                        6                       12
             18                        7                       13
             19                        8                       13
             20                        8                       14
             21                        9                       14
             22                        9                       15
             23                       10                       15
             24                       10                       16
             25                       11                       16
             26                       11                       17
             27                       12                       17
             28                       12                       18
             29                       13                       18
             30                       13                       19
             31                       14                       19
             32                       14                       20
             33                       15                       20
             34                       16                       21
             35                       16                       21
             36                       17                       22
             37                       17                       22
             38                       18                       22
             39                       18                       22
             40                       21                       22
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.


              Table 5--Sampling Plan for Code Letter ``C''
                      [Sample inspection criteria]
------------------------------------------------------------------------
         Stage                   Pass No.                Fail No.
------------------------------------------------------------------------
              1                    (\1\)                    (\2\)
              2                    (\1\)                    (\2\)
              3                    (\1\)                    (\2\)
              4                    (\1\)                    (\2\)

[[Page 371]]

 
              5                        0                    (\2\)
              6                        0                        6
              7                        1                        7
              8                        2                        7
              9                        2                        8
             10                        3                        9
             11                        3                        9
             12                        4                       10
             13                        4                       10
             14                        5                       11
             15                        5                       11
             16                        6                       12
             17                        6                       12
             18                        7                       13
             19                        7                       13
             20                        8                       14
             21                        8                       14
             22                        9                       15
             23                       10                       15
             24                       10                       16
             25                       11                       16
             26                       11                       17
             27                       12                       17
             28                       12                       18
             29                       13                       18
             30                       13                       19
             31                       14                       19
             32                       14                       20
             33                       15                       20
             34                       15                       21
             35                       16                       21
             36                       16                       22
             37                       17                       22
             38                       18                       23
             39                       18                       23
             40                       19                       24
             41                       19                       24
             42                       20                       25
             43                       20                       25
             44                       21                       26
             45                       21                       27
             46                       22                       27
             47                       22                       27
             48                       23                       27
             49                       23                       27
             50                       26                      27
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.


              Table 6--Sampling Plan for Code Letter ``D''
                      [Sample inspection criteria]
------------------------------------------------------------------------
         Stage                   Pass No.                Fail No.
------------------------------------------------------------------------
              1                    (\1\)                    (\2\)
              2                    (\1\)                    (\2\)
              3                    (\1\)                    (\2\)
              4                    (\1\)                    (\2\)
              5                        0                    (\2\)
              6                        0                        6
              7                        1                        7
              8                        2                        8
              9                        2                        8
             10                        3                        9
             11                        3                        9
             12                        4                       10
             13                        4                       10
             14                        5                       11
             15                        5                       11
             16                        6                       12
             17                        6                       12
             18                        7                       13
             19                        7                       13
             20                        8                       14
             21                        8                       14
             22                        9                       15
             23                        9                       15
             24                       10                       16
             25                       11                       16
             26                       11                       17
             27                       12                       17
             28                       12                       18
             29                       13                       19
             30                       13                       19
             31                       14                       20
             32                       14                       20
             33                       15                       21
             34                       15                       21
             35                       16                       22
             36                       16                       22
             37                       17                       23
             38                       17                       23
             39                       18                       24
             40                       18                       24
             41                       19                       25
             42                       19                       26
             43                       20                       26
             44                       21                       27
             45                       21                       27
             46                       22                       28
             47                       22                       28
             48                       23                       29
             49                       23                       29
             50                       24                       30
             51                       24                       30
             52                       25                       31
             53                       25                       31
             54                       26                       32
             55                       26                       32
             56                       27                       33
             57                       27                       33
             58                       28                       33
             59                       28                       33
             60                       32                      33
------------------------------------------------------------------------
\1\ Test sample passing not permitted at this stage.
\2\ Test sample failure not permitted at this stage.



         Subpart H--Importation of Nonconforming Marine Engines



Sec. 91.701  Applicability.

    (a) Except where otherwise indicated, this subpart is applicable to 
marine SI engines for which the Administrator has promulgated 
regulations under this part prescribing emission standards, including 
engines incorporated into marine vessels or equipment, that are offered 
for importation or imported into the United States, but which engines, 
at the time of importation or

[[Page 372]]

being offered for importation are not covered by certificates of 
conformity issued under section 213 and section 206(a) of the Clean Air 
Act as amended (that is, which are nonconforming marine engines as 
defined in Sec. 91.702), and this part. Compliance with regulations 
under this subpart does not relieve any person or entity from compliance 
with other applicable provisions of the Clean Air Act.
    (b) Regulations prescribing further procedures for the importation 
of marine SI engines and marine vessels or equipment into the customs 
territory of the United States, as defined in 19 U.S.C. 1202, are set 
forth in U.S. Customs Service regulations.



Sec. 91.702  Definitions.

    The definitions in subpart A of this part apply to this subpart. The 
following definitions also apply to this subpart.
    Certificate of conformity. The document issued by the Administrator 
under section 213 and section 206(a) of the Act.
    Nonconforming marine engine. A marine SI engine which is not covered 
by a certificate of conformity prior to importation or being offered for 
importation (or for which such coverage has not been adequately 
demonstrated to EPA). Also, a marine SI engine which was originally 
covered by a certificate of conformity, but subsequently altered or 
modified such that it is no longer in a certified configuration.
    Original engine manufacturer (OEM). The entity which originally 
manufactured the marine engine.
    United States. United States includes the customs territory of the 
United States as defined in 19 U.S.C. 1202, and the Virgin Islands, 
Guam, American Samoa, and the Commonwealth of the Northern Mariana 
Islands.



Sec. 91.703  Admission.

    (a) A nonconforming marine SI engine offered for importation may 
only be imported into the United States under Sec. 91.704, provided that 
an exemption or exclusion is granted by the Administrator. Final 
admission shall not be granted unless the marine SI engine is exempted 
or excluded under Sec. 91.704.
    (b) In order to obtain admission the importer must submit to the 
Administrator a written request for approval containing the following:
    (1) Identification of the importer of the marine SI engine and the 
importer's address, telephone number, and taxpayer identification 
number;
    (2) Identification of the marine SI engine owner, the owner's 
address, telephone number, and taxpayer identification number;
    (3) Identification of the marine SI engine including make, model, 
identification number, and original production year;
    (4) Information indicating under what provision of these regulations 
the marine SI engine is to be imported;
    (5) Identification of the place(s) where the subject marine SI 
engine is to be stored;
    (6) Authorization for EPA enforcement officers to conduct 
inspections or testing otherwise permitted by the Act or regulations 
thereunder; and
    (7) Such other information as is deemed necessary by the 
Administrator.



Sec. 91.704  Exemptions and exclusions.

    (a) Individuals and businesses are eligible to import nonconforming 
marine SI engines into the United States only under the provisions of 
this section.
    (b) Notwithstanding other requirements of this subpart, a 
nonconforming marine SI engine entitled to one of the temporary 
exemptions of this paragraph may be conditionally admitted into the 
United States if prior written approval for the conditional admission is 
obtained from the Administrator. Conditional admission must be under 
bond. The Administrator may request that the U.S. Customs Service 
require a specific bond amount to ensure compliance with the 
requirements of the Act and this subpart. A written request for approval 
from the Administrator must contain the identification required in 
Sec. 91.703(b) and information that demonstrates that the importer is 
entitled to the exemption. Noncompliance with provisions of this section 
may result in the forfeiture of the total amount of the bond or 
exportation of

[[Page 373]]

the marine engine. The following temporary exemptions are permitted by 
this paragraph:
    (1) Exemption for repairs or alterations. Upon written approval by 
EPA, a person may conditionally import under bond a nonconforming marine 
SI engine solely for purpose of repair(s) or alteration(s). The marine 
SI engines may not be operated in the United States other than for the 
sole purpose of repair or alteration. It may not be sold or leased in 
the United States and must be exported upon completion of the repair(s) 
or alteration(s).
    (2) Testing exemption. A nonconforming test marine SI engine may be 
conditionally imported under bond by a person subject to the 
requirements of Sec. 91.1005. A test marine SI engine may be operated in 
the United States provided that the operation is an integral part of the 
test. This exemption is limited to a period not exceeding one year from 
the date of importation unless a request is made by the appropriate 
importer, and subsequently granted by EPA, concerning the marine engine 
in accordance with Sec. 91.1005(f) for a subsequent one-year period.
    (3) Display exemptions. (i) A nonconforming marine engine intended 
solely for display may be conditionally imported under bond subject to 
the requirements of Sec. 91.1007.
    (ii) A display marine engine may be imported by any person for 
purposes related to a business or the public interest. Such purposes do 
not include collections normally inaccessible or unavailable to the 
public on a daily basis, display of a marine engine at a dealership, 
private use, or other purpose that the Administrator determines is not 
appropriate for display exemptions. A display marine engine may not be 
sold or leased in the United States and may not be operated in the 
United States except for the operation incident and necessary to the 
display purpose.
    (iii) A temporary display exemption is granted for 12 months or for 
the duration of the display purpose, whichever is shorter. Extensions of 
up to 12 months each are available upon approval by the Administrator. 
In no circumstances, however, may the total period of exemption exceed 
36 months.
    (c) Notwithstanding any other requirement of this subpart, a marine 
SI engine may be finally admitted into the United States under this 
paragraph if prior written approval for such final admission is obtained 
from the Administrator. A request for approval is to contain the 
identification information required in Sec. 91.703(b) (except for 
Sec. 91.703(b)(5)) and information that demonstrates that the importer 
is entitled to the exemption. The following exemptions are permitted by 
this paragraph:
    (1) National security exemption. A nonconforming marine engine may 
be imported under the national security exemption found at Sec. 91.1008.
    (2) Exemption for marine engines identical to United States 
certified versions. (i) Any person (including businesses) is eligible 
for importing a nonconforming marine SI engine into the United States 
under the provisions of this paragraph. An exemption will be granted if 
the applicant demonstrates to the satisfaction of the Administrator that 
the marine engine:
    (A) Is owned by the importer;
    (B) Is not offered for importation for the purpose of resale; and
    (C) Is proven to be identical, in all material respects, to a marine 
SI engine of the same or later model year certified by the Original 
Engine Manufacturer for sale in the United States or is proven to have 
been modified to be identical, in all material respects, to a marine 
engine of the same or later model year certified by the OEM for sale in 
the United States according to complete written instructions provided by 
the OEM's United States representative, or his/her designee.
    (ii) Proof of conformity.
    (A) Documentation submitted pursuant to this section for the purpose 
of proving conformity of individual marine engines is to contain 
sufficiently organized data or evidence demonstrating that the marine 
engine identified pursuant to Sec. 91.703(b) is identical, in all 
material respects, to a marine engine identified in an OEM's application 
for certification.
    (B) If the documentation does not contain all the information 
required by this part, or is not sufficiently organized, EPA will notify 
the importer of

[[Page 374]]

any areas of inadequacy and that the documentation will not receive 
further consideration until the required information or organization is 
provided.
    (C) If EPA determines that the documentation does not clearly or 
sufficiently demonstrate that a marine engine is eligible for 
importation under this paragraph, EPA will notify the importer in 
writing.
    (D) If EPA determines that the documentation clearly and 
sufficiently demonstrates that a marine engine is eligible for 
importation under this paragraph, EPA will grant approval for final 
admission in writing.
    (d) Foreign diplomatic and military personnel may conditionally 
import a nonconforming marine engine without bond. At the time of 
conditional admission, the importer must submit to the Administrator the 
written report required in Sec. 91.703(b) (except for information 
required by Sec. 91.703(b)(5)) and a statement from the U.S. Department 
of State confirming qualification for this exemption. Foreign military 
personnel may, in lieu of a statement from the U.S. Department of State, 
submit to the Administrator a copy of their orders for duty in the 
United States. The marine SI engine may not be sold or leased in the 
United States and must be exported if the individual's diplomatic status 
or the foreign military orders for duty in the U.S. are no longer 
applicable, as determined by the Department of State, unless 
subsequently brought into conformity with U.S. emission requirements in 
accordance with Sec. 91.704(c)(2).
    (e) Competition exclusion. A nonconforming marine engine may be 
conditionally imported by any person provided the importer demonstrates 
to the Administrator that the marine engine is used to propel a marine 
vessel used solely for competition and obtains prior written approval 
from the Administrator. A nonconforming engine imported pursuant to this 
paragraph may not be operated in the United States except for that 
operation incident and necessary for the competition purpose, unless 
subsequently brought into conformity with United States emission 
requirements in accordance with Sec. 91.704(c)(2).
    (f) An application for exemption and exclusion provided for in 
paragraphs (b), (c), and (e) of this section shall be mailed to: U.S. 
Environmental Protection Agency, Office of Mobile Sources, Engine 
Programs & Compliance Division (6403-J), 401 M Street, SW., Washington, 
DC 20460, Attention: Imports.



Sec. 91.705  Prohibited acts; penalties.

    (a) The importation of a marine SI engine, including a marine engine 
incorporated into marine vessels or equipment, which is not covered by a 
certificate of conformity other than in accordance with this subpart and 
the entry regulations of the U.S. Customs Service is prohibited. Failure 
to comply with this section is a violation of Sec. 91.1103(a)(1) and 
section 213(d) of the Act.
    (b) Unless otherwise permitted by this subpart, during a period of 
conditional admission, the importer of a marine engine may not:
    (1) Register, license, or operate the marine engine in the United 
States;
    (2) Sell or lease or offer the marine engine for sale or lease;
    (c) A marine SI engine conditionally admitted pursuant to 
Sec. 91.704 (b), (d) or (e) and not granted final admission by the end 
of the period of conditional admission, or within such additional time 
as the Administrator and the U.S. Customs Service may allow, is deemed 
to be unlawfully imported into the United States in violation of 
Sec. 91.1103(a)(1), section 213(d) and section 203 of the Act, unless 
the marine engine has been delivered to the U.S. Customs Service for 
export or other disposition under applicable Customs laws and 
regulations. A marine SI engine not so delivered is subject to seizure 
by the U.S. Customs Service.
    (d) An importer who violates Sec. 91.1103(a)(1), section 213(d) and 
section 203 of the Act is subject to a civil penalty under Sec. 91.1106 
and section 205 of the Act of not more than $25,000 for each marine 
engine subject to the violation. In addition to the penalty provided in 
the Act, where applicable, a person or entity who imports an engine 
under the exemption provisions of Sec. 91.704(b) and, who fails to 
deliver the marine engine to the U.S. Customs

[[Page 375]]

Service by the end of the period of conditional admission is liable for 
liquidated damages in the amount of the bond required by applicable 
Customs laws and regulations.



Sec. 91.706  Treatment of confidential information.

    The provisions for treatment of confidential information as 
described in Sec. 91.7 apply.



            Subpart I--In-Use Testing and Recall Regulations



Sec. 91.801  Applicability.

    The requirements of subpart I are applicable to all marine SI 
engines subject to the provisions of subpart A of part 91.
    (a) Marine engines subject to provisions of subpart B of this part 
are subject to recall regulations specified in 40 CFR part 85, subpart 
S, except for the items set forth in this subsection.
    (b) Reference to section 214 of the Clean Air Act in 40 CFR 
85.1801(a) does not apply. Reference to section 216 of the Clean Air Act 
does apply.
    (c) Reference to section 202 of the Act in 40 CFR 85.1802(a) does 
not apply. Reference to section 213 of the Act does apply.
    (d) Reference to ``family particulate emission limits as defined in 
Part 86 promulgated under section 202 of the Act'' in 40 CFR 85.1803(a) 
and 85.1805(a)(1) does not apply. Family emission limits as defined in 
40 CFR part 89 promulgated under section 213 of the Act does apply.
    (e) Add the following paragraph to 40 CFR 85.1805 (a)(9): A 
telephone number provided by the manufacturer, which may be used to 
report difficulty in obtaining recall repairs.
    (f) The requirements of the Manufacturer In-use testing program set 
forth in Secs. 91.803 through 91.805 are waived for existing technology 
OB/PWC as defined in Sec. 91.3 through model year 2003.
    (1) The Administrator has the discretion to waive the requirements 
of the Manufacturer In-use testing program set forth in sections 91.803 
through 91.805 for existing technology OB/PWC for a specific engine 
family up to model year 2005 if, upon the request of the manufacturer, 
the Administrator determines that the engine family will be phased out 
of U.S. production by model year 2005. As a condition to receiving such 
a waiver for either model year 2004 or 2005 or both, the manufacturer 
must discontinue U.S. production according to the schedule upon which 
the Administrator based the waiver. Failure to do so by the manufacturer 
will void ab initio the certificate of conformity.
    (2) A manufacturer request under paragraph (f)(1) of this section 
must be in writing and must apply to a specific engine family. The 
request must identify the engine family designation, the schedule for 
phasing the engine family out of U.S. production, and any other 
information the Administrator may require.



Sec. 91.802  Definitions.

    (a) For the purposes of this subpart, except as otherwise provided, 
the definitions in subpart A of this part apply to this subpart.
    (b) The definitions of 40 CFR Part 85, subpart S, Sec. 85.1801 also 
apply to this Part.



Sec. 91.803  Manufacturer in-use testing program.

    (a) EPA shall annually identify engine families and those 
configurations within families which the manufacturer must then subject 
to in-use testing as described below. For each model year, EPA may 
identify a number of engine families that is no greater than twenty-five 
percent of the number of engine families to which this subpart is 
applicable produced in that model year.
    (b) For each engine family identified by EPA, engine manufacturers 
shall perform emission testing of an appropriate sample of in-use 
engines from each engine family. Manufacturers shall submit data from 
this in-use testing to EPA.
    (c) Number of engines to be tested. An engine manufacturer shall 
test in-use engines from each engine family identified by EPA. Engines 
to be tested shall have accumulated between half and three-quarters of 
the family's useful life. The number of engines to be tested by a 
manufacturer will be determined by the following method:

[[Page 376]]

    (1) A minimum of four (4) engines per family provided that no engine 
fails any standard. For each failing engine, two more engines shall be 
tested until the total number of engines equals ten (10).
    (2) For engine families of less than 500 engines for the identified 
model year or for engine manufacturers who make less than or equal to 
2,000 for that model year, a minimum of two (2) engines per family 
provided that no engine fails any standard. For each failing engine, two 
more engines shall be tested until the total number of engines equals 
ten (10).
    (3) If an engine family was certified using carry over emission data 
and has been previously tested under paragraph (c) (1) or (2) of this 
section (and EPA has not ordered a recall for that family), then only 
one engine for that family must be tested. If that one engine fails any 
pollutant, testing must be conducted as outlined at paragraph (c) (1) or 
(2) of this section, whichever is appropriate.
    (d) At the discretion of the Administrator, an engine manufacturer 
may test more engines than the minima described in paragraph (c) of this 
section or may concede failure before testing a total of ten (10) 
engines.
    (e) The Administrator will consider failure rates, average emission 
levels and the existence of any defects among other factors in 
determining whether to pursue remedial action under this subpart. The 
Administrator may order a recall pursuant to Secs. 91.807-91.814 before 
testing reaches the tenth engine.
    (f) The Administrator may approve an alternative to manufacturer in-
use testing, where:
    (1) Engine family production is less than or equal to 200 per year; 
or
    (2) Engines cannot be obtained for testing because they are used 
substantially in craft which are not conducive to engine removal such as 
large vessels where the engine can not be removed without dismantling 
either the engine or the vessel; or
    (3) Other compelling circumstances associated with the structure of 
the industry and uniqueness of marine engine applications. Such 
alternatives shall be designed to determine whether the engine family is 
in compliance in-use.
    (g) Collection of in-use engines. The engine manufacturer shall 
procure in-use engines which have been operated for between half and 
three-quarters of the engine's useful life. The engine manufacturer may 
test engines from more than one model year in a given year. The 
manufacturer shall begin testing within twelve calendar months after 
receiving notice that EPA has identified a particular engine family for 
testing and shall complete testing of such engine family within twelve 
calendar months from the start of such testing. Test engines may be 
procured from sources associated with the engine manufacturer (i.e., 
manufacturer established fleet engines, etc.) or from sources not 
associated with the manufacturer (i.e., consumer-owned engines, 
independently-owned fleet engines, etc.).



Sec. 91.804  Maintenance, procurement and testing of in-use engines.

    (a) A test engine must have a maintenance and use history 
representative of actual in-use conditions.
    (1) To comply with this requirement a manufacturer must obtain 
information from the end users regarding the accumulated usage, 
maintenance, operating conditions, and storage of the test engines.
    (2) Documents used in the procurement process must be maintained as 
required in Sec. 91.121.
    (b) The manufacturer may perform minimal set-to-spec maintenance on 
components of a test engine that are not subject to parameter 
adjustment. Maintenance may include only that which is listed in the 
owner's instructions for engines with the amount of service and age of 
the acquired test engine. Documentation of all maintenance and 
adjustments shall be maintained and retained as required by Sec. 91.121.
    (c) At least one valid emission test, according to the test 
procedure outlined in subpart E of this part, is required for each in-
use engine.
    (d) The Administrator may waive portions or requirements of the test 
procedure, if any, that are not necessary to determine in-use 
compliance.

[[Page 377]]

    (e) If a selected in-use engine fails to comply with any applicable 
emission standards, the manufacturer shall determine the reason for 
noncompliance. The manufacturer must report all such reasons of 
noncompliance within fifteen days of completion of testing.



Sec. 91.805  In-use test program reporting requirements.

    (a) The manufacturer shall electronically submit to the 
Administrator within three (3) months of completion of testing all 
emission testing results generated from the in-use testing program. The 
following information must be reported for each test engine:
    (1) Engine family,
    (2) Model,
    (3) Engine serial number,
    (4) Date of manufacture,
    (5) Estimated hours of use,
    (6) Date and time of each test attempt,
    (7) Results (if any) of each test attempt,
    (8) Results of all emission testing,
    (9) Summary of all maintenance and/or adjustments performed,
    (10) Summary of all modifications and/or repairs,
    (11) Determinations of noncompliance.
    (b) The manufacturer must electronically submit the results of its 
in-use testing with a pre-approved information heading. The 
Administrator may exempt manufacturers from this requirement upon 
written request with supporting justification.
    (c) All testing reports and requests for approvals made under this 
subpart shall be addressed to: Manager, Engine Compliance Programs Group 
6403-J, U.S. Environmental Protection Agency, 401 M Street SW., 
Washington, DC 20460.
    (d) The Administrator may approve and/or require modifications to a 
manufacturer's in-use testing programs.



Sec. 91.806  Voluntary emissions recall.

    (a) Prior to an EPA ordered recall, the manufacturer may perform a 
voluntary emissions recall pursuant to regulations at Sec. 91.904 of 
this part. Such manufacturer is subject to the reporting requirements at 
Sec. 91.905 of this part.
    (b) Once EPA determines that a substantial number of engines fail to 
conform with the requirements of section 213 of the Act or this part, 
the manufacturer will not have the option of a voluntary emissions 
recall.



  Subpart J--Emission-related Defect Reporting Requirements, Voluntary 
                         Emission Recall Program



Sec. 91.901  Applicability.

    The requirements of this subpart J are applicable to all marine 
engines subject to the provisions of subpart A of this part 91. The 
requirement to report emission-related defects affecting a given class 
or category of engines remains applicable for five years from the end of 
the model year in which such engines were manufactured.



Sec. 91.902  Definitions.

    The definitions in subpart A of this part apply to this subpart.



Sec. 91.903  Applicability to part 85, subpart T.

    (a) Marine SI engines subject to provisions of subpart A of this 
part are subject to emission defect reporting requirements specified in 
40 CFR Part 85, subpart T, except for the items set forth in this 
section.
    (b) 40 CFR 85.1901 does not apply. See Sec. 91.901.
    (c) Reference to the Clean Air Act, 42 U.S.C. 1857 in 40 CFR 
85.1902(a) does not apply. Reference to the Clean Air Act, 42 U.S.C. 
7401 does apply.
    (d) Reference to the ``approved Application for Certification 
required by 40 CFR 86.077-22 and like provisions of Part 85 and Part 86 
of Title 40 of the Code of Federal Regulations'' does not apply. 
Reference to the approved application for certification required by 
91.108 and like provisions of Part 91 does apply.
    (e) Reference to section 202(d) of the Act in Sec. 85.1902(c) does 
not apply. Reference to section 202(d) and section 213 of the Act does 
apply.
    (f) Reference to section 214 of the Act in Sec. 85.1902(e) and (f) 
does not apply. Reference to section 216 of the Act does apply.

[[Page 378]]



Sec. 91.904  Voluntary emission recall.

    (a) A manufacturer, prior to initiating a voluntary emission recall 
program, must submit to the EPA the following information for a 15 day 
review and comment period:
    (1) A description of each class or category of engines recalled, 
including the number of engines to be recalled, the model year, and such 
other information as may be required to identify the engines recalled;
    (2) A description of the specific modifications, alterations, 
repairs, corrections, adjustments, or other changes to be made to 
correct the engines affected by the emission-related defect;
    (3) A description of the method by which the manufacturer will 
notify engine owners including copies of any letters of notification to 
be sent to engine owners;
    (4) A description of the proper maintenance or use, if any, upon 
which the manufacturer conditions eligibility for repair under the 
recall plan, and a description of the proof to be required of an engine 
owner to demonstrate compliance with any such conditions;
    (5) A description of the procedure to be followed by engine owners 
to obtain correction of the nonconformity. This may include designation 
of the date on or after which the owner can have the nonconformity 
remedied, the time reasonably necessary to perform the labor to remedy 
the defect, and the designation of facilities at which the defect can be 
remedied;
    (6) A description of the class of persons other than dealers and 
authorized warranty agents of the manufacturer who will remedy the 
defect; and
    (7) A description of the system by which the manufacturer will 
assure that an adequate supply of parts is available to perform the 
repair under the plan.
    (b) The manufacturer must submit at least one report on the progress 
of the recall campaign. This report is submitted one year from the date 
notification begins and includes the following information:
    (1) The methods used to notify both engine owners, dealers and other 
individuals involved in the recall campaign;
    (2) The number of engines known or estimated to be affected by the 
emission-related defect and an explanation of the means by which this 
number was determined;
    (3) The number of engines actually receiving repair under the plan;
    (4) The number of engine owners, dealers, and other individuals 
involved in the recall campaign that have been notified and the number 
of engines that have actually received repair; and
    (5) The number of engines determined to be ineligible for remedial 
action due to a failure to properly maintain or use such engines.



Sec. 91.905  Reports, voluntary recall plan filing, record retention.

    (a) The defect report, voluntary recall plan, and the voluntary 
recall progress report shall be sent to: Manager, Engine Compliance 
Programs Group 6403-J, Environmental Protection Agency, 401 M St. SW., 
Washington, DC 20460.
    (b) The information gathered by the manufacturer to compile the 
reports must be retained for not less than five years from the date of 
the manufacture of the engines and must be made available to duly 
authorized officials of the EPA upon request.



Sec. 91.906  Responsibility under other legal provisions preserved.

    The filing of any report under the provisions of this subpart will 
not affect a manufacturer's responsibility to file reports or 
applications, obtain approval, or give notice under any provision of 
law.



Sec. 91.907  Disclaimer of production warranty applicability.

    (a) The act of filing an Emission Defect Information Report is 
inconclusive as to the existence of a defect subject to the warranty 
provided by section 207(a) of the Act.
    (b) A manufacturer may include on each page of its Emission Defect 
Information Report a disclaimer stating that the filing of a Defect 
Information Report pursuant to these regulations is not conclusive as to 
the applicability of the warranty provided by subpart M of this part.

[[Page 379]]



         Subpart K--Exclusion and Exemption of Marine SI Engines



Sec. 91.1001  Applicability.

    The requirements of this subpart K are applicable to all marine 
spark-ignition propulsion engines subject to the provisions of subpart A 
of this part 91.



Sec. 91.1002  Definitions.

    The definitions in subpart A of this part apply to this subpart. The 
following definitions also apply to this subpart:
    Exemption means exemption from the prohibitions of Sec. 91.1103.
    Export exemption means an exemption granted under Sec. 91.1104(b) 
for the purpose of exporting new marine SI engines.
    National security exemption means an exemption which may be granted 
under Sec. 91.1104(b) for the purpose of national security.
    Manufacturer-owned marine engine means an uncertified marine SI 
engine owned and controlled by a marine SI engine manufacturer and used 
in a manner not involving lease or sale by itself or in a marine vessel 
or piece of equipment employed from year to year in the ordinary course 
of business for product development, production method assessment, or 
market promotion purposes.
    Testing exemption means an exemption which may be granted under 
Sec. 91.1104(b) for the purpose of research, investigations, studies, 
demonstrations or training, but not including national security.



Sec. 91.1003  Exclusions based on section 216(10) of the Act.

    (a) For the purpose of determining the applicability of section 
216(10) of the Act, any marine SI engine as that term is defined in 
subpart A of this part, is deemed a nonroad engine.
    (b) EPA will maintain a list of models of marine SI engines, and the 
marine vessels which use such engines, that have been determined to be 
excluded because they are used solely for competition. This list will be 
available to the public and may be obtained by writing to the following 
address: Group Manager, Engine Compliance Programs Group, Engine 
Programs and Compliance Division (6403J), Environmental Protection 
Agency, 401 M Street SW., Washington, DC 20460.
    (c) Upon written request with supporting documentation, EPA will 
make written determinations as to whether certain engines are or are not 
marine SI engines. Engines that are determined not to be marine SI 
engines are excluded from regulations under this part but may be subject 
to regulations under another part.



Sec. 91.1004  Who may request an exemption.

    (a) Any person may request a testing exemption under Sec. 91.1005.
    (b) Any marine SI engine manufacturer may request a national 
security exemption under Sec. 91.1008.
    (c) For marine SI engine manufacturers, marine SI engines for export 
purposes are exempt without application, subject to the provisions of 
Sec. 91.1009.
    (d) For eligible manufacturers, as determined by Sec. 91.1006, 
manufacturer-owned marine SI engines are exempt without application, 
subject to the provisions of Sec. 91.1006.
    (e) For any person, display marine SI engines are exempt without 
application, subject to the provisions of Sec. 91.1007.



Sec. 91.1005  Testing exemption.

    (a) Any person requesting a testing exemption must demonstrate the 
following:
    (1) That the proposed test program has a purpose which constitutes 
an appropriate basis for an exemption in accordance with 
Sec. 91.1104(b);
    (2) That the proposed test program necessitates the granting of an 
exemption;
    (3) That the proposed test program is reasonable in scope; and
    (4) That the proposed test program exhibits a degree of control 
consonant with the purpose of the program and the EPA's monitoring 
requirements.
    (5) Paragraphs (b), (c), (d), and (e) of this section describe what 
constitutes a sufficient demonstration for each of the four identified 
elements.
    (b) With respect to the purpose of the proposed test program, an 
appropriate purpose would be research, investigations, studies, 
demonstrations, or

[[Page 380]]

training, but not national security. A concise statement of purpose is a 
required item of information.
    (c) With respect to the necessity that an exemption be granted, 
necessity arises from an inability to achieve the stated purpose in a 
practicable manner without performing or causing to be performed one or 
more of the prohibited acts under Sec. 91.1103. In appropriate 
circumstances, time constraints may be a sufficient basis for necessity, 
but the cost of certification alone, in the absence of extraordinary 
circumstances, is not a basis for necessity.
    (d) With respect to reasonableness, a test program must exhibit a 
duration of reasonable length and affect a reasonable number of engines. 
In this regard, required items of information include:
    (1) An estimate of the program's duration.
    (2) The maximum number of marine engines involved.
    (e) With respect to control, the test program must incorporate 
procedures consistent with the purpose of the test and be capable of 
affording EPA monitoring capability. As a minimum, required items of 
information include:
    (1) The technical nature of the test;
    (2) The site of the test;
    (3) The duration and accumulated engine operation associated with 
the test;
    (4) The ownership arrangement with regard to the engines involved in 
the test;
    (5) The intended final disposition of the engines;
    (6) The manner in which the engine identification numbers will be 
identified, recorded, and made available; and
    (7) The means or procedure whereby test results will be recorded.
    (f) A manufacturer of new marine SI engines may request a testing 
exemption to cover marine SI engines intended for use in test programs 
planned or anticipated over the course of a subsequent one-year period. 
Unless otherwise required by the Manager, Engine Compliance Programs 
Group, a manufacturer requesting such an exemption need only furnish the 
information required by paragraphs (a)(1) and (d)(2) of this section 
along with a description of the recordkeeping and control procedures 
that will be employed to assure that the engines are used for purposes 
consistent with section 91.1104(b).



Sec. 91.1006  Manufacturer-owned exemption and precertification exemption.

    (a) Except as provided in paragraph (b) of this section, any 
manufacturer-owned marine SI engine, as defined by Sec. 91.1002, is 
exempt from compliance with Sec. 91.1103, without application, if the 
manufacturer complies with the following terms and conditions:
    (1) The manufacturer must establish, maintain, and retain the 
following adequately organized and indexed information on each exempted 
engine:
    (i) Engine identification number,
    (ii) Use of the engine on exempt status and
    (iii) Final disposition of any engine removed from exempt status.
    (2) The manufacturer must provide right of entry and access to these 
records to EPA authorized representatives as outlined in Sec. 91.505.
    (3) Unless the requirement is waived or an alternative procedure is 
approved by the Director, Engine Programs & Compliance Division, the 
manufacturer must permanently affix a label to each marine engine on 
exempt status. This label should:
    (i) Be affixed in a readily visible portion of the engine,
    (ii) Be attached in such a manner that it cannot be removed without 
destruction or defacement,
    (iii) State in the English language/and in block letters and 
numerals of a color that contrasts with the background of the label, the 
following information:
    (A) The label heading ``Emission Control Information;''
    (B) Full corporate name and trademark of manufacturer;
    (C) Engine displacement, engine family identification, and model 
year of engine; or person or office to be contacted for further 
information about the engine;
    (D) The statement ``This marine SI engine is exempt from the 
prohibitions of 40 CFR 91.1103.''
    (4) No provision of paragraph (a)(3) of this section prevents a 
manufacturer

[[Page 381]]

from including any other information it desires on the label.



Sec. 91.1007  Display exemption.

    An uncertified marine SI engine is a display engine when it is to be 
used solely for display purposes, will only be operated incident and 
necessary to the display purpose, and will not be sold unless an 
applicable certificate of conformity has been received or the engine has 
been finally admitted pursuant to subpart H of this part. A display 
engine is exempt without application.



Sec. 91.1008  National security exemption.

    (a)(1) Any marine SI engine, otherwise subject to this part, which 
is used in a vessel that exhibits substantial features ordinarily 
associated with military combat such as armor and/or permanently affixed 
weaponry and which will be owned and/or used by an agency of the Federal 
government with responsibility for national defense, will be exempt from 
these regulations for purposes of national security. No request for 
exemption is necessary.
    (2) Manufacturers may request a national security exemption for any 
marine SI engine, otherwise subject to this part, which does not meet 
the conditions described in paragraph (a)(1) of this section. A 
manufacturer requesting a national security exemption must state the 
purpose for which the exemption is required and the request must be 
endorsed by an agency of the federal government charged with 
responsibility for national defense.
    (b) EPA will maintain a list of models of marine SI engines (and the 
vessels which use them) that have been granted a national security 
exemption under paragraph (a)(2) of this section. This list will be 
available to the public and may be obtained by writing to the following 
address: Manager, Engine Compliance Programs Group 6403-J, Environmental 
Protection Agency, 401 M Street SW., Washington, DC 20460.



Sec. 91.1009  Export exemptions.

    (a) A new marine SI engine intended solely for export, and so 
labeled or tagged on the outside of the container and on the engine 
itself, is subject to the provisions of Sec. 91.1103, unless the 
importing country has emission standards for new marine engines which 
differ from EPA standards.
    (b) For the purpose of paragraph (a) of this section, a country 
having no standards, whatsoever, is deemed to be a country having 
emission standards which differ from EPA standards.
    (c) EPA will maintain a list of foreign countries that have in force 
marine SI emission standards identical to U.S. EPA standards and have so 
notified EPA. This list may be obtained by writing to the following 
address: Manager, Engine Compliance Programs Group 6403-J, Environmental 
Protection Agency, 401 M Street, SW., Washington, DC. 20460. New marine 
SI engines exported to such countries must comply with EPA certification 
regulations.
    (d) It is a condition of any exemption for the purpose of export 
under Sec. 91.1004(b) that such exemption be void ab initio with respect 
to a new marine SI engine intended solely for export if such marine SI 
engine is sold, or offered for sale, to an ultimate purchaser in the 
United States for purposes other than export.



Sec. 91.1010  Granting of exemptions.

    (a) If upon completion of the review of an exemption request made 
pursuant to Sec. 91.1005 or Sec. 91.1008, EPA determines it is 
appropriate to grant such an exemption, a memorandum of exemption will 
be prepared and submitted to the person requesting the exemption. The 
memorandum shall set forth the basis for the exemption, its scope, and 
such terms and conditions as are deemed necessary. Such terms and 
conditions shall generally include, but are not limited to, agreements 
by the applicant to conduct the exempt activity in the manner described 
to EPA, create and maintain adequate records accessible to EPA at 
reasonable times, employ labels for the exempt engines setting forth the 
nature of the exemption, take appropriate measures to assure that the 
terms of the exemption are met, and advise EPA of the termination of the 
activity and the ultimate disposition of the engines.
    (b) Any exemption granted pursuant to paragraph (a) of this section 
is deemed to cover any subject engine only to the extent that the 
specified

[[Page 382]]

terms and conditions are complied with. A breach of any term or 
condition causes the exemption to be void ab initio with respect to any 
engine. Consequently, the causing or the performing of an act prohibited 
under Sec. 91.1103(a) (1) or (3), other than in strict conformity with 
all terms and conditions of this exemption renders the person to whom 
the exemption is granted, and any other person to whom the provisions of 
Sec. 91.1103 are applicable, liable under sections 204 and 205 of the 
Act.



Sec. 91.1011  Submission of exemption requests.

    Requests for exemption or further information concerning exemptions 
and/or the exemption request review procedure should be addressed to: 
Manager, Engine Compliance Programs Group 6403J, Environmental 
Protection Agency, 401 M Street, SW., Washington, DC 20460.



Sec. 91.1012  Treatment of confidential information.

    The provisions for treatment of confidential information described 
in Sec. 91.7 apply to this subpart.



      Subpart L--Prohibited Acts and General Enforcement Provisions



Sec. 91.1101  Applicability.

    The requirements of subpart L are applicable to all marine engines 
and vessels subject to the provisions of subpart A of this part 91.



Sec. 91.1102  Definitions.

    The definitions in subpart A of this part apply to this subpart. All 
terms not defined herein or in subpart A have the meaning given them in 
the Act.



Sec. 91.1103  Prohibited acts.

    (a) The following acts and the causing thereof are prohibited:
    (1)(i) In the case of a manufacturer of new marine SI engines or 
vessels for distribution in commerce, the sale, the offering for sale, 
or the introduction, or delivery for introduction, into commerce, of any 
new marine SI engine manufactured after the applicable effective date 
under this part unless such engine is covered by a certificate of 
conformity issued (and in effect) under regulations found in this part.
    (ii) In the case of any person, except as provided by regulation of 
the Administrator, the importation into the United States of any new 
marine SI engine manufactured after the applicable effective date under 
this part unless such engine is covered by a certificate of conformity 
issued (and in effect) under regulations found in this part.
    (2)(i) For a person to fail or refuse to permit access to or copying 
of records or to fail to make reports or provide information required 
under Sec. 91.1104.
    (ii) For a person to fail or refuse to permit entry, testing or 
inspection authorized under Sec. 91.118, 91.505 or 91.1104.
    (iii) For a person to fail or refuse to perform tests, or to have 
tests performed as required under Sec. 91.118 or Sec. 91.1104.
    (iv) For a person to fail to establish or maintain records as 
required under Sec. 91.1104.
    (3)(i) For a person to remove or render inoperative a device or 
element of design installed on or in a marine engine in compliance with 
regulations under this part prior to its sale and delivery to the 
ultimate purchaser, or for a person knowingly to remove or render 
inoperative such a device or element of design after the sale and 
delivery to the ultimate purchaser; or
    (ii) For a person to manufacture, sell or offer to sell, or install, 
a part or component intended for use with, or as part of, a marine SI 
engine, where a principal effect of the part or component is to bypass, 
defeat, or render inoperative a device or element of design installed on 
or in a marine SI engine in compliance with regulations issued under 
this part, and where the person knows or should know that the part or 
component is being offered for sale or installed for this use or put to 
such use.
    (4) For a manufacturer of a new marine SI engine subject to 
standards prescribed under this part:
    (i) To sell, offer for sale, or introduce or deliver into commerce, 
a marine SI engine unless the manufacturer has complied with the 
requirements of Sec. 91.1203.

[[Page 383]]

    (ii) To sell, offer for sale, or introduce or deliver into commerce, 
a marine SI engine unless a label or tag is affixed to the engine in 
accordance with regulations under this part.
    (iii) To provide directly or indirectly in any communication to the 
ultimate purchaser or a subsequent purchaser that the coverage of a 
warranty under the Act is conditioned upon use of a part, component, or 
system manufactured by the manufacturer or a person acting for the 
manufacturer or under its control, or conditioned upon service performed 
by such persons, except as provided in subpart M of this part.
    (iv) To fail or refuse to comply with the terms and conditions of 
the warranty under subpart M of this part.
    (5) For a manufacturer of new marine vessels or equipment to 
distribute in commerce, sell, offer for sale, or introduce into 
commerce, marine vessels or equipment which contain an engine not 
covered by a certificate of conformity.
    (b) For the purposes of enforcement of this part, the following 
apply:
    (1) Nothing in paragraph (a) of this section is to be construed to 
require the use of manufacturer parts in maintaining or repairing a 
marine SI engine.
    (2) Actions for the purpose of repair or replacement of a device or 
element of design or any other item are not considered prohibited acts 
under Sec. 91.1103(a) if the actions are a necessary and temporary 
procedure, the device or element is replaced upon completion of the 
procedure, and the action results in the proper functioning of the 
device or element of design.
    (3) Actions for the purpose of a conversion of a marine SI engine 
for use of a clean alternative fuel (as defined in Title II of the Act) 
are not considered prohibited acts under Sec. 91.1103(a) if:
    (i) The engine complies with the applicable standard when operating 
on the alternative fuel, and the device or element is replaced upon 
completion of the conversion procedure, and
    (ii) In the case of engines converted to dual fuel or flexible use, 
the action results in proper functioning of the device or element when 
the marine SI engine operates on conventional fuel.
    (4) A new marine spark-ignition engine intended solely to replace an 
engine in an outboard engine, or other engine to which this part is 
applicable as determined by Secs. 91.1, 91.101, 91.106 that was 
originally produced with an engine manufactured prior to the applicable 
implementation date as described in Secs. 91.2, and 91.106 and 
91.205(a)(1), or that was originally produced in a model year in which 
less stringent emission standards under this part were in effect shall 
not be subject to the requirements of Sec. 91.106 or the prohibitions of 
paragraph (a)(1) of this section provided that:
    (i) The engine manufacturer has ascertained that no engine produced 
by itself or the manufacturer of the engine that is being replaced, if 
different, and certified to the requirements of this subpart, is 
available with the appropriate physical or performance characteristics 
to repower the outboard, personal watercraft or jetboat; and
    (ii) Unless an alternative control mechanism is approved in advance 
by the Administrator, the engine manufacturer or its agent takes 
ownership and possession of the engine being replaced; and
    (iii) The replacement engine is clearly labeled with the following 
language, or similar alternate language approved in advance by the 
Administrator:

This engine does not comply with Federal nonroad or on-highway emission 
requirements. Sale or installation of this engine for any purpose other 
than as a replacement engine in a marine vessel whose original engine 
was not certified, or was certified to less stringent emission standards 
than those that apply to the year of manufacture of this engine, is a 
violation of Federal law subject to civil penalty; and

    (iv) Where the replacement engine is intended to replace an engine 
built after the applicable implementation date as described in 
Secs. 91.2, 91.106 and 91.205(a)(1), but built to less stringent 
emission standards than are currently applicable, the replacement engine 
shall be identical in all material respects to a certified configuration 
of the same or later model year as the engine being replaced.

[61 FR 52102, Oct. 4, 1996, as amended at 62 FR 42644, Aug. 7, 1997]

[[Page 384]]



Sec. 91.1104  General enforcement provisions.

    (a) Information collection provisions. (1) Every manufacturer of new 
marine SI engines and other persons subject to the requirements of this 
part must establish and maintain records, perform tests where such 
testing is not otherwise reasonably available under this part, make 
reports and provide information the Administrator may reasonably require 
to determine whether the manufacturer or other person has acted or is 
acting in compliance with this part or to otherwise carry out the 
provisions of this part, and must, upon request of an officer or 
employee duly designated by the Administrator, permit the officer or 
employee at reasonable times to have access to and copy such records.
    (2) For purposes of enforcement of this part, an officer or employee 
duly designated by the Administrator, upon presenting appropriate 
credentials, is authorized:
    (i) To enter, at reasonable times, any establishment of the 
manufacturer, or of any person whom the manufacturer engaged to perform 
any activity required under paragraph (a)(1) of this section, for the 
purposes of inspecting or observing any activity conducted pursuant to 
paragraph (a)(1) of this section, and
    (ii) To inspect records, files, papers, processes, controls, and 
facilities used in performing an activity required by paragraph (a)(1) 
of this section, by the manufacturer or by a person whom the 
manufacturer engaged to perform the activity.
    (b) Exemption provision. The Administrator may exempt a new marine 
engine from compliance with Sec. 91.1103 upon such terms and conditions 
as the Administrator may find necessary for the purpose of export, 
research, investigations, studies, demonstrations, or training, or for 
reasons of national security.
    (c) Importation provision. (1) A new marine SI engine, or vessel 
offered for importation or imported by a person in violation of 
Sec. 91.1103 shall be refused admission into the United States, but the 
Secretary of the Treasury and the Administrator may, by joint 
regulation, provide for deferring a final determination as to admission 
and authorizing the delivery of such a marine SI engine offered for 
import to the owner or consignee thereof upon such terms and conditions 
(including the furnishing of a bond) as may appear to them appropriate 
to insure that the marine SI engine will be brought into conformity with 
the standards, requirements, and limitations applicable to it under this 
part.
    (2) If a marine SI engine is finally refused admission under this 
paragraph, the Secretary of the Treasury shall cause disposition thereof 
in accordance with the customs laws unless it is exported, under 
regulations prescribed by the Secretary, within 90 days of the date of 
notice of the refusal or additional time as may be permitted pursuant to 
the regulations.
    (3) Disposition in accordance with the customs laws may not be made 
in such manner as may result, directly or indirectly, in the sale, to 
the ultimate consumer, of a new marine SI engine that fails to comply 
with applicable standards of the Administrator under this part.
    (d) Export provision. A new marine SI engine intended solely for 
export, and so labeled or tagged on the outside of the container and on 
the engine itself, shall be subject to the provisions of Sec. 91.1103, 
except that if the country that is to receive the engine has emission 
standards that differ from the standards prescribed under subpart B of 
this part, then the engine must comply with the standards of the country 
that is to receive the engine.



Sec. 91.1105  Injunction proceedings for prohibited acts.

    (a) The district courts of the United States have jurisdiction to 
restrain violations of Sec. 91.1103.
    (b) Actions to restrain such violations must be brought by and in 
the name of the United States. In an action, subpoenas for witnesses who 
are required to attend a district court in any district may run into any 
other district.



Sec. 91.1106  Penalties.

    (a) Violations. A violation of the requirements of this subpart is a 
violation of the applicable provisions of the

[[Page 385]]

Act, including sections 203 and 213(d), and is subject to the penalty 
provisions thereunder.
    (1) A person who violates Sec. 91.1103 (a)(1), (a)(4), or (a)(5), or 
a manufacturer or dealer who violates Sec. 91.1103(a)(3)(i), is subject 
to a civil penalty of not more than $25,000 for each violation.
    (2) A person other than a manufacturer or dealer who violates 
Sec. 91.1103(a)(3)(i) or any person who violates Sec. 91.1103(a)(3)(ii) 
is subject to a civil penalty of not more than $2,500 for each 
violation.
    (3) A violation with respect to Sec. 91.1103 (a)(1), (a)(3)(i), 
(a)(4), or (a)(5) constitutes a separate offense with respect to each 
marine SI engine.
    (4) A violation with respect to Sec. 91.1103(a)(3)(ii) constitutes a 
separate offense with respect to each part or component. Each day of a 
violation with respect to Sec. 91.1103(a)(6) constitutes a separate 
offense.
    (5) A person who violates Sec. 91.1103 (a)(2) or (a)(6) is subject 
to a civil penalty of not more than $25,000 per day of violation.
    (b) Civil actions. The Administrator may commence a civil action to 
assess and recover any civil penalty under paragraph (a) of this 
section.
    (1) An action under this paragraph may be brought in the district 
court of the United States for the district in which the violation is 
alleged to have occurred or in which the defendant resides or has the 
Administrator's principal place of business, and the court shall have 
jurisdiction to assess a civil penalty.
    (2) In determining the amount of a civil penalty to be assessed 
under this paragraph, the court is to take into account the gravity of 
the violation, the economic benefit or savings (if any) resulting from 
the violation, the size of the violator's business, the violator's 
history of compliance with Title II of the Act, action taken to remedy 
the violation, the effect of the penalty on the violator's ability to 
continue in business, and such other matters as justice may require.
    (3) In any such action, subpoenas for witnesses who are required to 
attend a district court in any district may run into any other district.
    (c) Administrative assessment of certain penalties--(1) 
Administrative penalty authority. In lieu of commencing a civil action 
under paragraph (b) of this section, the Administrator shall assess any 
civil penalty prescribed in paragraph (a) of this section, except that 
the maximum amount of penalty sought against each violator in a penalty 
assessment proceeding can not exceed $200,000, unless the Administrator 
and the Attorney General jointly determine that a matter involving a 
larger penalty amount is appropriate for administrative penalty 
assessment. Any such determination by the Administrator and the Attorney 
General is not subject to judicial review. Assessment of a civil penalty 
is made by an order made on the record after opportunity for a hearing 
held in accordance with the procedures found at part 22 of this chapter. 
The Administrator may compromise, or remit, with or without conditions, 
any administrative penalty which may be imposed under this section.
    (2) Determining amount. In determining the amount of any civil 
penalty assessed under this subsection, the Administrator is to take 
into account the gravity of the violation, the economic benefit or 
savings (if any) resulting from the violation, the size of the 
violator's business, the violator's history of compliance with Title II 
of the Act, action taken to remedy the violation, the effect of the 
penalty on the violator's ability to continue in business, and such 
other matters as justice may require.
    (3) Effect of administrator's action. (i) Action by the 
Administrator under this paragraph does not affect or limit the 
Administrator's authority to enforce any provisions of this part; except 
that any violation with respect to which the Administrator has commenced 
and is diligently prosecuting an action under this part, or for which 
the Administrator has issued a final order not subject to further 
judicial review and for which the violator has paid a penalty assessment 
under this part may not be the subject of a civil penalty action under 
paragraph (b) of this section.

[[Page 386]]

    (ii) No action by the Administrator under this part affects a 
person's obligation to comply with a section of this part.
    (4) Finality of order. An order issued under this subsection is to 
become final 30 days after its issuance unless a petition for judicial 
review is filed under paragraph (c)(5) of this section.
    (5) Judicial review. (i) A person against whom a civil penalty is 
assessed in accordance with this subsection may seek review of the 
assessment in the United States District Court for the District of 
Columbia or for the district in which the violation is alleged to have 
occurred, in which such person resides, or where the person's principle 
place of business is located, within the 30-day period beginning on the 
date a civil penalty order is issued. The person must simultaneously 
send a copy of the filing by certified mail to the Administrator and the 
Attorney General.
    (ii) The Administrator must file in the court within 30 days a 
certified copy, or certified index, as appropriate, of the record on 
which the order was issued. The court is not to set aside or remand any 
order issued in accordance with the requirements of this paragraph 
unless substantial evidence does not exist in the record, taken as a 
whole, to support the finding of a violation or unless the 
Administrator's assessment of the penalty constitutes an abuse of 
discretion, and the court is not to impose additional civil penalties 
unless the Administrator's assessment of the penalty constitutes an 
abuse of discretion. In any proceedings, the United States may seek to 
recover civil penalties assessed under this section.
    (6) Collection. (i) If any person fails to pay an assessment of a 
civil penalty imposed by the Administrator as provided in this part 
after the order making the assessment has become final or after a court 
in an action brought under paragraph (c)(5) of this section has entered 
a final judgment in favor of the Administrator, the Administrator is to 
request that the Attorney General bring a civil action in an appropriate 
district court to recover the amount assessed (plus interest at rates 
established pursuant to section 6621(a)(2) of the Internal Revenue Code 
of 1986 from the date of the final order or the date of final judgment, 
as the case may be). In such an action, the validity, amount, and 
appropriateness of the penalty is not subject to review.
    (ii) A person who fails to pay on a timely basis the amount of an 
assessment of a civil penalty as described in paragraph (c)(6)(i) of 
this section is required to pay, in addition to that amount and 
interest, the United States' enforcement expenses, including attorney's 
fees and costs for collection proceedings, and a quarterly nonpayment 
penalty for each quarter during which the failure to pay persists. The 
nonpayment penalty is an amount equal to 10 percent of the aggregate 
amount of that person's penalties and nonpayment penalties which are 
unpaid as of the beginning of such quarter.



Sec. 91.1107  Warranty provisions.

    (a) The manufacturer of each marine SI engine must warrant to the 
ultimate purchaser and each subsequent purchaser that the engine is 
designed, built, and equipped so as to conform at the time of sale with 
applicable regulations under section 213 of the Act, and is free from 
defects in materials and workmanship which cause such engine to fail to 
conform with applicable regulations for its warranty period (as 
determined under Sec. 91.1203).
    (b) In the case of an engine part, the manufacturer or rebuilder of 
the part may certify according to Sec. 85.2112 of this chapter that use 
of the part will not result in a failure of the engine to comply with 
emission standards promulgated in this part.
    (c) For the purposes of this section, the owner of any engine 
warranted under this part is responsible for the proper maintenance of 
the engine. Proper maintenance includes replacement and service, at the 
owner's expense at a service establishment or facility of the owner's 
choosing, such items as spark plugs, points, condensers, and any other 
part, item, or device related to emission control (but not designed for 
emission control) under the terms of the last sentence of section 
207(a)(3) of the Act, unless such part, item, or device is covered by 
any warranty not mandated by this Act.

[[Page 387]]



Sec. 91.1108  In-use compliance provisions.

    (a) Effective with respect to marine engine and vessels manufactured 
during model years 1997 and after:
    (1) If the Administrator determines that a substantial number of any 
class or category of engines, although properly maintained and used, do 
not conform to the regulations prescribed under section 213 of the Act 
when in actual use throughout their useful life (as defined under 
Sec. 91.105(a)), the Administrator shall immediately notify the 
manufacturer of such nonconformity and require the manufacturer to 
submit a plan for remedying the nonconformity of the engines with 
respect to which such notification is given.
    (i) The manufacturer's plan shall provide that the nonconformity of 
any such engines which are properly used and maintained will be remedied 
at the expense of the manufacturer.
    (ii) If the manufacturer disagrees with such determination of 
nonconformity and so advises the Administrator, the Administrator shall 
afford the manufacturer and other interested persons an opportunity to 
present their views and evidence in support thereof at a public hearing. 
Unless, as a result of such hearing, the Administrator withdraws such 
determination of nonconformity, the Administrator shall, within 60 days 
after the completion of such hearing, order the manufacturer to provide 
prompt notification of such nonconformity in accordance with paragraph 
(a)(2) of this section. The manufacturer shall comply in all respects 
with the requirements of subpart I of this part.
    (2) Any notification required to be given by the manufacturer under 
paragraph (a)(1) of this section with respect to any class or category 
of engines shall be given to dealers, ultimate purchasers, and 
subsequent purchasers (if known) in such manner and containing such 
information as required in subparts I and J of this part.
    (3)(i) The manufacturer shall furnish with each new engine written 
instructions for the proper maintenance and use of the engine by the 
ultimate purchaser as required under Sec. 91.1204. The manufacturer 
shall provide in boldface type on the first page of the written 
maintenance instructions notice that maintenance, replacement, or repair 
of the emission control devices and systems may be performed by any 
engine repair establishment or individual using any engine part which 
has been certified as provided in Sec. 91.1107(b).
    (ii) The instruction under paragraph (a)(3)(i) of this section must 
not include any condition on the ultimate purchaser's using, in 
connection with such engine, any component or service (other than a 
component or service provided without charge under the terms of the 
purchase agreement) which is identified by brand, trade, or corporate 
name. Subject instructions also must not directly or indirectly 
distinguish between service performed by the franchised dealers of such 
manufacturer, or any other service establishments with which such 
manufacturer has a commercial relationship, and service performed by 
independent engine repair facilities with which such manufacturer has no 
commercial relationship.
    (iii) The prohibition of paragraph (a)(3)(ii) of this section may be 
waived by the Administrator if:
    (A) The manufacturer satisfies the Administrator that the engine 
will function properly only if the component or service so identified is 
used in connection with such engine, and
    (B) The Administrator finds that such a waiver is in the public 
interest.
    (iv) In addition, the manufacturer shall indicate by means of a 
label or tag permanently affixed to the engine that the engine is 
covered by a certificate of conformity issued for the purpose of 
assuring achievement of emission standards prescribed under section 213 
of the Act. This label or tag shall also contain information relating to 
control of emissions as prescribed under Sec. 91.113.
    (b) The manufacturer bears all cost obligation a dealer incurs as a 
result of a requirement imposed by paragraph (a) of this section. The 
transfer of any such cost obligation from a manufacturer to a dealer 
through franchise or other agreement is prohibited.
    (c) If a manufacturer includes in an advertisement a statement 
respecting the cost or value of emission control devices or systems, the 
manufacturer shall set forth in the statement the

[[Page 388]]

cost or value attributed to these devices or systems by the Secretary of 
Labor (through the Bureau of Labor Statistics). The Secretary of Labor, 
and his or her representatives, has the same access for this purpose to 
the books, documents, papers, and records of a manufacturer as the 
Comptroller General has to those of a recipient of assistance for 
purposes of section 311 of the Act.
    (d) Any inspection of a engine for purposes of paragraph (a)(1) of 
this section, after its sale to the ultimate purchaser, is to be made 
only if the owner of such vehicle or engine voluntarily permits such 
inspection to be made, except as may be provided by any state or local 
inspection program.



        Subpart M--Emission Warranty and Maintenance Instructions



Sec. 91.1201  Applicability.

    The requirements of this subpart M are applicable to all engines 
subject to the provisions of subpart A of this part 91.



Sec. 91.1202  Definitions.

    The definitions of subpart A of this part apply to this subpart.



Sec. 91.1203  Emission warranty, warranty period.

    (a) Warranties imposed by this subpart shall be phased in according 
to the following schedule.
    (1) For model years 1998-2000, and for MY 1997 engine families 
certified pursuant to Sec. 91.205, all emission related components shall 
be warranted for a period of one year of engine use.
    (2) For model years 2001-2003:
    (i) Emission related components shall be warranted for a period of 
one year of engine use.
    (ii) Specified major emission control components shall be warranted 
for a period of three years or 200 hours of engine use, whichever occurs 
first.
    (3) For model years 2004 and beyond:
    (i) Emission-related components shall be warranted for a period of 
two years or 200 hours of engine use, whichever occurs first.
    (ii) Specified major emission control components shall be warranted 
for a period of three years or 200 hours of engine use, whichever occurs 
first.
    (b) The manufacturer of each new marine SI engine must warrant to 
the ultimate purchaser and each subsequent purchaser, that the engine is 
designed, built, and equipped so as to conform at the time of sale with 
applicable regulations under section 213 of the Act, and the engine is 
free from defects in materials and workmanship which cause such engine 
to fail to conform with applicable regulations for its warranty period.
    (c) In the case of a marine SI engine part, the manufacturer or 
rebuilder of the part may certify according to Sec. 85.2112 ot this 
chapter that use of the part will not result in a failure of the engine 
to comply with emission standards promulgated in this part.
    (d) For the purposes of this section, the owner of any marine SI 
engine warranted under this part is responsible for the proper 
maintenance of the engine as stated in the manufacturer's written 
instructions. Proper maintenance generally includes replacement and 
service, at the owner's expense at a service establishment or facility 
of the owner's choosing, such items as spark plugs, points, condensers, 
and any other part, item, or device related to emission control (but not 
designed for emission control) under the terms of the last sentence of 
section 207(a)(3) of the Act, unless such part, item, or device is 
covered by any warranty not mandated by this Act.



Sec. 91.1204  Furnishing of maintenance and use instructions to ultimate purchaser.

    (a) The manufacturer must furnish or cause to be furnished to the 
ultimate purchaser of each new marine SI engine written instructions for 
the maintenance and use needed to assure proper functioning of the 
emission control system.
    (b) The manufacturer must provide in boldface type on the first page 
of the written maintenance instructions notice that maintenance, 
replacement, or repair of the emission control devices and systems may 
be performed by any marine SI engine repair establishment or individual.

[[Page 389]]

    (c) The instructions under paragraph (a) of this section will not 
include any condition on the ultimate purchaser's using, in connection 
with such engine, any component or service (other than a component or 
service provided without charge under the terms of the purchase 
agreement) which is identified by brand, trade, or corporate name. Such 
instructions also will not directly or indirectly distinguish between 
service performed by the franchised dealers of such manufacturer or any 
other service establishments with which such manufacturer has a 
commercial relationship and service performed by independent marine 
engine repair facilities which such manufacturer has no commercial 
relationship.
    (d) The prohibition of paragraph (c) of this section may be waived 
by the Administrator if:
    (1) The manufacturer satisfies the Administrator that the engine 
will function properly only if the component or service so identified is 
used in connection with such engine, and
    (2) The Administrator finds that such a waiver is in the public 
interest.



         Subpart N--In-Use Credit Program for New Marine Engines



Sec. 91.1301  Applicability.

    Marine SI engines subject to the provisions of subpart A of this 
part 91 are eligible to participate in the in-use credit program 
described in this subpart.



Sec. 91.1302  Definitions.

    The definitions in subpart A of this part apply to this subpart. The 
following definitions shall also apply to this subpart:
    Averaging means the exchange of marine engine in-use emission 
credits among engine families within a given manufacturer's product 
line.
    Banking means the retention of marine engine in-use emission credits 
by the manufacturer generating the emission credits for use in future 
model year averaging or trading as permitted by these regulations.
    Carry-over engine family means an engine family which undergoes 
certification using carryover test data from previous model years. See 
Sec. 91.118(c).
    Emission credits or in-use credits represent the amount of emission 
reduction or exceedance, for each regulated pollutant, by a marine 
engine family below or above, respectively, the applicable certification 
family emission limit (FEL) to which the engine family is certified. 
Emission reductions below the FEL are considered ``positive credits,'' 
while emission exceedances above the FEL are considered ``negative or 
required credits.''
    Banked credits refer to positive emission credits based on actual 
applicable production/sales volume as contained in the end of model year 
in-use testing reports submitted to EPA. Some or all of these banked 
credits may be revoked if EPA review of the end of model year in-use 
testing reports or any subsequent audit action(s) uncovers problems or 
errors.
    Trading means the exchange of marine SI engine in-use emission 
credits between manufacturers and/or brokers.
    Compliance level for an engine family is determined by averaging the 
in-use test results from each engine.



Sec. 91.1303  General provisions.

    (a) The in-use credit program for eligible marine engines is 
described in this subpart. Participation in this program is voluntary.
    (b) A marine SI engine family is eligible to participate in the in-
use credit program if it is subject to regulation under subpart B of 
this part with certain exceptions specified in paragraph (c) of this 
section.
    (c) Marine SI engines may not participate in the in-use averaging, 
banking, and trading program if they are delivered to a ``point of first 
retail sale'' outside of the U.S., as defined in Sec. 91.202.
    (d) Credits generated and used in the marine engine certification 
averaging, banking, and trading program pursuant to the provisions of 
subpart C of this part are not interchangeable with credits generated 
and used in the marine engine in-use credit program.
    (e) An engine family with a compliance level, as determined by in-
use testing pursuant to subpart I of this part and paragraph (h) of this 
section, below the applicable FEL to which the engine family is 
certified may generate

[[Page 390]]

emission credits for averaging, banking, or trading in the in-use credit 
program.
    (f) Positive credits generated in a given model year may be used in 
that model year and/or in any subsequent model year.
    (g) A manufacturer of an engine family with a compliance level 
exceeding the applicable FEL to which the engine family is certified, 
may, prior to the date of the report required under paragraph (j) of 
this section use previously banked credits, purchase credits from 
another manufacturer, or perform additional testing pursuant to 
paragraph (i) of this section to address (as calculated elsewhere in 
this subpart) the associated credit deficit (negative credits or a need 
for credits).
    (h) A manufacturer may carry-over an in-use credit deficit up to and 
including model year 2003. Beginning with model year 2004, all 
manufacturers must have a zero or positive credit balance.
    (i) A manufacturer must notify EPA of plans to test additional 
engine families beyond the maximum 25 percent required in subpart I of 
this part for the in-use testing program. Such notice must be submitted 
30 days prior to initiation of service accumulation. EPA may approve, 
with adequate justification, the use of an existing fleet for additional 
testing. If the additional testing discovers an engine family to be in 
noncompliance with the applicable FEL, the testing must be treated as if 
it were a failure of the normal in-use testing requirement of an engine 
family.
    (j) Manufacturers must demonstrate a zero or positive credit balance 
under the in-use credit program for a particular model year within 90 
days of the end of the in-use testing of that model year's engine 
families, or at the same time as the final certification AB&T report 
(required under Sec. 91.210), whichever is later.



Sec. 91.1304  Averaging.

    (a) A manufacturer may use averaging across engine families to 
demonstrate a zero or positive credit balance for a model year. Positive 
credits to be used in averaging may be obtained from credits generated 
by another engine family of the same model year, credits banked in 
previous model years, or credits obtained through trading.
    (b) Beginning in model year 2004, credits used to demonstrate a zero 
or positive credit balance must be used at a rate of 1.1 to 1.



Sec. 91.1305  Banking.

    (a) A manufacturer of a marine SI engine family with an in-use 
compliance level below the applicable FEL to which the engine family is 
certified for a given model year may bank positive in-use credits for 
that model year for use in in-use averaging and trading.
    (b) A manufacturer may consider credits banked 30 days after the 
submission of the report required by Sec. 91.1309(a). During the 30 day 
period EPA will work with the manufacturer to correct any error in 
calculating banked credits, if necessary.



Sec. 91.1306  Trading.

    (a) A marine engine manufacturer may exchange positive in-use 
emission credits with other marine engine manufacturers through trading.
    (b) In-use credits for trading can be obtained from credits banked 
for model years prior to the model year of the engine family requiring 
in-use credits.
    (c) Traded in-use credits can be used for averaging, banking, or 
further trading transactions.
    (d) Unless otherwise approved by EPA, a manufacturer that generates 
positive in-use credits must wait 30 days after it has both completed 
in-use testing for the model year for which the credits were generated 
and submitted the report required by Sec. 91.1309(a) before it may 
transfer credits to another manufacturer or broker.
    (e) In the event of a negative credit balance resulting from a 
transaction, both the buyer and the seller are liable, except in cases 
involving fraud. Engine families participating in a negative trade may 
be subject to recall under subpart I of this part.



Sec. 91.1307  Credit calculation.

    For each participating engine family, emission credits (positive or 
negative) are to be calculated according to the

[[Page 391]]

following equation and rounded, in accordance with ASTM E29-93a, to the 
nearest gram. ASTM E29-93a has been incorporated by reference. See 
Sec. 91.6. Consistent units are to be used throughout the equation. The 
following equation is used to determine the credit status for an engine 
family whether generating positive or negative in-use emission credits:
[GRAPHIC] [TIFF OMITTED] TR04OC96.053

Where:

S(t)=cumulative fraction survived at time t;
life=average useful life in years, specific to the 
power rating and the application as given below.
[GRAPHIC] [TIFF OMITTED] TR04OC96.055

Power=the average power of an engine family in kW (sales weighted). The 
power of each configuration is the rated output in kilowatts as 
determined by SAE J1228. This procedure has been incorporated by 
reference. See Sec. 91.6.
t=time in model years
max useful life=maximum useful life specific to the power rating and the 
application; max useful life = 2life
sales = the number of eligible sales tracked to the point of first 
retail sale in the U.S. for the given engine family during the model 
year.
FEL=the family emission limit for the engine family in grams per 
kilowatt hour.
CL=compliance level of the in-use testing in g/kW-hr.
use=mean use in hours per year. For outboard 
engines, use=34.8 hrs /yr. For personal watercraft, 
use=77.3 hrs/yr;
AF=adjustment factor for the number of tests conducted

 
 
------------------------------------------------------------------------
No. eng. tested.........................   2*, 4       6       8      10
Adjustment factor.......................      .5     .75      .9       1
* Small volume manufacturer



Sec. 91.1308  Maintenance of records.

    (a) Any manufacturer that is participating in the in-use credit 
program set forth in this subpart shall establish, maintain, and retain 
the records required by Sec. 91.209 with respect to its participation in 
the in-use credit program.
    (b) EPA may void ab initio a certificate of conformity for an engine 
family for which the manufacturer fails to retain the records required 
under this section or to provide such information to the Administrator 
upon request.



Sec. 91.1309  Reporting requirements.

    (a) Any manufacturer who participates in the in-use credit program 
is required to submit an end of the model year in-use testing report 
either within 90 days of the end of the model year in-use testing of a 
given model year's engine families, or at the same time as the final 
certification AB&T report (required under Sec. 91.210), whichever is 
later. The end of the model year in-use testing report must contain the 
required information and show the calculated credits from all the in-use 
testing conducted by the manufacturer for a given model year.
    (b) Reports shall be submitted to: Manager, Engine Compliance 
Programs Group 6403-J, U.S. Environmental Protection Agency, 401 M 
Street, SW., Washington, DC 20460.
    (c) A manufacturer that fails to submit a timely report as required 
in paragraph (a) of this section will be considered to not have 
participated in the in-use credit program.
    (d) If EPA or the manufacturer determines that a reporting error 
occurred on an end of model year report previously submitted to EPA 
under this subpart, or an engine family in-use testing report submitted 
to EPA under subpart I, the manufacturer's credits and credit 
calculations will be recalculated. Erroneous positive credits will be 
void. Erroneous negative credits

[[Page 392]]

may be adjusted by EPA. An update of previously submitted ``point of 
first retail sale'' information is not considered an error and no 
increase in the number of credits will be allowed unless an actual error 
occurred in the calculation of credits due to an error in the ``point of 
first retail sale'' information from the time of the original end of 
model year report.



Sec. 91.1310  Notice of opportunity for hearing.

    Any voiding of an engine family's certificate of conformity under 
Sec. 91.1308(b) of this subpart will occur only after the manufacturer 
concerned has been offered an opportunity for a hearing conducted in 
accordance with Sec. Sec. 91.512, 91.513, 91.514 and 91.515.



PART 92--CONTROL OF AIR POLLUTION FROM LOCOMOTIVES AND LOCOMOTIVE ENGINES--Table of Contents




 Subpart A--General Provisions for Emission Regulations for Locomotives 
                         and Locomotive Engines

Sec.
92.1  Applicability.
92.2  Definitions.
92.3  Abbreviations.
92.4  Treatment of confidential information.
92.5  Reference materials.
92.6  Regulatory structure.
92.7  General standards.
92.8  Emission standards.
92.9  Compliance with emission standards.
92.10  Warranty period.
92.11  Compliance with emission standards in extraordinary 
          circumstances.
92.12  Interim provisions.

                       Subpart B--Test Procedures

92.101  Applicability.
92.102  Definitions and abbreviations.
92.103  Test procedures; overview.
92.104  Locomotive and engine testing; overview.
92.105  General equipment specifications.
92.106  Equipment for loading the engine.
92.107  Fuel flow measurement.
92.108  Intake and cooling air measurements.
92.109  Analyzer specifications.
92.110  Weighing chamber and micro-balance.
92.111  Smoke measurement system.
92.112  Analytical gases.
92.113  Fuel specifications.
92.114  Exhaust gas and particulate sampling and analytical system.
92.115  Calibrations; frequency and overview.
92.116  Engine output measurement system calibrations.
92.117  Gas meter or flow instrumentation calibration, particulate 
          measurement.
92.118  Analyzer checks and calibrations.
92.119  Hydrocarbon analyzer calibration.
92.120  NDIR analyzer calibration and checks.
92.121  Oxides of nitrogen analyzer calibration and check.
92.122  Smoke meter calibration.
92.123  Test procedure; general requirements.
92.124  Test sequence; general requirements.
92.125  Pre-test procedures and preconditioning.
92.126  Test run.
92.127  Emission measurement accuracy.
92.128  Particulate handling and weighing.
92.129  Exhaust sample analysis.
92.130  Determination of steady-state concentrations.
92.131  Smoke, data analysis.
92.132  Calculations.
92.133  Required information.

                   Subpart C--Certification Provisions

92.201  Applicability.
92.202  Definitions.
92.203  Application for certification.
92.204  Designation of engine families.
92.205  Prohibited controls, adjustable parameters.
92.206  Required information.
92.207  Special test procedures.
92.208  Certification.
92.209  Certification with multiple manufacturers or remanufacturers.
92.210  Amending the application and certificate of conformity.
92.211  Emission-related maintenance instructions for purchasers.
92.212  Labeling.
92.213  Submission of locomotive and engine identification numbers.
92.214  Production locomotives and engines.
92.215  Maintenance of records; submittal of information; right of 
          entry.
92.216  Hearing procedures.

   Subpart D--Certification Averaging, Banking, and Trading Provisions

92.301  Applicability.
92.302  Definitions.
92.303  General provisions.
92.304  Compliance requirements.
92.305  Credit generation and use calculation.
92.306  Certification.
92.307  Labeling.
92.308  Maintenance of records.
92.309  Reports.
92.310  Notice of opportunity for hearing.

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  Subpart E--Emission-Related Defect Reporting Requirements, Voluntary 
                         Emission Recall Program

92.401  Applicability.
92.402  Definitions.
92.403  Emission defect information report.
92.404  Voluntary emissions recall reporting.
92.405  Alternative report formats.
92.406  Reports filing: record retention.
92.407  Responsibility under other legal provisions preserved.
92.408  Disclaimer of production warranty applicability.

 Subpart F--Manufacturer and Remanufacturer Production Line Testing and 
                             Audit Programs

92.501  Applicability.
92.502  Definitions.
92.503  General requirements.
92.504  Right of entry and access.
92.505  Sample selection for testing.
92.506  Test procedures.
92.507  Sequence of testing.
92.508  Calculation and reporting of test results.
92.509  Maintenance of records; submittal of information.
92.510  Compliance with criteria for production line testing.
92.511  Remanufactured locomotives: installation audit requirements.
92.512  Suspension and revocation of certificates of conformity.
92.513  Request for public hearing.
92.514  Administrative procedures for public hearing.
92.515  Hearing procedures.
92.516  Appeal of hearing decision.
92.517  Treatment of confidential information.

                    Subpart G--In-Use Testing Program

92.601  Applicability.
92.602  Definitions.
92.603  General provisions.
92.604  In-use test procedure.
92.605  General testing requirements.
92.606  Maintenance, procurement and testing of in-use locomotives.
92.607  In-use test program reporting requirements.

                      Subpart H--Recall Regulations

92.701  Applicability.
92.702  Definitions.
92.703  Voluntary emissions recall.
92.704  Notice to manufacturer or remanufacturer of nonconformity; 
          submission of remedial plan.
92.705  Remedial plan.
92.706  Approval of plan: Implementation.
92.707  Notification to locomotive or locomotive engine owners.
92.708  Records and reports.
92.709  Public hearings.

   Subpart I--Importation of Nonconforming Locomotives and Locomotive 
                                 Engines

92.801  Applicability.
92.802  Definitions.
92.803  Admission.
92.804  Exemptions.
92.805  Prohibited acts; penalties.

              Subpart J--Exclusion and Exemption Provisions

92.901  Purpose and applicability.
92.902  Definitions.
92.903  Exclusions.
92.904  Exemptions.
92.905  Testing exemption.
92.906  Manufacturer-owned, remanufacturer-owned exemption and display 
          exemption.
92.907  Non-locomotive-specific engine exemption.
92.908  National security exemption.
92.909  Export exemptions.
92.910  Granting of exemptions.
92.911  Submission of exemption requests.

     Subpart K--Requirements Applicable to Owners and Operators of 
                   Locomotives and Locomotive Engines

92.1001  Applicability.
92.1002  Definitions.
92.1003  In-use testing program.
92.1004  Maintenance and repair.
92.1005  In-use locomotives.
92.1006  Refueling requirements.

      Subpart L--General Enforcement Provisions and Prohibited Acts

92.1101  Applicability.
92.1102  Definitions.
92.1103  Prohibited acts.
92.1104  General enforcement provisions.
92.1105  Injunction proceedings for prohibited acts.
92.1106  Penalties.
92.1107  Warranty provisions.
92.1108  In-use compliance provisions.

Appendix I to Part 92--Emission-Related Locomotive and Engine Parameters 
          and Specifications
Appendix II to Part  92--Interpretive Ruling for Sec. 92.705--Remedial 
          Plans
Appendix III to Part 92--Smoke Standards for Non-normalized Measurements
Appendix IV to Part 92--Guidelines for Determining Equivalency Between 
          Emission Measurement Systems


[[Page 394]]


    Authority: 42 U.S.C. 7522, 7523, 7524, 7525, 7541, 7542, 7543, 7545, 
7547, 7549, 7550 and 7601(a).

    Source: 63 FR 18998, Apr. 16, 1998, unless otherwise noted.



 Subpart A--General Provisions for Emission Regulations for Locomotives 
                         and Locomotive Engines



Sec. 92.1  Applicability.

    (a) Except as noted in paragraph (b) of this section, the provisions 
of this part apply to manufacturers, remanufacturers, owners and 
operators of:
    (1) Locomotives and locomotive engines manufactured on or after 
January 1, 2000; and
    (2) Locomotives and locomotive engines manufactured on or after 
January 1, 1973 and remanufactured on or after January 1, 2000; and
    (3) Locomotives and locomotive engines manufactured prior to January 
1, 1973, and upgraded on or after January 1, 2000.
    (b) The requirements and prohibitions of this part do not apply with 
respect to:
    (1) Steam locomotives, as defined in Sec. 92.2;
    (2) Locomotives powered solely by an external source of electricity;
    (3) Locomotive engines which provide only hotel power (see 40 CFR 
part 89 to determine if such engines are subject to EPA emission 
requirements); or
    (4) Nonroad vehicles excluded from the definition of locomotive in 
Sec. 92.2, and the engines used in such nonroad vehicles (see 40 CFR 
parts 86 and 89 to determine if such vehicles or engines are subject to 
EPA emission requirements).
    (c) For cases in which there are multiple entities meeting the 
definition of manufacturer or remanufacturer, see Sec. 92.209 for 
guidance.



Sec. 92.2  Definitions.

    (a) The definitions of this section apply to this subpart. They also 
apply to all subparts of this part, except where noted otherwise.
    (b) As used in this part, all terms not defined in this section 
shall have the meaning given them in the Act:
    Act means the Clean Air Act as amended (42 U.S.C. 7401 et seq.).
    Administrator means the Administrator of the Environmental 
Protection Agency or his/her authorized representative.
    Aftertreatment system or aftertreatment component or aftertreatment 
technology means any system or component or technology mounted 
downstream of the exhaust valve or exhaust port whose design function is 
to reduce exhaust emissions.
    Alcohol fuel means a fuel consisting primarily (more than 50 percent 
by weight) of one or more alcohols: e.g., methyl alcohol, ethyl alcohol.
    Alternator/generator efficiency means the ratio of the electrical 
power output from the alternator/generator to the mechanical power input 
to the alternator/generator at the operating point.
    Alternator/generator input horsepower means the mechanical 
horsepower input to the main alternator or generator of a locomotive. 
For the purpose of calculating brake horsepower, alternator/generator 
input horsepower does not include any power used to circulate engine 
coolant, circulate engine lubricant, or to supply fuel to the engine.
    Applicable standard means a standard to which a locomotive or 
locomotive engine is subject; or, where a locomotive or locomotive 
engine is certified another standard or FEL, applicable standard means 
the other standard or FEL to which the locomotive or locomotive engine 
is certified, as allowed by Sec. 92.8. This definition does not apply to 
subpart D of this part.
    Auxiliary emission control device (AECD) means any element of design 
which senses temperature, locomotive speed, engine RPM, atmospheric 
pressure, manifold pressure or vacuum, or any other parameter for the 
purpose of activating, modulating, delaying, or deactivating the 
operation of any part of the emission control system (including, but not 
limited to injection timing); or any other feature that causes in-use 
emissions to be higher than those measured under test conditions, except 
as allowed by this part.
    Auxiliary engine means a locomotive engine that provides hotel 
power, but does not provide power to propel the locomotive.

[[Page 395]]

    Auxiliary power means the power provided by the main propulsion 
engine to operate accessories such as cooling fans.
    Averaging for locomotives and locomotive engines means the exchange 
of emission credits among engine families within a given manufacturer's, 
or remanufacturer's, product line.
    Banking means the retention of emission credits by a credit holder 
for use in future calendar year averaging or trading as permitted by the 
regulations in this part.
    Brake horsepower means the sum of the alternator/generator input 
horsepower and the mechanical accessory horsepower, excluding any power 
used to circulate engine coolant, circulate engine lubricant, or to 
supply fuel to the engine.
    Calibration means the set of specifications, including tolerances, 
unique to a particular design, version, or application of a component, 
or components, or assembly capable of functionally describing its 
operation over its working range. This definition does apply to subpart 
B of this part.
    Class I freight railroad means a Class I railroad that primarily 
transports freight rather than passengers.
    Class I railroad means a railroad that has been classified as a 
Class I railroad by the Surface Transportation Board.
    Class II railroad means a railroad that has been classified as a 
Class II railroad by the Surface Transportation Board.
    Class III railroad means a railroad that has been classified as a 
Class III railroad by the Surface Transportation Board.
    Configuration means any subclassification of an engine family which 
can be described on the basis of gross power, emission control system, 
governed speed, injector size, engine calibration, and other parameters 
as designated by the Administrator.
    Crankcase emissions means emissions to the atmosphere from any 
portion of the crankcase ventilation or engine lubrication systems.
    Defeat device means an AECD or other control feature that reduces 
the effectiveness of the emission control system under conditions which 
may reasonably be expected to be encountered in normal locomotive 
operation and use, unless the AECD or other control feature has been 
identified by the certifying manufacturer or remanufacturer in the 
application for certification, and:
    (1) Such conditions are substantially represented by the portion of 
the federal test procedure during which the applicable emission rates 
are measured;
    (2) The need for the AECD is justified in terms of protecting the 
locomotive or locomotive engine against damage or accident; or
    (3) The AECD does not go beyond the requirements of engine starting.
    Deterioration factor means the difference between exhaust emissions 
at the end of useful life and exhaust emissions at the low mileage test 
point expressed as either: the ratio of exhaust emissions at the end of 
useful life to exhaust emissions at the low mileage test point (for 
multiplicative deterioration factors); or the difference between exhaust 
emissions at the end of useful life exhaust emissions at the low mileage 
test point (for additive deterioration factors).
    Diesel fuel means any fuel suitable for use in diesel engines, and 
which is commonly or commercially known or sold as diesel fuel.
    Emission control system means those devices, systems or elements of 
design which control or reduce the emission of substances from an 
engine. This includes, but is not limited to, mechanical and electronic 
components and controls, and computer software.
    Emission credits represent the amount of emission reduction or 
exceedance, by a locomotive engine family, below or above the emission 
standard, respectively. Emission reductions below the standard are 
considered as ``positive credits,'' while emission exceedances above the 
standard are considered as ``negative credits.'' In addition, 
``projected credits'' refer to emission credits based on the projected 
applicable production/sales volume of the engine family. ``Reserved 
credits'' are emission credits generated within a calendar year waiting 
to be reported to EPA at the end of the calendar year. ``Actual 
credits'' refer to emission

[[Page 396]]

credits based on actual applicable production/sales volume as contained 
in the end-of-year reports submitted to EPA.
    Emission-data engine means an engine which is tested for purposes of 
emission certification or production line testing.
    Emission-data locomotive means a locomotive which is tested for 
purposes of emission certification or production line testing.
    Emission-related defect means a defect in design, materials, or 
workmanship in a device, system, or assembly described in the approved 
Application for certification which affects any parameter or 
specification enumerated in Appendix I of this part.
    Emission-related maintenance means that maintenance which 
substantially affects emissions or which is likely to affect the 
deterioration of the locomotive or engine with respect to emissions, as 
described in an approved Application for certification.
    Engine family means a group of locomotive or locomotive engine 
configurations which are expected to have similar emission 
characteristics throughout the useful lives of the locomotives and 
engines (see Sec. 92.204), and which are (or were) covered (or requested 
to be covered) by a specific certificate of conformity.
    Engine used in a locomotive means an engine incorporated into a 
locomotive or intended for incorporation into a locomotive.
    Engineering analysis means a summary of scientific and/or 
engineering principles and facts that support a conclusion made by a 
manufacturer or remanufacturer, with respect to compliance with the 
provisions of this part.
    EPA Enforcement Officer means any officer or employee of the 
Environmental Protection Agency so designated in writing by the 
Administrator or his/her designee.
    Ethanol means a fuel that contains at least 50 percent ethanol 
(ethyl alcohol, (C2H5OH)) by volume.
    Exhaust emissions means substances (i.e., gases and particles) 
emitted to the atmosphere from any opening downstream from the exhaust 
port or exhaust valve of a locomotive engine.
    Family Emission Limit means an emission level declared by the 
certifying manufacturer or remanufacturer to serve in lieu of an 
otherwise applicable emission standard for certification and compliance 
purposes in the averaging, banking and trading program. FELs are 
expressed to the same number of decimal places as the applicable 
emission standard.
    Freshly manufactured locomotive means a locomotive which is powered 
by a freshly manufactured engine, and which contains fewer than 25 
percent previously used parts (weighted by the dollar value of the 
parts).
    Freshly manufactured locomotive engine means a new locomotive engine 
which has not been remanufactured.
    Fuel system means the combination of fuel tank(s), fuel pump(s), 
fuel lines and filters, pressure regulator(s), and fuel injection 
components (or pressure regulator(s) and carburetor(s) if fuel injection 
is not employed), fuel system vents, and any other component involved in 
the delivery of fuel to the engine.
    Gaseous fuel means a fuel which is a gas at standard temperature and 
pressure. This includes both natural gas and liquefied petroleum gas.
    Green engine factor means a factor that is applied to emission 
measurements from a locomotive or locomotive engine that has had little 
or no service accumulation. The green engine factor adjusts emission 
measurements to be equivalent to emission measurements from a locomotive 
or locomotive engine that has had approximately 300 hours of use.
    High-altitude means relating to an altitude greater than 4000 feet 
(1220 meters) and less than 7000 feet (2135 meters), or equivalent 
observed barometric test conditions of 25.7 to 22.7 inch Hg (88.5 to 
78.1 kilopascals).
    Hotel power means the power provided by an engine on a locomotive to 
operate equipment on passenger cars of a train; e.g., heating and air 
conditioning, lights, etc.
    Idle speed means that speed, expressed as the number of revolutions 
of the crankshaft per unit of time (e.g., rpm), at which the engine is 
set to operate when not under load for purposes of propelling the 
locomotive.
    Importer means an entity or person who imports locomotives or 
locomotive

[[Page 397]]

engines from a foreign country into the United States (including the 
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, 
and the Northern Mariana Islands).
    Inspect and qualify means to determine that a previously used 
component or system meets all applicable criteria listed for the 
component or system in a certificate of conformity for remanufacturing 
(e.g., determine that the component or system is functionally equivalent 
to one that has not been used previously).
    Installer means an individual or entity which assembles 
remanufactured locomotives or locomotive engines.
    Liquefied petroleum gas means the commercial product marketed as 
liquefied petroleum gas or propane.
    Locomotive means a self-propelled piece of on-track equipment 
designed for moving or propelling cars that are designed to carry 
freight, passengers or other equipment, but which itself is not designed 
or intended to carry freight, passengers (other than those operating the 
locomotive) or other equipment. Other equipment which is designed for 
operation both on highways and rails; specialized railroad equipment for 
maintenance, construction, post accident recovery of equipment, and 
repairs; and other similar equipment; and vehicles propelled by engines 
with rated horsepower of less than 750 kW (1006 hp) are not locomotives 
(see 40 CFR Parts 86 and 89 for this equipment).
    Locomotive engine means an engine incorporated into a locomotive or 
intended for incorporation into a locomotive.
    Low hour engine means an engine during the interval between the time 
that normal assembly operations and adjustments are completed and the 
time that 300 additional operating hours have been accumulated 
(including hours accumulated during emission testing if performed).
    Low idle speed means a speed which is less than normal idle speed, 
expressed as the number of revolutions of the crankshaft per unit of 
time, at which an engine can be set when not under load for purposes of 
propelling the locomotive.
    Low mileage locomotive means a locomotive during the interval 
between the time that normal assembly operations and adjustments are 
completed and the time that either 10,000 miles of locomotive operation 
or 300 additional operating hours have been accumulated (including 
emission testing if performed).
    Malfunction means a condition in which the operation of a component 
in a locomotive or locomotive engine occurs in a manner other than that 
specified by the certifying manufacturer or remanufacturer (e.g., as 
specified in the application for certification); or the operation of the 
locomotive or locomotive engine in that condition.
    Manufacturer means an individual or entity engaged in the 
manufacturing or assembling of freshly manufactured locomotives or 
freshly manufactured locomotive engines; or the importing of locomotives 
or locomotive engines originally manufactured on or after January 1, 
1973 and not remanufactured. (See Secs. 92.1(c) and 92.209 for 
applicability of this term.)
    Maximum rated horsepower means the maximum brake horsepower output 
of an engine.
    Mechanical accessory horsepower means the sum of mechanical 
horsepower generated by an engine to supply accessories. Mechanical 
accessory horsepower does not include power supplied to the main 
alternator or generator, power used to circulate engine coolant or 
engine lubricant, or power used to supply fuel to the engine.
    Methanol means a fuel that contains at least 50 percent methanol 
(methyl alcohol, (CH3OH)) by volume.
    Method of aspiration means the method whereby air for fuel 
combustion enters the engine (e.g., natural or turbocharged).
    Model year means a calendar year; except where the Administrator 
determines a different production period which includes January 1 of 
such calendar year.
    Natural gas means the commercial product marketed as natural gas 
whose primary constituent is methane.
    New locomotive or new locomotive engine means:
    (1)(i) A locomotive or locomotive engine the equitable or legal 
title to

[[Page 398]]

which has never been transferred to an ultimate purchaser; or
    (ii) A locomotive or locomotive engine which has been 
remanufactured, but has not been placed back into service.
    (2) Where the equitable or legal title to a locomotive or locomotive 
engine is not transferred prior to its being placed into service, the 
locomotive or locomotive engine ceases to be new when it is placed into 
service.
    (3) With respect to imported locomotives or locomotive engines, the 
term ``new locomotive'' or ``new locomotive engine'' means a locomotive 
or locomotive engine that is not covered by a certificate of conformity 
under this part at the time of importation, and that was manufactured or 
remanufactured after the effective date of the emission standards in 
this part which is applicable to such locomotive or engine (or which 
would be applicable to such locomotive or engine had it been 
manufactured or remanufactured for importation into the United States).
    (4) Notwithstanding paragraphs (1) through (3) of this definition, 
locomotives and locomotive engines which were originally manufactured 
before January 1, 1973 and which have not been upgraded are not new.
    (5) Notwithstanding paragraphs (1) through (3) of this definition, 
locomotives and locomotive engines which are owned by a small railroad 
and which have never been remanufactured into a certified configuration 
are not new.
    Nonconforming locomotive or nonconforming locomotive engine means a 
locomotive or locomotive engine which is not covered by a certificate of 
conformity prior to importation or being offered for importation (or for 
which such coverage has not been adequately demonstrated to EPA); or a 
locomotive or locomotive engine which was originally covered by a 
certificate of conformity, but which is not in a certified 
configuration, or otherwise does not comply with the conditions of that 
certificate of conformity.
    (Note: Domestic locomotives and locomotive engines which are not 
covered by a certificate of conformity prior to their introduction into 
U.S. commerce are considered to be noncomplying locomotives and 
locomotive engines.)
    Non-locomotive-specific engine means an engine that is sold for and 
used in non-locomotive applications more than for locomotive 
applications.
    Normal idle means relating to the idle throttle-notch position for 
locomotives that have one throttle-notch position, or the highest the 
idle throttle-notch position for locomotives that have two throttle-
notch positions.
    Opacity means the fraction of a beam of light, expressed in percent, 
which fails to penetrate a plume of smoke as measured and calculated 
under the provisions of subpart B of this part.
    Original manufacture means the event of freshly manufacturing a 
locomotive or locomotive engine. The date of original manufacture is the 
date of final assembly; except as provided in Sec. 92.11. Where a 
locomotive or locomotive engine is manufactured under Sec. 92.11, the 
date of original manufacture is the date on which the final assembly of 
locomotive or locomotive engine was originally scheduled.
    Original remanufacture means the first remanufacturing of a 
locomotive or locomotive engine at which the locomotive or locomotive 
engines is subject to the emission standards of this part.
    Oxides of nitrogen means nitric oxide and nitrogen dioxide. Oxides 
of nitrogen are expressed quantitatively as if the nitric oxide were in 
the form of nitrogen dioxide (oxides of nitrogen are assumed to have a 
molecular weight equivalent to nitrogen dioxide).
    Passenger locomotive means a locomotive designed and constructed for 
the primary purpose of propelling passenger trains, and providing power 
to the passenger cars of the train for such functions as heating, 
lighting and air conditioning.
    Petroleum fuel means a fuel primarily derived from crude oil (e.g., 
gasoline or diesel fuel).
    Power assembly means the components of an engine in which combustion 
of fuel occurs, and consists of the cylinder, piston and piston rings, 
valves and ports for admission of charge air and discharge of exhaust 
gases, fuel injection components and controls, cylinder head and 
associated components.
    Primary fuel means that type of fuel (e.g., diesel fuel) that is 
consumed in

[[Page 399]]

the greatest quantity (mass basis) when the locomotive or locomotive 
engine is operated in use.
    Produce means to manufacture or remanufacture. Where a certificate 
holder does not actually assemble the locomotives or locomotive engines 
that it manufactures or remanufactures, produce means to allow other 
entities to assemble locomotives or locomotive engines under the 
certificate holder's certificate.
    Railroad means a commercial entity that operates locomotives to 
transport passengers or freight.
    Rated horsepower means the maximum horsepower output of a locomotive 
engine in use.
    Remanufacture means:
    (1)(i) To replace, or inspect and qualify, each and every power 
assembly of a locomotive or locomotive engine, whether during a single 
maintenance event or cumulatively within a five year period; or
    (ii) To upgrade a locomotive or locomotive engine; or
    (iii) To convert a locomotive or locomotive engine to enable it to 
operate using a fuel other than it was originally manufactured to use; 
or
    (iv) To install a remanufactured engine or a freshly manufactured 
engine into a previously used locomotive.
    (2) Remanufacture also means the act of remanufacturing.
    Remanufacture system or remanufacturing system means all components 
(or specifications for components) and instructions necessary to 
remanufacture a locomotive or locomotive engine in accordance with 
applicable requirements of this part.
    Remanufactured locomotive means either a locomotive which is powered 
by a remanufactured locomotive engine, or a repowered locomotive.
    Remanufactured locomotive engine means a locomotive engine which has 
been remanufactured.
    Remanufacturer means an individual or entity that is engaged in the 
manufacture or assembly of remanufactured locomotives or locomotive 
engines, (including: Entities that design or produce the emission-
related parts used in remanufacturing; entities that install parts in an 
existing locomotive or locomotive engine to remanufacture it; and 
entities that own or operate the locomotive or locomotive engine and 
provide specifications as to how an engine is to be remanufactured 
(i.e., specifying who will perform the work, when the work is to be 
performed, what parts are to be used, or how to calibrate the adjustable 
parameters of the engine)); or an importer of remanufactured locomotives 
or locomotive engines. (See Secs. 92.1(c) and 92.209 for applicability 
of this term.)
    Repower means replacement of the engine in a previously used 
locomotive with a freshly manufactured locomotive engine. Replacing a 
locomotive engine with a freshly manufactured locomotive engine in a 
locomotive that has a refurbished or reconditioned chassis such that 
less than 25 of the parts of the locomotive were previously used (as 
weighted by dollar value) is not repowering.
    Repowered locomotive means a locomotive that has been repowered with 
a freshly manufactured engine.
    Service life means the total life of a locomotive or locomotive 
engine. Service life begins when the locomotive or locomotive engine is 
originally manufactured and continues until the locomotive or locomotive 
engine is permanently removed from service.
    Small railroad means a railroad that is classified by the Small 
Business Administration as a small business.
    Small remanufacturer means a remanufacturer that is classified by 
the Small Business Administration as a small business.
    Smoke means the matter in the engine exhaust which obscures the 
transmission of light.
    Specified adjustable range means the range of allowable settings for 
an adjustable component specified by a certificate of conformity.
    Specified by a certificate of conformity or specified in a 
certificate of conformity means stated or otherwise specified in a 
certificate of conformity or an approved application for certification.
    Steam locomotive means a historic locomotive propelled by a steam 
engine.
    Switch locomotive means a locomotive designed or used solely for the 
primary purpose of propelling railroad cars a short distance, and that 
is powered by

[[Page 400]]

an engine with a maximum horsepower rating of 2300 hp or less.
    Test locomotive or locomotive engine means a locomotive or 
locomotive engine in a test sample.
    Test sample means the collection of locomotives or locomotive 
engines selected from the population of an engine family for emission 
testing or auditing.
    Throttle means the component, or components, which either directly 
or indirectly controls the fuel flow to the engine.
    Throttle notch means a discrete throttle position for a locomotive 
with a limited number of throttle positions.
    Throttle notch horsepower means the brake horsepower output of an 
engine corresponding to each throttle notch position, including dynamic-
brake settings.
    Throttle notch speed means the speed of the engine, expressed as the 
number of revolutions of the crankshaft per unit of time (e.g., rpm), 
corresponding to each throttle notch position, including dynamic-brake, 
and hotel power settings.
    Tier 0 means relating to emission standards applicable to 
locomotives originally manufactured before January 1, 2002; or relating 
to such locomotives.
     1 means relating to emission standards applicable to locomotives 
originally manufactured on or after January 1, 2002 and before January 
1, 2005; or relating to such locomotives.
    Tier 2 means relating to emission standards applicable to 
locomotives originally manufactured on or after January 1, 2005; or 
relating to such locomotives.
    Total Hydrocarbon Equivalent means the sum of the carbon mass 
contributions of non-oxygenated hydrocarbons, alcohols and aldehydes, or 
other organic compounds that are measured separately as contained in a 
gas sample, expressed as gasoline-fueled vehicle hydrocarbons. The 
hydrogen-to-carbon ratio of the equivalent hydrocarbon is 1.85:1. Total 
Hydrocarbon Equivalent is abbreviated THCE.
    Trading means the exchange of locomotive or locomotive engine 
emission credits between credit holders.
    United States. United States includes the customs territory of the 
United States as defined in 19 U.S.C. 1202, and the Virgin Islands, 
Guam, American Samoa, and the Commonwealth of the Northern Mariana 
Islands.
    Upgrade means to modify a locomotive or locomotive engine that was 
originally manufactured prior to January 1, 1973 (or a locomotive or 
locomotive engine that was originally manufactured on or after January 
1, 1973, and that is not subject to the emission standards of this 
part), such that it is intended to comply with the Tier 0 standards. 
Upgrading is a type of remanufacturing.
    Useful life means the period during which the locomotive engine is 
designed to properly function in terms of reliability and fuel 
consumption, without being remanufactured, specified as work output or 
miles. It is the period during which a new locomotive or locomotive 
engine is required to comply with all applicable emission standards.
    Volatile liquid fuel means any liquid fuel other than diesel or 
biodiesel.
    Voluntary emission recall means a repair, adjustment, or 
modification program voluntarily initiated and conducted by a 
manufacturer or remanufacturer to remedy any emission-related defect for 
which notification of locomotive or locomotive engine owners has been 
provided.



Sec. 92.3  Abbreviations.

    The abbreviations of this section apply to all subparts of this part 
and have the following meanings:

ANSI--American National Standards Institute
API--American Petroleum Institute
ASTM--American Society for Testing and Materials
BHP--Brake horsepower
BSCO--Brake specific carbon monoxide
BSHC--Brake specific hydrocarbons
BSNOX--Brake specific oxides of nitrogen
  deg.C--Celsius
cfh--cubic feet per hour
cfm--cubic feet per minute
CFV--Critical flow venturi
CL--Chemiluminescence
CO--Carbon monoxide
CO2--Carbon dioxide
cu in--cubic inch(es)
CVS--Constant volume sampler
EP--End point
EPA--Environmental Protection Agency
  deg.F--Fahrenheit
FEL--Family emission limit

[[Page 401]]

FID--Flame ionization detector
ft--foot or feet
g--gram(s)
gal--U.S. gallon
GC--Gas Chromatograph
h--hour(s)
H2O--water
HC--hydrocarbon
HFID--Heated flame ionization detector
Hg--Mercury
hp--horsepower
IBP--Initial boiling point
in--inch(es)
K--Kelvin
kg--kilogram(s)
km--kilometer(s)
kPa--kilopascal(s)
lb--pound(s)
LPG--Liquified Petroleum Gas
m--meter(s)
max--maximum
mg--milligram(s)
mi--mile(s)
min--minute
ml--milliliter(s)
mm--millimeter
mph--miles per hour
mv--millivolt(s)
N2--nitrogen
NDIR--Nondispersive infrared
NMHC--Non-methane hydrocarbons
NO--nitric oxide
NO2--nitrogen dioxide
NOX--oxides of nitrogen
No.--number
O2--oxygen
pct--percent
PM--particulate matter
ppm--parts per million by volume
ppmC--parts per million, carbon
psi--pounds per square inch
psig--pounds per square inch gauge
 deg.R--Rankin
rpm--revolutions per minute
s--second(s)
SAE--Society of Automotive Engineers
SI--International system of units (i.e., metric)
THCE--Total hydrocarbon equivalent
U.S.--United States
V--volt(s)
vs--versus
W--watt(s)
wt--weight



Sec. 92.4  Treatment of confidential information.

    (a) Any manufacturer or remanufacturer may assert that some or all 
of the information submitted pursuant to this part is entitled to 
confidential treatment as provided by 40 CFR part 2, subpart B.
    (b) Any claim of confidentiality must accompany the information at 
the time it is submitted to EPA.
    (c) To assert that information submitted pursuant to this part is 
confidential, a person or manufacturer or remanufacturer must indicate 
clearly the items of information claimed confidential by marking, 
circling, bracketing, stamping, or otherwise specifying the confidential 
information. Furthermore, EPA requests, but does not require, that the 
submitter also provide a second copy of its submittal from which all 
confidential information has been deleted. If a need arises to publicly 
release nonconfidential information, EPA will assume that the submitter 
has accurately deleted the confidential information from this second 
copy.
    (d) If a claim is made that some or all of the information submitted 
pursuant to this part is entitled to confidential treatment, the 
information covered by that confidentiality claim will be disclosed by 
EPA only to the extent and by means of the procedures set forth in 40 
CFR part 2, subpart B.
    (e) Information provided without a claim of confidentiality at the 
time of submission may be made available to the public by EPA without 
further notice to the submitter, in accordance with 40 CFR 
2.204(c)(2)(i)(A).



Sec. 92.5  Reference materials.

    (a) The documents in paragraph (b) of this section have been 
incorporated by reference. The 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 inspected at U.S. EPA, OAR, 401 
M Street, SW., Washington, DC 20460, or at the Office of the Federal 
Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
    (b) The following paragraphs and tables set forth the material that 
has been incorporated by reference in this part:
    (1) ASTM material. The following table sets forth material from the 
American Society for Testing and Materials that has been incorporated by 
reference. The first column lists the number and name of the material. 
The second column lists the section(s) of

[[Page 402]]

the part, other than this section, in which the matter is referenced. 
The second column is presented for information only and may not be all 
inclusive. More recent versions of these standards may be used with 
advance approval of the Administrator. Copies of these materials may be 
obtained from American Society for Testing and Materials, 1916 Race St., 
Philadelphia, PA 19103. The table follows:

------------------------------------------------------------------------
          Document number and name            40 CFR part 92  reference
------------------------------------------------------------------------
ASTM D 86-95, Standard Test Method for       Sec.  92.113
 Distillation of Petroleum Products.
ASTM D 93-94, Standard Test Methods for      Sec.  92.113
 Flash-Point by Pensky-Martens Closed Cup
 Tester.
ASTM D 287-92, Standard Test Method for API  Sec.  92.113
 Gravity of Crude Petroleum and Petroleum
 Products (Hydrometer Method).
ASTM D 445-94, Standard Test Method for      Sec.  92.113
 Kinematic Viscosity of Transparent and
 Opaque Liquids (the Calculation of Dynamic
 Viscosity).
ASTM D 613-95, Standard Test Method for      Sec.  92.113
 Cetane Number of Diesel Fuel Oil.
ASTM D 976-91, Standard Test Method for      Sec.  92.113
 Calculated Cetane Index of Distillate
 Fuels.
ASTM D 1319-95, Standard Test Method for     Sec.  92.113
 Hydrocarbon Types in Liquid Petroleum
 Products by Fluorescent Indicator
 Adsorption.
ASTM D 1945-91, Standard Test Method for     Sec.  92.113
 Analysis of Natural Gas by Gas
 Chromatography.
ASTM D 2622-94, Standard Test Method for     Sec.  92.113
 Sulfur in Petroleum Products by X-Ray
 Spectrometry.
ASTM D 5186-91, Standard Test Method for     Sec.  92.113
 Determination of Aromatic Content of
 Diesel Fuels by Supercritical Fluid
 Chromatography.
ASTM E 29-93a, Standard Practice for Using   Secs.  92.9, 92.305, 92.509
 Significant Digits in Test Data to
 Determine Conformance with Specifications.
------------------------------------------------------------------------

    (2) SAE material. The following table sets forth material from the 
Society of Automotive Engineers that has been incorporated by reference. 
The first column lists the number and name of the material. The second 
column lists the section(s) of the part, other than this section, in 
which the matter is referenced. The second column is presented for 
information only and may not be all inclusive. Copies of these materials 
may be obtained from Society of Automotive Engineers International, 400 
Commonwealth Dr., Warrendale, PA 15096-0001. The table follows:

------------------------------------------------------------------------
          Document number and name             40 CFR part 92 reference
------------------------------------------------------------------------
SAE Paper 770141, Optimization of a Flame     Sec.  92.119
 Ionization Detector for Determination of
 Hydrocarbon in Diluted Automotive Exhausts,
 by Glenn D. Reschke.
SAE Recommended Practice J244, Measurement    Sec.  92.108
 of Intake Air or Exhaust Gas Flow of Diesel
 Engines.
------------------------------------------------------------------------

    (3) ANSI material. The following table sets forth material from the 
American National Standards Institute that has been incorporated by 
reference. The first column lists the number and name of the material. 
The second column lists the section(s) of the part, other than this 
section, in which the matter is referenced. The second column is 
presented for information only and may not be all inclusive. More recent 
versions of these standards may be used with advance approval of the 
Administrator. Copies of these materials may be obtained from American 
National Standards Institute, 11 West 42nd St., 13th Floor, New York, NY 
10036. The table follows:

------------------------------------------------------------------------
          Document number and name             40 CFR part 92 reference
------------------------------------------------------------------------
ANSI B109.1-1992, Diaphragm Type Gas         Sec.  92.117
 Displacment Meters.
------------------------------------------------------------------------



Sec. 92.6  Regulatory structure.

    This section provides an overview of the regulatory structure of 
this part.
    (a) The regulations of this part 92 are intended to control 
emissions from in-use locomotives. Because locomotive chassis and 
locomotive engines are sometimes manufactured or remanufactured 
separately, the regulations in this part include some provisions that 
apply specifically to locomotive engines. However, the use of the term 
``locomotive engine'' in the regulations in this part does not limit in 
any manner the liability of any manufacturer or remanufacturer for the 
emission performance of a locomotive powered by an engine that it has 
manufactured or remanufactured.
    (b) The locomotives and locomotive engines for which the regulations 
of

[[Page 403]]

this part (i.e., 40 CFR part 92) apply are specified by Sec. 92.1, and 
by the definitions of Sec. 92.2. The point at which a locomotive or 
locomotive engine becomes subject to the regulations of this part is 
determined by the definition of ``new locomotive or new locomotive 
engine'' in Sec. 92.2. Subpart J of this part contains provisions 
exempting certain locomotives or locomotive engines from the regulations 
in this part under special circumstances.
    (c) To comply with the requirements of this part, a manufacturer or 
remanufacturer must demonstrate to EPA that the locomotive or locomotive 
engine meets the applicable standards of Secs. 92.7 and 92.8, and all 
other requirements of this part. The requirements of this certification 
process are described in subparts C and D of this part.
    (d) Subpart B of this part specifies procedures and equipment to be 
used for conducting emission tests for the purpose of the regulations of 
this part.
    (e) Subparts E, F, G, and H of this part specify requirements for 
manufacturers and remanufacturers after certification; that is during 
production and use of the locomotives and locomotive engines.
    (f) Subpart I of this part contains requirements applicable to the 
importation of locomotives and locomotive engines.
    (g) Subpart K of this part contains requirements applicable to the 
owners and operators of locomotives and locomotive engines.
    (h) Subpart L of this part describes prohibited acts and contains 
other enforcement provisions relating to locomotives and locomotive 
engines.
    (i) Unless specified otherwise, the provisions of this part apply to 
all locomotives and locomotive engines subject to the emission standards 
of this part.



Sec. 92.7  General standards.

    (a) Locomotives and locomotive engines may not be equipped with 
defeat devices.
    (b) New locomotives fueled with a volatile fuel shall be designed to 
minimize evaporative emissions during normal operation, including 
periods when the engine is shut down.
    (c)(1) Locomotive hardware for refueling locomotives fueled with a 
volatile fuel shall be designed so as to minimize the escape of fuel 
vapors.
    (2) Hoses used to refuel gaseous-fueled locomotives shall not be 
designed to be bled or vented to the atmosphere under normal operating 
conditions.
    (3) No valves or pressure relief vents shall be used on gaseous-
fueled locomotives except as emergency safety devices, and these shall 
not operate at normal system operating flows and pressures.
    (d) All new locomotives and new locomotive engines subject to any of 
the standards imposed by this subpart shall, prior to sale, introduction 
into service, or return to service, be designed to include features that 
compensate for changes in altitude to ensure that the locomotives or 
locomotive engines will comply with the applicable emission standards 
when operated at any altitude less than 7000 feet above sea level.



Sec. 92.8  Emission standards.

    (a) Exhaust standards. Exhaust emissions from locomotives and 
locomotive engines, when measured in accordance with the provisions of 
Subpart B of this part, shall comply with both the applicable line-haul 
duty-cycle standards, and the applicable switch duty-cycle standards of 
paragraph (a)(1) (and/or the standards of paragraphs (a)(3) and (a)(4) 
of this section, as applicable) of this section, and the smoke standards 
of paragraph (a)(2) of this section. Emissions that do not exceed the 
standards comply with the standards.
    (1) Gaseous and particulate standards. Gaseous and particulate 
emission standards are expressed as gram per brake horsepower hour (g/
bhp-hr). Non-methane hydrocarbon standards apply to locomotives and 
locomotive engines fueled with natural gas, and any combination of 
natural gas and other fuels where natural gas is the primary fuel; total 
hydrocarbon equivalent standards apply to locomotives and locomotive 
engines fueled with an alcohol, and any combination of alcohol and other 
fuels where alcohol is the primary fuel. Total hydrocarbon standards 
apply to all other locomotives and locomotive

[[Page 404]]

engines; that is, those not fueled by natural gas or alcohol. The line-
haul duty-cycle standards and switch duty-cycle standards apply to the 
respective cycle-weighted emission rates as calculated in subpart B of 
this part.
    (i) Tier 0. The following locomotives (and the engines used in the 
following locomotives) are subject to the Tier 0 emission standards 
listed in Table A8-1 of this section: Locomotives manufactured on, or 
after, January 1, 1973, and before January 1, 2002; and upgraded 
locomotives manufactured prior to January 1, 1973. The standards apply 
when such a locomotive or locomotive engine is manufactured, 
remanufactured, or imported on or after January 1, 2002; except where 
the locomotive was previously certified to one or more FELs under 
subpart D of this part instead of the applicable standards, in which 
case, the applicable standards are replaced at each subsequent 
remanufacture by the FELs specified by the previous certificate. 
Example: a locomotive that is certified to a NOX FEL of 8.0 
g/bhp-hr must be recertified to a NOX FEL of 8.0 g/bhp-hr at 
each subsequent remanufacture, except as allowed by paragraph 
(a)(4)(iii) of this section.
    (ii) Tier 1. Locomotives and engines used in locomotives 
manufactured on, or after, January 1, 2002, and before January 1, 2005 
are subject to the Tier 1 standards listed in Table A8-2 of this 
section. The standards apply when such a locomotive or locomotive engine 
is manufactured or imported, and each time it is remanufactured; except 
where the locomotive was previously certified to one or more FELs under 
subpart D of this part instead of the applicable standard, in which 
case, the standards are replaced at each subsequent remanufacture by the 
FELs specified by the previous certificate.
    (iii) Tier 2. Locomotives and engines used in locomotives 
manufactured on, or after, January 1, 2005 are subject to the Tier 2 
standards listed in Table A8-3 of this section. The standards apply when 
such a locomotive or locomotive engine is manufactured or imported, and 
each time it is remanufactured except where the locomotive was 
previously certified to one or more FELs under subpart D of this part 
instead of the applicable standard, in which case, the standards are 
replaced at each subsequent remanufacture by the FELs specified by the 
previous certificate.
    (2) Smoke standards. The smoke opacity standards listed in Table A8-
4 of this section apply, as specified in the table, to locomotives and 
locomotive engines subject to the Tier 0, Tier 1, or Tier 2 standards. 
Smoke emissions, when measured in accordance with the provisions of 
Subpart B of this part, shall not exceed the standards of Table A8-4 of 
this section.
    (3) Alternate standards. In lieu of the CO and PM standards 
specified in paragraph (a)(1) of this section, manufacturers and 
remanufacturers may elect to comply with the alternate CO and PM 
standards listed in Table A8-5 of this section. Manufacturers and 
remanufacturers electing to comply with these alternate standards must 
comply with both the CO and PM standards listed in Table A8-5 of this 
section.
    (4) Averaging, banking and trading. (i) In lieu of the 
NOX and/or PM standards specified in paragraph (a)(1) of this 
section, manufacturers and remanufacturers may elect to include engine 
families in the averaging, banking, and trading program, the provisions 
of which are specified in subpart D of this part. The manufacturer or 
remanufacturer must set family emission limits (FEL) for the applicable 
duty-cycle. This FEL serves as the standard for that family.
    (ii) When a locomotive is certified to an FEL other than the 
applicable standard, it must be recertified to that same FEL at all 
subsequent remanufactures, except as specified otherwise in paragraph 
(a)(4)(iii) of this section.
    (iii) After a locomotive has been certified to any given FEL other 
than the applicable standard, it may be recertified to a different FEL 
at a subsequent remanufacture, as allowed by subpart D of this part. For 
subsequent remanufactures (i.e. those remanufactures that occur after 
the recertification to a different FEL), the locomotive must be 
recertified to the FEL(s) and standards that were applicable to the 
locomotive during its previous useful life, except where specified 
otherwise by subpart D of this part.

[[Page 405]]

    (5) Tables. The tables referenced in paragraphs (a) (1) through (3) 
of this section follow:

                      Table A8-1--Tier 0 Standards
                               [g/bhp-hr]
------------------------------------------------------------------------
                                                   Line-haul
                                                   \1\ cycle    Switch
                                                   standard      cycle
                                                               standard
------------------------------------------------------------------------
NOX.............................................         9.5        14.0
PM..............................................        0.60        0.72
CO..............................................         5.0         8.0
THC.............................................        1.00        2.10
NMHC............................................        1.00        2.10
THCE............................................        1.00        2.10
------------------------------------------------------------------------
\1\ Line-haul standards do not apply to Tier 0 switch locomotives.


                      Table A8-2--Tier 1 Standards
                               [g/bhp-hr]
------------------------------------------------------------------------
                                                   Line-haul    Switch
                                                     cycle       cycle
                                                   standard    standard
------------------------------------------------------------------------
NOX.............................................         7.4        11.0
PM..............................................        0.45        0.54
CO..............................................         2.2         2.5
THC.............................................        0.55        1.20
NMHC............................................        0.55        1.20
THCE............................................        0.55        1.20
------------------------------------------------------------------------


                      Table A8-3--Tier 2 Standards
                               [g/bhp-hr]
------------------------------------------------------------------------
                                                   Line-haul    Switch
                                                     cycle       cycle
                                                   standard    standard
------------------------------------------------------------------------
NOX.............................................         5.5         8.1
PM..............................................        0.20        0.24
CO..............................................         1.5         2.4
THC.............................................        0.30        0.60
NMHC............................................        0.30        0.60
THCE............................................        0.30        0.60
------------------------------------------------------------------------


               Table A8-4--Smoke Standards for Locomotives
                            [Percent Opacity]
------------------------------------------------------------------------
                                             Steady-   30-sec     3-sec
                                              state     peak      peak
------------------------------------------------------------------------
Tier 0....................................        30        40        50
Tier 1....................................        25        40        50
Tier 2....................................        20        40        50
------------------------------------------------------------------------


                Table A8-5--Alternate CO and PM Standards
                               [g/bhp-hr]
------------------------------------------------------------------------
                                                Line-haul   Switch cycle
                                                  cycle    -------------
                                             --------------
                                                CO     PM     CO     PM
------------------------------------------------------------------------
Tier 0......................................   10.0   0.30   12.0   0.36
Tier 1......................................   10.0   0.22   12.0   0.27
Tier 2......................................   10.0   0.10   12.0   0.12
------------------------------------------------------------------------

    (b) No crankcase emissions shall be discharged directly into the 
ambient atmosphere from any new locomotive or new locomotive engine. 
Discharge of crankcase emissions into the engine exhaust complies with 
this prohibition, provided crankcase emissions are measured and included 
with exhaust emissions. Compliance with this standard is required 
throughout the entire service life of the locomotive or locomotive 
engine.
    (c) Notch standards. (1) Exhaust emissions from locomotives and 
locomotive engines shall not exceed the notch standards set forth in 
paragraph (c)(2) of this section, except as allowed in paragraph (c)(3) 
of this section, when measured using any test procedures under any test 
conditions.
    (2) Notch standards for each pollutant for each notch are calculated 
from the certified notch emission rate as follows:

Notch standard=(Ex) x (1.1=(1-ELHx/std))

Where:

Ex=The deteriorated brake-specific emission rate (for 
pollutant x) for the notch (i.e., the brake-specific emission rate 
calculated under subpart B of this part, multplied by the deterioration 
factor in the application for certification expressed as a 
multiplicative deterioration factor); where x is NOX, HC (or 
NMHC or THCE, as applicable), CO or PM.
ELHx=The deteriorated line-haul duty-cycle weighted brake-
specific emission rate for pollutant x, as reported in the application 
for certification.
std=The applicable line-haul duty-cycle standard, or the certified line-
haul duty-cycle FEL for locomotives or locomotive engines participating 
in the averaging, banking and trading program for NOx or PM.

    (3) Where exhaust emissions exceed the notch standards set forth in 
paragraph (c)(2) of this section, the locomotive or locomotive engine is 
considered to be in compliance with such standards only if:
    (i) The same emission controls are applied during the test 
conditions causing the noncompliance as were applied during 
certification test conditions (and to the same degree); or
    (ii) The exceeding emissions result from a design feature that was 
described (including its effect on emissions) in the approved 
application for

[[Page 406]]

certification, and is necessary for safety or is otherwise allowed by 
this part.



Sec. 92.9  Compliance with emission standards.

    (a) The general standards in Sec. 92.7 and the emission standards in 
Sec. 92.8 apply to the emissions from new locomotives and new locomotive 
engines for their useful life. The useful life is specified as MW-hrs 
and years, and ends when either of the values (MW-hrs or years) is 
exceeded.
    (1) The minimum useful life in terms of MW-hrs is equal to the 
product of the rated horsepower multiplied by 7.50. The minimum useful 
life in terms of years is ten years. For locomotives or locomotive 
engines originally manufactured before January 1, 2000 and not equipped 
with MW-hr meters, the minimum useful life is equal to 750,000 miles or 
ten years, whichever is reached first.
    (2) The certifying manufacturer or remanufacturer shall specify a 
longer useful life if the locomotive or locomotive engine is designed to 
last longer than the applicable minimum useful life. A manufacturer's or 
remanufacturer's recommended time to remanufacture which is longer than 
the minimum useful life is one indicator of a longer design life.
    (3) Manufacturers and remanufacturers of non-locomotive-specific 
engines (as defined in Sec. 92.2) may petition the Administrator prior 
to certification to allow a shorter useful life for an engine family 
containing only non-locomotive-specific engines. This petition must 
include the full rationale behind the request together with any other 
supporting evidence. Based on this or other information, the 
Administrator may allow a shorter useful life.
    (4) Remanufacturers of locomotive or locomotive engine 
configurations that have been previously certified under paragraph 
(a)(3) of this section to a useful life that is shorter than the value 
specified in paragraph (a)(1) of this section may certify to that same 
useful life value without request.
    (b) Certification. Certification is the process by which 
manufacturers and remanufacturers apply for and obtain certificates of 
conformity from EPA that allow the manufacturer or remanufacturer to 
introduce into commerce new locomotives and/or new locomotive engines 
for sale or use in the U.S.
    (1)(i) Compliance with the applicable emission standards by an 
engine family must be demonstrated by the certifying manufacturer or 
remanufacturer before a certificate of conformity may be issued under 
Sec. 92.208.
    (A) Manufacturers shall demonstrate compliance using emission data, 
measured using the procedures specified in subpart B of this part, from 
a low mileage locomotive, or a development engine (that is equivalent in 
design to the locomotive engines being certified), or another low hour 
engine.
    (B) Remanufacturers shall demonstrate compliance using emission 
data, measured using the procedures specified in subpart B of this part, 
from a low mileage remanufactured locomotive, or a development engine 
(that is equivalent in design to the locomotive engines being 
certified), or another low hour remanufactured engine that was 
remanufactured in the manner specified in the application for 
certification.
    (ii) The emission values to compare with the standards shall be the 
emission values of a low mileage locomotive, or development engine, or 
low hour locomotive engine, adjusted by the deterioration factors 
developed in accordance with the provisions of paragraph (b)(2) of this 
section. Before any emission value is compared with the standard, it 
shall be rounded, in accordance with ASTM E 29-93a (incorporated by 
reference at Sec. 92.5), to the same number of significant figures as 
contained in the applicable standard.
    (2) Exhaust emission deterioration factors shall be determined by 
the certifying manufacturer or remanufacturer for each engine family. 
The manufacturer's or remanufacturer's determination is subject to the 
requirements of paragraph (b)(2)(iv) of this section. The deterioration 
factor relates emissions from low mileage or low hour data to emissions 
at the end of useful life. If certification data is obtained from a 
development engine, and the emissions performance of that engine is 
significantly different from a

[[Page 407]]

typical low hour engine, then the deterioration factors may be adjusted 
for the purpose of certification.
    (i) A separate exhaust emission deterioration factor shall be 
established, as required, for compliance with applicable emission 
standards for HC, THCE, NMHC, CO, NOX, particulate and smoke 
for each engine family.
    (ii)(A) For locomotives or locomotive engines not utilizing 
aftertreatment technology (e.g., catalyst). For HC, THCE, NMHC, CO, 
NOX, and PM, additive deterioration factors shall be used; 
that is, a deterioration factor that when added to the low mileage 
emission rate equals the emission rate at the end of useful life. 
However, if the deterioration factor supplied by the manufacturer or 
remanufacturer is less than zero, it shall be zero for the purposes of 
this section.
    (B) For locomotives or locomotive engines utilizing aftertreatment 
technology (e.g., catalyst). For HC, THCE, NMHC, CO, NOX, and 
PM, Multiplicative deterioration factors shall be used; that is 
deterioration factors that when multiplied by the low mileage emission 
rate equal the emission rate at the end of useful life. However, if the 
deterioration factor supplied by the manufacturer or remanufacturer is 
less than one, it shall be one for the purposes of this paragraph (b).
    (C) For all locomotives and locomotive engines. For smoke, additive 
deterioration factors shall be used. However, if the deterioration 
factor supplied by the manufacturer or remanufacturer is less than zero, 
it shall be zero for the purposes of this paragraph (b).
    (iii) In the case of a multiplicative exhaust emission deterioration 
factor, the factor shall be rounded to three places to the right of the 
decimal point in accordance with ASTM E 29-93a (incorporated by 
reference at Sec. 92.5). In the case of an additive exhaust emission 
deterioration factor, the factor shall be established to a minimum of 
two places to the right of the decimal in accordance with ASTM E 29-93a 
(incorporated by reference at Sec. 92.5).
    (iv) Every deterioration factor must be, in the Administrator's 
judgement, consistent with emissions increases observed in-use based on 
emission testing of similar locomotives or locomotive engines. 
Deterioration factors that predict emission increases over the useful 
life of a locomotive or locomotive engine that are significantly less 
than the emission increases over the useful life observed from in-use 
testing of similar locomotives or locomotive engines shall not be used.



Sec. 92.10  Warranty period.

    Warranties imposed by Sec. 92.1107 shall apply for at least the 
first third of the full useful life of the locomotive or locomotive 
engine, or for the same period during which the manufacturer or 
remanufacturer provides any other mechanical warranty, whichever is 
longer. A copy of the manufacturer's or remanufacturer's warranty shall 
be submitted with the application for certification.



Sec. 92.11  Compliance with emission standards in extraordinary circumstances.

    The provisions of this section are intended to address problems that 
could occur near the date on which more stringent emission standards 
become effective, such as the transition from the Tier 1 standards to 
the Tier 2 standards on January 1, 2005.
    (a) In appropriate extreme and unusual circumstances which are 
clearly outside the control of the manufacturer and which could not have 
been avoided by the exercise of prudence, diligence, and due care, the 
Administrator may permit a manufacturer, for a brief period, to 
introduce into commerce locomotives which do not comply with the 
applicable emission standards if:
    (1) The locomotives cannot reasonably be manufactured in such a 
manner that they would be able to comply with the applicable standards;
    (2) The manufacture of the locomotives was substantially completed 
prior to the applicability date of the standards from which the 
manufacturer seeks relief;
    (3) Manufacture of the locomotives was previously scheduled to be 
completed at such a point in time that locomotives would have been 
included in the previous model year, such that they would have been 
subject to less

[[Page 408]]

stringent standards, and that such schedule was feasible under normal 
conditions;
    (4) The manufacturer demonstrates that the locomotives comply with 
the less stringent standards that applied to the previous model year's 
production described in paragraph (a)(3) of this section, as prescribed 
by subpart C of this part (i.e., that the locomotives are identical to 
locomotives certified in the previous model year);
    (5) The manufacturer exercised prudent planning and was not able to 
avoid the violation and has taken all reasonable steps to minimize the 
extent of the nonconformity; and
    (6) The manufacturer receives approval from EPA prior to introducing 
the locomotives into commerce.
    (b) Any manufacturer seeking relief under this section shall notify 
EPA as soon as it becomes aware of the extreme or unusual circumstances.
    (c)(1) Locomotives for which the Administrator grants relief under 
this section shall be included in the engine family for which they were 
originally intended to be included.
    (2) Where the locomotives are to be included in an engine family 
that was certified to an FEL above the applicable standard, the 
manufacturer shall reserve credits to cover the locomotives covered by 
this section, and shall include the required information for these 
locomotives in the end-of-year report required by subpart D of this 
part.
    (d) In granting relief under this section, the Administrator may 
also set other conditions as he/she determines to be appropriate, such 
as requiring payment of fees to negate an economic gain that such relief 
would otherwise provide to the manufacturer.



Sec. 92.12  Interim provisions.

    Notwithstanding other provisions of this part, the following 
provisions apply as specified to locomotives and locomotive engines 
subject to the provisions of this part:
    (a) Tier 0 standards. In addition to the requirements of 
Sec. 92.8(a)(1)(i), the following new locomotives and new locomotive 
engines are subject to the Tier 0 emission standards of Sec. 92.8. The 
requirements of this paragraph do not apply to passenger locomotives. 
The requirements of this paragraph (a) provide manufacturers of freshly 
manufactured locomotives two options for compliance. The first option is 
to comply with the requirements of paragraphs (a) (1) and (2) of this 
section, which has the effect of requiring compliance with Tier 0 
standards on average beginning on January 1, 2001 for all freshly 
manufactured and remanufactured locomotives originally manufactured on 
or after January 1, 1994. The second option requires compliance with the 
requirements of paragraph (a)(3) of this section that the manufacturer 
make a remanufacturing system available at a reasonable cost for its 
primary model for the 1994 through 1997 production period prior to 
January 1, 2000, and to apply the same emission controls to its new 
production of similar locomotives. Manufacturers complying with 
paragraph (a)(3) of this section would be allowed to manufacture and 
remanufacture other locomotives without a certificate of conformity, 
prior to January 1, 2002, except as required by paragraph (a)(2)(ii) of 
this section. Manufacturers may comply with paragraph (a)(3) of this 
section through compliance with the provisions of paragraph (a)(5) of 
this section.
    (1) Freshly manufactured locomotives. Except as provided in 
paragraph (a)(3) of this section, all freshly manufactured locomotives 
manufactured on or after January 1, 2001 must comply with the emission 
standards listed in Table A8-1 of Sec. 92.8 and all other applicable 
requirements of this part.
    (2) Remanufactured locomotives. The following locomotives (and 
engines used in the following locomotives) must comply with the emission 
standards listed in Table A8-1 of Sec. 92.8 and all other applicable 
requirements of this part:
    (i) Locomotives originally manufactured on or after January 1, 1994, 
that are remanufactured on or after January 1, 2001; and
    (ii) Locomotives originally manufactured on or after January 1, 1990 
for which a remanufacturing system has been certified to Tier 0 
standards and is available for use at reasonable cost.
    (3) New model exemption. (i) Freshly manufactured locomotive models 
not

[[Page 409]]

introduced for widespread production prior to January 1, 1998 are exempt 
from the requirements of paragraph (a)(1) of this section provided the 
manufacturer of the locomotive:
    (A) Has obtained a certificate of conformity and made available for 
use at reasonable cost before January 1, 2000, a remanufacturing system 
for its primary locomotive model (including its primary engine model) 
originally manufactured between January 1, 1994 and January 1, 1998; and
    (B) Complies with the emission standards listed in Table A8-1 of 
Sec. 92.8 and all applicable requirements of this part for all freshly 
manufactured locomotives manufactured on or after January 1, 2000 that 
are similar to the primary model described in paragraph (a)(3)(i)(A) of 
this section.
    (ii) New locomotives and locomotive engines that are manufactured 
and remanufactured by a manufacturer that complies with the requirements 
of paragraphs (a)(3)(i) (A) and (B) of this section, and that are not 
similar to the locomotive models identified in paragraphs (a)(3)(i) (A) 
and (B) of this section are exempt from the requirements of paragraphs 
(a)(1) and (a)(2)(i) of this section.
    (4) Make available at a reasonable cost means to make a certified 
remanufacturing system available for use where:
    (i) The total cost to the owner and user of the locomotive 
(including initial hardware, increased fuel consumption, and increased 
maintenance costs) during the useful life of the locomotive is less than 
$220,000; and
    (ii) The initial hardware costs are reasonably related to the 
technology included in the remanufacturing system and are less than 
$50,000 for 2-stroke locomotives and 4-stroke locomotives equipped with 
split cooling systems, or $125,000 for 4-stroke locomotives not equipped 
with split cooling systems; and
    (iii) The system will not increase fuel consumption by more than 3 
percent; and
    (iv) The remanufactured locomotive will have reliability throughout 
its useful life that is similar to the reliability the locomotive would 
have had if it had been remanufactured without the certified 
remanufacture system.
    (5)(i) Instead of the provisions of paragraph (a)(3) of this 
section, a manufacturer may comply with the emissions standards listed 
in Table A8-1 of Sec. 92.8 and all other applicable requirements of this 
part with respect to any combination of locomotive models that are 
manufactured or remanufactured on or after January 1, 2000, provided 
that the manufacturer has demonstrated to the satisfaction of the 
Administrator that such locomotives will produce greater emissions 
reductions than would otherwise occur through compliance with paragraph 
(a)(3) of this section.
    (ii) New locomotives and locomotive engines that are manufactured 
and remanufactured by a manufacturer that complies with the requirements 
of paragraph (a)(5)(i) of this section, and that are not similar to the 
locomotive models identified in paragraph (a)(5)(i) of this section, are 
exempt from the requirements of paragraphs (a)(1) and (a)(2)(i) of this 
section.
    (b) Production line and in-use testing. (1) The requirements of 
subpart F of this part (i.e., production line testing) do not apply 
prior to January 1, 2002.
    (2) The requirements of subpart F of this part (i.e., production 
line testing) do not apply to small remanufacturers prior to January 1, 
2007.
    (3) The requirements of subpart G of this part (i.e., in-use 
testing) only apply for locomotives and locomotive engines that become 
new on or after January 1, 2002.
    (4) For locomotives and locomotive engines that are covered by a 
small business certificate of conformity, the requirements of subpart G 
of this part (i.e., in-use testing) only apply for locomotives and 
locomotive engines that become new on or after January 1, 2007.
    (c) Small business certificates of conformity. (1) Prior to January 
1, 2007, small remanufacturers (as defined in Sec. 92.2) may use a 
modified version of the federal test procedures of subpart B of this 
part to obtain certificates of conformity. Such certificates are valid 
only for production that occurs prior to January 1, 2007. Specifically, 
the following modifications are allowed:

[[Page 410]]

    (i) Measurement of HC, CO, and PM may be omitted;
    (ii) Dynamometers are not required to meet the specifications of 
subpart B of this part, provided their design and use is consistent with 
good engineering practice;
    (iii) Other modifications that are necessary because of excessive 
costs or technical infeasibility may be approved by the Administrator 
prior to the start of testing.
    (2)(i) Small remanufacturers may use test procedures other than 
those specified in subpart B of this part or in paragraph (c)(1) of this 
section to obtain certificates of conformity, provided that the test 
procedures are consistent with good engineering practice, and are 
approved by the Administrator prior to the start of testing. Such 
certificates are valid only for production that occurs prior to January 
1, 2007.
    (ii) The total number of locomotives and locomotive engines that may 
be remanufactured under a certificate of conformity issued based on the 
testing described in paragraph (c)(2)(i) of this section shall be 
subject to the following annual limits for each individual 
remanufacturer: No more than 300 units in 2003, no more than 200 units 
in 2004, no more than 100 units in 2005, no more than 50 units in 2006. 
These sales limits apply to the combined number of locomotives and 
locomotive engines remanufactured within the calendar year that are 
covered by an individual remanufacturer's certificates issued under 
paragraph (c)(2)(i) of this section.
    (3) Upon request, and prior to January 1, 2007, the Administrator 
may modify other certification requirements, as appropriate, for small 
remanufacturers.
    (4) Remanufacturers certifying under this paragraph (c) shall 
provide along with their application for certification a brief 
engineering analysis describing the emission control technology to be 
incorporated in the remanufactured locomotive or locomotive engine, and 
demonstrating that such controls will result in compliance with the 
applicable standards.
    (d) Early banking of emission credits. (1) Consistent with the 
provisions of subpart D of this part, NOx and PM emission credits may be 
generated from Tier 0 locomotives and locomotive engines prior to the 
applicable effective compliance date of the Tier 0 standard (i.e., the 
effective compliance date in Sec. 92.8(a)(1)(i) or the effective 
compliance dates of paragraph (a) of this section, as applicable), 
relative to baseline emission rates.
    (2)(i) Credits generated under this paragraph (d) that are granted 
or transferred to the owner or primary operator of the locomotives or 
locomotive engines generating credits may be used without restriction.
    (ii) Credits generated under this paragraph (d) that are not granted 
or transferred to the owner or primary operator of the locomotives or 
locomotive engines generating credits may not be used for compliance 
with the Tier 0 standards for 2002 or later model years.
    (3)(i) Prior to January 1, 2000, the provisions of this paragraph 
(d) apply to all locomotives and locomotive engines.
    (ii) During the period January 1, 2000 through December 31, 2001, 
the provisions of this paragraph (d) apply only to engine families that 
include only locomotives and/or locomotive engines originally 
manufactured prior to January 1, 1990.
    (iii) The provisions of this paragraph (d) other than the provisions 
of paragraph (d)(2) of this section do not apply to any locomotives and 
locomotive engines manufactured or remanufactured on or after January 1, 
2002.
    (4)(i) NOX credits generated under this paragraph (d) 
shall be calculated as specified in Sec. 92.305, except that the 
applicable standard shall be replaced by:
    (A) 10.5 g/bhp-hr for the line-haul cycle standards, and 14.0 g/bhp-
hr for the switch standards; or
    (B) For remanufactured locomotives, a measured baseline emission 
rate for the configuration with the lowest NOX emission rate 
in the applicable engine family that is approved in advance by the 
Administrator.
    (ii) PM credits generated under this paragraph (d) shall be 
calculated as specified in Sec. 92.305, except that the applicable 
standard shall be replaced by:

[[Page 411]]

    (A) 0.20 g/bhp-hr for the line-haul cycle standards, and 0.24 g/bhp-
hr for the switch standards; or
    (B) For remanufactured locomotives, a measured baseline emission 
rate for the configuration with the lowest NOX emission rate 
in the applicable engine family that is approved in advance by the 
Administrator.
    (iii) The proration factor for all credits generated under this 
paragraph (d) shall be 0.143.
    (5) Locomotives and locomotive engines generating credits under this 
paragraph (d) must meet all applicable requirements of this part.
    (e) Particulate notch standards. For model year 2006 and earlier 
locomotives, the particulate notch standard shall be calculated as:
Notch standard=(EX) x (1.2=(1-ELHx/std)).

    (f) Passenger locomotives. Passenger locomotives originally 
manufactured before January 1, 2002 are exempt from the requirements and 
prohibitions of this part for model years through 2006. New passenger 
locomotives and locomotive engines produced on or after January 1, 2007 
shall comply with all applicable requirements of this part.



                       Subpart B--Test Procedures



Sec. 92.101  Applicability.

    Provisions of this subpart apply to tests performed by the 
Administrator, certificate holders, other manufacturers and 
remanufacturers of locomotives or locomotive engines, railroads (and 
other owners and operators of locomotives), and their designated testing 
laboratories. This subpart contains gaseous emission test procedures, 
particulate emission test procedures, and smoke test procedures for 
locomotives and locomotive engines.



Sec. 92.102  Definitions and abbreviations.

    The definitions and abbreviations of subpart A of this part apply to 
this subpart. The following definitions and abbreviations, as well as 
those found in Sec. 92.132 (Calculations), also apply:
    Accuracy means the difference between the measured value and the 
true value, where the true value is determined from NIST traceable 
measurements where possible, or otherwise determined by good engineering 
practice.
    Calibration means the act of calibrating an analytical instrument 
using known standards.
    Calibration gas means a gas of known concentration which is used to 
establish the response curve of an analyzer.
    Good engineering practice means those methods and practices which 
the Administrator determines to be consistent with scientific and 
engineering principles.
    Hang-up refers to the process of hydrocarbon molecules being 
adsorbed, condensed, or by any other method removed from the sample flow 
prior to reaching the instrument detector. It also refers to any 
subsequent desorption of the molecules into the sample flow when they 
are assumed to be absent.
    Parts per million, carbon or ppmC means the concentration of an 
organic compound in a gas expressed as parts per million (by volume or 
by moles) multiplied by the number of carbon atoms in a molecule of that 
compound.
    Precision means the standard deviation of replicated measurements, 
or one-half of the readability, whichever is greater; except where 
explicitly noted otherwise.
    Readability means the smallest difference in measured values that 
can be detected. For example, the readability for a digital display with 
two decimal places would be 0.01.
    Span gas means a gas of known concentration which is used routinely 
to set the output level of an analyzer.
    Standard conditions and standard temperature and pressure mean 68 
deg.F (20  deg.C) and 29.92 in Hg. (101.3 kPa).



Sec. 92.103  Test procedures; overview.

    (a) This subpart contains procedures for exhaust emission tests of 
locomotives and locomotive engines. The procedures specified here are 
intended to measure brake-specific mass emissions of organic compounds 
(hydrocarbons for locomotives using petroleum diesel fuel), oxides of 
nitrogen, particulates, carbon monoxide, carbon dioxide, and smoke in a 
manner representative of a typical operating cycle.

[[Page 412]]

    (b)(1) The sampling systems specified in this subpart are intended 
to collect representative samples for analysis, and minimize losses of 
all analytes.
    (i) For gaseous emissions, a sample of the raw exhaust is collected 
directly from the exhaust stream and analyzed during each throttle 
setting.
    (ii) Particulates are collected on filters following dilution with 
ambient air of a separate raw exhaust sample.
    (2) Analytical equipment is identical for all fuel types, with the 
exception of the systems used to measure organics (i.e., hydrocarbons, 
alcohols, and aldehydes); diesel-fueled and biodiesel-fueled locomotives 
Parts per million and locomotive engines require a heated, continuous 
hydrocarbon detector; natural gas-fueled locomotives and locomotive 
engines require a continuous hydrocarbon detector and a methane 
detector; alcohol-fueled locomotives and locomotive engines require a 
heated hydrocarbon detector, alcohol sampling and detection systems, and 
aldehyde sampling and detection systems. Necessary equipment and 
specifications appear in Secs. 92.105 through 92.111.
    (3) Fuel specifications for emission testing are specified in 
Sec. 92.113. Analytical gases are specified in Sec. 92.112.
    (c) The power produced by the engine is measured at each throttle 
setting.
    (d) The fuel flow rate for each throttle setting is measured in 
accordance with Sec. 92.107.
    (e) Locomotives and locomotive engines are tested using the test 
sequence as detailed in Secs. 92.124 and 92.126.
    (f) Alternate sampling and/or analytical systems may be used if 
shown to yield equivalent results, and if approved in advance by the 
Administrator. Guidelines for determining equivalency are found in 
Appendix IV of this part.
    (g) At the time of the creation of this part, essentially all 
locomotives and locomotive engines subject to the standards of this part 
were designed to use diesel fuel. Therefore, the testing provisions of 
this subpart focus primarily on that fuel. Some provisions for fuels 
other than diesel are also included. If a manufacturer or remanufacturer 
of locomotives or locomotive engines, or a user of locomotives, or other 
party wishes or intends to use a fuel other than diesel in locomotives 
or locomotive engines, it shall notify the Administrator, who shall 
specify those changes to the test procedures that are necessary for the 
testing to be consistent with good engineering practice. The changes 
made under this paragraph (g) shall be limited to:
    (1) Exhaust gas sampling and analysis;
    (2) Test fuels; and
    (3) Calculations.



Sec. 92.104  Locomotive and engine testing; overview.

    (a) The test procedures described here include specifications for 
both locomotive testing and engine testing. Unless specified otherwise 
in this subpart, all provisions apply to both locomotive and engine 
testing.
    (b)(1) The test procedures for engine testing are intended to 
produce emission measurements that are essentially identical to emission 
measurements produced during locomotive testing using the same engine 
configuration. The following requirements apply for all engine tests:
    (i) Engine speed and load for each mode shall be within 2 percent of 
the speed and load of the engine when it is operated in the locomotive.
    (ii) The temperature of the air entering the engine after any charge 
air cooling shall be within 5  deg.F of the typical intake air 
temperature when the engine is operated in the locomotive under similar 
ambient conditions. Auxiliary fan(s) may be used to maintain engine 
cooling during operation on the dynamometer.
    (iii) The engine air inlet system used during testing shall have an 
air inlet restriction within 1 inch of water of the upper limit of a 
typical engine as installed with clean air filters, as established by 
the manufacturer or remanufacturer for the engine being tested.
    (2) Testers performing engine testing under this subpart shall not 
use test procedures otherwise allowed by the provisions of this subpart 
where such procedures are not consistent with good engineering practice 
and the regulatory goal specified in paragraph (b)(1) of this section.

[[Page 413]]

    (c) Provisions that specify different requirements for locomotive 
and/or engine testing are described in Secs. 92.106, 92.108(a) and 
(b)(1), 92.111(b)(2) and (c), 92.114(a)(2)(ii), (b)(3)(ii), 
(c)(2)(iii)(A) and (d), 92.115(c), 92.116, 92.123(a)(2) and (b), 
92.124(d), 92.125(a) and (b), 92.126(a)(7)(iii)(A).



Sec. 92.105  General equipment specifications.

    (a) Chart recorders. (1) The recommended minimum chart speed for 
gaseous measurements is 1 cm per minute. (Higher chart speeds are 
required for smoke measurements during the acceleration phases of the 
test sequence.)
    (2) All chart recorders (analyzers, torque, rpm, etc.) shall be 
provided with automatic markers which indicate ten second intervals. 
Preprinted chart paper (ten second intervals) may be used in lieu of the 
automatic markers provided the correct chart speed is used. (Markers 
which indicate 1 second intervals are required for smoke measurements 
during the acceleration phases of the test sequence.)
    (b) Automatic data collection. (1) In lieu of the use of chart 
recorders, automatic data collection equipment may be used to record all 
required data. The automatic data collection equipment must be capable 
of sampling at least two records per second.
    (2) Other means may be used provided they produce a permanent visual 
data record of a quality equal to or better than those required by this 
subpart (e.g., tabulated data, traces, or plots).
    (c) Temperature measurements. (1) The following temperature 
measurements shall be accurate to within 1.0  deg.F (0.6  deg.C):
    (i) Temperature measurements used in calculating the engine intake 
humidity;
    (ii) The temperature of the fuel, in volume measuring flow rate 
devices;
    (iii) The temperature of the sample within the water trap(s);
    (iv) Temperature measurements used to correct gas volumes (e.g., to 
standard conditions) or to calculate mass or moles of a sample.
    (2) All other temperature measurements shall be accurate within 3.0 
deg.F (1.7  deg.C).
    (d) Electrical measurements. (1) Voltmeters shall have accuracy and 
precision of 1 percent of point or better.
    (2) Ammeters shall have accuracy and precision of 1 percent of point 
or better.
    (3) Wattmeters shall have accuracy and precision of 1 percent of 
point or better.
    (4) Instruments used in combination to measure engine power output 
shall comply with the requirements of Sec. 92.106.
    (e) Pressure measurements. (1) Gauges and transducers used to 
measure any pressures used to correct gas volumes (e.g., to standard 
conditions) or to calculate mass or moles of a sample shall have an 
accuracy and precision of 0.1 percent of absolute pressure at point or 
better.
    (2) Gauges and transducers used to measure any other pressures shall 
have an accuracy and precision of 1 percent of absolute pressure at 
point or better.



Sec. 92.106  Equipment for loading the engine.

    For purposes of placing the required load on the engine during an 
emissions test, either the equipment specified in paragraph (a) of this 
section, or the equipment specified in paragraph (b) of this section may 
be used.
    (a) Locomotive testing. (1) The equipment required for loading the 
locomotive engine-alternator/generator assembly electrically, and for 
measurement of the electrical power output from the alternator/generator 
consists of the following, either in total or in part: electrical 
resistance load bank; fans or other means for cooling of the load bank; 
wattmeter, including phase angle compensation; meter(s) for measurement 
of the current through the load bank (a calibrated electrical shunt and 
voltmeter is allowed for current measurement); meter(s) to measure the 
voltage across the load bank; and electrical cable to connect the 
alternator/generator to the load bank. Many locomotives are equipped 
with an internal electrical resistance load bank and fans for cooling of 
the load bank; when so equipped, the locomotive load bank may be used 
for purposes of loading the engine during emissions tests.

[[Page 414]]

    (2) The combination of instruments (meters) used to measure engine 
or alternator/generator power output (wattmeter, ammeter, voltmeter) 
shall have accuracy and precision such that the accuracy of the measured 
alternator/generator power out is better than:
    (i) 2 percent of point at all power settings except idle and dynamic 
brake; and
    (ii) Less accuracy and precision is allowed at idle and dynamic 
brake, consistent with good engineering practice. Equipment with 
accuracy or precision worse than 20 percent of point is not allowed.
    (3) The efficiency curve for the alternator/generator, shall specify 
the efficiency at each test point. The manufacturer or remanufacturer 
shall provide EPA with a detailed description of the procedures used to 
establish the alternator/generator efficiency.
    (b) Engine testing. (1) For engine testing using a dynamometer, the 
engine dynamometer system must be capable of controlling engine torque 
and speed simultaneously under steady speed operation, during 
accelerations where the rate of change in torque and speed is 
representative of those changes which occur when the engine is operating 
in a locomotive. It must also be capable of performing the test sequence 
described in this subpart. In addition to these general requirements, 
the engine or dynamometer readout signals for speed and torque shall 
meet the following accuracy specifications:
    (i) Engine speed readout shall be accurate to within 2 
percent of the absolute standard value, as defined in Sec. 92.116 of 
this part.
    (ii) Engine flywheel torque readout shall be accurate to either 
within 3 percent of the NIST ``true'' value torque, or the 
following accuracies, whichever provides the most accurate readout:
    (A) 20 ft.-lbs. of the NIST ``true'' value if the full 
scale value is 9000 ft.-lbs. or less.
    (B) 30 ft.-lbs., of the NIST ``true'' value if the full 
scale value is greater than 9000 ft.-lbs.
    (C) Option. Internal dynamometer signals (i.e., armature current, 
etc.) may be used for torque measurement provided that it can be shown 
that the engine flywheel torque during the test sequence conforms to the 
accuracy specifications in paragraph (b)(1)(ii)(A) or (b)(1)(ii)(B) of 
this section. Such a measurement system must include compensation for 
increased or decreased flywheel torque due to the armature inertia 
during accelerations between throttle notch (test mode) settings in the 
test.
    (2) For engine testing using a locomotive alternator/generator 
instead of a dynamometer, the equipment used shall comply with the 
requirements of paragraph (a) of this section.



Sec. 92.107  Fuel flow measurement.

    (a) Fuel flow measurement for locomotive and engine testing. The 
rate of fuel consumption by the engine must be measured with equipment 
conforming to the following:
    (1) The fuel flow rate measurement instrument must have a minimum 
accuracy of 2 percent of measurement flow rate for each 
measurement range used. An exception is allowed at idle where the 
minimum accuracy is 10 percent of measured flow rate for 
each measurement range used. The measurement instrument must be able to 
comply with this requirement with an averaging time of one minute or 
less, except for idle, dynamic brake, and notches 1 and 2 where the 
instrument must be able to comply with this requirement with an 
averaging time of three minutes or less.
    (2) The controlling parameters are the elapsed time measurement of 
the event and the weight or volume measurement. Restrictions on these 
parameters are:
    (i) The error in the elapsed time measurement of the event must not 
be greater than 1 percent of the absolute event time. This includes 
errors in starting and stopping the clock as well as the period of the 
clock.
    (ii) If the mass of fuel consumed is measured by discrete weights, 
then the error in the actual weight of the fuel consumed must not be 
greater than 1 percent of the measuring weight. An exception 
is allowed at idle, where the error in the actual weight of the fuel 
consumed must not be greater than 2 percent of the measuring 
weight.

[[Page 415]]

    (iii) If the mass of fuel consumed is measured electronically (load 
cell, load beam, etc.), the error in the actual weight of fuel consumed 
must not be greater than 1 percent of the full-scale value 
of the electronic device.
    (iv) If the mass of fuel consumed is measured by volume flow and 
density, the error in the actual volume consumed must not be greater 
than 1 percent of the full-scale value of the volume 
measuring device.
    (3) For devices that have varying mass scales (electronic weight, 
volume, density, etc.), compliance with the requirements of paragraph 
(a)(1) of this section may require a separate flow measurement system 
for low flow rates.
    (b) Calibration. Fuel flow rate measurement devices shall be 
calibrated against an independent measurement of the total mass of fuel 
dispensed during a fixed amount of time in accordance with the following 
provisions:
    (1) Measurement of the total mass shall have an accuracy and 
precision of 1 percent of point, or better.
    (2) Fuel measurements shall be performed for at least 10 flow rates 
evenly distributed over the entire range of fuel flow rates used during 
testing.
    (3) For each flow rate, either the total mass of fuel dispense must 
exceed 5.0 kilograms (11.0 pounds), or the length of time during which 
the fuel is dispensed must exceed 30 minutes. In all cases, the length 
of time during which fuel is dispensed must be at least 180 seconds.



Sec. 92.108  Intake and cooling air measurements.

    (a) Intake air flow measurement. Measurement of the flow rate of 
intake air into the engine is allowed for engine testing, but not 
required. When it is measured, the measurement technique shall conform 
to the following:
    (1) The air flow measurement method used must have a range large 
enough to accurately measure the air flow over the engine operating 
range during the test. Overall measurement accuracy must be 
2 percent of full-scale value of the measurement device for 
all modes except idle. For idle, the measurement accuracy shall be 
5 percent or less of the full-scale value. The Administrator 
must be advised of the method used prior to testing.
    (2) Corrections to the measured air mass flowrate shall be made when 
an engine system incorporates devices that add or subtract air mass (air 
injection, bleed air, etc.). The method used to determine the air mass 
from these devices shall be approved by the Administrator.
    (3) Measurements made in accordance with SAE recommended practice 
J244 (incorporated by reference at Sec. 92.5) are allowed.
    (b) Humidity and temperature measurements.
    (1) Air that has had its absolute humidity altered is considered 
humidity-conditioned air. For this type of intake air supply, the 
humidity measurements must be made within the intake air supply system, 
and after the humidity conditioning has taken place.
    (2) Humidity measurements for non-conditioned intake air supply 
systems shall be made as closely as possible to the point at which the 
intake air stream enters the locomotive, or downstream of that point.
    (3) Temperature measurements of engine intake air, engine intake air 
after compression and cooling in the charge air cooler(s) (engine 
testing only), and air used to cool the charge air after compression, 
and to cool the engine shall be made as closely as possible to obtain 
accurate results based on engineering judgement. Measurement of ambient 
temperature for locomotive testing shall be made within 48 inches of the 
locomotive, at a location that minimizes the effect of heat generated by 
the locomotive on the measured temperature.
    (4) Temperature measurements shall comply with the requirements of 
Sec. 92.105(c).
    (5) Humidity measurements shall be accurate within 2 percent of the 
measured absolute humidity.



Sec. 92.109  Analyzer specifications.

    (a) General analyzer specifications.--(1) Analyzer response time. 
Analyzers for THC, CO2, CO, and NOX must respond 
to an instantaneous step change at the entrance to the analyzer with a 
response equal to 95 percent of that step change in 6.0 seconds or less 
on all

[[Page 416]]

ranges used. The step change shall be at least 60 percent of full-scale 
chart deflection. For NOX analyzers using a water trap, the 
response time increase due to the water trap and associated plumbing 
need not be included in the analyzer response time.
    (2) Precision. The precision of the analyzers for THC, 
CO2, CO, and NOX must be no greater than 
1 percent of full-scale concentration for each range used 
above 155 ppm (or ppmC), or 2 percent for each range used 
below 155 ppm (or ppmC). The precision is defined as 2.5 times the 
standard deviation(s) of 10 repetitive responses to a given calibration 
or span gas.
    (3) Noise. The analyzer peak-to-peak response to zero and 
calibration or span gases over any 10-second period shall not exceed 2 
percent of full/scale chart deflection on all ranges used.
    (4) Zero drift. For THC, CO2, CO, and NOX 
analyzers, the zero-response drift during a 1-hour period shall be less 
than 2 percent of full-scale chart deflection on the lowest range used. 
The zero-response is defined as the mean response including noise to a 
zero-gas during a 30-second time interval.
    (5) Span drift. For THC, CO2, CO, and NOX 
analyzers, the span drift during a 1-hour period shall be less than 2 
percent of full-scale chart deflection on the lowest range used. The 
analyzer span is defined as the difference between the span-response and 
the zero-response. The span-response is defined as the mean response 
including noise to a span gas during a 30-second time interval.
    (b) Carbon monoxide and carbon dioxide analyzer specifications. (1) 
Carbon monoxide and carbon dioxide measurements are to be made with 
nondispersive infrared (NDIR) analyzers.
    (2) The use of linearizing circuits is permitted.
    (3) The minimum water rejection ratio (maximum CO2 
interference) as measured in Sec. 92.120(a) shall be:
    (i) For CO analyzers, 1000:1.
    (ii) For CO2 analyzers, 100:1.
    (4) The minimum CO2 rejection ratio (maximum 
CO2 interference) as measured in Sec. 92.120(b) for CO 
analyzers shall be 5000:1.
    (5) Zero suppression. Various techniques of zero suppression may be 
used to increase readability, but only with prior approval by the 
Administrator.
    (6) Option: if the range of CO concentrations encountered during the 
different test modes is too broad to allow accurate measurement using a 
single analyzer, then multiple CO analyzers may be used.
    (c) Hydrocarbon analyzer specifications. (1) Hydrocarbon 
measurements are to be made with a heated flame ionization detector 
(HFID) analyzer. An overflow sampling system is recommended but not 
required. (An overflow system is one in which excess zero gas or span 
gas spills out of the probe when zero or span checks of the analyzer are 
made.
    (i) Option. A non-heated flame ionization detector (FID) that 
measures hydrocarbon emissions on a dry basis is permitted for petroleum 
fuels other than diesel and biodiesel; Provided, that equivalency is 
demonstrated to the Administrator prior to testing. With the exception 
of temperatures, all specifications contained in Subpart B of this part 
apply to the optional system.
    (ii) The analyzer shall be fitted with a constant temperature oven 
housing the detector and sample-handling components. It shall maintain 
temperature with 3.6  deg.F (2  deg.C) of the set point. The detector, 
oven, and sample-handling components within the oven shall be suitable 
for continuous operation at temperatures to 395  deg.F (200  deg.C).
    (iii) Fuel and burner air shall conform to the specifications in 
Sec. 92.112(e).
    (iv) The percent of oxygen interference must be less than 3 percent, 
as specified in Sec. 92.119(3).
    (v) Premixed burner air. (A) For diesel and biodiesel fueled 
engines, premixing a small amount of air with the HFID fuel prior to 
combustion within the HFID burner is not recommended as a means of 
improving oxygen interference (%O2I). However, this procedure 
may be used if the engine manufacturer demonstrates on each basic 
combustion system (i.e., four-cycle direct injection, two-cycle direct 
injection, four-cycle indirect injection, etc.) that an HFID using this 
procedure produces comparable results to an HFID not using this 
procedure. These data must

[[Page 417]]

be submitted to the Administrator for his/her approval prior to testing.
    (B) For engines operating on fuels other than diesel or biodiesel, 
premixing burner air with the HFID fuel is not allowed.
    (2) Methane analyzer. The analytical system for methane consists of 
a gas chromatograph (GC) combined with a flame ionization detector 
(FID).
    (3) Alcohols and Aldehydes. The sampling and analysis procedures for 
alcohols and aldehydes, where applicable, shall be approved by the 
Administrator prior to the start of testing. Procedures consistent with 
the general requirements of 40 CFR Part 86 for sampling and analysis of 
alcohols and aldehydes emitted by on-highway alcohol-fueled engines, and 
consistent with good engineering practice are allowed.
    (4) Other methods of measuring organics that are shown to yield 
equivalent results can be used upon approval of the Administrator prior 
to the start of testing.
    (d) Oxides of nitrogen analyzer specifications. (1) Oxides of 
nitrogen are to be measured with a chemiluminescence (CL) analyzer.
    (i) The NOX sample must be heated per Sec. 92.114 up to 
the NO2 to NO converter.
    (ii) For high vacuum CL analyzers with heated capillary modules, 
supplying a heated sample to the capillary module is sufficient.
    (iii) The NO2 to NO converter efficiency shall be at 
least 90 percent.
    (iv) The CO2 quench interference must be less than 3.0 
percent as measured in Sec. 92.121(a).



Sec. 92.110  Weighing chamber and micro-balance.

    (a) Ambient conditions--(1) Temperature. The temperature of the 
chamber (or room) in which the particulate filters are conditioned and 
weighed shall be maintained at a measured temperature between 19  deg.C 
and 25  deg.C during all filter conditioning and weighing.
    (2) Humidity. The relative humidity of the chamber (or room) in 
which the particulate filters are conditioned and weighed shall be 
458 percent during all filter conditioning and weighing. The 
dew point shall be 6.4 to 12.4  deg.C.
    (b) Weighing balance specifications. The microbalance used to 
determine the weights of all filters shall have a precision (standard 
deviation) of no more than 20 micrograms and readability down to 10 
micrograms or lower.
    (c) Reference filters. The chamber (or room) environment shall be 
free of any ambient contaminants (such as dust) that would settle on the 
particulate filters during their stabilization. It is required that at 
least two unused reference filters remain in the weighing room at all 
times in covered (to reduce dust contamination) but unsealed (to permit 
humidity exchange) petri dishes.
    (1) These reference filters shall be placed in the same general area 
as the sample filters. These reference filters shall be weighed within 4 
hours of, but preferably at the same time as, the sample filter 
weighings.
    (2) If the average weight of the reference filters changes between 
sample filter weighings by 5.0 percent (7.5 if 
the filters are weighed in pairs) or more of the target nominal filter 
loading (the recommended nominal loading is 0.5 milligrams per 1075 
square millimeters of stain area), then all sample filters in the 
process of stabilization shall be discarded and the emissions tests 
repeated.
    (3) If the average weight of the reference filters decreases between 
sample filter weighings by more than 1.0 percent but less than 5.0 
percent of the nominal filter loading then the manufacturer or 
remanufacturer has the option of either repeating the emissions test or 
adding the average amount of weight loss to the net weight of the 
sample.
    (4) If the average weight of the reference filters increases between 
sample filter weighing by more than 1.0 percent but less than 5.0 
percent of the nominal filter loading, then the manufacturer or 
remanufacturer has the option of either repeating the emissions test or 
accepting the measured sample filter weight values.
    (5) If the average weight of the reference filters changes between 
sample filter weighings by not more than 1.0 percent, then 
the measured sample filter weights shall be used.

[[Page 418]]

    (6) The reference filters shall be changed at least once a month, 
but never between clean and used weighings of a given sample filter. 
More than one set of reference filters may be used. The reference 
filters shall be the same size and material as the sample filters.



Sec. 92.111  Smoke measurement system.

    (a) Schematic drawing. Figure B111-1 of this section is a schematic 
drawing of the optical system of the light extinction meter, as follows:

[[Page 419]]

[GRAPHIC] [TIFF OMITTED] TR16AP98.000

    (b) Equipment. The following equipment shall be used in the system.
    (1) Adapter. The smokemeter optical unit may be mounted on a fixed 
or movable frame. The normal unrestricted shape of the exhaust plume 
shall not be modified by the adaptor, the meter, or any ventilation 
system

[[Page 420]]

used to remove the exhaust from the test site. Distortion due to the 
gaseous or particulate sample probes, or the exhaust duct is allowed 
subject to the provisions of Sec. 92.114.
    (2) Wind shielding. Tests shall not be conducted under excessively 
windy conditions. Winds are excessive if they disturb the size, shape, 
or location of the exhaust plume in the region where exhaust samples are 
drawn or where the smoke plume is measured. Tests may be conducted if 
wind shielding is placed adjacent to the exhaust plume to prevent 
bending, dispersion, or any other distortion of the exhaust plume as it 
passes through the optical unit.
    (3) Smokemeter, (light extinction meter). A continuously recording, 
full-flow light obscuration meter shall be used.
    (i) It is positioned as specified in paragraph (c) of this section, 
so that a built-in light beam traverses the exhaust smoke plume which 
issues from the duct. The light beam shall be at right angles to the 
axis of the plume, and in those cases were the exhaust is not circular 
at its discharge, the path of the light beam through the plume shall be 
along the longest axis of the exhaust stack which is not a diagonal of a 
rectangular exhaust stack.
    (ii) The light source shall be an incandescent lamp with a color 
temperature range of 2800K to 3250K, or a light source with a spectral 
peak between 550 and 570 nanometers.
    (iii) The light output is collimated to a beam with a nominal 
diameter of 1.125 inches and an angle of divergence within a 6 degree 
included angle.
    (iv) The light detector shall be a photocell or photodiode. If the 
light source is an incandescent lamp, the detector shall have a spectral 
response similar to the photopic curve of the human eye (a maximum 
response in the range of 550 to 570 nanometers, to less than four 
percent of that maximum response below 430 nanometers and above 680 
nanometers).
    (v) A collimating tube with apertures equal to the beam diameter is 
attached to the detector to restrict the viewing angle of the detector 
to within a 16 degree included angle.
    (vi) An amplified signal corresponding to the amount of light 
blocked is recorded continuously on a remote recorder.
    (vii) An air curtain across the light source and detector window 
assemblies may be used to minimize deposition of smoke particles on 
those surfaces provided that it does not measurably affect the opacity 
of the plume.
    (viii) The smokemeter consists of two units; an optical unit and a 
remote control unit.
    (ix) Light extinction meters employing substantially identical 
measurement principles and producing substantially equivalent results, 
but which employ other electronic and optical techniques may be used 
only after having been approved in advance by the Administrator.
    (4) Recorder. A continuous recorder, with variable chart speed over 
a minimal range of 1 to 20 cm per minute (or equivalent) and an 
automatic marker indicating 1-second intervals, continuously records the 
exhaust gas opacity and throttle position.
    (i) The recorder is equipped to indicate each of the throttle notch 
(test mode) positions.
    (ii) The recorder scale for opacity is linear and calibrated to read 
from 0 to 100 percent opacity full scale.
    (iii) The opacity trace has a resolution within one percent opacity.
    (iv) The throttle position trace clearly indicates each throttle 
position.
    (5) The recorder used with the smokemeter shall be capable of full-
scale deflection in 0.5 second or less. The smokemeter-recorder 
combination may be damped so that signals with a frequency higher than 
10 cycles per second are attenuated. A separate low-pass electronic 
filter with the following performance characteristics may be installed 
between the smokemeter and the recorder to achieve the high-frequency 
attenuation:
    (i) Three decibel point: 10 cycles per second.
    (ii) Insertion loss: 0 0.5 decibel.
    (iii) Selectivity: 12 decibels down at 40 cycles per second minimum.
    (iv) Attenuation: 27 decibels down at 40 cycles per second minimum.
    (6) Automatic data collection equipment may be used, provided it is 
capable of collecting data equivalent to or

[[Page 421]]

better than the data required by paragraphs (b)(4) and (5) of this 
section.
    (c)(1) Assembling equipment for locomotive testing. The optical unit 
of the smokemeter shall be mounted radially to the exhaust duct so that 
the measurement will be made at right angles to the axis of the exhaust 
plume. The distance from the optical centerline to the exhaust outlet 
shall be minimized; in all cases it shall be less than 10 feet. The 
maximum allowable distance of unducted space upstream of the optical 
centerline is 18 inches. The full flow of the exhaust stream shall be 
centered between the source and detector apertures (or windows and 
lenses) and on the axis of the light beam.
    (2) Assembling equipment for engine testing. The optical unit of the 
smokemeter shall be mounted radially to the exhaust duct so that the 
measurement will be made at right angles to the axis of the exhaust 
plume. The distance from the optical centerline to the exhaust outlet 
shall be less than 25 feet. The maximum allowable distance of unducted 
space upstream of the optical centerline is 18 inches. In-line 
smokemeters are allowed. The full flow of the exhaust stream shall be 
centered between the source and detector apertures (or windows and 
lenses) and on the axis of the light beam.
    (d) Power supply. Power shall be supplied to the control unit of the 
smokemeter in time to allow at least 15 minutes for stabilization prior 
to testing.



Sec. 92.112  Analytical gases.

    (a) Gases for the CO and CO2 analyzers shall be single 
blends of CO and CO2, respectively, using zero grade nitrogen 
as the diluent.
    (b) Gases for the hydrocarbon analyzer shall be single blends of 
propane using zero grade air as the diluent.
    (c) Gases for the methane analyzer shall be single blends of methane 
using air as the diluent.
    (d) Gases for the NOX analyzer shall be single blends of 
NO named as NOX with a maximum NO2 concentration 
of 5 percent of the nominal value using zero grade nitrogen as the 
diluent.
    (e) Fuel for the HFID (or FID, as applicable) and the methane 
analyzer shall be a blend of 402 percent hydrogen with the 
balance being helium. The mixture shall contain less than 1 ppm 
equivalent carbon response; 98 to 100 percent hydrogen fuel may be used 
with advance approval of the Administrator.
    (f) Hydrocarbon analyzer burner air. The concentration of oxygen 
must be within 1 mole percent of the oxygen concentration of the burner 
air used in the latest oxygen interference check (%O2I). If 
the difference in oxygen concentration is greater than 1 mole percent, 
then the oxygen interference must be checked and the analyzer adjusted 
if necessary, to meet the %O2I requirements. The burner air 
must contain less than 2 ppmC hydrocarbon.
    (g) The allowable zero gas (air or nitrogen) impurity concentrations 
shall not exceed 1 ppm equivalent carbon response, 1 ppm carbon 
monoxide, 0.04 percent (400 ppm) carbon dioxide and 0.1 ppm nitric 
oxide.
    (h)(1) ``Zero-grade air'' includes artificial ``air'' consisting of 
a blend of nitrogen and oxygen with oxygen concentrations between 18 and 
21 mole percent.
    (2) Calibration gases shall be accurate to within 1 
percent of NIST gas standards, or other gas standards which have been 
approved by the Administrator.
    (3) Span gases shall be accurate to within 2 percent of 
NIST gas standards, or other gas standards which have been approved by 
the Administrator.
    (i) Oxygen interference check gases shall contain propane at a 
concentration greater than 50 percent of range. The concentration value 
shall be determined to calibration gas tolerances by chromatographic 
analysis of total hydrocarbons plus impurities or by dynamic blending. 
Nitrogen shall be the predominant diluent with the balance being oxygen. 
Oxygen concentration in the diluent shall be between 20 and 22 percent.
    (j) The use of precision blending devices (gas dividers) to obtain 
the required calibration gas concentrations is acceptable, provided that 
the blended gases are accurate to within 1.5 percent of NIST 
gas standards, or other gas standards which have been approved by the 
Administrator. This accuracy implies that primary gases used

[[Page 422]]

for blending must be ``named'' to an accuracy of at least 1 
percent, traceable to NIST or other approved gas standards.



Sec. 92.113  Fuel specifications.

    (a) Diesel test fuel. (1) The diesel fuels for testing locomotives 
or locomotive engines designed to operate on diesel fuel shall be clean 
and bright, with pour and cloud points adequate for operability. The 
diesel fuel may contain nonmetallic additives as follows: cetane 
improver, metal deactivator, antioxidant, dehazer, antirust, pour 
depressant, dye, dispersant, and biocide. The diesel fuel shall also 
meet the specifications (as determined using methods incorporated by 
reference at Sec. 92.5) in Table B113-1 of this section, or 
substantially equivalent specifications approved by the Administrator, 
as follows:

                                                  Table B113-1
----------------------------------------------------------------------------------------------------------------
                     Item                                        ASTM                           Type 2-D
----------------------------------------------------------------------------------------------------------------
Cetane Number.................................  D613.................................           40-48
Cetane Index..................................  D976.................................           40-48
Distillation range:
  IBP,
      deg.F...................................  D86..................................         340-400
    (  deg.C).................................  .....................................    (171.1-204.4)
  10 pct. point,
      deg.F...................................  D86..................................         400-460
    (  deg.C).................................  .....................................    (204.4-237.8)
  50 pct. point,
      deg.F...................................  D86..................................         470-540
    (  deg.C).................................  .....................................    (243.3-282.2)
  90 pct. point,
      deg.F...................................  D86..................................         560-630
    (  deg.C).................................  .....................................    (293.3-332.2)
  EP,
      deg.F...................................  D86..................................         610-690
    (  deg.C).................................  .....................................    (321.1-365.6)
Gravity,  deg.API.............................  D287.................................           32-37
Total sulfur, pct.............................  D2622................................         0.2-0.4
Hydrocarbon composition, pct:
  Aromatics,..................................  D5186................................            1 27
  Paraffins, Naphthenes, Olefins..............  D1319................................              (2)
Flashpoint, min.,
    deg.F.....................................  D93..................................             130
    deg.C.....................................  .....................................           (54.4)
Viscosity, centistokes........................  D445.................................         2.0-3.2
----------------------------------------------------------------------------------------------------------------
\1\ Minimum.    \2\ Remainder.

    (2) Other diesel fuels may be used for testing provided:
    (i) They are commercially available; and
    (ii) Information, acceptable to the Administrator, is provided to 
show that only the designated fuel would be used in service; and
    (iii) Use of a fuel listed under paragraph (a)(1) of this section 
would have a detrimental effect on emissions or durability; and
    (iv) Written approval from the Administrator of the fuel 
specifications is provided prior to the start of testing.
    (3) The specification of the fuel to be used under paragraphs 
(a)(1), and (a)(2) of this section shall be reported in accordance with 
Sec. 92.133.
    (b) Natural gas test fuel (compressed natural gas, liquefied natural 
gas). (1) Natural gas-fuel meeting the specifications (as determined 
using methods incorporated by reference at Sec. 92.5) in Table B113-2 of 
this section, or substantially similar specifications approved by the 
Administrator, shall be used in exhaust emissions testing of locomotives 
or locomotive engines designed to operate on natural gas-fuel, as 
follows:

                              Table B113-2
------------------------------------------------------------------------
                                                    ASTM test
               Item                  Mole pct.     method No.     Value
------------------------------------------------------------------------
Methane..........................  Min.........  D1945.........     89.0
Ethane...........................  Max.........  D1945.........      4.5

[[Page 423]]

 
C3 and higher....................  Max.........  D1945.........      2.3
C6 and higher....................  Max.........  D1945.........      0.2
Oxygen...........................  Max.........  D1945.........      0.6
Inert gases: Sum of CO2 and N2--   Max.........  D1945.........      4.0
 Odorant \1\.
------------------------------------------------------------------------
\1\ The natural gas at ambient conditions must have a distinctive odor
  potent enough for its presence to be detected down to a concentration
  in air of not over \1/5\ (one-fifth) of the lower limit of
  flammability.

    (2) Other natural gas-fuels may be used for testing provided:
    (i) They are commercially available; and
    (ii) Information, acceptable to the Administrator, is provided to 
show that only the designated fuel would be used in customer service; 
and
    (iii) Written approval from the Administrator of the fuel 
specifications is provided prior to the start of testing.
    (3) The specification of the fuel to be used under paragraph (b)(1) 
or (b)(2) of this section shall be reported in accordance with 
Sec. 92.133.
    (c) Other fuel types. (1) For locomotives or locomotive engines 
which are designed to be capable of using a type of fuel (or mixed fuel) 
other than diesel fuel, or natural gas fuel (e.g., methanol), and which 
are expected to use that type of fuel (or mixed fuel) in service, a 
commercially available fuel of that type shall be used for exhaust 
emission testing. The Administrator shall determine the specifications 
of the fuel to be used for testing, based on the engine design, the 
specifications of commercially available fuels, and the recommendation 
of the manufacturer.
    (2) The specification of the fuel to be used under paragraph (c)(1) 
of this section shall be reported in accordance with Sec. 92.133.



Sec. 92.114  Exhaust gas and particulate sampling and analytical system.

    (a) General. (1) During emission testing, the engine exhaust is 
routed through an exhaust duct connected to, or otherwise adjacent to 
the outlet of the locomotive exhaust system. Emission samples are 
collected as specified in paragraphs (b) and (c) of this section. 
Exhaust duct requirements are specified in paragraph (d) of this 
section.
    (2) The systems described in this section are appropriate for use 
with locomotives or engines employing a single exhaust.
    (i) For testing where the locomotive or engine has multiple exhausts 
all exhaust streams shall be combined into a single stream prior to 
sampling, except as allowed by paragraph (a)(2)(ii) of this section.
    (ii) For locomotive testing where the locomotive has multiple 
exhaust stacks, proportional samples may be collected from each exhaust 
outlet instead of ducting the exhaust stacks together, provided that the 
CO2 concentrations in each exhaust stream are shown (either 
prior to testing or during testing) to be within 5 percent of each other 
for each test mode.
    (3) All vents, including analyzer vents, bypass flow, and pressure 
relief vents of regulators, should be vented in such a manner to avoid 
endangering personnel in the immediate area.
    (4) Additional components, not specified here, such as instruments, 
valves, solenoids, pumps, switches, and so forth, may be employed to 
provide additional information and coordinate the functions of the 
component systems, provided that their use is consistent with good 
engineering practice. Any variation from the specifications in this 
subpart including performance specifications and emission detection 
methods may be used only with prior approval by the Administrator.
    (b) Raw exhaust sampling for gaseous emissions. (1)(i) An example of 
the type of sampling and analytical system which is to be used for 
gaseous emissions testing under this subpart is shown in Figure B114-1 
of this section. All components or parts of components that are wetted 
by the sample or corrosive calibration gases shall be either chemically 
cleaned stainless steel or other inert material, for example, 
polytetrafluoroethylene resin. The use of ``gauge savers'' or 
``protectors'' with nonreactive diaphragms to reduce dead volumes is 
permitted. Additional components such as instruments, valves, solenoids, 
pumps, switches, etc. may be employed to provide additional information 
and coordinate the functions of the component systems.

[[Page 424]]

    (ii) System components list. The following is a list of components 
shown in Figure B114-1 of this section by numeric identifier.
    (A) Filters. Glass fiber filter paper is permitted for the fine 
particulate filters (F1, F2, and F3). Optional filter F4 is a coarse 
filter for large particulates. Filters F3 and F4 are heated filters
    (B) Flowmeters. Flowmeters FL1 and FL2 indicate sample flow rates 
through the CO and CO2 analyzers. Flowmeters FL3, FL4, FL5, 
and FL6 indicate bypass flow rates.
    (C) Gauges. Downstream gauges are required for any system used for 
testing under this subpart. Upstream gauges may be required under this 
subpart. Upstream gauges G1 and G2 measure the input to the CO and 
CO2 analyzers. Downstream gauges G3 and G4 measure the exit 
pressure of the CO and CO2 analyzers. If the normal operating 
range of the downstream gauges is less than 3 inches of water, then the 
downstream gauges must be capable of reading both pressure and vacuum. 
Gauges G3 and G4 are not necessary if the analyzers are vented directly 
to atmospheric pressure.
    (D) Pressure gauges. P1 is a bypass pressure gauge; P2, P3, P4, and 
P5 are for sample or span pressure at inlet to flow control valves.
    (E) Water traps. Water traps WT1 and WT2 to remove water from the 
sample. A water trap performing the function of WT1 is required for any 
system used for testing under this subpart. Chemical dryers are not an 
acceptable method of removing the water. Water removal by condensation 
is acceptable. If water is removed by condensation, the sample gas 
temperature or sample dew point must be monitored either within the 
water trap or downstream; it may not exceed 45  deg.F (7  deg.C). Means 
other than condensation may be used only with prior approval from the 
Administrator.
    (F) Regulators. R1, R3, R4, and R6 are line pressure regulators to 
control span pressure at inlet to flow control valves; R2 and R5 are 
back pressure regulators to control sample pressure at inlet to flow 
control valves.
    (G) Valves. V1, V7, V8, and V14 are selector valves to select zero 
or calibration gases; V2 are optional heated selector valves to purge 
the sample probe, perform leak checks, or to perform hang-up checks; V3 
and V5 are selector valves to select sample or span gases; V4, V6, and 
V15 are flow control valves; V9 and V13--heated selector valve to select 
sample or span gases; V10 and V12--heated flow control valves; V11--
Selector valve to select NOX or bypass mode in the 
chemiluminescence analyzer; V16--heated selector valve to perform leak 
checks.
    (H) Pump. Sample transfer pump to transport sample to analyzers.
    (I) Temperature sensor. A temperature sensor (T1) to measure the 
NO2 to NO converter temperature is required for any system 
used for testing under this subpart.
    (J) Dryer. Dryers D1 and D2 to remove the water from the bypass 
flows to prevent condensation in flowmeters FL3, FL4, and FL6.
    (2) The following requirements must be incorporated in each gaseous 
sampling system used for testing under this subpart:
    (i) The exhaust is analyzed for gaseous emissions using analyzers 
meeting the specifications of Sec. 92.109, and all analyzers must obtain 
the sample to be analyzed from the same sample probe, and internally 
split to the different analyzers.
    (ii) Sample transfer lines must be heated as specified in paragraph 
(b)(4) of this section.
    (iii) Carbon monoxide and carbon dioxide measurements must be made 
on a dry basis. Specific requirements for the means of drying the sample 
can be found in paragraph (b)(1)(ii)(E) of this section.
    (iv) All NDIR analyzers must have a pressure gauge immediately 
downstream of the analyzer. The gauge tap must be within 2 inches of the 
analyzer exit port. Gauge specifications can be found in paragraph 
(b)(1)(ii)(C) of this section.
    (v) All bypass and analyzer flows exiting the analysis system must 
be measured. Capillary flows such as in HFID and CL analyzers are 
excluded. For each NDIR analyzer with a flow meter located upstream of 
the analyzer, an upstream pressure gauge must be used. The gauge tap 
must be

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within 2 inches of the analyzer entrance port.
    (vi) Calibration or span gases for the NOX measurement 
system must pass through the NO2 to NO converter.
    (vii) The temperature of the NO2 to NO converter must be 
displayed continuously.
    (3) Gaseous sample probe. (i) The gaseous emissions sample probe 
shall be a straight, closed end, stainless steel, multi-hole probe. The 
inside diameter shall not be greater than the inside diameter of the 
sample line by more than 0.01 inches (0.03 cm). The wall thickness of 
the probe shall not be greater than 0.04 inches (0.10 cm). The fitting 
that attaches the probe to the exhaust duct shall be as small as 
practical in order to minimize heat loss from the probe.
    (ii) The gaseous emissions sample probe shall have a minimum of 
three holes in each 3 inch segment of length of the probe. The spacing 
of the radial planes for each hole in the probe must be such that they 
cover approximately equal cross-sectional areas of the exhaust duct. The 
angular spacing of the holes must be approximately equal. The angular 
spacing of any two holes in one plane may not be 180 
deg.20 deg. (see section view C-C of Figure B114-2 of this 
section). The holes should be sized such that each has approximately the 
same flow. If only three holes are used in each 3 inch segment of probe 
length, they may not all be in the same radial plane.
    (iii) The sample probe shall be so located in the center of the 
exhaust duct to minimize stratification, with respect to both 
concentration and velocity, present in the exhaust stream. The probe 
shall be located between two feet and five feet downstream of the 
locomotive exhaust outlet (or nearest practical equivalent during engine 
testing), and at least 1 foot upstream of the outlet of the exhaust duct 
to the atmosphere.
    (iv) If the exhaust duct is circular in cross section, the sample 
probe should extend approximately radially across the exhaust duct, and 
approximately through the center of the duct. The sample probe must 
extend across at least 80 percent of the diameter of the duct.
    (v) If the exhaust duct is not circular in cross section, the sample 
probe should extend across the exhaust duct approximately parallel to 
the longest sides of the duct, or along the longest axis of the duct 
which is not a diagonal, and through the approximate center of the duct. 
The sample probe must extend across at least 80 percent of the longest 
axis of the duct which is not a diagonal, and be approximately parallel 
to the longest sides of the duct.
    (vi) Other sample probe designs and/or locations may be used only if 
demonstrated (to the Administrator's satisfaction) to provides a more 
representative sample.
    (4) Sample transfer line(s).
    (i) The maximum inside diameter of the gaseous emissions sample line 
shall not exceed 0.52 inches (1.32 cm).
    (ii) If valve V2 is used, the sample probe must connect directly to 
valve V2. The location of optional valve V2 may not be greater than 4 
feet (1.22 m) from the exhaust duct.
    (iii) The sample transport system from the engine exhaust duct to 
the HC analyzer and the NOX analyzer must be heated as is 
indicated in Figure B114-1 of this section.
    (A) For diesel fueled and biodiesel fueled locomotives and engines, 
the wall temperature of the HC sample line must be maintained at 375 
 20  deg.F (191  11  deg.C). An exception is 
made for the first 4 feet (122 cm) of sample line from the exhaust duct. 
The upper temperature tolerance for this 4 foot section is waived and 
only the minimum temperature specification applies.
    (B) For locomotives and engines using fuels other than diesel or 
biodiesel, the heated components in the HC sample path shall be 
maintained at a temperature approved by the Administrator, not exceeding 
446  deg.F (230  deg.C).
    (C) For all fuels, wall temperature of the NOX sample 
line must be maintained between 140  deg.F (60  deg.C) and 446  deg.F 
(230  deg.C). An exception is made for the first 4 feet (122 cm) of 
sample line from the exhaust duct. The upper temperature tolerance for 
this 4 foot section is waived and only the minimum temperature 
specification applies.
    (D) For each component (pump, sample line section, filters, etc.) in 
the heated portion of the sampling system

[[Page 426]]

that has a separate source of power or heating element, use engineering 
judgment to locate the coolest portion of that component and monitor the 
temperature at that location. If several components are within an oven, 
then only the surface temperature of the component with the largest 
thermal mass and the oven temperature need be measured.
    (c) Particulate emissions. (1)(i) Schematic drawing. An example of a 
sampling system which may be used for particulate emissions testing 
under this subpart is shown in Figure B114-3 of this section. All 
components or parts of components that are wetted by the samples gases 
upstream of the filter shall be either chemically cleaned stainless 
steel or other inert material, for example, polytetrafluoroethylene 
resin. The use of ``gauge savers'' or ``protectors'' with nonreactive 
diaphragms to reduce dead volumes is permitted. Additional components 
such as instruments, valves, solenoids, pumps, switches, etc. may be 
employed to provide additional information and coordinate the functions 
of the component systems.
    (ii) The following requirements must be incorporated in each system 
used for testing under this subpart:
    (A) All particulate filters must obtain the sample from the same 
sample probe located within the exhaust gas extension with internal 
split to the different filters.
    (B) The wall temperature of the sample transport system from the 
probe to the dilution tunnel (excluding the first 4 feet of the 
particulate transfer tube) must be maintained at 375  deg.F to 395 
deg.F (191  deg.C to 202  deg.C).
    (2) Particulate raw sample probe. (i) The sample probe for the raw 
exhaust shall be a straight, closed end, stainless steel, multi-hole 
probe of approximately 1.25 inch (3.2 cm) diameter. The inside diameter 
shall not be greater than the inside diameter of the sample line by more 
than 0.1 inches (0.3 cm). The wall thickness of the probe shall not be 
greater than 0.06 inches (0.15 cm). The fitting that attaches the probe 
to the exhaust duct shall be as small as practical in order to minimize 
heat loss from the probe.
    (ii) All sample collection holes in the probe shall be located so as 
to face away from the direction of flow of the exhaust stream or at most 
be tangential to the flow of the exhaust stream past the probe (see 
Figure B114-4 of this section). Five holes shall be located in each 
radial plane along the length of the probe in which sample holes are 
placed. The spacing of the radial planes for each set of holes in the 
probe must be such that they cover approximately equal cross-sectional 
areas of the exhaust duct. For rectangular ducts, this means that the 
sample hole-planes must be equidistant from each other. For circular 
ducts, this means that the distance between the sample hole-planes must 
be decreased with increasing distance from the center of the duct (see 
Figure B114-4 of this section).
    (Note: Particulate concentrations are expected to vary to some 
extent as a function of the distance to the duct wall; thus each set of 
sample holes collects a sample that is representative of a cross-
sectional disk at that approximate distance from the wall.)

The spacing between sets of sample holes along the length of the probe 
shall be no more than 4 inches (10 cm). The holes should be sized such 
that each has approximately the same flow.
    (iii)(A) The particulate sample probe shall be located in the 
exhaust duct on an axis which is directly downstream of, and parallel to 
the axis of the gaseous sample probe. The distance between the probes 
shall be between 3 inches (7.6 cm) and 6 inches (15.2 cm). Greater 
spacing is allowed for engine testing, where spacing of 3 inches (7.6 
cm) to 6 inches (15.2 cm) is not practical.
    (B) If the exhaust duct is circular in cross section, the sample 
probe should extend approximately radially across the exhaust duct, and 
approximately through the center of the duct. The sample probe must 
extend across at least 80 percent of the diameter of the duct.
    (C) If the exhaust duct is not circular in cross section, the sample 
probe should extend across the exhaust duct approximately parallel to 
the longest sides of the duct, or along the longest axis of the duct 
which is not a diagonal, and through the approximate center of the duct. 
The sample probe must

[[Page 427]]

extend across at least 80 percent of the longest axis of the duct which 
is not a diagonal, and be approximately parallel to the longest sides of 
the duct.
    (3) Particulate sample transfer line. (i) The maximum inside 
diameter of the particulate emissions sample line shall be approximately 
2.5 inches (6.4 cm).
    (ii) The sample transfer line shall be heated to maintain a wall 
temperature above 375  deg.F.
    (4) Dilution tunnel. The flow capacity of the blower moving the 
mixture of sample and air through the tunnel must be sufficient to 
maintain the diluted sample stream at a temperature of 125  deg.F (51.7 
deg.C) or less, at the sampling zone in the dilution tunnel and at the 
sample filter. A single measurement of diluted exhaust temperature is 
required. The temperature shall also be maintained as required to 
prevent condensation at any point in the dilution tunnel. A small 
negative pressure is to be maintained in the dilution tunnel by 
throttling at the source of the dilution air, and adjusted as necessary, 
sufficient to draw sample through the probe and sample transfer line. 
Direct sampling of the particulate material may take place (Figure B114-
3 of this section) at this point.
    (i)(A) The dilution tunnel shall be:
    (1) Small enough in diameter to cause turbulent flow (Reynolds 
Number greater than 4000) and of sufficient length to cause complete 
mixing of the exhaust and dilution air;
    (2) 4 inches (10 cm) minimum inside diameter;
    (3) Constructed of electrically conductive material which does not 
react with the exhaust components; and
    (4) Electrically grounded.
    (B) The temperature of the diluted exhaust stream inside of the 
dilution tunnel shall be sufficient to prevent water condensation.
    (C) The engine exhaust shall be directed downstream at the point 
where it is introduced into the dilution tunnel.
    (ii) Dilution air:
    (A) Shall be at a temperature of 68  deg.F (20  deg.C) or greater.
    (B) May be filtered at the dilution air inlet.
    (C) May be sampled to determine background particulate levels, which 
can then be subtracted from the values measured in the exhaust stream.
    (D) Shall be sampled to determine the background concentration of 
CO2.
    (iii) Dilute sample probe and collection system.
    (A) The particulate sample probe in the dilution tunnel shall be:
    (1) Installed facing upstream at a point where the dilution air and 
exhaust are well mixed (i.e., on the tunnel centerline, approximately 10 
tunnel diameters downstream of the point where the exhaust enters the 
dilution tunnel).
    (2) Sufficiently distant (radially) from other sampling probes so as 
to be free from the influence of wakes or eddies produced by the other 
probes.
    (3) 0.5 in. (1.3 cm) minimum inside diameter.
    (4) The distance from the sampling tip to the filter holder shall 
not be more than 40 inches (102 cm).
    (5) Designed to minimize the deposition of particulate during 
transfer (i.e., bends should be as gradual as possible, protrusions (due 
to sensors, etc.) should be smooth and not sudden, etc.).
    (B) The gas meters or flow instrumentation shall be located 
sufficiently distant from the tunnel so that the inlet gas temperature 
remains constant (5  deg.F (2.8  deg.C)). 
Alternately, the temperature of the sample may be monitored at the gas 
meter, and the measured volume corrected to standard conditions.
    (C) Particulate sampling filters.
    (1) Fluorocarbon-coated glass fiber filters or fluorocarbon-based 
(membrane) filters are required.
    (2) Particulate filters must have a diameter to maintain the average 
face velocity of the sample across the filter between 35 and 80 cm/s.
    (3) The dilute exhaust will be simultaneously sampled by a pair of 
filters (one primary and one back-up filter) during each phase of the 
test. The back-up filter shall be located no more than 4 inches (10 cm) 
downstream of the primary filter. The primary and back-up filters shall 
not be in contact with each other.
    (4) The recommended target loading on a primary 70-mm filter (60 mm 
diameter stain area) is 1.3 milligrams. Equivalent loadings (0.5 mg/1075 
mm2

[[Page 428]]

stain area) shall be used as target loadings when other filter sizes are 
used.
    (D) Diluted CO2 sample collection system.
    (1) The concentrations of CO2 in the dilution air and 
diluted exhaust are determined by pumping a sample into a sample bag 
(made of a nonreactive material) or directly to the analyzer, as shown 
in Figure B114-3 of this section.
    (2) The sample probe for the diluted exhaust shall be installed 
facing upstream at a point where the dilution air and exhaust are well 
mixed (i.e., on the tunnel centerline, approximately 10 tunnel diameters 
downstream of the point where the exhaust enters the dilution tunnel). 
It shall also be sufficiently distant (radially) from other sampling 
probes so as to be free from the influence of any wakes or eddies 
produced by the other probes.
    (iv) Other sample flow handling and/or measurement systems may be 
used if shown to yield equivalent results and if approved in advance by 
the Administrator. (See Appendix IV of this part for guidance.)
    (d) Exhaust system. The exhaust system shall meet the following 
requirements:
    (1) For locomotive testing, the engine exhaust shall be routed 
through an exhaust duct with dimensions equal to or slightly larger than 
the dimensions of the locomotive exhaust outlet. The exhaust duct shall 
be designed so as to not significantly affect exhaust backpressure.
    (2) For engine testing, either a locomotive-type or a facility-type 
exhaust system (or a combination system) may be used. The exhaust 
backpressure for engine testing shall be set between 90 and 100 percent 
of the maximum backpressure that will result with the exhaust systems of 
the locomotives in which the engine will be used. The facility-type 
exhaust system shall meet the following requirements:
    (i) It must be composed of smooth ducting made of typical in-use 
steel or stainless steel.
    (ii) If an aftertreatment system is employed, the distance from the 
exhaust manifold flange(s), or turbocharger outlet to any exhaust 
aftertreatment device shall be the same as in the locomotive 
configuration unless the manufacturer is able to demonstrate equivalent 
performance at another location.
    (iii) If the exhaust system ducting from the exit of the engine 
exhaust manifold or turbocharger outlet to smoke meter exceeds 12 feet 
(3.7 m) in length, then all ducting shall be insulated consistent with 
good engineering practice.
    (iv) For engines designed for more than one exhaust outlet to the 
atmosphere, a specially fabricated collection duct may be used. The 
collection duct should be located downstream of the in-locomotive exits 
to the atmosphere. Any potential increase in backpressure due to the use 
of a single exhaust instead of multiple exhausts may be compensated for 
by using larger than standard exhaust system components in the 
construction of the collection duct.
    (e) Dilute exhaust sampling for gaseous and particulate emissions. 
(1) Dilution of the exhaust prior to sampling is allowed for gaseous 
emissions. The equipment and methods used for dilution, sampling and 
analysis shall comply with the requirements of subpart N of part 86 of 
this chapter, with the following exceptions and additional requirements:
    (i) Proportional sampling and heat exchangers are not required;
    (ii) Larger minimum dimensions for the dilution tunnel(s) shall be 
specified by the Administrator;
    (iii) Other modifications may be made with written approval from the 
Administrator.
    (2) Dilution of only a portion of the exhaust is allowed, provided 
that:
    (i) The fraction of the total exhaust that is diluted is determined 
for systems that determine mass emission rates (g/hr) from the total 
volume of the diluted sample; or
    (ii) The ratio of raw sample volume to diluted sample volume is 
determined for systems that determine mass emission rates (g/hr) from 
measured fuel flow rates.

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Sec. 92.115  Calibrations; frequency and overview.

    (a) Calibrations shall be performed as specified in Secs. 92.116 
through 92.122.
    (b) At least monthly or after any maintenance which could alter 
calibration, perform the periodic calibrations required by 
Sec. 92.118(a)(2) (certain analyzers may require more frequent 
calibration depending on the equipment and use). Exception: the water 
rejection ratio and the CO2 rejection ratio on all NDIR 
analyzers is only required to be performed quarterly.
    (c) At least monthly or after any maintenance which could alter 
calibration, calibrate the engine dynamometer flywheel torque and speed 
measurement transducers, as specified in Sec. 92.116.
    (d) At least monthly or after any maintenance which could alter 
calibration, check the oxides of nitrogen converter efficiency, as 
specified in Sec. 92.121.
    (e) At least weekly or after any maintenance which could alter 
calibration, check the dynamometer (if used) shaft torque feedback 
signal at steady-state conditions by comparing:
    (1) Shaft torque feedback to dynamometer beam load; or
    (2) By comparing in-line torque to armature current; or
    (3) By checking the in-line torque meter with a dead weight per 
Sec. 92.116(b)(1).
    (f) At least quarterly or after any maintenance which could alter 
calibration, calibrate the fuel flow measurement system as specified in 
Sec. 92.107.
    (g) At least annually or after any maintenance which could alter 
calibration, calibrate the electrical output measurement system for the 
electrical load bank used for locomotive testing.
    (h) Sample conditioning columns, if used in the CO analyzer train, 
should be checked at a frequency consistent with observed column life or 
when the indicator of the column packing begins to show deterioration.
    (i) For equipment not addressed in Secs. 92.116 through 92.122 
calibrations shall be performed at least as often as required by the 
equipment manufacturer or as necessary according to good practices. The 
calibrations shall be performed in accordance with procedures specified 
by the equipment manufacturer.
    (j) Where testing is conducted intermittently, calibrations are not 
required during period in which no testing is conducted, provided that 
times between the most recent calibrations and the date of any test does 
not exceed the calibration period. For example, if it has been more than 
one month since the analyzers have been calibrated (as specified in 
paragraph (c) of this section) then they must be calibrated prior to the 
start of testing.



Sec. 92.116  Engine output measurement system calibrations.

    (a) General requirements for dynamometer calibration. (1) The engine 
flywheel torque and engine speed measurement transducers shall be 
calibrated with the calibration equipment described in this section.
    (2) The engine flywheel torque feedback signals to the cycle 
verification equipment shall be electronically checked before each test, 
and adjusted as necessary.
    (3) Other engine dynamometer system calibrations shall be performed 
as dictated by good engineering practice.
    (4) When calibrating the engine flywheel torque transducer, any 
lever arm used to convert a weight or a force through a distance into a 
torque shall be used in a horizontal position (5 degrees).
    (5) Calibrated resistors may not be used for engine flywheel torque 
transducer calibration, but may be used to span the transducer prior to 
engine testing.
    (b) Dynamometer calibration equipment--(1) Torque calibration 
equipment. Two techniques are allowed for torque calibration. Alternate 
techniques may be used if shown to yield equivalent accuracies. The NIST 
``true'' value torque is defined as the torque calculated by taking the 
product of an NIST traceable weight or force and a sufficiently accurate 
horizontal lever arm distance, corrected for the hanging torque of the 
lever arm.
    (i) The lever-arm dead-weight technique involves the placement of 
known weights at a known horizontal distance from the center of rotation 
of the

[[Page 434]]

torque measuring device. The equipment required is:
    (A) Calibration weights. A minimum of six calibration weights for 
each range of torque measuring device used are required. The weights 
must be approximately equally spaced and each must be traceable to NIST 
weights within 0.1 percent. Laboratories located in foreign countries 
may certify calibration weights to local government bureau standards. 
Certification of weight by state government Bureau of Weights and 
Measures is acceptable. Effects of changes in gravitational constant at 
the test site may be accounted for if desired.
    (B) Lever arm. A lever arm with a minimum length of 24 inches is 
required. The horizontal distance from the centerline of the engine 
torque measurement device to the point of weight application shall be 
accurate to within 0.10 inches. The arm must be balanced, or 
the hanging torque of the arm must be known to within 0.1 
ft-lbs.
    (ii) The transfer technique involves the calibration of a master 
load cell (i.e., dynamometer case load cell). This calibration can be 
done with known calibration weights at known horizontal distances, or by 
using a hydraulically actuated precalibrated master load cell. This 
calibration is then transferred to the flywheel torque measuring device. 
The technique involves the following steps:
    (A) A master load cell shall be either precalibrated or be 
calibrated per paragraph (b)(1)(i)(A) of this section with known weights 
traceable to NIST within 0.1 percent, and used with the lever arm(s) 
specified in this section. The dynamometer should be either running or 
vibrated during this calibration to minimize static hysteresis.
    (B) Transfer of calibration from the case or master load cell to the 
flywheel torque measuring device shall be performed with the dynamometer 
operating at a constant speed. The flywheel torque measurement device 
readout shall be calibrated to the master load cell torque readout at a 
minimum of six loads approximately equally spaced across the full useful 
ranges of both measurement devices. (Note that good engineering practice 
requires that both devices have approximately equal useful ranges of 
torque measurement.) The transfer calibration shall be performed in a 
manner such that the accuracy requirements of Sec. 92.106(b)(1)(ii) for 
the flywheel torque measurement device readout be met or exceeded.
    (iii) Other techniques may be used if shown to yield equivalent 
accuracy.
    (2) Speed calibration equipment. A 60 (or greater) tooth wheel in 
combination with a common mode rejection frequency counter is considered 
an absolute standard for engine or dynamometer speed.
    (c) Dynamometer calibration. (1) If necessary, follow the 
manufacturer's instructions for initial start-up and basic operating 
adjustments.
    (2) Check the dynamometer torque measurement for each range used by 
the following:
    (i) Warm up the dynamometer following the equipment manufacturer's 
specifications.
    (ii) Determine the dynamometer calibration moment arm. Equipment 
manufacturer's data, actual measurement, or the value recorded from the 
previous calibration used for this subpart may be used.
    (iii) Calculate the indicated torque (IT) for each calibration 
weight to be used by:

IT=calibration weight (lb) x calibration moment arm (ft)

    (iv) Attach each calibration weight specified in paragraph 
(b)(1)(i)(A) of this section to the moment arm at the calibration 
distance determined in paragraph (b)(2)(ii)(B) of this section. Record 
the power measurement equipment response (ft-lb) to each weight.
    (v) For each calibration weight, compare the torque value measured 
in paragraph (b)(2)(iv) of this section to the calculated torque 
determined in paragraph (b)(2)(iii) of this section.
    (vi) The measured torque must be within 2 percent of the calculated 
torque.
    (vii) If the measured torque is not within 2 percent of the 
calculated torque, adjust or repair the system. Repeat the steps in 
paragraphs (b)(2)(i) through (b)(2)(vi) of this section with the 
adjusted or repaired system.

[[Page 435]]

    (3) Option. A master load-cell or transfer standard may be used to 
verify the in-use torque measurement system.
    (i) The master load-cell and read out system must be calibrated with 
weights at each test weight specified in paragraph (b)(1)(i)(A) of this 
section. The calibration weights must be traceable to within 0.1 percent 
of NIST weights.
    (ii) Warm up the dynamometer following the equipment manufacturer's 
specifications.
    (iii) Attach the master load-cell and loading system.
    (iv) Load the dynamometer to a minimum of 6 equally spaced torque 
values as indicated by the master load-cell for each in-use range used.
    (v) The in-use torque measurement must be within 2 percent of the 
torque measured by the master system for each load used.
    (vi) If the in-use torque is not within 2 percent of the master 
torque, adjust or repair the system. Repeat steps in paragraphs 
(b)(3)(ii) through (b)(3)(vi) of this section with the adjusted or 
repaired system.
    (4) The dynamometer calibration must be completed within 2 hours 
from the completion of the dynamometer warm-up.
    (d) Electrical load banks. Equipment used to measure the electrical 
power output dissipated by electrical load banks shall be calibrated as 
frequently as required by Sec. 92.115, using a calibration procedure 
that is consistent with good engineering practice and approved by the 
Administrator.



Sec. 92.117  Gas meter or flow instrumentation calibration, particulate measurement.

    (a) Sampling for particulate emissions requires the use of gas 
meters or flow instrumentation to determine flow through the particulate 
filters. These instruments shall receive initial and monthly 
calibrations as follows:
    (1)(i) Install a calibration device in series with the instrument. A 
critical flow orifice, a bellmouth nozzle, or a laminar flow element or 
an NIST traceable flow calibration device is required as the standard 
device.
    (ii) The flow system should be checked for leaks between the 
calibration and sampling meters, including any pumps that may be part of 
the system, using good engineering practice.
    (2) Flow air through the calibration system at the sample flow rate 
used for particulate testing and at the backpressure which occurs during 
the sample test.
    (3) When the temperature and pressure in the system have stabilized, 
measure the indicated gas volume over a time period of at least five 
minutes or until a gas volume of at least 1 percent accuracy 
can be determined by the standard device. Record the stabilized air 
temperature and pressure upstream of the instrument and as required for 
the standard device.
    (4) Calculate air flow at standard conditions as measured by both 
the standard device and the instrument(s).
    (5) Repeat the procedures of paragraphs (a)(2) through (4) of this 
section using at least two flow rates which bracket the typical 
operating range.
    (6) If the air flow at standard conditions measured by the 
instrument differs by 1.0 percent of the maximum operating 
range or 2.0 percent of the point (whichever is smaller), 
then a correction shall be made by either of the following two methods:
    (i) Mechanically adjust the instrument so that it agrees with the 
calibration measurement at the specified flow rates using the criteria 
of paragraph (a)(6) of this section; or
    (ii) Develop a continuous best fit calibration curve for the 
instrument (as a function of the calibration device flow measurement) 
from the calibration points to determine corrected flow. The points on 
the calibration curve relative to the calibration device measurements 
must be within 1.0 percent of the maximum operating range of 
2.0 percent of the point through the filter.
    (b) Other systems. A bell prover may be used to calibrate the 
instrument if the procedure outlined in ANSI B109.1-1992 (incorporated 
by reference at Sec. 92.5) is used. Prior approval by the Administrator 
is not required to use the bell prover.

[[Page 436]]



Sec. 92.118  Analyzer checks and calibrations.

    (a)(1) Prior to initial use and after major repairs, bench check 
each analyzer for compliance with the specifications of Sec. 92.109.
    (2) The periodic calibrations are required:
    (i) Leak check of the pressure side of the system (see paragraph (b) 
of this section). If the option described in paragraph (b)(2) of this 
section is used, a pressure leak check is not required.
    (ii) Calibration of all analyzers (see Secs. 92.119 through 92.122).
    (iii) Check of the analysis system response time (see paragraph (c) 
of this section). If the option described in paragraph (c)(2) of this 
section is used, a response time check is not required.
    (b) Leak checks--(1) Vacuum side leak check. (i) Any location within 
the analysis system where a vacuum leak could affect the test results 
must be checked.
    (ii) The maximum allowable leakage rate on the vacuum side is 0.5 
percent of the in-use flow rate for the portion of the system being 
checked. the analyzer flows and bypass flows may be used to estimate the 
in-use flow rates.
    (iii) The sample probe and the connection between the sample probe 
and valve V2 may be excluded from the leak check.
    (2) Pressure side leak check. (i) The maximum allowable leakage rate 
on the pressure side in 5 percent of the in-use flow rate.
    (ii) Option: If the flow rate for each flow meter is equal to or 
greater than the flow rate recorded in paragraph (c)(2)(i) of this 
section, then a pressure side leak check is not required.
    (c) System response time; check procedure. (1) After any major 
change in the system, check the system response time by the following 
procedure:
    (i) Stabilize the operating temperature of the sample line, sample 
pump, and heated filters.
    (ii) Introduce an HC span gas into the sampling system at the sample 
probe or valve V2 at atmospheric pressure. Simultaneously, start the 
time measurement.
    (iii) When the HC instrument response is 95 percent of the span gas 
concentration used, stop the time measurement.
    (iv) If the elapsed time is more than 20.0 seconds, make necessary 
adjustments.
    (v) Repeat with the CO, CO2, and NOX 
instruments and span gases.
    (2) Option. If the following parameters are determined, the initial 
system response time may be generally applied to future checks:
    (i) Analyzer and bypass flow rates. (A) Determine by experimentation 
the minimum analyzer and bypass flow rates individually and in 
combination that will produce a response time as close as possible to 
20.0 seconds per paragraph (c)(1) of this section.
    (B) Record the highest minimum flow rate for each flow meter as 
determined in paragraph (c)(2)(i)(A) of this section.
    (ii) Capillary flow analyzers. This procedure is applicable only to 
analyzers that have sample capillaries such as the HFID and CL 
analyzers. It is also assumed that the system has sample/span valves 
that perform the function of valves V9 and V13 in.
    (A) Operate the analyzer(s) at the in-use capillary pressure.
    (B) Adjust the bypass flow rate to the flow rate recorded in 
paragraph (c)(2)(i)(B) of this section.
    (C) Measure and record the response time from the sample/span 
valve(s) per paragraph (c)(1) of this section.
    (D) The response time required by paragraph (c)(2)(ii)(C) of this 
section can be determined by switching from the ``sample'' position to 
the ``span'' position of the sample/span valve and observing the 
analyzer response on a chart recorder. Normally, the ``sample'' position 
would select a ``room air'' sample and the ``span'' position would 
select a span gas.
    (E) Adjust the bypass flow rate to the normal in-use value.
    (F) Measure and record the response time from the sample/span 
valve(s) per paragraph (c)(1) of this section.
    (G) Determine the slowest response time (step in paragraph 
(c)(2)(ii)(C) of this section or step in paragraph (c)(2)(ii)(D) of this 
section) and add 2 seconds to it.

[[Page 437]]



Sec. 92.119  Hydrocarbon analyzer calibration.

    The HFID hydrocarbon analyzer shall receive the following initial 
and periodic calibration:
    (a) Initial and periodic optimization of detector response. Prior to 
introduction into service and at least annually thereafter, the HFID 
hydrocarbon analyzer shall be adjusted for optimum hydrocarbon response. 
Alternate methods yielding equivalent results may be used, if approved 
in advance by the Administrator.
    (1) Follow good engineering practices for initial instrument start-
up and basic operating adjustment using the appropriate fuel (see 
Sec. 92.112) and zero-grade air.
    (2) Optimize on the most common operating range. Introduce into the 
analyzer a propane-in-air mixture with a propane concentration equal to 
approximately 90 percent of the most common operating range.
    (3) HFID optimization is performed:
    (i) According to the procedures outlined in Society of Automotive 
Engineers (SAE) paper No. 770141, ``Optimization of Flame Ionization 
Detector for Determination of Hydrocarbons in Diluted Automobile 
Exhaust'', author, Glenn D. Reschke (incorporated by reference at 
Sec. 92.5); or
    (ii) According to the following procedures:
    (A) If necessary, follow manufacturer's instructions for instrument 
start-up and basic operating adjustments.
    (B) Set the oven temperature 5  deg.C hotter than the required 
sample-line temperature. Allow at least one-half hour after the oven has 
reached temperature for the system to equilibrate.
    (C) Initial fuel flow adjustment. With the fuel and air-flow rates 
set at the manufacturer's recommendations, introduce a 350 ppmC 
75 ppmC span gas to the detector. Determine the response at 
a given fuel flow from the difference between the span-gas response and 
the zero-gas response. Incrementally adjust the fuel flow above and 
below the manufacturer's specification. Record the span and zero 
response at these fuel flows. A plot of the difference between the span 
and zero response versus fuel flow will be similar to the one shown in 
Figure B119-1 of this section. Adjust the fuel-flow rate to the rich 
side of the curve, as shown. This is initial flow-rate setting and may 
not be the final optimized flow rate.
    (D) Oxygen interference optimization. Choose a range where the 
oxygen interference check gases (see Sec. 92.112) will fall in the upper 
50 percent. Conduct this test with the oven temperature set as required. 
Oxygen interference check gas specifications are found in Sec. 92.112.
    (1) Zero the analyzer.
    (2) Span the analyzer with the 21-percent oxygen blend.
    (3) Recheck zero response. If it has changed more than 0.5 percent 
of full scale repeat paragraphs (a)(3)(ii)(D) (1) and (2) of this 
section.
    (4) Introduce the 5 percent and 10 percent oxygen interference check 
gases.
    (5) Recheck the zero response. If it has changed more 1 
percent of full scale, repeat the test.
    (6) Calculate the percent of oxygen interference (%O2I) 
for each mixture in step in paragraph (a)(3)(ii)(D)(4) of this section.

Percent O2I=((B-Analyzer response (ppmC))/B) x (100)
Analyzer response=((A)/(Percent of full-scale analyzer response due to 
    A)) x (Percent of full-scale analyzer response due to B)

Where:

A=hydrocarbon concentration (ppmC) of the span gas used in step in 
paragraph (a)(3)(ii)(D)(2) of this section.
B=hydrocarbon concentration (ppmC) of the oxygen interference check 
gases used in step in paragraph (a)(3)(ii)(D)(4) of this section.

    (7) The percent of oxygen interference (%O2I) must be 
less than 3.0 percent for all required oxygen interference 
check gases prior to testing.
    (8) If the oxygen interference is greater than the specifications, 
incrementally adjust the air flow above and below the manufacturer's 
specifications, repeating paragraphs (a)(3)(ii)(D) (1) through (7) of 
this section for each flow.
    (9) If the oxygen interference is greater than the specification 
after adjusting the air flow, vary the fuel flow and thereafter the 
sample flow, repeating paragraphs (a)(3)(ii)(D) (1) through (7) of this 
section for each new setting.

[[Page 438]]

    (10) If the oxygen interference is still greater than the 
specifications, repair or replace the analyzer, FID fuel, or burner air 
prior to testing. Repeat this section with the repaired or replaced 
equipment or gases.
    (E) Linearity check. For each range used, check linearity as 
follows:
    (1) With the fuel flow, air flow and sample flow adjust to meet the 
oxygen interference specification, zero the analyzer.
    (2) Span the analyzer using a calibration gas that will provide a 
response of approximately 90 percent of full-scale concentration.
    (3) Recheck the zero response. If it has changed more than 0.5 
percent of full scale, repeat steps in paragraphs (a)(3)(ii)(E) (1) and 
(2) of this seciton.
    (4) Record the response of calibration gases having nominal 
concentrations of 30, 60, and 90 percent of full-scale concentration. It 
is permitted to use additional concentrations.
    (5) Perform a linear least square regression on the data generated. 
Use an equation of the form y = mx, where x is the actual chart 
deflection and y is the concentration.
    (6) Use the equation z = y/m to find the linear chart deflection (z) 
for each calibration gas concentration (y).
    (7) Determine the linearity (%L) for each calibration gas by:

Percent L=(100)(z-x)/(Full-scale linear chart deflection)

    (8) The linearity criterion is met if the %L is less than 
2 percent for each data point generated. Below 40 ppmC the 
linearity criterion may be expanded to 4 percent. For each 
emission test, a calibration curve of the form y = mx is to be used. The 
slope (m) is defined for each range by the spanning process.
    (9) If the %L for any point exceeds the specifications in step in 
paragraph (a)(3)(ii)(E)(8) of this section, the air fuel, and sample-
flow rates may be varied within the boundaries of the oxygen 
interference specifications.
    (10) If the %L for any data point still exceeds the specifications, 
repair or replace the analyzer, FID fuel, burner air, or calibration 
bottles prior to testing. Repeat the procedures of this section with the 
repaired or replaced equipment or gases.
    (F) Optimized flow rates. The fuel-flow rate, air-flow rate and 
sample-flow rate and sample-flow rate are defined as ``optimized'' at 
this point.
    (iii) Alternative procedures may be used if approved in advance by 
the Administrator.
    (4) After the optimum flow rates have been determined they are 
recorded for future reference.
    (b) Initial and periodic calibration. Prior to introduction into 
service and monthly thereafter, the HFID hydrocarbon analyzer shall be 
calibrated on all normally used instrument ranges. Use the same flow 
rate and pressures as when analyzing samples. Calibration gases shall be 
introduced directly at the analyzer.
    (1) Adjust analyzer to optimize performance.
    (2) Zero the hydrocarbon analyzer with zero-grade air.
    (3) Calibrate on each used operating range with propane-in-air 
calibration gases having nominal concentrations of 15, 30, 45, 60, 75 
and 90 percent of that range. For each range calibrated, if the 
deviation from a least-squares best-fit straight line is 2 percent or 
less of the value at each data point, concentration values may be 
calculated by use of single calibration factor for that range. If the 
deviation exceeds 2 percent at any point, the best-fit non-linear 
equation which represents the data to within 2 percent of each test 
point shall be used to determine concentration.

[[Page 439]]

                          Figure to Sec. 92.119
[GRAPHIC] [TIFF OMITTED] TR16AP98.005


[[Page 440]]





Sec. 92.120  NDIR analyzer calibration and checks.

    (a) NDIR water rejection ratio check. (1) Zero and span the analyzer 
on the lowest range that will be used.
    (2) Introduce a saturated mixture of water and zero gas at room 
temperature directly to the analyzer.
    (3) Determine and record the analyzer operating pressure (GP) in 
absolute units in Pascal. Gauges G3 and G4 may be used if the values are 
converted to the correct units.
    (4) Determine and record the temperature of the zero-gas mixture.
    (5) Record the analyzers' response (AR) in ppm to the saturated 
zero-gas mixture.
    (6) For the temperature recorded in paragraph (a)(4) of this 
section, determine the saturation vapor pressure.
    (7) Calculate the water concentration (Z) in the mixture from:

Z=(PWB/GP)(106)

    (8) Calculate the water rejection ratio (WRR) from:

WRR=(Z/AR)

    (b) NDIR CO2 rejection ratio check. (1) Zero and span the 
analyzer on the lowest range that will be used.
    (2) Introduce a CO2 calibration gas of at least 10 
percent CO2 or greater to the analyzer.
    (3) Record the CO2 calibration gas concentration in ppm.
    (4) Record the analyzers' response (AR) in ppm to the CO2 
calibration gas.
    (5) Calculate the CO2 rejection ratio (CO2RR) 
from:

CO2RR=(ppm CO2)/AR

    (c) NDIR analyzer calibration. (1) Detector optimization. If 
necessary, follow the manufacturer's instructions for initial start-up 
and basic operating adjustments.
    (2) Calibration curve. Develop a calibration curve for each range 
used as follows:
    (i) Zero the analyzer.
    (ii) Span the analyzer to give a response of approximately 90 
percent of full-scale chart deflection.
    (iii) Recheck the zero response. If it has changed more than 0.5 
percent of full scale, repeat steps in paragraphs (c)(2)(i) and 
(c)(2)(ii) of this section.
    (iv) Record the response of calibration gases having nominal 
concentrations of 15, 30, 45, 60, 75, and 90 percent of full-scale 
concentration.
    (v) Generate a calibration curve. The calibration curve shall be of 
fourth order or less, have five or fewer coefficients, and be of the 
form of equation (1) or (2). Include zero as a data point. Compensation 
for known impurities in the zero gas can be made to the zero-data point. 
The calibration curve must fit the data points within 2 percent of point 
or 1 percent of full scale, whichever is less. Equations (1) and (2) 
follow:

 y = Ax4 = Bx3 = Cx2 = Dx = E   (1)
 y = x/(Ax4 = Bx3 = Cx2 = Dx = E)  (2)

where:

 y = concentration.
 x = chart deflection.

    (vi) Option. A new calibration curve need not be generated if:
    (A) A calibration curve conforming to paragraph (c)(2)(v) of this 
section exists;
    (B) The responses generated in paragraph (c)(2)(iv) of this section 
are within 1 percent of full scale or 2 percent of point, whichever is 
less, of the responses predicted by the calibration curve for the gases 
used in paragraph (c)(2)(iv) of this section.
    (vii) If multiple range analyzers are used, only the lowest range 
must meet the curve fit requirements below 15 percent of full scale.
    (3) If any range is within 2 percent of being linear a linear 
calibration may be used. To determine if this criterion is met:
    (i) Perform a linear least-square regression on the data generated. 
Use an equation of the form y=mx, where x is the actual chart deflection 
and y is the concentration.
    (ii) Use the equation z=y/m to find the linear chart deflection (z) 
for each calibration gas concentration (y).
    (iii) Determine the linearity (%L) for each calibration gas by:

Percent L=(100)(z-x)/(Full-scale chart deflection)

    (iv) The linearity criterion is met if the %L is less than 
2 percent for each data point generated. For each emission 
test, a calibration curve of the

[[Page 441]]

form y=mx is to be used. The slope (m) is defined for each range by the 
spanning process.



Sec. 92.121  Oxides of nitrogen analyzer calibration and check.

    (a) Quench checks; NOX analyzer. (1) Perform the reaction 
chamber quench check for each model of high vacuum reaction chamber 
analyzer prior to initial use.
    (2) Perform the reaction chamber quench check for each new analyzer 
that has an ambient pressure or ``soft vacuum'' reaction chamber prior 
to initial use. Additionally, perform this check prior to reusing an 
analyzer of this type any time any repairs could potentially alter any 
flow rate into the reaction chamber. This includes, but is not limited 
to, sample capillary, ozone capillary, and if used, dilution capillary.
    (3) Quench check as follows:
    (i) Calibrate the NOX analyzer on the lowest range that 
will be used for testing.
    (ii) Introduce a mixture of CO2 calibration gas and 
NOX calibration gas to the CL analyzer. Dynamic blending may 
be used to provide this mixture. Dynamic blending may be accomplished by 
analyzing the CO2 in the mixture. The change in the 
CO2 value due to blending may then be used to determine the 
true concentration of the NOX in the mixture. The 
CO2 concentration of the mixture shall be approximately equal 
to the highest concentration experienced during testing. Record the 
response.
    (iii) Recheck the calibration. If it has changed more than 
1 percent of full scale, recalibrate and repeat the quench 
check.
    (iv) Prior to testing, the difference between the calculated 
NOX response and the response of NOX in the 
presence of CO2 (step in paragraph (a)(3)(ii) of this section 
must not be greater than 3.0 percent of full-scale. The calculated 
NOX response is based on the calibration performed in step in 
paragraph (a)(3)(i) this section.
    (b) Oxides of nitrogen analyzer calibration. (1) Every 30 days, 
perform a converter-efficiency check (see paragraph (b)(2) of this 
section) and a linearity check (see paragraph (b)(3) of this section).
    (2) Converter-efficiency check. The apparatus described and 
illustrated in Figure B121-1 of this section is to be used to determine 
the conversion efficiency of devices that convert NO2 to NO. 
The following procedure is to be used in determining the values to be 
used in the equation below:
    (i) Follow the manufacturer's instructions for instrument startup 
and operation.
    (ii) Zero the oxides of nitrogen analyzer.
    (iii) Connect the outlet of the NOX generator to the 
sample inlet of the oxides of nitrogen analyzer which has been set to 
the most common operating range.
    (iv) Introduce into the NOX generator-analyzer system a 
span gas with a NO concentration equal to approximately 80 percent of 
the most common operating range. The NO2 content of the gas 
mixture shall be less than 5 percent of the NOX 
concentration.
    (v) With the oxides of nitrogen analyzer in the NO Mode, record the 
concentration of NO indicated by the analyzer.
    (vi) Turn on the NOX generator O2 (or air) 
supply and adjust the O2 (or air) flow rate so that the NO 
indicated by the analyzer is about 10 percent less than indicated in 
step in paragraph (b)(2)(v) of this section. Record the concentration of 
NO in this NO = O2 mixture.
    (vii) Switch the NOX generator to the generation mode and 
adjust the generation rate so that the NO measured on the analyzer is 20 
percent of that measured in step in paragraph (b)(2)(v) of this section. 
There must be at least 10 percent unreacted NO at this point. Record the 
concentration of residual NO.
    (viii) Switch the oxides of nitrogen analyzer to the 
NOX mode and measure total NOX. Record this value.
    (ix) Switch off the NOX generation, but maintain gas flow 
through the system. The oxides of nitrogen analyzer will indicate the 
total NOX in the NO = O2 mixture. Record this 
value.
    (x) Turn off the NOX generator O2 (or air) 
supply. The analyzer will now indicate the total NOX in the 
original NO

[[Page 442]]

in N2 mixture. This value should be no more than 5 percent 
above the value indicated in step in paragraph (b)(2)(iv) of this 
section.
    (xi) Calculate the efficiency of the NOX converter by 
substituting the concentrations obtained into the following equation:
    (A) Percent Efficiency=(1=(a-b)/(c-d))(100)

where:

a=concentration obtained in paragraph (b)(2)(viii) of this section.
b=concentration obtained in paragraph (b)(2)(ix) of this section.
c=concentration obtained in paragraph (b)(2)(vi) of this section.
d=concentration obtained in paragraph (b)(2)(vii) of this section.

    (B) The efficiency of the converter shall be greater than 90 
percent. Adjustment of the converter temperature may be necessary to 
maximize the efficiency. If the converter does not meet the conversion-
efficiency specifications, repair or replace the unit prior to testing. 
Repeat the procedures of this section with the repaired or new 
converter.
    (3) Linearity check. For each range used, check linearity as 
follows:
    (i) With the operating parameters adjusted to meet the converter 
efficiency check and the quench checks, zero the analyzer.
    (ii) Span the analyzer using a calibration gas that will give a 
response of approximately 90 percent of full-scale concentration.
    (iii) Recheck the zero response. If it has changed more than 0.5 
percent of full scale, repeat steps in paragraphs (b)(3)(i) and 
(b)(3)(ii) of this section.
    (iv) Record the response of calibration gases having nominal 
concentrations of 30, 60 and 90 percent of full-scale concentration. It 
is permitted to use additional concentrations.
    (v) Perform a linear least-square regression on the data generated. 
Use an equation of the form y=mx where x is the actual chart deflection 
and y is the concentration.
    (vi) Use the equation z=y/m to find the linear chart deflection (z) 
for each calibration gas concentration (y).
    (vii) Determine the linearity (%L) for each calibration gas by:

Percent L=(100)(z-x)/(Full-scale chart deflection)

    (viii) The linearity criterion is met if the %L is less than 
2 percent of each data point generated. For each emission 
test, a calibration curve of the form y=mx is to be used. The slope (m) 
is defined for each range by the spanning process.
    (ix) If the %L exceeds 2 percent for any data point 
generated, repair or replace the analyzer or calibration bottles prior 
to testing. Repeat the procedures of this section with the repaired or 
replaced equipment or gases.
    (x) Perform a converter-efficiency check (see paragraph (b)(2) of 
this section).
    (xi) The operating parameters are defined as ``optimized'' at this 
point.
    (4) Converter checking gas. If the converter quick-check procedure 
is to be employed, paragraph (b)(5) of this section, a converter 
checking gas bottle must be named. The following naming procedure must 
occur after each converter efficiency check, paragraph (b)(2) of this 
section.
    (i) A gas bottle with an NO2 concentration equal to 
approximately 80 percent of the most common operation range shall be 
designated as the converter checking gas bottle. Its NO concentration 
shall be less than 25 percent of its NO2 concentration, on a 
volume basis.
    (ii) On the most common operating range, zero and span the analyzer 
in the NOX mode. Use a calibration gas with a concentration 
equal to approximately 80 percent of the range for spanning.
    (iii) Introduce the converter checking gas. Analyze and record 
concentrations in both the NOX mode (X) and NO mode (Y).
    (iv) Calculate the concentration of the converter checking gas using 
the results from step in paragraph (b)(4)(iii) of this section and the 
converter efficiency from paragraph (b)(2) of this section as follows:

Concentration=(((X-Y)(100))/Efficiency)=Y

    (5) Converter quick-check.
    (i) Span the analyzer in the normal manner (NOX mode) for 
the most common operating range.

[[Page 443]]

    (ii) Analyze the converter checking gas in the NOX mode, 
record the concentration.
    (iii) Compare the observed concentration with the concentration 
assigned under the procedure in paragraph (b)(4) of this section. If the 
observed concentration is equal to or greater than 90 percent of the 
assigned concentration, the converter operation is satisfactory.
    (c) Initial and periodic calibration. Prior to its introduction into 
service and monthly thereafter, the chemiluminescent oxides of nitrogen 
analyzer shall be calibrated on all normally used instrument ranges. Use 
the same flow rate as when analyzing samples. Proceed as follows:
    (1) Adjust analyzer to optimize performance.
    (2) Zero the oxides of nitrogen analyzer with zero-grade air or 
zero-grade nitrogen.
    (3) Calibrate on each normally used operating range with NO-in-
N2 calibration gases with nominal concentrations of 15, 30, 
45, 60, 75 and 90 percent of that range. For each range calibrated, if 
the deviation from a least-squares best-fit straight line is 2 percent 
or less of the value at each data point, concentration values may be 
calculated by use of a single calibration factor for that range. If the 
deviation exceeds 2 percent at any point, the best-fit non-linear 
equation which represents the data to within 2 percent of each test 
point shall be used to determine concentration.
    (d) If a stainless steel NO2 to NO converter is used, 
condition all new or replacement converters. The conditioning consists 
of either purging the converter with air for a minimum of 4 hours or 
until the converter efficiency is greater than 90 percent. The converter 
must be at operational temperature while purging. Do not use this 
procedure prior to checking converter efficiency on in-use converters.

[[Page 444]]

                          Figure to Sec. 92.121
[GRAPHIC] [TIFF OMITTED] TR16AP98.006


[[Page 445]]





Sec. 92.122  Smoke meter calibration.

    The smokemeter shall be checked according to the following procedure 
prior to each test:
    (a) The zero control shall be adjusted under conditions of ``no 
smoke'' to give a recorder or data collection equipment response of 
zero;
    (b) Calibrated neutral density filters having approximately 10, 20, 
and 40 percent opacity shall be employed to check the linearity of the 
instrument. The filter(s) shall be inserted in the light path 
perpendicular to the axis of the beam and adjacent to the opening from 
which the beam of light from the light source emanates, and the recorder 
response shall be noted. Filters with exposed filtering media should be 
checked for opacity every six months; all other filters shall be checked 
every year, using NIST or equivalent reference filters. Deviations in 
excess of 1 percent of the nominal opacity shall be corrected.



Sec. 92.123  Test procedure; general requirements.

    (a) The locomotive/locomotive engine test procedure is designed to 
determine the brake specific emissions of hydrocarbons (HC, total or 
non-methane as applicable), total hydrocarbon equivalent (THCE) and 
aldehydes (as applicable), carbon monoxide (CO), oxides of nitrogen 
(NOX), and particulates, and the opacity of smoke emissions. 
The test procedure consists of measurements of brake specific emissions 
and smoke opacity at each throttle position and of measurements of smoke 
opacity during each change in throttle position as engine power is 
increased. If less than 2 percent of the total exhaust flow is removed 
for gaseous and particulate sampling in notches 1 through 8, and if less 
than 4 percent of the total exhaust flow is removed for gaseous and 
particulate sampling at idle and dynamic brake, all measurements of 
gaseous, particulate and smoke emissions may be performed during one 
test sequence. If more than 2 percent, or 4 percent as applicable, of 
the total exhaust is removed for gaseous and particulate sampling, 
measurements of gaseous, and particulate emissions are performed during 
one test sequence, and a second test sequence is performed for the 
measurement of smoke.
    (1) In the raw exhaust sampling procedure, sample is collected 
directly from the exhaust stream during each throttle setting. 
Particulates are collected on filters following dilution with ambient 
air of another raw exhaust sample. The fuel flow rate for each throttle 
setting is measured.
    (2) For locomotives with multiple exhaust stacks, smoke testing is 
only required for one of the exhaust stacks provided the following 
conditions are met:
    (i) The stack that is not tested is not visibly smokier than the 
stack that is tested; and
    (ii) None of the measured opacity values for the stack tested are 
not greater than three-quarters of the level allowed by any of the 
applicable smoke standards.
    (b) The test consists of prescribed sequences of engine operating 
conditions (see Secs. 92.124 and 92.126) to be conducted either on a 
locomotive; or with the engine mounted on an engine dynamometer, or 
attached to a locomotive alternator/generator.
    (1) Locomotive testing. (i) The electrical power output produced by 
the alternator/generator at each throttle setting is recorded as 
measurements of either the wattmeter or the output voltage, phase angle, 
and current flow through the electrical resistance bank.
    (ii) The locomotive fuel supply system shall be disconnected and a 
system capable of measuring the net rate at which fuel is supplied to 
the engine (accounting for fuel recycle) shall be connected.
    (2) Engine testing. (i) When the test is performed using a 
dynamometer, engine torque and rpm shall be recorded during each 
throttle setting.
    (ii) The complete engine shall be tested, with all emission control 
devices, and charge air cooling equipment installed and functioning.
    (iii) On air-cooled engines, the engine cooling fan shall be 
installed.
    (iv) Additional accessories (e.g., air compressors) shall be 
installed or their loading simulated if typical of the in-

[[Page 446]]

use application. In the case of simulated accessory loadings, the 
manufacturer shall make available to the Administrator documentation 
which shows that the simulated loading is representative of in-use 
operation. Power for accessories necessary to operate the engine (such 
as fuel pumps) shall be treated as parasitic losses and would not be 
included in the engine power output for purposes of calculating brake 
specific emissions.
    (v) The engine may be equipped with a production type starter.
    (vi) Means of engine cooling shall be used which will maintain the 
engine operating temperatures (e.g., temperatures of intake air 
downstream of charge air coolers, oil, water, etc.) at approximately the 
same temperature as would occur in a locomotive at each test point under 
the equivalent ambient conditions. In the case of engine intake air 
after compression and cooling in the charge air cooler(s), the 
temperature of the air entering the engine shall be within 5 
 deg.F, at each test point, of the typical temperatures occurring in 
locomotive operations under ambient conditions represented by the test. 
Auxiliary fan(s) may be used to maintain engine cooling during operation 
on the dynamometer. Rust inhibitors and lubrication additives may be 
used, up to the levels recommended by the additive manufacturer. If 
antifreeze is to be used in the locomotive application, antifreeze 
mixtures and other coolants typical of those approved for use in the 
locomotive may be used.
    (vii) The provisions of paragraph (b)(1)(i) of this section apply to 
engine testing using a locomotive alternator/generator instead of a 
dynamometer.



Sec. 92.124  Test sequence; general requirements.

    (a) Air temperature. (1) The temperature of dilution air for the 
particulate sample dilution tunnel shall comply with the requirements of 
Sec. 92.114 throughout the test sequence.
    (2) For the testing of locomotives and engines, the ambient (test 
cell or out-of-door) air temperature, the temperature of the engine 
intake air, and the temperature of the air which provides cooling for 
the engine charge air cooling system shall be between 45  deg.F (7 
deg.C) and 105  deg.F (41  deg.C) throughout the test sequence. 
Manufacturers and remanufacturers may test at higher temperatures 
without approval from the Administrator, but no corrections are allowed 
for the deviations from test conditions.
    (b) For the testing of locomotives and engines, the atmospheric 
pressure shall be between 31.0 inches Hg and 26.0 inches Hg throughout 
the test sequence. Manufacturers and remanufacturers may test at lower 
pressures without approval from the Administrator, but no corrections 
are allowed for the deviations from test conditions.
    (c) No control of humidity is required for ambient air, engine 
intake air or dilution air.
    (d) Flow restrictions. (1) Locomotive testing. Restrictions to the 
flow of air into the engine and of exhaust out of the engine shall be 
those inherent to the locomotive. No adjustments or changes shall be 
made to these parameters. The temperature of the inlet fuel to the 
engine shall not exceed 125  deg.F.
    (2) Engine testing. (i) Air inlet and exhaust restrictions shall be 
set to represent the average restrictions which would be seen in use in 
a representative application.
    (ii) Inlet depression and exhaust backpressure shall be set with the 
engine operating at rated speed and maximum power, i.e., throttle notch 
8.
    (iii) The locations at which the inlet depression and exhaust 
backpressure are measured shall be specified by the manufacturer or 
remanufacturer.
    (iv) The settings shall be made during the preconditioning.
    (e) Pre-test engine measurements (e.g., idle and throttle notch 
speeds, fuel flows, etc.), pre-test engine performance checks (e.g., 
verification of engine power, etc.) and pre-test system calibrations 
(e.g., inlet and exhaust restrictions, etc.) can be done during engine 
preconditioning, or at the manufacturer's convenience subject to the 
requirements of good engineering practice.
    (f) The required test sequence is described in Table B124-1 of this 
section, as follows:

[[Page 447]]



                       Table B124-1--Test Sequence for Locomotives and Locomotive Engines
----------------------------------------------------------------------------------------------------------------
                                                                                                Power, and fuel
           Mode No.               Notch setting      Time in notch    Emissions measured \2\      consumption
                                                                                                   measured
----------------------------------------------------------------------------------------------------------------
Warmup........................  Notch 8..........  5  1   None..................  None.
                                                    min.
Warmup........................  Lowest Idle......  15 min maximum...  None..................  None.
1a............................  Low Idle \1\.....  6 min minimum....  All...................  Both.
1.............................  Normal Idle......  6 min minimum....  All...................  Both.
2.............................  Dynamic Brake \1\  6 min minimum....  All...................  Both.
3.............................  Notch 1..........  6 min minimum....  All...................  Both.
4.............................  Notch 2..........  6 min minimum....  All...................  Both.
5.............................  Notch 3..........  6 min minimum....  All...................  Both.
6.............................  Notch 4..........  6 min minimum....  All...................  Both.
7.............................  Notch 5..........  6 min minimum....  All...................  Both.
8.............................  Notch 6..........  6 min minimum....  All...................  Both.
9.............................  Notch 7..........  6 min minimum....  All...................  Both.
10............................  Notch 8..........  15 min minimum...  All...................  Both.
----------------------------------------------------------------------------------------------------------------
\1\ Omit if not so equipped.
\2\ The EPA test sequence for locomotives and locomotive engines may be performed once, with gaseous,
  particulate and smoke measurements performed simultaneously, or it may be performed twice with gaseous, and
  particulate measurements performed during one test sequence and smoke measurements performed during the other
  test sequence.



Sec. 92.125  Pre-test procedures and preconditioning.

    (a) Locomotive testing. (1) Determine engine lubricating oil and 
coolant levels and fill as necessary to manufacturers recommended full 
levels.
    (2) Connect fuel supply system and purge as necessary; determine 
that the fuel to be used during emission testing is in compliance with 
the specifications of Sec. 92.113.
    (3) Install instrumentation, engine loading equipment and sampling 
equipment as required.
    (4) Operate the engine until it has reached the specified operating 
temperature.
    (b) Engine testing. (1) Determine engine lubricating oil level and 
fill as necessary to manufacturers recommended full level.
    (2)(i) Connect fuel supply system and purge as necessary; determine 
that the fuel to be used during emission testing is in compliance with 
the specifications of Sec. 92.113.
    (ii) Connect engine cooling system.
    (3) Install instrumentation, and sampling equipment as required. 
Couple the engine to the dynamometer or locomotive alternator/generator.
    (4) Start cooling system.
    (5) Operate the engine until it has reached the specified operating 
temperature.
    (6) Establish that the temperature of intake air entering the engine 
after compression and cooling in the charge air cooler(s), at each test 
point, is within 5  deg.F of the temperatures which occur in 
locomotive operations at the ambient temperature represented by the 
test.
    (c) Both locomotive and engine testing. (1) Allow a minimum of 30 
minutes warm-up in the stand-by or operating mode prior to spanning the 
analyzers.
    (2) Replace or clean filter elements (sampling and analytical 
systems) as necessary, and then vacuum leak check the system, 
Sec. 92.118. A pressure leak check is also permitted per Sec. 92.118. 
Allow the heated sample line, filters, and pumps to reach operating 
temperature.
    (3) Perform the following system checks:
    (i) If a stainless steel NO2 to NO converter is used, 
purge the converter with air (zero-grade air, room air, or 
O2) for a minimum of 30 minutes. The converter must be at 
operational temperature while purging.
    (ii) Check the sample system temperatures (see Sec. 92.114).
    (iii) Check the system response time (see Sec. 92.118). System 
response time may be applied from the most recent check of response time 
if all of the following are met:
    (A) The flow rate for each flow meter is equal to or greater than 
the flow rate recorded in Sec. 92.118.
    (B) For analyzers with capillaries, the response time from the 
sample/span valve is measured using in-use pressures and bypass flows 
(see Sec. 92.118).

[[Page 448]]

    (C) The response time measured in step in paragraph (c)(3)(iii)(B) 
of this section is equal to or less than the slowest response time 
determined for Capillary flow analyzers in Sec. 92.118 plus 2 seconds.
    (iv) A hang-up check is permitted.
    (v) A converter-efficiency check is permitted. The check need not 
conform to Sec. 92.121. The test procedure may be aborted at this point 
in the procedure in order to repair the NO2 to NO converter. 
If the test is aborted, the converter must pass the efficiency check 
described in Sec. 92.121 prior to starting the test run.
    (4) Introduce the zero-grade gases at the same flow rates and 
pressures used to calibrate the analyzers and zero the analyzers on the 
lowest anticipated range that will be used during the test. Immediately 
prior to each test, obtain a stable zero for each anticipated range that 
will be used during the test.
    (5) Introduce span gases to the instruments under the same flow 
conditions as were used for the zero gases. Adjust the instrument gains 
on the lowest range that will be used to give the desired value. Span 
gases should have a concentration greater than 70 percent of full scale 
for each range used. Immediately prior to each test, record the response 
to the span gas and the span-gas concentration for each range that will 
be used during the test.
    (6) Check the zero responses. If they have changed more than 0.5 
percent of full scale, repeat paragraphs (c)(4) and (5) of this section.
    (7) Check system flow rates and pressures. Note the values of gauges 
for reference during the test.



Sec. 92.126  Test run.

    (a) The following steps shall be taken for each test:
    (1) Prepare the locomotive, engine, dynamometer, (as applicable) and 
sampling system for the test. Change filters, etc. and leak check as 
necessary.
    (2) Connect sampling equipment as appropriate for the sampling 
procedure employed; i.e. raw or dilute (evacuated sample collection 
bags, particulate, and raw exhaust sampling equipment, particulate 
sample filters, fuel flow measurement equipment, etc.).
    (3) Start the particulate dilution tunnel, the sample pumps, the 
engine cooling fan(s) (engine dynamometer testing) and the data 
collection and sampling systems (except particulate sample collection). 
The heated components of any continuous sampling systems(s) (if 
applicable) shall be preheated to their designated operating 
temperatures before the test begins.
    (4) Adjust the sample flow rates to the desired flow rates and set 
gas flow measuring devices to zero (particulate dilution tunnel).
    (5) Read and record all required general and pre-test data (i.e., 
all required data other than data that can only be collected during or 
after the emission test).
    (6) Warm-up the locomotive or locomotive engines according to normal 
warm-up procedures.
    (7) Begin the EPA Test Sequence for Locomotives and Locomotive 
Engines (see Sec. 92.124). Record all required general and test data 
throughout the duration of the test sequence.
    (i) Mark the start of the EPA Test Sequence for Locomotives and 
Locomotive Engines on all data records.
    (ii) Begin emission measurement after completing the warmup phase of 
the EPA Test Sequence for Locomotives and Locomotive Engines, as 
specified in paragraph (b) of this section. Mark the start and end of 
each mode on all data records.
    (iii) A mode shall be voided where the requirements of this subpart 
that apply to that test mode are not met. This includes the following:
    (A) The data acquisition is terminated prematurely; or
    (B) For engine testing, the engine speed or power output exceeds the 
tolerance bands established for that mode; or
    (C) Measured concentrations exceed the range of the instrument; or
    (D) The test equipment malfunctions.
    (iv) Modes within the test sequence shall be repeated if it is 
voided during the performance of the test sequence. A mode can be 
repeated by:
    (A) Repeating the two preceding modes and then continuing with the 
test sequence, provided that the locomotive or engine is not shut down 
after the voided test mode; or

[[Page 449]]

    (B) Repeating the preceding mode and then continuing with the test 
sequence from that point, provided that the locomotive or engine is not 
operated in any mode with lower power than the preceding mode after the 
voided test mode. For example, if the Notch 2 mode is voided, then the 
locomotive or engine would be returned to Notch 1 while any repairs are 
made.
    (b) Sampling and measurement timing. (1) Gaseous emissions shall be 
sampled and measured continuously.
    (2)(i) Sampling of particulate emissions from the raw exhaust (for 
dilution) shall be conducted continuously.
    (ii) Sampling of particulates from the diluted exhaust shall begin 
within ten seconds after the beginning of each test mode, and shall end 
six minutes after the beginning of each test mode.
    (iii) Sampling of CO2 in the dilution air and diluted 
exhaust does not need to be continuous, but the measurements used for 
the calculations must be made after the first two minutes of each mode.
    (3) Fuel flow rate shall be measured continuously. The value 
reported for the fuel flow rate shall be a one-minute average of the 
instantaneous fuel flow measurements taken during the last minute of the 
minimum sampling period listed in Table B124-1 in Sec. 92.124; except 
for testing during idle modes, where it shall be a three-minute average 
of the instantaneous fuel flow measurements taken during the last three 
minutes of the minimum sampling period listed in Table B124-1 in 
Sec. 92.124. Sampling periods greater than one minute, but no greater 
than three minutes are allowed for modes 2, 3, and 4, where required by 
good engineering practice.
    (4) Engine power shall be measured continuously. The value reported 
for the engine power shall be a one-minute average of the instantaneous 
power measurements taken during the last minute of the minimum sampling 
period listed in Table B124-1 in Sec. 92.124.
    (c) Exhaust gas measurements. (1) Should the analyzer response 
exceed 100 percent of full scale or respond less than 15 percent of full 
scale, the next higher or lower analyzer range shall be used.
    (2) Each analyzer range that may be used during a test sequence must 
have the zero and span responses recorded prior to the execution of the 
test sequence. Only the range(s) used to measure the emissions during a 
test sequence are required to have their zero and span recorded after 
the completion of the test sequence.
    (3) It is permitted to change filter elements between test modes, 
provided such changes do not cause a mode to be voided.
    (4) A leak check is permitted between test modes, provided such 
changes do not cause a mode to be voided.
    (5) A hang-up check is permitted between test modes, provided such 
changes do not cause a mode to be voided.
    (6) If, during the emission measurement portions of a test, the 
value of the gauges downstream of the NDIR analyzer(s) differs by more 
than 2 inches of water from the pretest value, the test is 
void.
    (7)(i) For bag samples, as soon as possible transfer the exhaust and 
dilution air bag samples to the analytical system and process the 
samples.
    (ii) A stabilized reading of the exhaust sample bag on all 
applicable analyzers shall be made within 20 minutes of the end of the 
sample collection phase of the mode.



Sec. 92.127  Emission measurement accuracy.

    (a) Good engineering practice dictates that exhaust emission sample 
analyzer readings below 15 percent of full scale chart deflection should 
generally not be used.
    (b) Some high resolution read-out systems such as computers, data 
loggers, etc., can provide sufficient accuracy and resolution below 15 
percent of full scale. Such systems may be used provided that additional 
calibrations are made to ensure the accuracy of the calibration curves. 
The following procedure for calibration below 15 percent of full scale 
may be used:
    (1) If a 16-point gas divider is used, 50 percent of the calibration 
points shall be below 10 percent of full scale. The gas divider shall 
conform to the accuracy requirements specified in Sec. 92.112.

[[Page 450]]

    (2) If a 7- or 9-point gas divider is used, the gas divider shall 
conform to the accuracy requirements specified in Sec. 92.112, and shall 
be used according to the following procedure:
    (i) Span the full analyzer range using a top range calibration gas 
meeting the calibration gas accuracy requirements of Sec. 92.112.
    (ii) Generate a calibration curve according to, and meeting the 
applicable requirements of Secs. 92.118 through 92.122.
    (iii) Select a calibration gas (a span gas may be used for 
calibrating the CO2 analyzer) with a concentration between 
the two lowest non-zero gas divider increments. This gas must be 
``named'' to an accuracy of 1.0 percent (2.0 
percent for CO2 span gas) of NIST gas standards, or other 
standards approved by the Administrator.
    (iv) Using the calibration curve fitted to the points generated in 
paragraphs (b)(2)(i) and (ii) of this section, check the concentration 
of the gas selected in paragraph (b)(2)(iii) of this section. The 
concentration derived from the curve shall be within 2.3 
percent (2.8 percent for CO2 span gas) of the 
gas' original named concentration.
    (v) Provided the requirements of paragraph (b)(2)(iv) of this 
section are met, use the gas divider with the gas selected in paragraph 
(b)(2)(iii) of this section and determine the remainder of the 
calibration points. Fit a calibration curve per Secs. 92.118 through 
92.122 for the entire analyzer range.



Sec. 92.128  Particulate handling and weighing.

    (a) At least 1 hour before the test, place each filter in a closed 
(to eliminate dust contamination) but unsealed (to permit humidity 
exchange) petri dish and place in a weighing chamber meeting the 
specifications of Sec. 92.110(a) of this section for stabilization.
    (b) At the end of the stabilization period, weigh each filter on the 
microbalance. This reading is the tare weight and must be recorded.
    (c) The filter shall then be stored in a covered petri dish or a 
sealed filter holder until needed for testing. If the filters are 
transported to a remote test location, the filter pairs, stored in 
individual petri dishes, should be transported in sealed plastic bags to 
prevent contamination. At the conclusion of a test run, the filters 
should be removed from the filter holder, and placed face to face in a 
covered but unsealed petri dish, with the primary filter placed face up 
in the dish. The filters shall be weighed as a pair. If the filters need 
to be transported from a remote test site, back to the weighing chamber, 
the petri dishes should be placed in a sealed plastic bag to prevent 
contamination. Care should be taken in transporting the used filters 
such that they are not exposed to excessive, sustained direct sunlight, 
or excessive handling.
    (d) After the emissions test, and after the sample and back-up 
filters have been returned to the weighing room after being used, they 
must be conditioned for at least 1 hour but not more than 80 hours and 
then weighed. This reading is the gross weight of the filter and must be 
recorded.
    (e) The net weight of each filter is its gross weight minus its tare 
weight. Should the sample on the filter contact the petri dish or any 
other surface, the test is void and must be rerun.
    (f) The particulate filter weight (Pf) is the sum of the net weight 
of the primary filter plus the net weight of the backup filter.
    (g) The following optional weighting procedure is permitted:
    (1) At the end of the stabilization period, weigh both the primary 
and back-up filters as a pair. This reading is the tare weight and must 
be recorded.
    (2) After the emissions test, in removing the filters from the 
filter holder, the back-up filter is inverted on top of the primary 
filter. They must then be conditioned in the weighing chamber for at 
least 1 hour but not more than 80 hours. The filters are then weighed as 
a pair. This reading is the gross weight of the filters (Pf) and must be 
recorded.
    (3) Paragraphs (a), (c), and (e) of this section apply to this 
option, except that the word ``filter'' is replaced by ``filters''.



Sec. 92.129  Exhaust sample analysis.

    (a) The analyzer response may be read by automatic data collection 
(ADC) equipment such as computers, data loggers, etc. If ADC equipment 
is used the following is required:

[[Page 451]]

    (1) The response complies with Sec. 92.130.
    (2) The response required in paragraph (a)(1) of this section may be 
stored on long-term computer storage devices such as computer tapes, 
storage discs, or they may be printed in a listing for storage. In 
either case a chart recorder is not required and records from a chart 
recorder, if they exist, need not be stored.
    (3) If the data from ADC equipment is used as permanent records, the 
ADC equipment and the analyzer values as interpreted by the ADC 
equipment are subject to the calibration specifications in Secs. 92.118 
through 92.122, as if the ADC equipment were part of the analyzer.
    (b) Data records from any one or a combination of analyzers may be 
stored as chart recorder records.
    (c) Software zero and span.
    (1) The use of ``software'' zero and span is permitted. The process 
of software zero and span refers to the technique of initially adjusting 
the analyzer zero and span responses to the calibration curve values, 
but for subsequent zero and span checks the analyzer response is simply 
recorded without adjusting the analyzer gain. The observed analyzer 
response recorded from the subsequent check is mathematically corrected 
back to the calibration curve values for zero and span. The same 
mathematical correction is then applied to the analyzer's response to a 
sample of exhaust gas in order to compute the true sample concentration.
    (2) The maximum amount of software zero and span mathematical 
correction is 10 percent of full scale chart deflection.
    (3) Software zero and span may be used to switch between ranges 
without adjusting the gain of the analyzer.
    (4) The software zero and span technique may not be used to mask 
analyzer drift. The observed chart deflection before and after a given 
time period or event shall be used for computing the drift. Software 
zero and span may be used after the drift has been computed to 
mathematically adjust any span drift so that the ``after'' span check 
may be transformed into the ``before'' span check for the next mode.
    (d) For sample analysis perform the following sequence:
    (1) Warm-up and stabilize the analyzers; clean and/or replace filter 
elements, conditioning columns (if used), etc., as necessary.
    (2) Leak check portions of the sampling system that operate at 
negative gauge pressures when sampling, and allow heated sample lines, 
filters, pumps, etc., to stabilize at operating temperature.
    (3) Optional: Perform a hang-up check for the HFID sampling system:
    (i) Zero the analyzer using zero air introduced at the analyzer 
port.
    (ii) Flow zero air through the overflow sampling system, where an 
overflow system is used. Check the analyzer response.
    (iii) If the overflow zero response exceeds the analyzer zero 
response by 2 percent or more of the HFID full-scale deflection, hang-up 
is indicated and corrective action must be taken.
    (iv) The complete system hang-up check specified in paragraph (f) of 
this section is recommended as a periodic check.
    (4) Obtain a stable zero reading.
    (5) Zero and span each range to be used on each analyzer used prior 
to the beginning of the test sequence. The span gases shall have a 
concentration between 75 and 100 percent of full scale chart deflection. 
The flow rates and system pressures shall be approximately the same as 
those encountered during sampling. The HFID analyzer shall be zeroed and 
spanned through the overflow sampling system, where an overflow system 
is used.
    (6) Re-check zero response. If this zero response differs from the 
zero response recorded in paragraph (d)(5) of this section by more than 
1 percent of full scale, then paragraphs (d) (4), (5), and (6) of this 
section should be repeated.
    (7) If a chart recorder is used, identify and record the most recent 
zero and span response as the pre-analysis values.
    (8) If ADC equipment is used, electronically record the most recent 
zero and span response as the pre-analysis values.

[[Page 452]]

    (9) Measure (or collect a sample of) the emissions continuously 
during each mode of the test cycle. Indicate the start of the test, the 
range(s) used, and the end of the test on the recording medium (chart 
paper or ADC equipment). Maintain approximately the same flow rates and 
system pressures used in paragraph (d)(5) of this section.
    (10)(i) Collect background HC, CO, CO2, and 
NOX in a sample bag (optional).
    (ii) Measure the concentration of CO2 in the dilution air 
and the diluted exhaust for particulate measurements.
    (11) Perform a post-analysis zero and span check for each range used 
at the conditions specified in paragraph (d)(5) of this section. Record 
these responses as the post-analysis values.
    (12) Neither the zero drift nor the span drift between the pre-
analysis and post-analysis checks on any range used may exceed 3 percent 
for HC, or 2 percent for NOX, CO, and CO2, of full 
scale chart deflection, or the test is void. (If the HC drift is greater 
than 3 percent of full-scale chart deflection, hydrocarbon hang-up is 
likely.)
    (13) Determine HC background levels (if necessary) by introducing 
the background sample into the overflow sample system.
    (14) Determine background levels of NOX, CO, or 
CO2 (if necessary).
    (e) HC hang-up. If HC hang-up is indicated, the following sequence 
may be performed:
    (1) Fill a clean sample bag with background air.
    (2) Zero and span the HFID at the analyzer ports.
    (3) Analyze the background air sample bag through the analyzer 
ports.
    (4) Analyze the background air through the entire sample probe 
system.
    (5) If the difference between the readings obtained is 2 percent or 
more of the HFID full scale deflection:
    (i) Clean the sample probe and the sample line;
    (ii) Reassemble the sample system;
    (iii) Heat to specified temperature; and
    (iv) Repeat the procedure in this paragraph (e).



Sec. 92.130  Determination of steady-state concentrations.

    (a)(1) For HC and NOX emissions, a steady-state 
concentration measurement, measured after 300 seconds (or 840 seconds 
for notch 8) of testing shall be used instead of an integrated 
concentration for the calculations in Sec. 92.132 if the concentration 
response meets either of the criteria of paragraph (b) of this section 
and the criterion of paragraph (c) of this section.
    (2) For CO and CO2 emissions, a steady-state 
concentration measurement, measured after 300 seconds (or 840 seconds 
for notch 8) of testing shall be used. The provisions of paragraphs (b) 
through (f) of this section do not apply for CO and CO2 
emissions.
    (b) (1) The steady-state concentration is considered representative 
of the entire measurement period if the time-weighted concentration is 
not more than 10 percent higher than the steady-state concentration. The 
time-weighted concentration is determined by integrating the 
concentration response (with respect to time in seconds) over the first 
360 seconds (or 900 seconds for notch 8) of measurement, and dividing 
the area by 360 seconds (or 900 seconds for notch 8).
    (2) A steady-state concentration is considered representative of the 
entire measurement period if the estimated peak area is not more than 10 
percent of the product of the steady-state concentration and 360 seconds 
(or 900 seconds for notch 8). The estimated peak area is calculated as 
follows, and as shown in Figure B130-1 of this section):
    (i) Draw the peak baseline as a straight horizontal line 
intersecting the steady-state response.
    (ii) Measure the peak height from the baseline with the same units 
as the steady-state concentration; this value is h.
    (iii) Bisect the peak height by drawing a straight horizontal line 
halfway between the top of the peak and the baseline.
    (iv) Draw a straight line from the top of the peak to the baseline 
such that it intersects the response curve at the same point at which 
the line described in paragraph (b)(2)(iii) of this section intersects 
the response curve.

[[Page 453]]

    (v) Determine the time between the point at which the notch was 
changed and the point at which the line described in paragraph 
(b)(2)(iv) of this section intersects the baseline; this value is t.
    (vi) The estimated peak area is equal to the product of h and t, 
divided by 2.
    (c) In order to be considered to be a steady-state measurement, a 
measured response may not vary by more than 5 percent after the first 60 
seconds of measurement.
    (d) For responses meeting either of the criteria of paragraph (b) of 
this section, but not meeting the criterion of paragraph (c) of this 
section, one of the following values shall be used instead of a steady-
state or integrated concentration:
    (1) The highest value of the response that is measured after the 
first 60 seconds of measurement (excluding peaks lasting less than 5 
seconds, caused by such random events as the cycling of an air 
compressor); or
    (2) The highest 60-second, time-weighted, average concentration of 
the response after the first 60 seconds of measurement.
    (e) For responses not meeting the criterion in paragraph (c) of this 
section, the Administrator may require that the manufacturer or 
remanufacturer identify the cause of the variation, and demonstrate that 
it is not caused by a defeat device.
    (f) The integrated concentration used for calculations shall be from 
the highest continuous 120 seconds of measurement.
    (g) Compliance with paragraph (b)(2) of this section does not 
require calculation where good engineering practice allows compliance to 
be determined visually (i.e., that the area of the peak is much less 
than the limits set forth in paragraph (b)(2) of this section).

[[Page 454]]

                          Figure to Sec. 92.130
[GRAPHIC] [TIFF OMITTED] TR16AP98.007



Sec. 92.131  Smoke, data analysis.

    The following procedure shall be used to analyze the smoke test 
data:
    (a) Locate each throttle notch test mode, or percent rated power 
setting test mode. Each test mode starts when

[[Page 455]]

the throttle is placed in the mode and ends when the throttle is moved 
to the succeeding mode. The start of the first idle mode corresponds to 
the start of the test sequence.
    (b) Analyze the smoke trace by means of the following procedure:
    (1) Locate the highest reading, and integrate the highest 3-second 
average reading around it.
    (2) Locate and integrate the highest 30-second average reading.
    (3) The highest reading occurring more than two minutes after the 
notch change (excluding peaks lasting less than 5 seconds, caused by 
such random events as the cycling of an air compressor) is the ``steady-
state'' value.
    (c)(1) The values determined in paragraph (b) of this section shall 
be normalized by the following equation:
[GRAPHIC] [TIFF OMITTED] TR16AP98.008

Where:

Nn is the normalized percent opacity, Nm is the 
average measured percent opacity (peak or steady-state), and L is actual 
distance in meters from the point at which the light beam enters the 
exhaust plume to the point at which the light beam leaves the exhaust 
plume.

    (2) The normalized opacity values determined in paragraph (c)(1) of 
this section are the values that are compared to the standards of 
subpart A of this part for determination of compliance.
    (d) This smoke trace analysis may be performed by direct analysis of 
the recorder traces, or by computer analysis of data collected by 
automatic data collection equipment.



Sec. 92.132  Calculations.

    (a) Duty-cycle emissions. This section describes the calculation of 
duty-cycle emissions, in terms of grams per brake horsepower hour (g/
bhp-hr). The calculation involves the weighted summing of the product of 
the throttle notch mass emission rates and dividing by the weighted sum 
of the brake horsepower. The final reported duty-cycle emission test 
results are calculated as follows:
    (1)(i) Eidc=( (Mij) (Fj))/
( (BHPj) (Fj))

Where:

Eidc=Duty-cycle weighted, brake-specific mass emission rate 
of pollutant i (i.e., HC, CO, NOX or PM and, if appropriate, 
THCE or NMHC) in grams per brake horsepower-hour;
Mij=the mass emission rate pollutant i for mode j;
Fj=the applicable weighting factor listed in Table B132-1 for 
mode j;
BHPj=the measured brake horsepower for mode j.

    (ii) Table B132-1 follows:

                         Table B132-1--Weighting Factors for Calculating Emission Rates
----------------------------------------------------------------------------------------------------------------
                                                               Locomotive not equipped  Locomotive equipped with
                                                                 with multiple idle       multiple idle notches
             Throttle notch setting               Test mode            notches         -------------------------
                                                             --------------------------
                                                               Line-haul      Switch     Line-haul      Switch
----------------------------------------------------------------------------------------------------------------
Low Idle.......................................           1a           NA           NA        0.190        0.299
Normal Idle....................................            1        0.380        0.598        0.190        0.299
Dynamic Brake..................................            2        0.125        0.000        0.125        0.000
Notch 1........................................            3        0.065        0.124        0.065        0.124
Notch 2........................................            4        0.065        0.123        0.065        0.123
Notch 3........................................            5        0.052        0.058        0.052        0.058
Notch 4........................................            6        0.044        0.036        0.044        0.036
Notch 5........................................            7        0.038        0.036        0.038        0.036
Notch 6........................................            8        0.039        0.015        0.039        0.015
Notch 7........................................            9        0.030        0.002        0.030        0.002
Notch 8........................................           10        0.162        0.008        0.162        0.008
----------------------------------------------------------------------------------------------------------------


[[Page 456]]

    (2) Example: For the line-haul cycle, for locomotives equipped with 
normal and low idle, and with dynamic brake, the brake-specific emission 
rate for HC would be calculated as:

EHCdc=[(MHCla) (0.190)=(MHC1) 
    (0.190)=(MHC2) (0.125)=(MHC3) 
    (0.065)=(MHC4) (0.065)=(MHC5) 
    (0.052)=(MHC6) (0.044)=(MHC7) 
    (0.038)=(MHC8) (0.039)=(MHC9) 
    (0.030)=(MHC10) (0.162)]/[(BHP1a) 
    (0.190)=(BHP1) (0.190)=(BHP2) 
    (0.125)=(BHP3) (0.065)=(BHP4) 
    (0.065)=(BHP5) (0.052)=(BHP6) 
    (0.044)=(BHP7) (0.038)=(BHP8) 
    (0.039)=(BHP9) (0.030)=(BHP10) (0.162)]

    (3) In each mode, brake horsepower output is the power that the 
engine delivers as output (normally at the flywheel), as defined in 
Sec. 92.2.
    (i) For locomotive testing (or engine testing using a locomotive 
alternator/generator instead of a dynamometer), brake horsepower is 
calculated as:

BHP=HPout/Aeff=HPacc

Where:

HPout=Measured horsepower output of the alternator/generator.
Aeff=Efficiency of the alternator/generator.
HPacc=Accessory horsepower.

    (ii) For engine dynamometer testing, brake horsepower is determined 
from the engine speed and torque.
    (4) For locomotive equipped with features that shut the engine off 
after prolonged periods of idle, the measured mass emission rate 
Mi1 (and Mi1a as applicable) shall be multiplied 
by a factor equal to one minus the estimated fraction reduction in 
idling time that will result in use from the shutdown feature. 
Application of this adjustment is subject to the Administrator's 
approval.
    (b) Throttle notch emissions. This paragraph (b) describes the 
calculation of throttle notch emissions for all operating modes, 
including: idle (normal and low, as applicable); dynamic brake; and 
traction power points. The throttle notch (operating mode) emission test 
results, final reported values and values used in paragraph (a)(1) of 
this section are calculated as follows:
    (1) Brake specific emissions (Eij) in grams per brake 
horsepower-hour of each species i (i.e., HC, CO, NOX or PM 
and, if appropriate, THCE or NMHC) for each mode j:
    (i) EHC mode=HC grams/BHP-hr=MHC mode/Measured 
BHP in mode.

Where:

MHC mode=Mass HC emissions (grams per hour) for each test 
mode.

    (ii) ETHCE mode=THCE grams/BHP-hr=MTHCE mode/
Measured BHP in mode.

Where:

MTHCE mode (Total hydrocarbon equivalent mass emissions 
(grams per hour) for each test mode):
=MHCj= (Mij) (MWCp)/
MWCi
Mij=the mass emission rate oxygenated pollutant i for mode j.
MWCi=the molecular weight of pollutant i divided by the 
number of carbon atoms per molecule of pollutant i.
MWCp=the molecular weight of a typical petroleum fuel 
component divided by the number of carbon atoms per molecule of a 
typical petroleum fuel component=13.8756.

    (iii) ENMHC mode=NMHC grams/BHP-hr=MNMHC mode/
Measured BHP in mode.

Where:

MNMHC mode=Mass NMHC emissions (grams per hour) for each test 
mode.

    (iv) ECO mode=CO grams/BHP-hr=MCO mode/
Measured BHP in mode.

Where:

MCO mode=Mass CO emissions (grams per hour) for each test 
mode.

    (v) ENOx mode=NOX grams/BHP-
hr=MNOx mode/Measured BHP in mode.

Where:

MNOx mode=Mass NOX emissions (grams per hour) for 
each test mode.

    (vi) EPM mode=PM grams/BHP-hr=MPM mode/
Measured BHP in mode.

Where:

MPM mode=Mass PM emissions (grams per hour) for each test 
mode.

    (vii) EAL mode=Aldehydes grams/BHP-
hr=MAL mode/Measured BHP in mode.
    (vii) EAL mode=Aldehydes grams/BHP-
hr=MAL mode/Measured BHP in mode.

Where:

MAL mode=Total aldehyde mass emissions (grams per hour) for 
each test mode.

    (2) Mass Emissions--Raw exhaust measurements. For raw exhaust 
measurements mass emissions (grams per hour) of each species for each 
mode:
    (i) General equations. (A) The mass emission rate, 
MX mode (g/hr), of each

[[Page 457]]

pollutant (HC, NOX, CO2, CO, CH4 
CH3OH, CH3CH2OH, CH2O, 
CH3CH2O) for each operating mode for raw 
measurements is determined based on one of the following equations:

MX mode=(DX/106)(DVol)(MWX/
    Vm)
MX mode=(WX/106)(WVol)(MWX/
    Vm)

Where:

X designates the pollutant (e.g., HC), DX is the concentration of 
pollutant X (ppm or ppmC) on a dry basis, MWX is the 
molecular weight of the pollutant (g/mol), DVol is the total exhaust 
flow rate (ft3/hr) on a dry basis, WX is the concentration of 
pollutant X (ppm or ppmC) on a wet basis, WVol is the total exhaust flow 
rate (ft3/hr) on a wet basis, Vm is the volume of 
one mole of gas at standard temperature and pressure (ft3/
mol).

    (B) All measured volumes and volumetric flow rates must be corrected 
to standard temperature and pressure prior to calculations.
    (ii) The following abbreviations and equations apply to this 
paragraph (b)(2):

=Atomic hydrogen/carbon ratio of the fuel.
=Atomic oxygen/carbon ratio of the fuel.
CMWf=Molecular weight of the fuel per carbon atom, or carbon 
molecular weight (g/moleC)=(12.011=1.008=16.000).
DCO=CO concentration in exhaust, ppm (dry).
DCO2=CO2 concentration in exhaust, percent (dry).
DHC=HC carbon concentration in exhaust, ppm C (dry).
DNOX=NOX concentration in exhaust, in ppm (dry).
DVol=Total exhaust flow rate (ft3/hr) on a dry basis; or
  =(Vm)(Wf)/((CMWf) (DHC/
106=DCO/106=DCO2/100)).
K=Water gas equilibrium constant=3.5.
Kw=Wet to dry correction factor.
MF=Mass flow-rate of fuel used in the engine in lb/
hr=Wf/453.59.
MWC=Atomic weight of carbon=12.011.
MWCO=Molecular weight of CO=28.011.
MWH=Atomic weight of hydrogen=1.008.
MWNO2=Molecular weight of nitrogen dioxide 
(NO2)=46.008.
MWO=Molecular weight of atomic oxygen=16.000.
T=Temperature of inlet air (  deg.F).
Vm=Volume of one mole of gas at standard temperature and 
pressure (ft3/mole).
Wf=Mass flow-rate of fuel used in the engine, in grams/
hr=(453.59) x (Mf lbs/hr).
WCO2=CO2 concentration in exhaust, percent (wet).
WHC=HC concentration in exhaust, ppm C (wet).
WVol=Total exhaust flow rate (ft3/hr) on a wet basis; or
  =(Vm)(Wf)/((CMWf)(WHC/
106=WCO/106 WCO2/100)).

    (iii) Calculation of individual pollutant masses. Calculations for 
mass emission are shown here in multiple forms. One set of equations is 
used when sample is analyzed dry (equations where the concentrations are 
expressed as DX), and the other set is used when the sample is analyzed 
wet (equations where the concentrations are expressed as WX). When 
samples are analyzed for some constituents dry and for some constituents 
wet, the wet concentrations must be converted to dry concentrations, and 
the equations for dry concentrations used. Also, the equations for HC, 
NMHC, CO, and NOX have multiple forms that are algebraically 
equivalent: An explicit form that requires intermediate calculation of 
Vm and DVol or WVol; and an implicit form that uses only the 
concentrations (e.g., DCO) and the mass flow rate of the fuel. For these 
calculations, either form may be used.
    (A) Hydrocarbons and nonmethane hydrocarbons.
    (1) Hydrocarbons. (i) For petroleum-fueled engines:

MHC mode
      =(DHC)CMWf(DVol)(106)/Vm
      =((DHC/106)(Wf)/((DCO/
106)=(DCO2/100)= (DHC/
106)=(DX/106)))
MHC mode
    =(WHC)CMWf(WVol)(106)/Vm
    =((WHC/106)(Wf)/((WCO/
106)=(WCO2/100)= (WHC/
106)=((WX/106)))

    (ii) For alcohol-fueled engines:

DHC=FID HC-(rx)(DX)
WHC=FID HC-(rx)(WX)

Where:

FID HC=Concentration of ``hydrocarbon'' plus other organics such as 
methanol in exhaust as measured by the FID, ppm carbon equivalent.
rx=FID response to oxygenated species x (methanol, ethanol, 
or acetaldehyde).
DX=Concentration of oxygenated species x (methanol, ethanol, or 
acetaldehyde) in exhaust as determined from the dry exhaust sample, ppm 
carbon (e.g., DCH3OH, 2(DCH3CH2OH)).
WX=Concentration of oxygenated species x (methanol, ethanol, or 
acetaldehyde) in exhaust as determined from the wet exhaust sample, ppm 
carbon.

[[Page 458]]

DX=The sum of concentrations DX for all oxygenated species.
WX=The sum of concentrations WX for all oxygenated species.

    (2) Nonmethane hydrocarbons:

MNMHC mode=(DNMHC)CMWf(DVol) (106)/
    Vm
=((DNMHC/106)(Wf)/((DCO/
    106)=(DCO2/100)=(DHC/106)))
MNMHC mode=(WNMHC)CMWf(WVol) (106)/
    Vm
=((WNMHC/106)(Wf)/((WCO/
    106)=(WCO2/100)=(WHC/106)))

Where:

DNMHC=FID HC-(rCH4)(DCH4)
WNMHC=FID HC-(rCH4)(WCH4)
FID HC=Concentration of ``hydrocarbon'' plus other organics such as 
methane in exhaust as measured by the FID, ppm carbon equivalent.
rCH4=FID response to methane.
DCH4=Concentration of methane in exhaust as determined from the dry 
exhaust sample, ppm.
WCH4=Concentration of methane in exhaust as determined from the wet 
exhaust sample, ppm.

    (B) Carbon monoxide:

MCO mode=(DCO)MWCO(DVol)/106/
    Vm
=((MWCO(DCO/106)(Wf)/
    ((CMWf)(DCO/106)=(DCO2/100)=DHC/
    106)=(DX/106)))
MCO mode=(WCO)MWCO(DVol)(106)/
    Vm
=((MWCO(WCO/106)(Wf)/
    ((CMWf)(WCO/106)=(WCO2/100)=WHC/
    106)=(WX/106)))

    (C) Oxides of nitrogen:

MNOx mode=(DNOX)MWNO2(DVol)(106)/
    Vm
=((MWNO2(DNOX/106)(Wf)/
    ((CMWf)(DCO/106)= (DCO2/100)=(DHC/
    106)=(DX/106)))
MNOx mode=(WNOX)MWNO2(DVol)(106)/
    Vm
=((MWNO2(WNOX/106)(Wf)/
    ((CMWf)(WCO/106)=(WCO2/100)=(WHC/
    106)=(WX/106)))

    (D) Methanol:

MCH3OH mode=(DCH3OH/106)32.042(DVol)/Vm
MCH3OH mode=(WCH3OH/106)32.042(WVol)/Vm

Where:

DCH3OH=(Vm)(106)[(C1 x AV1)=(
C2 x  AV2)]/DVolMS.
WCH3OH=(Vm)(106)[(C1 x AV1)=(
C2 x  AV2)]/WVolMS.
Ci=concentration of methanol in impinger i (1 or 2) in mol/
ml.
AVi=Volume of absorbing reagent in impinger i (1 or 2) in ml.
DVolMS=Volume (standard ft3) of exhaust sample 
drawn through methanol impingers (dry).
WVolMS=Volume (standard ft3) of exhaust sample 
drawn through methanol impingers (wet).

    (E) Ethanol:

MCH3CH2OH mode=(DCH3CH2OH/106)23.035(DVol)/
    Vm
MCH3CH2OH mode = (WCH3CH2OH/106)23.035(WVol)/
    Vm

Where:

DCH3CH2OH=(Vm)(106)[(C1 x AV1
)
      =(C2 x AV2)]/DVolES.
WCH3CH2OH=(Vm)(106)[(C1 x AV1
)=(C2  x AV2)]/WVolES.
Ci=concentration of ethanol in impinger i (1 or 2) in mol/ml.
AVi=Volume of absorbing reagent in impinger i (1 or 2) in ml.
DVolES=Volume (standard ft3) of exhaust sample 
drawn through ethanol impingers (dry).
WVolES=Volume (standard ft3) of exhaust sample 
drawn through ethanol impingers (wet).

    (F) Formaldehyde:

MCH2O mode=(DCH2O/106)30.026(DVol)/Vm
MCH2O mode=(WCH2O/106)30.026(WVol)/Vm

    (1) If aldehydes are measured using impingers:

DCH2O=(Vm)(106)[(C1 x AV1)=(C
    2 x AV2)]/DVolFS
WCH2O=(Vm)(106)[(C1 x AV1)=(C
    2 x  AV2)]/WVolFS

    (2) If aldehydes are measured using cartridges:

DCH2O=(Vm)(106)(CR x AVR)/
    DVolFS

WCH2O=(Vm)(106)(CR x AVR)/
    WVolFS

    (3) The following definitions apply to this paragraph 
(b)(2)(iii)(F):

AVi=Volume of absorbing reagent in impinger i (1 or 2) in ml.
AVR=Volume of absorbing reagent use to rinse the cartridge in 
ml.
Ci=concentration of formaldehyde in impinger i (1 or 2) in 
mol/ml.
CR=concentration of formaldehyde in solvent rinse in mol/ml.
DVolFS=Volume (standard ft3) of exhaust sample 
drawn through formaldehyde sampling system (dry).
WVolFS=Volume (standard ft3) of exhaust sample 
drawn through formaldehyde sampling system (wet).

    (G) Acetaldehyde:

MCH3CHO mode=(DCH3CHO/106)27.027(DVol)/
    Vm
MCH3CHO mode=(WCH3CHO/106)27.027(WVol)/
    Vm


[[Page 459]]


    (1) If aldehydes are measured using impingers:

DCH3CHO=(Vm)(106)[(C1 x AV1)=
    (C2 x  AV2)]/DVolAS

WCH3CHO=(Vm)(106)[(C1 x AV1)=
    C2 x  AV2)]/WVolAS
    (2) If aldehydes are measured using cartridges:

DCH3CHO=(Vm)(106)(CR x AVR)/
    DVolAS
WCH3CHO=(Vm)(106)(CR x AVR)/
    WVolAS

    (3) The following definitions apply to this paragraph 
(b)(2)(iii)(G):

AVi=Volume of absorbing reagent in impinger i (1 or 2) in ml.
AVR=Volume of absorbing reagent use to rinse the cartridge in 
ml.
Ci=concentration of acetaldehyde in impinger i (1 or 2) in 
mol/ml.
CR=concentration of acetaldehyde in solvent rinse in mol/ml.
DVolAS=Volume (standard ft3) of exhaust sample 
drawn through acetaldehyde sampling system (dry).
WVolAS=Volume (standard ft3) of exhaust sample 
drawn through acetaldehyde sampling system (wet).

    (iv) Conversion of wet concentrations to dry concentrations. Wet 
concentrations are converted to dry concentrations using the following 
equation:

DX=KW WX

Where:

WX is the concentration of species X on a wet basis.
DX is the concentration of species X on a dry basis.
KW is a conversion factor=WVol/DVol=1=DH2O.

    (A) Iterative calculation of conversion factor. The conversion 
factor KW is calculated from the fractional volume of water 
in the exhaust on a dry basis (DH2O=volume of water in exhaust/dry 
volume of exhaust). Precise calculation of the conversion factor 
KW must be done by iteration, since it requires the dry 
concentration of HC, but HC emissions are measured wet.
    (1) The conversion factor is calculated by first assuming DHC=WHC to 
calculate DVol:

DVol=(Vm)(Wf)/((CMWf)(DHC/
    106=DCO/106=DCO2/100))

    (2) This estimate is then used in the following equations to 
calculate DVolair, then DH2O, then KW, which 
allows DHC to be determined more accurately from WHC:
[GRAPHIC] [TIFF OMITTED] TR16AP98.009


Where:

Y=Water volume concentration in intake air, volume fraction (dry).
DVolair=Air intake flow rate (ft3/hr) on a dry 
basis, measured, or calculated as:
[GRAPHIC] [TIFF OMITTED] TR16AP98.010


    (3) The calculations are repeated using this estimate of DHC. If the 
new estimate for KW is not within one percent of the previous 
estimate, the iteration is repeated until the difference in 
KW between iterations is less than one percent.
    (B) Alternate calculation of DH2O (approximation). The following 
approximation may be used for DH2O instead of the calculation in 
paragraph (b)(2)(iv)(A) of this section:

[[Page 460]]

[GRAPHIC] [TIFF OMITTED] TR16AP98.011


Where:

[GRAPHIC] [TIFF OMITTED] TR16AP98.012


Y=Water volume concentration in intake air, volume fraction (dry).

    (3) Mass Emissions--Dilute exhaust measurements. For dilute exhaust 
measurements mass emissions (grams per hour) of each species for each 
mode:
    (i) General equations. The mass emission rate, Mx mode 
(g/hr) of each pollutant (HC, NOX, CO2, CO, CH4 CH3OH, 
CH3CH2OH, CH2O, CH3CH2O) for each operating mode for bag measurements 
and diesel continuously heated sampling system measurements is 
determined from the following equation:

Mx mode=(Vmix)(Densityx)(Xconc
    )/(Vf)

Where:

x designates the pollutant (e.g., HC), Vmix is the total 
diluted exhaust volumetric flow rate (ft3/hr), 
Densityx is the specified density of the pollutant in the gas 
phase (g/ft3), Xconc is the fractional 
concentration of pollutant x (i.e., ppm/106, ppmC/
106, or %/100), and Vf is the fraction of the raw 
exhaust that is diluted for analysis.

    (ii) The following abbreviations and equations apply to paragraphs 
(b)(3)(i) through (b)(3)(iii)(J) of this section:
    (A) DF=Dilution factor, which is the volumetric ratio of the 
dilution air to the raw exhaust sample for total dilution, calculated 
as:
[GRAPHIC] [TIFF OMITTED] TR16AP98.013


Where:

WCO2=Carbon dioxide concentration of the raw exhaust sample, in percent 
(wet).
WCO2e=Carbon dioxide concentration of the dilute exhaust 
sample, in percent (wet).
WCO2d=Carbon dioxide concentration of the dilution air, in 
percent (wet).

    (B) Vmix=Diluted exhaust volumetric flow rate in cubic 
feet per hour corrected to standard conditions (528 deg.R, and 760 mm 
Hg).
    (C) Vf=Fraction of the total raw exhaust that is diluted 
for analysis.

=((CO2conc/102)=(COconc/106) 
    = (HCconc/
    106))(Vmix)(CMWf)/Vm/
    Mf

    (iii) Calculation of individual pollutants.
    (A) MHC mode=Hydrocarbon emissions, in grams per hour by 
mode, are calculated using the following equations:

MHC mode=(Vmix)(DensityHC)(HCconc
    /106)/Vf
HCconc=HCe-(HCd)(1-(1/DF))
HCe=FID 
    HCe-(rx)(Xe)

Where:

DensityHC=Density of hydrocarbons=16.42 g/ft3 
(0.5800 kg/m3) for # l petroleum diesel fuel, 16.27 g/
ft3 (0.5746 kg/m3) for #2 diesel, and 16.33 g/
ft3 (0.5767 kg/m3) for other fuels, assuming an 
average carbon to hydrogen ratio of 1:1.93 for #1 petroleum diesel fuel, 
1:1.80 for #2 petroleum diesel fuel, and 1:1.85 for hydrocarbons in 
other fuels at standard conditions.

[[Page 461]]

HCconc=Hydrocarbon concentration of the dilute exhaust sample 
corrected for background, in ppm carbon equivalent (i.e., equivalent 
propane x 3).
HCe=Hydrocarbon concentration of the dilute exhaust bag 
sample, or for diesel continuous heated sampling systems, average 
hydrocarbon concentration of the dilute exhaust sample as determined 
from the integrated HC traces, in ppm carbon equivalent. For petroleum-
fueled engines, HCe is the FID measurement. For methanol-
fueled and ethanol-fueled engines:
FID HCe=Concentration of hydrocarbon plus methanol, ethanol 
and acetaldehyde in dilute exhaust as measured by the FID, ppm carbon 
equivalent.
rx=FID response to oxygenated species x (methanol, ethanol or 
acetaldehyde).
Xe=Concentration of species x (methanol, ethanol or 
acetaldehyde) in dilute exhaust as determined from the dilute exhaust 
sample, ppm carbon.
HCd=Hydrocarbon concentration of the dilution air as 
measured, in ppm carbon equivalent.

    (B) MNOx mode = Oxides of nitrogen emissions, in grams 
per hour by mode, are calculated using the following equations:

MNOx mode=(Vmix) (DensityNO2) 
    (NOxconc/10 \6\) /Vf
NOxconc=(NOxe - NOxd (1-(1/DF)))

Where:

DensityNO2=Density of oxides of nitrogen is 54.16 g/ft\3\ 
(1.913 kg/m\3\), assuming they are in the form of nitrogen dioxide, at 
standard conditions.
NOxconc=Oxides of nitrogen concentration of the dilute 
exhaust sample corrected for background, in ppm.
NOxe=Oxides of nitrogen concentration of the dilute exhaust 
bag sample as measured, in ppm.
NOxd=Oxides of nitrogen concentration of the dilution air as 
measured, in ppm.

    (C) MCO2 mode=Carbon dioxide emissions, in grams per hour 
by mode, are calculated using the following equations:

MCO2 mode=(Vmix) (Density CO2) 
    (CO2conc/10\2\) /Vf

CO2conc=CO2e - CO2d (1 - (1/DF))

Where:

Density CO2=Density of carbon dioxide is 51.81 g/ft\3\ (1.830 
kg/m\3\), at standard conditions.
CO2conc=Carbon dioxide concentration of the dilute exhaust 
sample corrected for background, in percent.
CO2e=Carbon dioxide concentration of the dilute exhaust bag 
sample, in percent.
CO2d=Carbon dioxide concentration of the dilution air as 
measured, in percent.

    (D)(1) MCO mode=Carbon monoxide emissions, in grams per 
hour by mode, are calculated using the following equations:

MCO mode=(Vmix) (DensityCO) 
    (COconc/10\6\) /Vf

COconc=COe - COd (1 - (1/DF))

COd=(1 - 0.000323R)COdm

Where:

DensityCO=Density of carbon monoxide is 32.97 g/ft\3\ (1.164 
kg/m\3\), at standard conditions.
COconc=Carbon monoxide concentration of the dilute exhaust 
sample corrected for background, water vapor, and CO2 
extraction, ppm.
COe=Carbon monoxide concentration of the dilute exhaust 
sample volume corrected for water vapor and carbon dioxide extraction, 
in ppm.
COe=(1 - (0.01 = 0.005/) CO2e - 
0.000323RH)COem, where  is the hydrogen to carbon 
ratio as measured for the fuel used.
COem=Carbon monoxide concentration of the dilute exhaust 
sample as measured, in ppm.
RH = Relative humidity of the dilution air, percent.
COd=Carbon monoxide concentration of the dilution air 
corrected for water vapor extraction, in ppm.
COdm=Carbon monoxide concentration of the dilution air sample 
as measured, in ppm.

    (2) If a CO instrument which meets the criteria specified in 
Sec. 86.1311 of this chapter is used and the conditioning column has 
been deleted, COem must be substituted directly for 
COe, and COdm must be substituted directly for 
COd.

    (E) MCH4 mode=Methane emissions corrected for background, 
in gram per hour by mode, are calculated using the following equations:

MCH4 mode=(Vmix) (DensityCH4) 
    (CH4conc/10\6\) /Vf
CH4conc=CCH4e - CCH4d (1 - (1/DF))

Where:

DensityCH4=Density of methane is 18.89 g/ft\3\ at 68  deg.F 
(20  deg.C) and 760 mm Hg (101.3kPa) pressure.
CH4conc=Methane concentration of the dilute exhaust corrected 
for background, in ppm.
CCH4e=Methane concentration in the dilute exhaust, in ppm.
CCH4d=Methane concentration in the dilution air, in ppm.


[[Page 462]]


    (F) MCH3OH mode=Methanol emissions corrected for 
background, in gram per hour by mode, are calculated using the following 
equations:

MCH3OH mode=(Vmix)(DensityCH3OH) 
    (CH3OHconc/10\6\)/Vf
CH3OHconc=CCH3OHe-CCH3OHd(1-(1/DF))
CCH3OHe=((3.817) (10-2) 
    (TEM)(((CS1)(AVS1)) = 
    (CS2)(AVS2)))/
    ((PB)(VEM))
CCH3OHd=((3.817)(10-2)(TDM)(((CD1
    ) (AVD1)) = (CD2)(AVD2)))/
    ((PB)(VDM))

Where:

DensityCH3OH=Density of methanol is 37.71 g/ft\3\ (1.332 kg/
m\3\), at 68  deg.F (20  deg.C) and 760 mm Hg (101.3kPa) pressure.
CH3OHconc=Methanol concentration of the dilute exhaust 
corrected for background, in ppm.
CCH3OHe=Methanol concentration in the dilute exhaust, in ppm.
CCH3OHd=Methanol concentration in the dilution air, in ppm.
TEM=Temperature of methanol sample withdrawn from dilute 
exhaust,  deg.R.
TDM=Temperature of methanol sample withdrawn from dilution 
air,  deg.R.
PB=Barometric pressure during test, mm Hg.
VEM=Volume of methanol sample withdrawn from dilute exhaust, 
ft \3\.
VDM=Volume of methanol sample withdrawn from dilution air, ft 
\3\.
CS=GC concentration of aqueous sample drawn from dilute 
exhaust, g/ml.
CD=GC concentration of aqueous sample drawn from dilution 
air, g/ml.
AVS=Volume of absorbing reagent (deionized water) in impinger 
through which methanol sample from dilute exhaust is drawn, ml.
AVD=Volume of absorbing reagent (deionized water) in impinger 
through which methanol sample from dilution air is drawn, ml.
    1=first impinger.
    2=second impinger.

    (G) MC2H5OH mode=Ethanol emissions corrected for 
background, in gram per hour by mode, are calculated using the following 
equations:

MCH3CH2OH mode=(Vmix)(DensityCH3CH2OH) 
    ((CH3CH2OHconc/10 \6\))/
    Vf
CH3CH2OHconc=
      CCH3CH2OHe-CCH3CH2OHd(1-(1/DF))
CCH3CH2OHd=((2.654)(10-2)(TDM)(((CD1
    ) (AVD1)) = (CD2)(AVD2)))/
    ((PB)(VDM))
CCH3CH2OHe=((2.654)(10-2)(TEM
    )(((CS1) (AVS1)) = 
    (CS2)(AVS2)))/
    ((PB)(VEM))

Where:

DensityC2H5OH=Density of ethanol is 54.23 g/ft \3\ (1.915 kg/
m \3\), at 68  deg.F (20  deg.C) and 760 mm Hg (101.3kPa) pressure.
CH3CH2OHconc=Ethanol concentration of 
the dilute exhaust corrected for background, in ppm.
CCH3CH2OHe=Ethanol concentration in the dilute exhaust, in 
ppm.
CCH3CH2OHd=Ethanol concentration in the dilution air, in ppm.
TEM= Temperature of ethanol sample withdrawn from dilute 
exhaust,  deg.R.
TDM=Temperature of ethanol sample withdrawn from dilution 
air,  deg.R.
PB=Barometric pressure during test, mm Hg.
VEM=Volume of ethanol sample withdrawn from dilute exhaust, 
ft \3\.
VDM=Volume of ethanol sample withdrawn from dilution air, ft 
\3\.
CS=GC concentration of aqueous sample drawn from dilute 
exhaust, g/ml.
CD=GC concentration of aqueous sample drawn from dilution 
air, g/ml.
AVS= Volume of absorbing reagent (deionized water) in 
impinger through which ethanol sample from dilute exhaust is drawn, ml.
AVD=Volume of absorbing reagent (deionized water) in impinger 
through which ethanol sample from dilution air is drawn, ml.
    1=first impinger.
    2=second impinger.

    (H) MCH2O mode=Formaldehyde emissions corrected for 
background, in gram per hour by mode, are calculated using the following 
equations:

MCH2O mode=(Vmix)(DensityCH2O) 
    ((CH2Oconc/10 \6\)/Vf
CH2Oconc=CCH2Oe-CCH2Od(1-(1/DF))
CCH2Oe=((4.069)(10-2)(CFDE)(V
    AE)(Q) (TEF))/((VSE)(PB)
CCH2Od=((4.069)(10-2)(CFDA)(VAA
    ) (Q)(TDF))/(VSA)(PB)

Where:

DensityCH2O=Density of formaldehyde is 35.36 g/ft \3\ (1.249 
kg/m \3\), at 68  deg.F (20  deg.C) and 760 mmHg (101.3 kPa) pressure.
CH2Oconc=Formaldehyde concentration of the dilute exhaust 
corrected for background, ppm.
CCH2Oe=Formaldehyde concentration in dilute exhaust, ppm.
CCH2Od=Formaldehyde concentration in dilution air, ppm.
    CFDE=Concentration of DNPH derivative of formaldehyde 
from dilute exhaust sample in sampling solution, g/ml.
    VAE=Volume of sampling solution for dilute exhaust 
formaldehyde sample, ml.
    Q = Ratio of molecular weights of formaldehyde to its DNPH 
derivative = 0.1429.
    TEF=Temperature of formaldehyde sample withdrawn from 
dilute exhaust,  deg.R.
    VSE=Volume of formaldehyde sample withdrawn from dilute 
exhaust, ft3.
    PB=Barometric pressure during test, mm Hg.

[[Page 463]]

    CFDA=Concentration of DNPH derivative of formaldehyde 
from dilution air sample in sampling solution, g/ml.
    VAA=Volume of sampling solution for dilution air 
formaldehyde sample, ml.
    TDF=Temperature of formaldehyde sample withdrawn from 
dilution air,  deg.R.
    VSA=Volume of formaldehyde sample withdrawn from dilution 
air, ft3.

    (I) MCH3CHO mode=Acetaldehyde emissions corrected for 
background, in grams per hour by mode, are calculated using the 
following equations:

MCH3CHO mode= 
    (Vmix)(DensityCH3CHO)((CH3CHOconc
    /106)/Vf
CH3CHOconc=CCH3CHOe-CCH3CHOd(1--(1/DF))
CCH3CHOe=((2.774)(10-2) 
    (CADE)(VAE)(Q)(TEF))/
    ((VSE)(PB)
CCH3CHOd=((2.774)(10-2) 
    (CADA)(VAA)(Q)(TDF))/
    (VSA)(PB)

Where:

Density CH3CHO=Density of acetaldehyde is 51.88 g/
ft3 (1.833 kg/m3), at 68  deg.F (20  deg.C) and 
760 mmHg (101.3 kPa) pressure.
CH3CHOconc=Acetaldehyde concentration of the dilute exhaust 
corrected for background, ppm.
CCH3CHOe=Acetaldehyde concentration in dilute exhaust, ppm.
CCH3CHOd=Acetaldehyde concentration in dilution air, ppm.
CADE=Concentration of DNPH derivative of acetaldehyde from 
dilute exhaust sample in sampling solution, g/ml.
VAE=Volume of sampling solution for dilute exhaust 
acetaldehyde sample, ml.
Q=Ratio of molecular weights of acetaldehyde to its DNPH derivative
=0.182
TEF=Temperature of acetaldehyde sample withdrawn from dilute 
exhaust,  deg.R.
VSE=Volume of acetaldehyde sample withdrawn from dilute 
exhaust, ft3.
PB=Barometric pressure during test, mm Hg.
CADAConcentration of DNPH derivative of acetaldehyde from 
dilution air sample in sampling solution, g/ml.
VAA=Volume of sampling solution for dilution air acetaldehyde 
sample, ml.
TDF=Temperature of acetaldehyde sample withdrawn from 
dilution air,  deg.R.
VSA=Volume of acetaldehyde sample withdrawn from dilution 
air, ft3.

    (J) MNMHC mode=Nonmethane hydrocarbon emissions, in grams 
per hour by mode.

MNMHC mode=(Vmix)(DensityNMHC) 
    ((NMHCEconc/106))/Vf
NMHCconc=NMHCe--(NMHCd)(1-(1/DF))
NMHCe=FID HCe-(rm)(CCH4e)
NMHCd=FID HCd-(rm)(CCH4d)

Where:

DensityNMHC=Density of nonmethane hydrocarbons=16.42 g/
ft3 (0.5800 kg/m3) for # 1 petroleum diesel fuel, 
16.27 g/ft3 (0.5746 kg/m3) for #2 diesel, and 
16.33 for other fuels, assuming an average carbon to hydrogen ratio of 
1:1.93 for #1 petroleum diesel fuel, 1:1.80 for #2 petroleum diesel 
fuel, and 1:1.85 for nonmethane hydrocarbons in other fuels at standard 
conditions.
NMHCconc=Nonmethane hydrocarbon concentration of the dilute 
exhaust sample corrected for background, in ppm carbon equivalent (i.e., 
equivalent propane  x  3).
NMHCe=Nonmethane hydrocarbon concentration of the dilute 
exhaust bag sample:
FID HCe=Concentration of hydrocarbons in dilute exhaust as 
measured by the FID, ppm carbon equivalent.
rm=FID response to methane.
CCH4e=Concentration of methane in dilute exhaust as 
determined from the dilute exhaust sample.
NMHCd=Nonmethane hydrocarbon concentration of the dilution 
air:
FID HCd=Concentration of hydrocarbons in dilute exhaust as 
measured by the FID, ppm carbon equivalent.
rm=FID response to methane.
CCH4d=Concentration of methane in dilute exhaust as 
determined from the dilute exhaust sample, ppm.

    (4) Particulate exhaust emissions. The mass of particulate for a 
test mode determined from the following equations when a heat exchanger 
is used (i.e., no flow compensation), and when background filters are 
used to correct for background particulate levels:

MPM mode=Particulate emissions, grams per hour by mode.
MPM mode=(WVol) (PMconc) (1=DF)=(Vmix) 
    (PMconc)/Vf
PMconc=PMe-PMd (1-(1/DF))
PMe=MPMe/Vsampe/10 \3\
PMd=MPMd/Vsampd/10 \3\

Where:

PMconc=Particulate concentration of the diluted exhaust 
sample corrected for background, in g/ft \3\
MPMe=Measured mass of particulate for the exhaust sample, in 
mg, which is the difference in filter mass before and after the test.
MPMd=Measured mass of particulate for the dilution air 
sample, in mg, which is the difference in filter mass before and after 
the test.
Vsampe=Total wet volume of sample removed from the dilution 
tunnel for the exhaust

[[Page 464]]

particulate measurement, cubic feet at standard conditions.
Vsampd=Total wet volume of sample removed from the dilution 
tunnel for the dilution air particulate measurement, cubic feet at 
standard conditions.
DF=Dilution factor, which is the volumetric ratio of the dilution air to 
the raw exhaust sample, calculated as:
[GRAPHIC] [TIFF OMITTED] TR16AP98.014

    (c) Humidity calculations. (1) The following abbreviations (and 
units) apply to paragraph (b) of this section:

BARO=barometric pressure (Pa).
H=specific humidity, (g H2O/g of dry air).
KH=conversion factor=0.6220 g H2O/g dry air.
Mair=Molecular weight of air=28.9645.
MH2O=Molecular weight of water=18.01534.
PDB=Saturation vapor pressure of water at the dry bulb 
temperature (Pa).
PDP=Saturation vapor pressure of water at the dewpoint 
temperature (Pa).
Pv=Partial pressure of water vapor (Pa).
PWB=Saturation vapor pressure of water at the wet bulb 
temperature (Pa).
TDB=Dry bulb temperature (Kelvin).
TWB=Wet bulb temperature (Kelvin).
Y=Water-vapor volume concentration.

    (2) The specific humidity on a dry basis of the intake air (H) is 
defined as:

H=((KH) (Pv)/(BARO-Pv))

    (3) The partial pressure of water vapor may be determined using a 
dew point device. In that case:

Pv=PDP

    (4) The percent of relative humidity (RH) is defined as:

RH=(Pv/PDB)100

    (5) The water-vapor volume concentration on a dry basis of the 
engine intake air (Y) is defined as:

Y=((H)(Mair)/(MH2O)=Pv/
    (BARO-Pv)

    (d) NOX correction factor. (1) NOX emission 
rates (MNOx mode) shall be adjusted to account for the 
effects of humidity and temperature by multiplying each emission rate by 
KNOx, which is calculated from the following equations:

KNOx=(K)(1=(0.25(logK)2)1/2)
K=(KH)(KT)
KH=[C1=C2(exp((-0.0143)(10.714))]/
[C1=C2(exp((-0.0143)(1000H))]
C1=-8.7=164.5exp(-0.0218(A/F)wet)
C2=130.7=3941exp(-0.0248(A/F)wet)

Where:

(A/F)wet=Mass of moist air intake divided by mass of fuel 
intake.
KT=1/[1-0.017(T30-TA)] for tests 
conducted at ambient temperatures below 30  deg.C.
KT=1.00 for tests conducted at ambient temperatures at or 
above 30  deg.C.
T30=The measured intake manifold air temperature in the 
locomotive when operated at 30  deg.C (or 100  deg.C, where intake 
manifold air temperature is not available).
TA=The measured intake manifold air temperature in the 
locomotive as tested (or the ambient temperature (  deg.C), where intake 
manifold air temperature is not available).

    (e) Other calculations. Calculations other than those specified in 
this section may be used with the advance approval of the Administrator.



Sec. 92.133  Required information.

    (a) The required test data shall be grouped into the following two 
general categories:
    (1) Pre-test data. These data are general test data that must be 
recorded for each test. The data are of a more descriptive nature such 
as identification of the test engine, test site number, etc. As such, 
these data can be recorded at any time within 24 hours of the test.
    (2) Test data. These data are physical test data that must be 
recorded at the time of testing.
    (b) When requested, data shall be supplied in the format specified 
by the Administrator.
    (c) Pre-test data. The following shall be recorded, and reported to 
the Administrator for each test conducted for compliance with the 
provisions of this part:
    (1) Engine family identification (including subfamily 
identification, such as for aftertreatment systems).
    (2) Locomotive and engine identification, including model, 
manufacturer

[[Page 465]]

and/or remanufacturer, and identification number.
    (3) Locomotive and engine parameters, including fuel type, 
recommended oil type, exhaust configuration and sizes, base injection 
(ignition) timing, operating temperature, advance/retard injection 
(ignition) timing controls, recommended start-up and warm-up procedures, 
alternator generator efficiency curve.
    (4) Locomotive or engine and instrument operator(s).
    (5) Number of hours of operation accumulated on the locomotive or 
engine prior to beginning the testing.
    (6) Dates of most recent calibrations required by Secs. 92.115-
92.122.
    (7) All pertinent instrument information such as tuning (as 
applicable), gain, serial numbers, detector number, calibration curve 
number, etc. As long as this information is traceable, it may be 
summarized by system or analyzer identification numbers.
    (8) A description of the exhaust duct and sample probes, including 
dimensions and locations.
    (d) Test data. The physical parameters necessary to compute the test 
results and ensure accuracy of the results shall be recorded for each 
test conducted for compliance with the provisions of this part. 
Additional test data may be recorded at the discretion of the 
manufacturer or remanufacturer. Extreme details of the test measurements 
such as analyzer chart deflections will generally not be required on a 
routine basis to be reported to the Administrator for each test, unless 
a dispute about the accuracy of the data arises. The following types of 
data shall be required to be reported to the Administrator. The 
applicable Application Format for Certification will specify the exact 
requirements which may change slightly from year to year with the 
addition or deletion of certain items.
    (1) Date and time of day.
    (2) Test number.
    (3) Engine intake air and test cell (or ambient, as applicable) 
temperature.
    (4) For each test point, the temperature of air entering the engine 
after compression and cooling in the charge air cooler(s). If testing is 
not performed on a locomotive, the corresponding temperatures when the 
engine is in operation in a locomotive at ambient conditions represented 
by the test.
    (5) Barometric pressure. (A central laboratory barometer may be 
used: Provided, that individual test cell barometric pressures are shown 
to be within 0.1 percent of the barometric pressure at the 
central barometer location.)
    (6) Engine intake and test cell dilution air humidity.
    (7) Measured horsepower and engine speed for each test mode.
    (8) Identification and specifications of test fuel used.
    (9) Measured fuel consumption rate at maximum power.
    (10) Temperature set point of the heated continuous analysis system 
components (if applicable).
    (11) All measured flow rates, dilution factor, and fraction of 
exhaust diluted for diluted exhaust measurements (as applicable) for 
each test mode.
    (12) Temperature of the dilute exhaust mixture at the inlet to the 
respective gas meter(s) or flow instrumentation used for particulate 
sampling.
    (13) The maximum temperature of the dilute exhaust mixture 
immediately ahead of the particulate filter.
    (14) Sample concentrations (background corrected as applicable) for 
HC, CO, CO2, and NOX (and methane, NMHC, alcohols 
and aldehydes, as applicable) for each test mode. This includes the 
continuous trace and the steady-state value (or integrated value where 
required).
    (15) The stabilized pre-test weight and post-test weight of each 
particulate sample and back-up filter or pair of filters.
    (16) Brake specific emissions (g/BHP-hr) for HC, CO, NOX, 
particulate and, if applicable, CH3, NMHC, THCE, CH3OH, 
CH3CH2OH, CH2O and CH3CHO for each test mode.
    (17) The weighted brake specific emissions for HC, CO, 
NOX and particulate (g/BHP-hr) for the total test for the 
duty-cycle(s) applicable to the locomotive.
    (18) The smoke opacity for each test mode. This includes the 
continuous trace, the peak values and the steady-state value.

[[Page 466]]


    Effective Date Note: At 63 FR 19044, Apr. 16, 1998, Sec. 92.133 was 
added. This section contains information collection and recordkeeping 
requirements and will not become effective until approval has been given 
by the Office of Management and Budget.



                   Subpart C--Certification Provisions



Sec. 92.201  Applicability.

    The requirements of this subpart are applicable to manufacturers and 
remanufacturers of any locomotives and locomotive engines subject to the 
provisions of subpart A of this part.



Sec. 92.202  Definitions.

    The definitions of subpart A of this part apply to this subpart.



Sec. 92.203  Application for certification.

    (a) For each engine family that complies with all applicable 
standards and requirements, the manufacturer or remanufacturer must 
submit to the Administrator a completed application for a certificate of 
conformity.
    (b) The application must be approved and signed by the authorized 
representative of the manufacturer or remanufacturer.
    (c) The application will be updated and corrected by amendment as 
provided for in Sec. 92.210 to accurately reflect the manufacturer's or 
remanufacturer's production.
    (d) Required content. Each application must include the following 
information:
    (1)(i) A description of the basic engine design including, but not 
limited to, the engine family specifications, the provisions of which 
are contained in Sec. 92.208;
    (ii)(A) For freshly manufactured locomotives, a description of the 
basic locomotive design;
    (B) For freshly manufactured engines for use in remanufactured 
locomotives, a description of the locomotive designs in which the 
engines are to be used;
    (C) For remanufactured locomotives, a description of the basic 
locomotive designs to which the remanufacture system will be applied;
    (iii) A list of distinguishable configurations to be included in the 
engine family;
    (2) An explanation of how the emission control system operates, 
including detailed descriptions of:
    (i) All emission control system components;
    (ii) Injection or ignition timing for each notch (i.e., degrees 
before or after top-dead-center), and any functional dependence of such 
timing on other operational parameters (e.g., engine coolant 
temperature);
    (iii) Each auxiliary emission control device (AECD); and
    (iv) All fuel system components to be installed on any production or 
test locomotive(s) or engine(s);
    (3) A description of the test locomotive or engine;
    (4) Special or alternate test procedures, if applicable;
    (5) A description of the operating cycle and the period of operation 
necessary to accumulate service hours on the test locomotive or engine 
and stabilize emission levels;
    (6) A description of all adjustable operating parameters (including, 
but not limited to, injection timing and fuel rate), including the 
following:
    (i) The nominal or recommended setting and the associated production 
tolerances;
    (ii) The intended adjustable range, and the physically adjustable 
range;
    (iii) The limits or stops used to limit adjustable ranges;
    (iv) Production tolerances of the limits or stops used to establish 
each physically adjustable range; and
    (v) Information relating to why the physical limits or stops used to 
establish the physically adjustable range of each parameter, or any 
other means used to inhibit adjustment, are the most effective means 
possible of preventing adjustment of parameters to settings outside the 
manufacturer's or remanufacturer's specified adjustable ranges on in-use 
engines;
    (7) For families participating in the averaging, banking, and 
trading program, the information specified in subpart D of this part;
    (8) Projected U.S. production information for each configuration;
    (9) A description of the test equipment and fuel proposed to be 
used;

[[Page 467]]

    (10) All test data obtained by the manufacturer or remanufacturer on 
each test engine or locomotive;
    (11) The intended useful life period for the engine family, in 
accordance with Sec. 92.9(a);
    (12) The intended deterioration factors for the engine family, in 
accordance with Sec. 92.9(b)(2);
    (13) An unconditional statement certifying that all locomotives and 
engines included the engine family comply with all requirements of this 
part and the Clean Air Act.
    (e) At the Administrator's request, the manufacturer or 
remanufacturer must supply such additional information as may be 
required to evaluate the application.
    (f)(1) If the manufacturer or remanufacturer, submits some or all of 
the information specified in paragraph (d) of this section in advance of 
its full application for certification, the Administrator shall review 
the information and make the determinations required in Sec. 92.208(d) 
within 90 days of the manufacturer's or remanufacturer's submittal.
    (2) The 90-day decision period is exclusive of any elapsed time 
during which EPA is waiting for additional information requested from a 
manufacturer or remanufacturer regarding an adjustable parameter (the 
90-day period resumes upon receipt of the manufacturer's or 
remanufacturer's response). For example, if EPA requests additional 
information 30 days after the manufacturer or remanufacturer submits 
information under paragraph (f)(1) of this section, then the 
Administrator would make a determination within 60 days of the receipt 
of the requested information from the manufacturer or remanufacturer.
    (g)(1) The Administrator may modify the information submission 
requirements of paragraph (d) of this section, provided that all of the 
information specified therein is maintained by the manufacturer or 
remanufacturer as required by Sec. 92.215, and amended, updated, or 
corrected as necessary.
    (2) For the purposes of this paragraph (g), Sec. 92.215 includes all 
information specified in paragraph (d) of this section whether or not 
such information is actually submitted to the Administrator for any 
particular model year.
    (3) The Administrator may review a manufacturer's or 
remanufacturer's records at any time. At the Administrator's discretion, 
this review may take place either at the manufacturer's or 
remanufacturer's facility or at another facility designated by the 
Administrator.



Sec. 92.204  Designation of engine families.

    This section specifies the procedure and requirements for grouping 
of engines into engine families.
    (a) Manufacturers and remanufacturers shall divide their locomotives 
and locomotive engines into groupings of locomotives and locomotive 
engines which are expected to have similar emission characteristics 
throughout their useful life. Each group shall be defined as a separate 
engine family.
    (b) For Tier 1 and Tier 2 locomotives and locomotive engines, the 
following characteristics distinguish engine families:
    (1) The combustion cycle (e.g., diesel cycle);
    (2) The type of engine cooling employed (air-cooled or water-
cooled), and procedure(s) employed to maintain engine temperature within 
desired limits (thermostat, on-off radiator fan(s), radiator shutters, 
etc.);
    (3) The bore and stroke dimensions;
    (4) The approximate intake and exhaust event timing and duration 
(valve or port);
    (5) The location of the intake and exhaust valves (or ports);
    (6) The size of the intake and exhaust valves (or ports);
    (7) The overall injection, or as appropriate ignition, timing 
characteristics (i.e., the deviation of the timing curves from the 
optimal fuel economy timing curve must be similar in degree);
    (8) The combustion chamber configuration and the surface-to-volume 
ratio of the combustion chamber when the piston is at top dead center 
position, using nominal combustion chamber dimensions;
    (9) The location of the piston rings on the piston;
    (10) The method of air aspiration (turbocharged, supercharged, 
naturally aspirated, Roots blown);

[[Page 468]]

    (11) The turbocharger or supercharger general performance 
characteristics (e.g., approximate boost pressure, approximate response 
time, approximate size relative to engine displacement);
    (12) The type of air inlet cooler (air-to-air, air-to-liquid, 
approximate degree to which inlet air is cooled);
    (13) The intake manifold induction port size and configuration;
    (14) The type of fuel and fuel system configuration;
    (15) The configuration of the fuel injectors and approximate 
injection pressure;
    (16) The type of fuel injection system controls (i.e., mechanical or 
electronic);
    (17) The type of smoke control system;
    (18) The exhaust manifold port size and configuration; and
    (19) The type of exhaust aftertreatment system (oxidation catalyst, 
particulate trap), and characteristics of the aftertreatment system 
(catalyst loading, converter size vs engine size).
    (c) For Tier 0 locomotives and locomotive engines, the following 
characteristics distinguish engine families:
    (1) The combustion cycle (e.g., diesel cycle);
    (2) The type of engine cooling employed (air-cooled or water-
cooled), and procedure(s) employed to maintain engine temperature within 
desired limits (thermostat, on-off radiator fan(s), radiator shutters, 
etc.);
    (3) The approximate bore and stroke dimensions;
    (4) The approximate location of the intake and exhaust valves (or 
ports);
    (5) The combustion chamber general configuration and the approximate 
surface-to-volume ratio of the combustion chamber when the piston is at 
top dead center position, using nominal combustion chamber dimensions;
    (6) The method of air aspiration (turbocharged, supercharged, 
naturally aspirated, Roots blown);
    (7) The type of air inlet cooler (air-to-air, air-to-liquid, 
approximate degree to which inlet air is cooled);
    (8) The type of fuel and general fuel system configuration;
    (9) The general configuration of the fuel injectors and approximate 
injection pressure; and
    (10) The fuel injection system control type (electronic or 
mechanical).
    (d) Upon request by the manufacturer or remanufacturer, locomotives 
or locomotive engines that are eligible to be included in the same 
engine family based on the criteria in paragraph (b) or (c) of this 
section may be divided into different engine families. This request must 
be accompanied by information the manufacturer or remanufacturer 
believes supports the addition of these different engine families. For 
the purposes of determining whether an engine family is a small engine 
family in Sec. 92.603(a)(2), EPA will consider the number of locomotives 
or locomotive engines that could have been classed together under 
paragraph (b) or (c) of this section, instead of the number of 
locomotives or locomotive engines that are included in a subdivision 
allowed by this paragraph (d).
    (e) Upon request by the manufacturer or remanufacturer, the 
Administrator may allow locomotives or locomotive engines that would be 
required to be grouped into separate engine families based on the 
criteria in paragraph (b) or (c) of this section to be grouped into a 
single engine family if the manufacturer or remanufacturer demonstrates 
that similar emission characteristics will occur. This request must be 
accompanied by emission information supporting the appropriateness of 
such combined engine families.



Sec. 92.205  Prohibited controls, adjustable parameters.

    (a) Any system installed on, or incorporated in, a new locomotive or 
new locomotive engine to enable such locomotive or locomotive engine to 
conform to standards contained in this subpart:
    (1) Shall not in its operation or function cause significant (as 
determined by the Administrator) emission into the ambient air of any 
noxious or toxic substance that would not be emitted in the operation of 
such locomotive, or locomotive engine, without such system, except as 
specifically permitted by regulation;

[[Page 469]]

    (2) Shall not in its operation, function or malfunction result in 
any unsafe condition endangering the locomotive, its operators, riders 
or property on a train, or persons or property in close proximity to the 
locomotive; and
    (3) Shall function during all in-use operation except as otherwise 
allowed by this part.
    (b) In specifying the adjustable range of each adjustable parameter 
on a new locomotive or new locomotive engine, the manufacturer or 
remanufacturer, shall:
    (1) Ensure that safe locomotive operating characteristics are 
available within that range, as required by section 202(a)(4) of the 
Clean Air Act, taking into consideration the production tolerances; and
    (2) To the maximum extent practicable, limit the physical range of 
adjustability to that which is necessary for proper operation of the 
locomotive or locomotive engine.



Sec. 92.206  Required information.

    (a) The manufacturer or remanufacturer shall perform the tests 
required by the applicable test procedures, and submit to the 
Administrator the information required by this section: Provided, 
however, that if requested by the manufacturer or remanufacturer, the 
Administrator may waive any requirement of this section for testing of 
locomotives, or locomotive engines, for which the required emission data 
are otherwise available.
    (b) Exhaust emission deterioration factors, with supporting data. 
The determination of the deterioration factors shall be conducted in 
accordance with good engineering practice to assure that the locomotives 
or locomotive engines covered by a certificate issued under Sec. 92.208 
will meet the emission standards in Sec. 92.8, in actual use for the 
useful life of the locomotive or locomotive engine.
    (c) Emission data, including exhaust methane data in the case of 
locomotives or locomotive engines subject to a non-methane hydrocarbon 
standard, on such locomotives or locomotive engines tested in accordance 
with applicable test procedures of subpart B of this part. These data 
shall include zero hour data, if generated. In lieu of providing the 
emission data required by paragraph (a) of this section, the 
Administrator may, upon request of the manufacturer or remanufacturer, 
allow the manufacturer or remanufacturer to demonstrate (on the basis of 
previous emission tests, development tests, or other testing 
information) that the engine or locomotive will conform with the 
applicable emission standards of Sec. 92.8.
    (d) A statement that the locomotives and locomotive engines, for 
which certification is requested conform to the requirements in 
Sec. 92.7, and that the descriptions of tests performed to ascertain 
compliance with the general standards in Sec. 92.7, and the data derived 
from such tests, are available to the Administrator upon request.
    (e) A statement that the locomotive, or locomotive engine, with 
respect to which data are submitted to demonstrate compliance with the 
applicable standards of this subpart, is in all material respects as 
described in the manufacturer's or remanufacturer's application for 
certification; that it has been tested in accordance with the applicable 
test procedures utilizing the fuels and equipment described in the 
application for certification; and that on the basis of such tests, the 
engine family conforms to the requirements of this part. If, on the 
basis of the data supplied and any additional data as required by the 
Administrator, the Administrator determines that the test locomotive, or 
test engine, was not as described in the application for certification 
or was not tested in accordance with the applicable test procedures 
utilizing the fuels and equipment as described in the application for 
certification, the Administrator may make the determination that the 
locomotive, or engine, does not meet the applicable standards. If the 
Administrator makes such a determination, he/she may withhold, suspend, 
or revoke the certificate of conformity under Sec. 92.208(c)(3)(i).



Sec. 92.207  Special test procedures.

    (a) Establishment of special test procedures by EPA. The 
Administrator may, on the basis of written application by a manufacturer 
or remanufacturer, establish special test procedures other

[[Page 470]]

than those set forth in this part, for any locomotive or locomotive 
engine that the Administrator determines is not susceptible to 
satisfactory testing under the specified test procedures set forth in 
subpart B of this part.
    (b) Use of alternate test procedures by manufacturer or 
remanufacturer. (1) A manufacturer or remanufacturer may elect to use an 
alternate test procedure provided that it is equivalent to the specified 
procedures with respect to the demonstration of compliance, its use is 
approved in advance by the Administrator, and the basis for the 
equivalence with the specified test procedures is fully described in the 
manufacturer's or remanufacturer's application.
    (2) The Administrator may reject data generated under alternate test 
procedures which do not correlate with data generated under the 
specified procedures.



Sec. 92.208  Certification.

    (a) Paragraph (a) of this section applies to manufacturers of new 
locomotives and new locomotive engines. If, after a review of the 
application for certification, test reports and data acquired from a 
freshly manufactured locomotive or locomotive engine or from a 
development data engine, and any other information required or obtained 
by EPA, the Administrator determines that the application is complete 
and that the engine family meets the requirements of the Act and this 
part, he/she will issue a certificate of conformity with respect to such 
engine family except as provided by paragraph (c)(3) of this section. 
The certificate of conformity is valid for each engine family from the 
date of issuance by EPA until 31 December of the model year or calendar 
year in which it is issued and upon such terms and conditions as the 
Administrator deems necessary or appropriate to assure that the 
production locomotives or engines covered by the certificate will meet 
the requirements of the Act and of this part.
    (b) This paragraph (b) applies to remanufacturers of locomotives and 
locomotive engines. If, after a review of the application for 
certification, test reports and data acquired from a remanufactured 
locomotive or locomotive engine or from a development data engine, and 
any other information required or obtained by EPA, the Administrator 
determines that the engine family meets the requirements of the Act and 
of this subpart, he/she will issue a certificate of conformity with 
respect to such engine family except as provided by paragraph (c)(3) of 
this section. The certificate of conformity is valid for each engine 
family from the date of issuance by EPA until 31 December of the model 
year or calendar year in which it is issued and upon such terms and 
conditions as the Administrator deems necessary or appropriate to assure 
that the production locomotives or engines covered by the certificate 
will meet the requirements of the Act and of this part.
    (c) This paragraph (c) applies to manufacturers and remanufacturers 
of locomotives and locomotive engines.
    (1) The manufacturer or remanufacturer shall bear the burden of 
establishing to the satisfaction of the Administrator that the 
conditions upon which the certificates were issued were satisfied or 
excused.
    (2) The Administrator will determine whether the test data included 
in the application represents all locomotives or locomotive engines of 
the engine family.
    (3) Notwithstanding the fact that any locomotive(s) or locomotive 
engine(s) may comply with other provisions of this subpart, the 
Administrator may withhold or deny the issuance of any certificate of 
conformity, or suspend or revoke any such certificate(s) which has 
(have) been issued with respect to any such locomotive(s) or locomotive 
engine(s) if:
    (i) The manufacturer or remanufacturer submits false or incomplete 
information in its application for certification thereof;
    (ii) The manufacturer or remanufacturer renders inaccurate any test 
data which it submits pertaining thereto or otherwise circumvents the 
intent of the Act, or of this part with respect to such locomotive or 
locomotive engine;
    (iii) Any EPA Enforcement Officer is denied access on the terms 
specified in Sec. 92.215 to any facility or portion thereof which 
contains any of the following:

[[Page 471]]

    (A) A locomotive or locomotive engine which is scheduled to undergo 
emissions testing, or which is undergoing emissions testing, or which 
has undergone emissions testing; or
    (B) Any components used or considered for use in the construction, 
modification or buildup of any locomotive or locomotive engine which is 
scheduled to undergo emissions testing, or which is undergoing emissions 
testing, or which has undergone emissions testing for purposes of 
emissions certification; or
    (C) Any production locomotive or production locomotive engine which 
is or will be claimed by the manufacturer or remanufacturer to be 
covered by the certificate; or
    (D) Any step in the construction of a locomotive or locomotive 
engine, where such step may reasonably be expected to have an effect on 
emissions; or
    (E) Any records, documents, reports or histories required by this 
part to be kept concerning any of the items listed in paragraphs 
(c)(3)(iii)(A) through (D).
    (iv) Any EPA Enforcement Officer is denied ``reasonable assistance'' 
(as defined in Sec. 92.215).
    (4) In any case in which a manufacturer or remanufacturer knowingly 
submits false or inaccurate information or knowingly renders inaccurate 
or invalid any test data or commits any other fraudulent acts and such 
acts contribute substantially to the Administrator's decision to issue a 
certificate of conformity, the Administrator may deem such certificate 
void ab initio.
    (5) In any case in which certification of a locomotive or locomotive 
engine is to be withheld, denied, revoked or suspended under paragraph 
(c)(3) of this section, and in which the Administrator has presented to 
the manufacturer or remanufacturer involved reasonable evidence that a 
violation of Sec. 92.215 in fact occurred, the manufacturer or 
remanufacturer, if it wishes to contend that, even though the violation 
occurred, the locomotive or locomotive engine in question was not 
involved in the violation to a degree that would warrant withholding, 
denial, revocation or suspension of certification under paragraph (c)(3) 
of this section, shall have the burden of establishing that contention 
to the satisfaction of the Administrator.
    (6) Any revocation, suspension, or voiding of certification under 
paragraph (c)(3) of this section shall:
    (i) Be made only after the manufacturer or remanufacturer concerned 
has been offered an opportunity for a hearing conducted in accordance 
with Sec. 92.216; and
    (ii) Extend no further than to forbid the introduction into commerce 
of locomotives or locomotive engines previously covered by the 
certification which are still in the hands of the manufacturer or 
remanufacturer, except in cases of such fraud or other misconduct that 
makes the certification invalid ab initio.
    (7) The manufacturer or remanufacturer may request, within 30 days 
of receiving notification, that any determination made by the 
Administrator under paragraph (c)(3) of this section to withhold or deny 
certification be reviewed in a hearing conducted in accordance with 
Sec. 92.216. The request shall be in writing, signed by an authorized 
representative of the manufacturer or remanufacturer as applicable, and 
shall include a statement specifying the manufacturer's or 
remanufacturer's objections to the Administrator's determinations, and 
data in support of such objections. If the Administrator finds, after a 
review of the request and supporting data, that the request raises a 
substantial factual issue, he/she will grant the request with respect to 
such issue.
    (d) In approving an application for certification, the Administrator 
may specify:
    (1) A broader range of adjustability than recommended by the 
manufacturer or remanufacturer for those locomotive or engine parameters 
which are to be subject to adjustment, if the Administrator determines 
that it will not be practical to keep the parameter adjusted within the 
recommended range in use;
    (2) A longer useful life period, if the Administrator determines 
that the useful life of the locomotives and locomotive engines in the 
engine family, as

[[Page 472]]

defined in Sec. 92.2, is longer than the period specified by the 
manufacturer or remanufacturer; and/or
    (3) Larger deterioration factors, if the Administrator determines 
that the deterioration factors specified by the manufacturer or 
remanufacturer do not meet the requirements of Sec. 92.9(b)(2)(iv).
    (e) Within 30 days following receipt of notification of the 
Administrator's determinations made under paragraph (d) of this section, 
the manufacturer or remanufacturer may request a hearing on the 
Administrator's determinations. The request shall be in writing, signed 
by an authorized representative of the manufacturer or remanufacturer as 
applicable, and shall include a statement specifying the manufacturer's 
or remanufacturer's objections to the Administrator's determinations, 
and data in support of such objections. If, after review of the request 
and supporting data, the Administrator finds that the request raises a 
substantial factual issue, the manufacturer or remanufacturer shall be 
provided with a hearing in accordance with Sec. 92.216 with respect to 
such issue.



Sec. 92.209  Certification with multiple manufacturers or remanufacturers.

    (a) Where there are multiple persons meeting the definition of 
manufacturer or remanufacturer, each such person must comply with the 
requirements of this part that apply to manufacturers or 
remanufacturers. However, if one person complies with a requirement, 
then all such persons will be deemed to have complied with that specific 
requirement.
    (b) Where more than one entity meets the definition of manufacturer 
or remanufacturer for a particular locomotive or locomotive engine, and 
any one of the manufacturers or remanufacturers obtains a certificate of 
conformity covering such locomotive or locomotive engine, the 
requirements of subparts C, D, F, and G of this part shall apply to the 
manufacturer or remanufacturer that obtains the certificate of 
conformity. Other manufacturers or remanufacturers are required to 
comply with the requirements of subparts C, D, F, and G of this part 
only when notified by the Administrator. Such notification by the 
Administrator shall specify a reasonable time period in which the 
manufacturer or remanufacturer shall comply with the requirements 
identified in the notice.



Sec. 92.210  Amending the application and certificate of conformity.

    (a) The manufacturer or remanufacturer of locomotives or locomotive 
engines must notify the Administrator when changes to information 
required to be described in the application for certification are to be 
made to a product line covered by a certificate of conformity. This 
notification must include a request to amend the application or the 
existing certificate of conformity. Except as provided in paragraph (e) 
of this section, no manufacturer or remanufacturer shall make said 
changes or produce said locomotives or engines prior to receiving 
approval from EPA.
    (b) A manufacturer's or remanufacturer's request to amend the 
application or the existing certificate of conformity shall include the 
following information:
    (1) A full description of the change to be made in production, or of 
the locomotive or engine to be added;
    (2) Engineering evaluations or data showing that locomotives or 
engines as modified or added will comply with all applicable emission 
standards; and
    (3) A determination whether the manufacturer's or remanufacturer's 
original test fleet selection is still appropriate, and if the original 
test fleet selection is determined not to be appropriate, test fleet 
selection(s) representing the locomotives or engines changed or added 
which would have been required if the locomotives or engines had been 
included in the original application for certification.
    (c) The Administrator may require the manufacturer or remanufacturer 
to perform tests on the locomotive or engine representing the locomotive 
or engine to be added or changed.
    (d) Decision by Administrator. (1) Based on the description of the 
amendment and data derived from such testing as the Administrator may 
require or conduct, the Administrator will determine whether the change 
or addition would still be covered by the certificate of conformity then 
in effect.

[[Page 473]]

    (2) If the Administrator determines that the change or new 
locomotive(s) or engine(s) meets the requirements of this subpart and 
the Act, the appropriate certificate of conformity shall be amended.
    (3) If the Administrator determines that the changed or new 
locomotive(s) or engine(s) does not meet the requirements of this 
subpart and the Act, the certificate of conformity will not be amended. 
The Administrator shall provide a written explanation to the 
manufacturer or remanufacturer of the decision not to amend the 
certificate. The manufacturer or remanufacturer may request a hearing on 
a denial.
    (e) A manufacturer or remanufacturer may make changes in or 
additions to production locomotives or engines concurrently with the 
notification to the Administrator as required by paragraph (a) of this 
section, if the manufacturer or remanufacturer complies with the 
following requirements:
    (1) In addition to the information required in paragraph (b) of this 
section, the manufacturer or remanufacturer must supply supporting 
documentation, test data, and engineering evaluations as appropriate to 
demonstrate that all affected locomotives and engines will still meet 
applicable emission standards.
    (2) If, after a review, the Administrator determines additional 
testing is required, the manufacturer or remanufacturer must provide 
required test data within 30 days or cease production of the affected 
locomotives or engines.
    (3) If the Administrator determines that the affected locomotives or 
engines do not meet applicable requirements, the Administrator will 
notify the manufacturer or remanufacturer to cease production of the 
affected locomotives or engines and to recall and correct at no expense 
to the owner all affected locomotives or engines previously produced.
    (4) Election to produce locomotives or engines under this paragraph 
will be deemed to be a consent to recall all locomotives or engines 
which the Administrator determines do not meet applicable standards and 
to cause such nonconformity to be remedied at no expense to the owner.



Sec. 92.211  Emission-related maintenance instructions for purchasers.

    (a) The manufacturer or remanufacturer shall furnish or cause to be 
furnished to the ultimate purchaser or owner of each new locomotive, or 
new locomotive engine, subject to the standards prescribed in Sec. 92.8, 
written instructions for the proper maintenance and use of the 
locomotive, or locomotive engine, as are reasonable and necessary to 
assure the proper functioning of the emissions control system, 
consistent with the applicable provisions of paragraph (b) of this 
section.
    (1) The maintenance and use instructions required by this section 
shall be clear and easily understandable.
    (2) The maintenance instructions required by this section shall 
contain a general description of the documentation which would 
demonstrate that the ultimate purchaser or any subsequent owner had 
complied with the instructions.
    (b)(1) The manufacturer or remanufacturer must provide in boldface 
type on the first page of the written maintenance instructions notice 
that maintenance, replacement, or repair of the emission control devices 
and systems may be performed by any locomotive or locomotive engine 
repair establishment or individual.
    (2) The instructions under paragraph (b)(1) of this section will not 
include any condition on the ultimate purchaser's or owner's using, in 
connection with such locomotive or locomotive engine, any component or 
service (other than a component or service provided without charge under 
the terms of the purchase agreement) which is identified by brand, 
trade, or corporate name. Such instructions also will not directly or 
indirectly distinguish between service performed by any other service 
establishments with which such manufacturer or remanufacturer has a 
commercial relationship and service performed by independent locomotive 
or locomotive engine repair facilities which such manufacturer or 
remanufacturer has no commercial relationship.
    (3) The prohibition of paragraph (b)(2) of this section may be 
waived by the Administrator if:

[[Page 474]]

    (i) The manufacturer or remanufacturer satisfies the Administrator 
that the locomotive or locomotive engine will function properly only if 
the component or service so identified is used in connection with such 
locomotive or locomotive engine; and
    (ii) The Administrator finds that such a waiver is in the public 
interest.
    (c) The manufacturer or remanufacturer shall provide to the 
Administrator, no later than the time of the submission required by 
Sec. 92.203, a copy of the emission-related maintenance instructions 
which the manufacturer or remanufacturer proposes to supply to the 
ultimate purchaser or owner in accordance with this section. The 
Administrator will review such instructions to determine whether they 
are reasonable and necessary to assure the proper functioning of the 
locomotive's, or locomotive engine's emission control systems. If the 
Administrator determines that such instructions are not reasonable and 
necessary to assure the proper functioning of the emission control 
systems, he/she may disapprove the application for certification, or may 
require that the manufacturer or remanufacturer modify the instructions.
    (d) Any revision to the maintenance instructions which will affect 
emissions shall be supplied to the Administrator at least 30 days before 
being supplied to the ultimate purchaser or owner unless the 
Administrator consents to a lesser period of time, and is subject to the 
provisions of Sec. 92.210.



Sec. 92.212  Labeling.

    (a) General requirements. Each new locomotive and new locomotive 
engine, subject to the emission standards of this part and covered by a 
certificate of conformity under Sec. 92.208, shall be labeled by the 
manufacturer or remanufacturer in the manner described in this section 
at the time of manufacture or remanufacture.
    (b) Locomotive labels. (1) Locomotive labels meeting the 
specifications of paragraph (b)(2) of this section shall be applied by:
    (i) The manufacturer at the point of original manufacture; and
    (ii) The remanufacturer at the point of original remanufacture; and
    (iii) Any remanufacturer certifying a locomotive or locomotive 
engine to an FEL different from the last FEL or standard to which the 
locomotive was previously certified.
    (2)(i) Locomotive labels shall be permanent and legible and shall be 
affixed to the locomotive in a position in which it will remain readily 
visible.
    (ii) The label shall be attached to a locomotive part necessary for 
normal operation and not normally requiring replacement during the 
service life of the locomotive.
    (iii) The label shall be affixed by the manufacturer or 
remanufacturer, in such manner that it cannot be removed without 
destroying or defacing the label. The label shall not be affixed to any 
equipment which is easily detached from such locomotive.
    (iv) The label may be made up of more than one piece, provided that 
all pieces are permanently attached to the same locomotive part.
    (v) The label shall contain the following information lettered in 
the English language in block letters and numerals, which shall be of a 
color that contrasts with the background of the label:
    (A) The label heading: Original Locomotive Emission Control 
Information.
    (B) Full corporate name and trademark of the manufacturer or 
remanufacturer.
    (C) Engine family and configuration identification.
    (D) A prominent unconditional statement of compliance with U.S. 
Environmental Protection Agency regulations which apply to locomotives 
and locomotive engines, as applicable:
    (1) This locomotive conforms to U.S. EPA regulations applicable to 
locomotives originally manufactured prior to January 1, 2002; or
    (2) This locomotive conforms to U.S. EPA regulations applicable to 
locomotives originally manufactured on or after January 1, 2002, but 
before January 1, 2005; or
    (3) This locomotive conforms to U.S. EPA regulations applicable to 
locomotives originally manufactured on or after January 1, 2005.
    (E) Date of locomotive original manufacture.
    (F) The useful life of the locomotive.

[[Page 475]]

    (G) The standards and/or FELS to which the locomotive was certified.
    (c) Engine labels. (1) Engine labels meeting the specifications of 
paragraph (c)(2) of this section shall be applied by:
    (i) Every manufacturer at the point of original manufacture; and
    (ii) Every remanufacturer at the point of remanufacture.
    (2)(i) Engine labels shall be permanent and legible and shall be 
affixed to the engine in a position in which it will be readily visible 
after installation of the engine in the locomotive.
    (ii) The label shall be attached to an engine part necessary for 
normal operation and not normally requiring replacement during the 
useful life of the locomotive.
    (iii) The label shall be affixed by the manufacturer or 
remanufacturer, in such manner that it cannot be removed without 
destroying or defacing the label. The label shall not be affixed to any 
equipment which is easily detached from such engine.
    (iv) The label may be made up of more than one piece, provided that 
all pieces are permanently attached to the same engine part.
    (v) The label shall contain the following information lettered in 
the English language in block letters and numerals, which shall be of a 
color that contrasts with the background of the label:
    (A) The label heading: Locomotive Emission Control Information.
    (B) Full corporate name and trademark of the manufacturer or 
remanufacturer.
    (C) Engine family and configuration identification.
    (D) A prominent unconditional statement of compliance with U.S. 
Environmental Protection Agency regulations which apply to locomotives 
and locomotive engines, as applicable:
    (1) This locomotive and locomotive engine conform to U.S. EPA 
regulations applicable to locomotives and locomotive engines originally 
manufactured prior to January 1, 2002; or
    (2) This locomotive and locomotive engine conform to U.S. EPA 
regulations applicable to locomotives and locomotive engines originally 
manufactured on or after January 1, 2002, and remanufactured after 
January 1, 2005; or
    (3) This locomotive and locomotive engine conform to U.S. EPA 
regulations applicable to locomotives and locomotive engines originally 
manufactured on or after January 1, 2005.
    (E) The useful life of the locomotive or locomotive engine.
    (F) The standards and/or FELS to which the locomotive or locomotive 
engine was certified.
    (G) Engine tune-up specifications and adjustments, as recommended by 
the manufacturer or remanufacturer, in accordance with the applicable 
emission standards, including but not limited to idle speed(s), 
injection timing or ignition timing (as applicable), valve lash (as 
applicable), as well as other parameters deemed necessary by the 
manufacturer or remanufacturer.
    (d) The provisions of this section shall not prevent a manufacturer 
or remanufacturer from also providing on the label any other information 
that such manufacturer or remanufacturer deems necessary for, or useful 
to, the proper operation and satisfactory maintenance of the locomotive 
or engine.



Sec. 92.213  Submission of locomotive and engine identification numbers.

    (a) Upon request of the Administrator, the manufacturer or 
remanufacturer of any locomotive or locomotive engine covered by a 
certificate of conformity shall, within 30 days of receipt of such 
request, identify by locomotive and/or engine identification number, the 
locomotives or engines covered by the certificate of conformity.
    (b) The manufacturer or remanufacturer of any locomotives or 
locomotive engines covered by a certificate of conformity shall provide 
to the Administrator, within 60 days of the issuance of a certificate of 
conformity, an explanation of the elements in any locomotive or engine 
identification coding system in sufficient detail to enable the 
Administrator to identify those locomotives or engines which are covered 
by a certificate of conformity.

    Effective Date Note: At 63 FR 19051, Apr. 16, 1998, Sec. 92.213 was 
added. This section contains information collection and recordkeeping 
requirements and will not become

[[Page 476]]

effective until approval has been given by the Office of Management and 
Budget.



Sec. 92.214  Production locomotives and engines.

    Any manufacturer or remanufacturer obtaining certification under 
this part shall supply to the Administrator, upon his/her request, a 
reasonable number of production locomotives or locomotive engines, as 
specified by the Administrator. The maximum number of locomotives or 
locomotive engines that may be supplied to the Administrator is five per 
model year. The locomotives or locomotive engines shall be 
representative of the engines, emission control systems, and fuel 
systems offered and typical of production locomotives or engines 
available for sale, or use by railroads, under the certificate. These 
locomotives or engines shall be supplied for testing at such time and 
place and for such reasonable periods as the Administrator may require.



Sec. 92.215  Maintenance of records; submittal of information; right of entry.

    (a) Any manufacturer or remanufacturer subject to any of the 
standards or procedures prescribed in this subpart shall establish, 
maintain and retain the following adequately organized and indexed 
records:
    (1) General records. The records required to be maintained by this 
paragraph (a) shall consist of:
    (i) Identification and description of all certification locomotives 
or certification locomotive engines for which testing is required under 
this subpart.
    (ii) A description of all emission control systems which are 
installed on or incorporated in each certification locomotive or 
certification locomotive engine.
    (iii) A description of all procedures used to test each such 
certification locomotive or certification locomotive engine.
    (iv) A copy of all applications for certification, filed with the 
Administrator.
    (2) Individual records. (i) A brief history of each locomotive or 
locomotive engine used for certification under this subpart including:
    (A) In the case where a current production engine is modified for 
use as a certification engine or in a certification locomotive, a 
description of the process by which the engine was selected and of the 
modifications made. In the case where the certification locomotive or 
the engine for a certification locomotive is not derived from a current 
production engine, a general description of the buildup of the engine 
(e.g., whether experimental heads were cast and machined according to 
supplied drawings). In the cases in the previous two sentences, a 
description of the origin and selection process for fuel system 
components (carburetor, fuel injection components), ignition system 
components, intake air pressurization and cooling system components, 
cylinders, pistons and piston rings, exhaust smoke control system 
components, and exhaust aftertreatment devices as applicable, shall be 
included. The required descriptions shall specify the steps taken to 
assure that the certification locomotive or certification locomotive 
engine, with respect to its engine, drivetrain, fuel system, emission 
control system components, exhaust aftertreatment devices, exhaust smoke 
control system components or any other devices or components as 
applicable, that can reasonably be expected to influence exhaust 
emissions will be representative of production locomotives or locomotive 
engines and that either: All components and/or locomotive or engine, 
construction processes, component inspection and selection techniques, 
and assembly techniques employed in constructing such locomotives or 
engines are reasonably likely to be implemented for production 
locomotives or engines; or that they are as close as practicable to 
planned construction and assembly processed.
    (B) A complete record of all emission tests performed (except tests 
performed by EPA directly), including test results, the date and purpose 
of each test, and the number of miles or megawatt-hours accumulated on 
the locomotive or the number of megawatt-hours accumulated on the 
engine.

[[Page 477]]

    (C) A record and description of all maintenance and other servicing 
performed, giving the date of the maintenance or service and the reason 
for it.
    (D) A record and description of each test performed to diagnose 
engine or emission control system performance, giving the date and time 
of the test and the reason for it.
    (E) A brief description of any significant events affecting the 
locomotive or engine during the period covered by the history and not 
described by an entry under one of the previous headings, including such 
extraordinary events as locomotive accidents or accidents involving the 
engine or dynamometer runaway.
    (ii) Each such history shall be started on the date that the first 
of any of the selection or buildup activities in paragraph (a)(2)(i)(A) 
of this section occurred with respect to the certification locomotive or 
engine and shall be kept in a designated location.
    (3) All records, other than routine emission test records, required 
to be maintained under this subpart shall be retained by the 
manufacturer or remanufacturer for a period of 8 years after issuance of 
all certificates of conformity to which they relate. Routine emission 
test records shall be retained by the manufacturer or remanufacturer for 
a period of one (1) year after issuance of all certificates of 
conformity to which they relate. Records may be retained as hard copy or 
reduced to computer disks, etc., depending on the record retention 
procedures of the manufacturer or remanufacturer: Provided, that in 
every case all the information contained in the hard copy shall be 
retained.
    (4) Nothing in this section limits the Administrator's discretion in 
requiring the manufacturer or remanufacturer to retain additional 
records or submit information not specifically required by this section.
    (5) Pursuant to a request made by the Administrator, the 
manufacturer or remanufacturer shall submit to him/her the information 
that is required to be retained.
    (6) EPA may void a certificate of conformity ab initio for a 
locomotive or engine family for which the manufacturer or remanufacturer 
fails to retain the records required in this section or to provide such 
information to the Administrator upon request.
    (b) The manufacturer or remanufacturer of any locomotive or 
locomotive engine subject to any of the standards prescribed in this 
subpart shall submit to the Administrator, at the time of issuance by 
the manufacturer or remanufacturer, copies of all instructions or 
explanations regarding the use, repair, adjustment, maintenance, or 
testing of such locomotive or engine, relevant to the control of 
crankcase, or exhaust emissions issued by the manufacturer or 
remanufacturer, for use by other manufacturers or remanufacturers, 
assembly plants, distributors, dealers, owners and operators. Any 
material not translated into the English language need not be submitted 
unless specifically requested by the Administrator.
    (c) Any manufacturer or remanufacturer participating in averaging, 
banking and trading program of subpart D of this part must comply with 
the maintenance of records requirements of Sec. 92.308.
    (d)(1) Any manufacturer or remanufacturer who has applied for 
certification of a new locomotive or new locomotive engine subject to 
certification test under this subpart shall admit or cause to be 
admitted any EPA Enforcement Officer during operating hours on 
presentation of credentials to any of the following:
    (i) Any facility where any such tests or any procedures or 
activities connected with such test are or were performed;
    (ii) Any facility where any locomotive or locomotive engine which is 
being tested (or was tested, or is to be tested) is present;
    (iii) Any facility where any construction process or assembly 
process used in the modification or buildup of such a locomotive or 
engine into a certification locomotive or certification engine is taking 
place or has taken place; or
    (iv) Any facility where any record or other document relating to any 
of the above is located.

[[Page 478]]

    (2) Upon admission to any facility referred to in paragraph (d)(1) 
of this section, any EPA Enforcement Officer shall be allowed:
    (i) To inspect and monitor any part or aspect of such procedures, 
activities and testing facilities including, but not limited to, 
monitoring locomotive or engine preconditioning, emissions tests, 
mileage (or service) accumulation, maintenance, and locomotive or engine 
storage procedures, and to verify correlation or calibration of test 
equipment;
    (ii) To inspect and make copies of any such records, designs, or 
other documents, including those records specified in Subpart D of this 
part; and
    (iii) To inspect and/or photograph any part or aspect of any such 
certification locomotive, or certification locomotive engine and any 
components to be used in the construction thereof.
    (3) In order to allow the Administrator to determine whether or not 
production locomotives, or production locomotive engines, conform to the 
conditions upon which a certificate of conformity has been issued, or 
conform in all material respects to the design specifications applicable 
to those locomotives, or engines, as described in the application for 
certification for which a certificate of conformity has been issued, any 
manufacturer or remanufacturer shall admit any EPA Enforcement Officer 
on presentation of credentials to:
    (i) Any facility where any document, design or procedure relating to 
the translation of the design and construction of engines and emission 
related components described in the application for certification or 
used for certification testing into production locomotives or production 
engines is located or carried on;
    (ii) Any facility where any locomotives or locomotive engines, to be 
introduced into commerce are manufactured or remanufactured; and
    (iii) Any facility where records specified this section are located.
    (4) On admission to any such facility referred to in paragraph 
(d)(3) of this section, any EPA Enforcement Officer shall be allowed:
    (i) To inspect and monitor any aspects of such manufacture or 
remanufacture and other procedures;
    (ii) To inspect and make copies of any such records, documents or 
designs;
    (iii) To inspect and photograph any part or aspect of any such 
locomotive(s) or locomotive engine(s) and any component used in the 
assembly thereof that are reasonably related to the purpose of his/her 
entry; and
    (iv) To inspect and make copies of any records and documents 
specified this section.
    (5) Any EPA Enforcement Officer shall be furnished by those in 
charge of a facility being inspected with such reasonable assistance as 
he/she may request to help him/her discharge any function listed in this 
part. Each applicant for or recipient of certification is required to 
cause those in charge of a facility operated for its benefit to furnish 
such reasonable assistance without charge to EPA whether or not the 
applicant controls the facility.
    (6) The duty to admit or cause to be admitted any EPA Enforcement 
Officer applies to any facility involved in the manufacturing or 
assembling of locomotives, remanufacturing systems, or locomotive 
engines, or the installation of locomotive engines or remanufacturing 
systems, whether or not the manufacturer or remanufactuer owns or 
controls the facility in question and applies both to domestic and to 
foreign manufacturers or remanufacturers and facilities. EPA will not 
attempt to make any inspections which it has been informed that local 
law forbids. However, if local law makes it impossible to do what is 
necessary to insure the accuracy of data generated at a facility, no 
informed judgment that a locomotive or locomotive engine is certifiable 
or is covered by a certificate can properly be based on those data. It 
is the responsibility of the manufacturer or remanufacturer to locate 
its testing and manufacturing and/or remanufacturing facilities in 
jurisdictions where this situation will not arise.
    (7) For purposes of this section:
    (i) ``Presentation of credentials'' shall mean display of the 
document

[[Page 479]]

designating a person as an EPA Enforcement Officer.
    (ii) Where locomotive, component or engine storage areas or 
facilities are concerned, ``operating hours'' shall mean all times 
during which personnel other than custodial personnel are at work in the 
vicinity of the area or facility and have access to it.
    (iii) Where facilities or areas other than those covered by 
paragraph (d)(7)(ii) of this section are concerned, ``operating hours'' 
shall mean all times during which an assembly line is in operation or 
all times during which testing, maintenance, mileage (or service) 
accumulation, production or compilation of records, or any other 
procedure or activity related to certification testing, to translation 
of designs from the test stage to the production stage, or to locomotive 
(or engine) manufacture, remanufacture, or assembly is being carried out 
in a facility.
    (iv) ``Reasonable assistance'' includes, but is not limited to, 
clerical, copying, interpretation and translation services, the making 
available on request of personnel of the facility being inspected during 
their working hours to inform the EPA Enforcement Officer of how the 
facility operates and to answer his questions, and the performance on 
request of emissions tests on any locomotive (or engine) which is being, 
has been, or will be used for certification testing. Such tests shall be 
nondestructive, but may require appropriate mileage (or service) 
accumulation. A manufacturer or remanufacturer may be compelled to cause 
the personal appearance of any employee at such a facility before an EPA 
Enforcement Officer by written request for his appearance, signed by the 
Assistant Administrator for Air and Radiation or the Assistant 
Administrator for Enforcement and Compliance Assurance, served on the 
manufacturer or remanufacturer. Any such employee who has been 
instructed by the manufacturer or remanufacturer to appear will be 
entitled to be accompanied, represented and advised by counsel.
    (v) Any entry without 24 hour prior written or oral notification to 
the affected manufacturer or remanufacturer shall be authorized in 
writing by the Assistant Administrator for Air and Radiation or the 
Assistant Administrator for Enforcement and Compliance Assurance.
    (8) EPA may void a certificate of conformity ab initio for 
locomotives or locomotive engines introduced into commerce if the 
manufacturer or remanufacturer (or contractor for the manufacturer or 
remanufacturer, if applicable) fails to comply with any provision of 
this section.



Sec. 92.216  Hearing procedures.

    (a)(1) After granting a request for a hearing under Sec. 92.210 or 
Sec. 92.208, the Administrator shall designate a Presiding Officer for 
the hearing.
    (2) The General Counsel will represent the Environmental Protection 
Agency in any hearing under this section.
    (3) The hearing shall be held as soon as practicable at a time and 
place fixed by the Administrator or by the Presiding Officer.
    (4) In the case of any hearing requested pursuant to Sec. 92.208, 
the Administrator may in his/her discretion direct that all argument and 
presentation of evidence be concluded within such fixed period not less 
than 30 days as he/she may establish from the date that the first 
written offer of a hearing is made to the manufacturer. To expedite 
proceedings, the Administrator may direct that the decision of the 
Presiding Officer (who may, but need not be, the Administrator) shall be 
the final EPA decision.
    (b)(1) Upon his/her appointment pursuant to paragraph (a) of this 
section, the Presiding Officer will establish a hearing file. The file 
shall consist of the notice issued by the Administrator under 
Sec. 92.210 or Sec. 92.208 together with any accompanying material, the 
request for a hearing and the supporting data submitted therewith, and 
all documents relating to the request for certification and all 
documents submitted therewith, and correspondence and other data 
material to the hearing.
    (2) The hearing file will be available for inspection by the 
applicant at the office of the Presiding Officer.
    (c) An applicant may appear in person, or may be represented by 
counsel or by any other duly authorized representative.

[[Page 480]]

    (d)(1) The Presiding Officer, upon the request of any party, or in 
his/her discretion, may arrange for a prehearing conference at a time 
and place specified by him/her to consider the following:
    (i) Simplification of the issues;
    (ii) Stipulations, admissions of fact, and the introduction of 
documents;
    (iii) Limitation of the number of expert witnesses;
    (iv) Possibility of agreement disposing of all or any of the issues 
in dispute;
    (v) Such other matters as may aid in the disposition of the hearing, 
including such additional tests as may be agreed upon by the parties.
    (2) The results of the conference shall be reduced to writing by the 
Presiding Officer and made part of the record.
    (e)(1) Hearings shall be conducted by the Presiding Officer in an 
informal but orderly and expeditious manner. The parties may offer oral 
or written evidence, subject to the exclusion by the Presiding Officer 
of irrelevant, immaterial and repetitious evidence.
    (2) Witnesses will not be required to testify under oath. However, 
the Presiding Officer shall call to the attention of witnesses that 
their statements may be subject to the provisions of 18 U.S.C. 1001 
which imposes penalties for knowingly making false statements or 
representations, or using false documents in any matter within the 
jurisdiction of any department or agency of the United States.
    (3) Any witness may be examined or cross-examined by the Presiding 
Officer, the parties, or their representatives.
    (4) Hearings shall be reported verbatim. Copies of transcripts of 
proceedings may be purchased by the applicant from the reporter.
    (5) All written statements, charts, tabulations, and similar data 
offered in evidence at the hearings shall, upon a showing satisfactory 
to the Presiding Officer of their authenticity, relevancy, and 
materiality, be received in evidence and shall constitute a part of the 
record.
    (6) Oral argument may be permitted in the discretion of the 
Presiding Officer and shall be reported as part of the record unless 
otherwise ordered by him/her.
    (f)(1) The Presiding Officer shall make an initial decision which 
shall include written findings and conclusions and the reasons or basis 
therefor on all the material issues of fact, law, or discretion 
presented on the record. The findings, conclusions, and written decision 
shall be provided to the parties and made a part of the record. The 
initial decision shall become the decision of the Administrator without 
further proceedings unless there is an appeal to the Administrator or 
motion for review by the Administrator within 30 days of the date the 
initial decision was filed.
    (2) On appeal from or review of the initial decision the 
Administrator shall have all the powers which he/she would have in 
making the initial decision including the discretion to require or allow 
briefs, oral argument, the taking of additional evidence or the 
remanding to the Presiding Officer for additional proceedings. The 
decision by the Administrator shall include written findings and 
conclusions and the reasons or basis therefor on all the material issues 
of fact, law, or discretion presented on the appeal or considered in the 
review.

    Effective Date Note: At 63 FR 19053, Apr. 16, 1998, Sec. 92.216 was 
added. This section contains information collection and recordkeeping 
requirements and will not become effective until approval has been given 
by the Office of Management and Budget.



   Subpart D--Certification Averaging, Banking, and Trading Provisions



Sec. 92.301  Applicability.

    Locomotive engine families subject to the provisions of subpart A of 
this part are eligible to participate in the certification averaging, 
banking, and trading program described in this subpart. The provisions 
of this subpart apply to manufacturers and remanufacturers of new 
locomotives and new locomotive engines manufactured or remanufactured in 
the 1999 model year or later.

[[Page 481]]



Sec. 92.302  Definitions.

    The definitions of subpart A of this part apply to this subpart. The 
following definitions also apply.
    Applicable standard means a standard that would have otherwise been 
applicable had the locomotive or locomotive engine not been certified 
under this subpart to an FEL different than that standard.
    Broker means any entity that facilitates a trade between a buyer and 
seller.
    Buyer means the entity that receives credits as a result of trade or 
transfer.
    Reserved credits means credits that have been generated but have not 
yet been reviewed by EPA or used to demonstrate compliance under the 
averaging provisions of this subpart.
    Seller means the entity that provides credits during a trade or 
transfer.
    Transfer means to convey control of credits generated from an 
individual locomotive to the purchaser, owner or operator of the 
locomotive at the time of manufacture or remanufacture; or to convey 
control of previously generated credits from the purchaser, owner or 
operator of an individual locomotive to the manufacturer or 
remanufacturer at the time of manufacture or remanufacture.



Sec. 92.303  General provisions.

    (a) Participation in the averaging, banking and trading program is 
voluntary. A manufacturer or remanufacturer may choose to involve some 
or all of its families in any or all aspects of the program.
    (b) An engine family is eligible to participate in the certification 
averaging, banking, and trading program for NOX and PM 
emissions if it is subject to regulation under this part with certain 
exceptions specified in paragraph (c) of this section. No averaging, 
banking and trading program is available for meeting the HC, CO, or 
smoke emission standards of this part.
    (c) Locomotives and locomotive engines may not participate in the 
certification averaging, banking, and trading program if they are 
exported. Only locomotive and locomotive engines certified under this 
part are eligible for inclusion in this certification averaging, 
banking, and trading program.
    (d) Averaging involves the generation of credits by a manufacturer 
or remanufacturer for use by that same manufacturer or remanufacturer in 
the same calendar year. A manufacturer or remanufacturer may use 
averaging during certification to offset an emission exceedance of an 
engine family caused by an FEL above the applicable emission standard, 
subject to the provisions of this subpart.
    (e) Banking involves the generation of credits by a manufacturer or 
remanufacturer in a given calendar year for use in a subsequent model 
year. A manufacturer or remanufacturer may bank actual credits only 
after the end of the calendar year and after EPA has reviewed the 
manufacturer's or remanufacturer's end-of-year reports. During the 
calendar year and before submittal of the end-of-year report, credits 
originally designated in the certification process for banking will be 
considered reserved and may be redesignated for trading or averaging in 
the end-of-year report. Credits declared for banking from the previous 
calendar year that have not been reviewed by EPA may be used in 
averaging or trading transactions. However, such credits may be revoked 
at a later time following EPA review of the end-of-year report or any 
subsequent audit actions.
    (f) Trading involves the sale of banked credits for use in 
certification of new locomotives and new locomotive engines under this 
part. Only banked credits may be traded; reserved credits may not be 
traded.
    (g) Credit transfer involves the conveying of control over credits, 
as defined in Sec. 92.302. Transferred credits can be used in averaging 
or in subsequent transfers. Transferred credits may also be reserved for 
later banking. Transferred credits may not be traded unless they have 
been previously banked.



Sec. 92.304  Compliance requirements.

    (a) Manufacturers or remanufacturers wishing to participate in 
certification averaging, banking and trading programs shall select a FEL 
for each engine family they wish to include. The level of the FEL shall 
be selected

[[Page 482]]

by the manufacturer or remanufacturer, subject to the upper limits 
described in paragraph (k) of this section. An engine family certified 
to an FEL is subject to all provisions specified in this part, except 
that the applicable FEL replaces the applicable NOX and PM 
emission standard for the family participating in the averaging, 
banking, and trading program.
    (b) A manufacturer or remanufacturer may certify one or more engine 
families at FELs above or below the applicable emission standard, 
provided the summation of the manufacturer's or remanufacturer's 
projected balance of all credit transactions in a given calendar year is 
greater than or equal to zero, as calculated for each family under 
Sec. 92.305 and reported under Sec. 92.309.
    (c) Manufacturers and remanufacturers certifying engine families 
with FELs exceeding the applicable emission standard shall obtain 
emission credits in amounts sufficient to address the shortfall. Credits 
may be obtained from averaging, banking, trading or transfer, subject to 
the restrictions described in this subpart.
    (d) Manufacturers and remanufacturers certifying engine families 
with FELs below the applicable emission standard may generate emission 
credits to average, bank, trade, or transfer, or a combination thereof.
    (e) Credits may only be used for certification; they may not be used 
to remedy a violation of the FEL determined by production line or in-use 
testing. Credits may be used to allow subsequent production of engines 
for an engine family failing production line testing if the manufacturer 
elects to recertify to a higher FEL
    (f) If an FEL is changed after initial certification in any given 
model year, the manufacturer/remanufacturer must conduct production line 
testing to verify that the emission levels are achieved.
    (g) Manufacturers and remanufacturers participating in the 
averaging, banking and trading program must demonstrate compliance with 
the applicable emission standards at the end of the model year. 
Manufacturers and remanufacturers that have certified engine families to 
FELs above the applicable emission standards and do not have sufficient 
emission credits to offset the difference between the emission standard 
and the FEL for such engine family(ies) will be in violation of the 
conditions of the certificate of conformity for such engine family(ies). 
The certificates of conformity may be voided ab initio for those engine 
families.
    (h) In the event of a negative credit balance resulting from a 
credit trade or transfer, both the buyer(s) and the seller(s) are 
liable, except in cases involving fraud. Certificates of all engine 
families participating in a negative trade may be voided ab initio.
    (1) Where a buyer of credits is not responsible for causing the 
negative credit balance, it is only liable to supply additional credits 
equivalent to any amount of invalid credits that it used.
    (2) Credit holders responsible for the credit shortfall may be 
subject to the requirements of Sec. 92.309(g)(3).
    (i) Averaging sets. This subpart includes separate programs for 
compliance with each type of cycle-weighted standards in Sec. 92.8 
(i.e., line-haul and switch). Credits generated over the line-haul duty-
cycle may not be used for compliance with the switch duty-cycle, and 
credits generated over the switch duty-cycle may not be used for 
compliance with the line-haul duty-cycle.
    (j) Cross tier credit exchanges. Cross tier credit exchanges for 
NOX and PM emission credits may be exchanged between and 
among Tier 0, Tier 1, and Tier 2 engine families with the following 
exceptions:
    (1) For 2005 and 2006 model year freshly manufactured locomotives, 
manufacturers may use PM credits for all of their freshly manufactured 
engine families. Manufacturers may use NOX credits only for 
engine families that are projected to represent 75 percent or less of 
their total projected annual production of freshly manufactured 
locomotives. The remainder must comply with the Tier 2 NOX 
emission standards without the use of credits.
    (2) For 2007 and later model year freshly manufactured locomotives, 
manufacturers may use PM credits for all of their freshly manufactured 
engine families. Manufacturers may use

[[Page 483]]

NOX credits only for engine families that are projected to 
represent 50 percent or less of their total projected annual production 
of freshly manufactured locomotives. The remainder must comply with the 
Tier 2 NOX emission standards without the use of credits.
    (3) Credits generated from remanufactured locomotives prior to 
January 1, 2002 and which are banked may only be used for compliance 
with the Tier 1 or later emission standards.
    (k) Upper limits. The FELs for NOX and PM for new 
locomotives and new locomotive engines certified to the Tier 1 and Tier 
2 standards may not exceed the following values:
    (1) Tier 1: the Tier 0 standards.
    (2) Tier 2: the Tier 1 standards, except as noted in paragraph (j) 
of this section.
    (l) Credit life shall be unlimited.
    (m) Credits may be generated by any certifying manufacturer or 
remanufacturer and may be held by any of the following entities:
    (1) Locomotive or locomotive engine manufacturers;
    (2) Locomotive or locomotive engine remanufacturers;
    (3) Locomotive or locomotive engine owners;
    (4) Locomotive or locomotive engine operators; or
    (5) Other entities after notification to EPA.
    (n)(1) All locomotives that are certified to an FEL that is 
different from the emission standard that would otherwise apply to the 
locomotive or locomotive engine are required to comply with that FEL for 
the remainder of their service lives, except as allowed by 
Sec. 92.9(a)(4)(iii) and this subpart.
    (2) Manufacturers shall notify the purchaser of any locomotive 
engine that is certified to an FEL that is different from the emission 
standard that would otherwise apply that the locomotive or locomotive 
engine is required to comply with that FEL for the remainder of its 
service life.
    (3) Remanufacturers shall notify the owner of any locomotive or 
locomotive engine that is certified to an FEL that is different from the 
emission standard that would otherwise apply that the locomotive (or the 
locomotive in which the engine is used) is required to comply with that 
FEL for the remainder of its service life.



Sec. 92.305  Credit generation and use calculation.

    (a) For each participating engine family, NOX and PM 
emission credits (positive or negative) are to be calculated according 
to the following equation and rounded in accordance with ASTM E29-93a, 
to the nearest Megagram (Mg). Consistent units are to be used throughout 
the calculation.
    (1) When useful life is expressed in terms of megawatt-hrs:
    Credits for each engine family are calculated as: Emission 
credits=(Std - FEL)  x  (UL)  x  (Production)  x  (Fp)  x  (10-3 
kW-Mg/MW-g).
    (2) Where:
    (i) Std=the applicable locomotive and locomotive engine 
NOX and/or PM emission standard in grams per kilowatt-hour 
(exceptions: Std=0.43 g/kW-hr, for Tier 0 and Tier 1 PM line-haul 
credits; Std=0.59 g/kW-hr, for Tier 0 and Tier 1 PM switch credits; and 
Std=previous FEL in g/kW-hr, for locomotives that were certified to an 
FEL other than the standard during the previous useful life).
    (ii) FEL=the family emission limit for the engine family in grams 
per kilowatt-hour. For Tier 1 and Tier 2 engine families, the FEL may 
not exceed the limit established in Sec. 92.304(k) for each pollutant.
    (iii) UL=the sales weighted average useful life in megawatt-hours, 
based on the sales weighted average horsepower of the engine family (or 
the subset of the engine family for which credits are being calculated), 
as specified in the application for certification.
    (iv) Production=the number of locomotives or locomotive engines 
participating in the averaging, banking, and trading program within the 
given engine family during the calendar year (or the number of 
locomotives or locomotive engines in the subset of the engine family for 
which credits are being calculated). Quarterly production projections 
are used for initial certification. Actual applicable production/sales 
volumes are used for end-of-year compliance determination.
    (v) Fp=the proration factor as determined in paragraph 
(c) of this section.

[[Page 484]]

    (b) When useful life is expressed in terms of miles or years, the 
useful life in terms of megawatt hours (UL) shall be calculated by 
dividing the useful life in miles by 100,000, and multiplying by the 
sales weighted average horsepower of the engine family. Credits are 
calculated using this UL value in the equations of paragraph (a) of this 
section.
    (c) The proration factor is an estimate of the fraction of a 
locomotive's service life that remains as a function of age.
    (1) The locomotive's age is the length of time in years from the 
date of original manufacture to the date at which the remanufacture (for 
which credits are being calculated) is completed, rounded to the next 
higher year.
    (2) The proration factors for ages 1 through 32 are specified in 
Table D305-1 of this section. For locomotives or locomotive engines more 
than 32 years old, the proration factor for 32 year old locomotives 
shall be used.
    (3) For replacement or repower engines, the proration factor is 
based on the age of the locomotive chassis, not the age of the engine.

                          Table to Sec. 92.305

                     Table D305-1--Proration Factor
------------------------------------------------------------------------
                     Age                          Fp      Age       Fp
------------------------------------------------------------------------
1............................................    0.964       17    0.452
2............................................    0.929       18    0.429
3............................................    0.893       19    0.405
4............................................    0.857       20    0.381
5............................................    0.821       21    0.357
6............................................    0.786       22    0.333
7............................................    0.750       23    0.310
8............................................    0.714       24    0.286
9............................................    0.679       25    0.268
10...........................................    0.643       26    0.250
11...........................................    0.607       27    0.232
12...........................................    0.571       28    0.214
13...........................................    0.548       29    0.196
14...........................................    0.524       30    0.179
15...........................................    0.500       31    0.161
16...........................................    0.476       32    0.143
------------------------------------------------------------------------



Sec. 92.306  Certification.

    (a) In the application for certification a manufacturer or 
remanufacturer must:
    (1) Declare its intent to include specific engine families in the 
averaging, banking, and/or trading programs. Separate declarations are 
required for each program (line-haul and switch) and for each pollutant 
(NOX and PM).
    (2) Declare duty-cycle FELs for each engine family participating in 
certification averaging, banking, and/or trading.
    (i) The FELs must be to the same number of significant digits as the 
emission standard.
    (ii) In no case may the FEL exceed the upper limit prescribed in 
Sec. 92.304(k).
    (3) Conduct and submit detailed calculations of projected emission 
credits (positive or negative) based on quarterly production projections 
for each participating family and for each pollutant, using the 
applicable equation in Sec. 92.305 and the applicable values of the 
terms in the equation for the specific family.
    (i) If the engine family is projected to have negative emission 
credits, state specifically the source (manufacturer/engine family, 
remanufacturer/engine family, or transfer) of the credits necessary to 
offset the credit deficit according to quarterly projected production.
    (ii) If the engine family is projected to generate credits, state 
specifically where the quarterly projected credits will be applied 
(manufacturer/engine family or remanufacturer/engine family, reserved or 
transfer).
    (4) Submit a statement that the locomotives or locomotive engines 
for which certification is requested will not, to the best of the 
manufacturer's or remanufacturer's belief, cause the manufacturer or 
remanufacturer to have a negative credit balance when all credits are 
calculated for all the manufacturer's or remanufacturer's engine 
families participating in the averaging, banking, and trading program.
    (b) Based on this information, each manufacturer's certification 
application must demonstrate:
    (1) That at the end of model year production, each engine family has 
a net emissions balance equal to or greater than zero for any pollutant 
and program for which participation in certification under averaging, 
banking, and/or trading is being sought. The equation in section 
Sec. 92.305 shall be used in this calculation for each engine family.
    (2) That the manufacturer or remanufacturer will obtain sufficient 
credits to be used to comply with the

[[Page 485]]

emission standard for any engine family with an FEL that exceeds the 
applicable emission standard, or where credits will be applied if the 
FEL is less than the emission standard. In cases where credits are being 
obtained, for each engine family involved the manufacturer or 
remanufacturer must identify specifically the source of the credits 
being used (manufacturer/engine family, or remanufacturer/engine family, 
or transfer). All such reports shall include all credits involved in 
certification averaging, banking, or trading.
    (3) In cases where credits are being generated/supplied, each engine 
family must indicate specifically the designated use of the credits 
involved (manufacturer/remanufacturer and engine family, reserved or 
transfer). All such reports shall include all credits involved in 
certification averaging, banking, or trading.
    (c) Manufacturers and remanufacturers must monitor projected versus 
actual production throughout the model year to ensure that compliance 
with emission standards is achieved at the end of the model year.
    (d) At the end of the model year, the manufacturer or remanufacturer 
must provide the end-of-year reports required under Sec. 92.309.
    (1) Projected credits based on the information supplied in the 
certification application may be used to obtain a certificate of 
conformity. However, any such projected credits must be validated based 
on review of the end of model year reports and may be revoked at a later 
time based on follow-up audits or any other verification measure deemed 
appropriate by the Administrator.
    (2) Compliance for engine families using averaging, banking, or 
trading will be determined at the end of the model year. Manufacturers 
and remanufacturers that have certified engine families with credit 
balances for NOX and/or PM that do not equal or exceed zero 
shall be in violation of the conditions of the certificate of conformity 
for such engine families. The certificate of conformity may be voided ab 
initio for those engine families.
    (e) Other conditions of certification.
    (1) All certificates issued are conditional upon compliance by the 
manufacturer or remanufacturer with the provisions of this subpart both 
during and after the calendar year of production.
    (2) Failure to comply with all provisions of this subpart will be 
considered to be a failure to satisfy the conditions upon which the 
certificate was issued, and the certificate may be deemed void ab 
initio.
    (3) The manufacturer or remanufacturer (as applicable) bears the 
burden of establishing to the satisfaction of the Administrator that the 
conditions upon which the certificate was issued were satisfied or 
waived.



Sec. 92.307  Labeling.

    For all locomotives and locomotive engines included in the 
certification averaging, banking, and trading program, the FEL to which 
the locomotive or locomotive engine is certified must be included on the 
label required in Sec. 92.212. This label must include the notification 
specified in Sec. 92.304(n).



Sec. 92.308  Maintenance of records.

    (a) The manufacturer or remanufacturer of any locomotive or 
locomotive engine that is certified under the averaging, banking, and 
trading program must establish, maintain, and retain the following 
adequately organized and indexed records for each such locomotive or 
locomotive engine produced:
    (1) EPA engine family and configuration;
    (2) Engine identification number;
    (3) Engine calendar year and build date;
    (4) Rated horsepower;
    (5) Purchaser and destination or owner; and
    (6) Assembly plant.
    (b) The manufacturer or remanufacturer of any engine family that is 
certified under the averaging, banking, and trading program must 
establish, maintain, and retain the following adequately organized and 
indexed records for each such family:
    (1) Model year and EPA engine family;
    (2) Family Emission Limit (FEL);
    (3) Rated horsepower for each configuration;
    (4) Projected applicable production/sales volume for the calendar 
year;

[[Page 486]]

    (5) Actual applicable production/sales volume for the calendar year; 
and
    (6) Useful life.
    (c) Any manufacturer or remanufacturer producing an engine family 
participating in trading or transfer of credits must maintain the 
following records on a quarterly basis for each engine family in the 
trading program:
    (1) The model year and engine family;
    (2) The actual quarterly and cumulative applicable production/sales 
volume;
    (3) The values required to calculate credits as given in 
Sec. 92.305;
    (4) The resulting type and number of credits generated/required;
    (5) How and where credit surpluses are dispersed; and
    (6) How and through what means credit deficits are met.
    (d) The manufacturer or remanufacturer must retain all records 
required to be maintained under this section for a period of 8 years 
from the due date for the end-of-calendar year report. Records may be 
retained as hard copy or reduced to microfilm, ADP diskettes, and so 
forth, depending on the manufacturer's or remanufacturer's record 
retention procedure; provided, that in every case all information 
contained in the hard copy is retained.
    (e) Nothing in this section limits the Administrator's discretion in 
requiring the manufacturer or remanufacturer to retain additional 
records or submit information not specifically required by this section.
    (f) Pursuant to a request made by the Administrator, the 
manufacturer or remanufacturer must submit to the Administrator the 
information that the manufacturer or remanufacturer is required to 
retain.
    (g) EPA may void ab initio a certificate of conformity for an engine 
family for which the manufacturer or remanufacturer fails to retain the 
records required in this section or to provide such information to the 
Administrator upon request.

    Effective Date Note: At 63 FR 19056, Apr. 16, 1998, Sec. 92.308 was 
added. This section contains information collection and recordkeeping 
requirements and will not become effective until approval has been given 
by the Office of Management and Budget.



Sec. 92.309  Reports.

    (a) Manufacturer or remanufacturers must submit the certification 
information as required under Sec. 92.306, and end-of-year reports each 
year as part of their participation in certification averaging, banking, 
and trading programs. All entities involved in credit trades or 
transfers must submit quarterly reports as specified in paragraph (b) of 
this section.
    (b) Quarterly reports. (1) Those holding or receiving transferred 
credits as allowed in Sec. 92.303(m) must submit quarterly reports of 
their holdings or receipts when credits are gained or lost.
    (2) The reports shall include the source or recipient of the credits 
the amount of credits involved plus remaining balances, details 
regarding the pollutant, duty-cycle, and model year/Tier as well as the 
information prescribed in Sec. 92.308(c). Copies of contracts related to 
credit trading or transfer must be included or supplied by the buyer, 
seller, and broker, as applicable.
    (c) End-of-year reports must include the information prescribed in 
Sec. 92.308(b). The report shall include a calculation of credit 
balances for each family to show that the summation of the 
manufacturer's or remanufacturer's use of credits results in a credit 
balance equal to or greater than zero. The report shall be consistent in 
detail with the information submitted under Sec. 92.306 and show how 
credit surpluses were dispersed and how credit shortfalls were met on a 
family specific basis. The end-of-year report shall incorporate any 
information reflected in previous quarterly reports.
    (d) The applicable production/sales volume for quarterly and end-of-
year reports must be based on the location of either the point of first 
retail sale by the manufacturer or remanufacturer or the point at which 
the locomotive is placed into service, whichever occurs first. This is 
called the final product purchase location.
    (e) Each quarterly and end-of-year report submitted shall include a 
statement certifying to the accuracy and authenticity of the material 
reported therein.

[[Page 487]]

    (f) Requirements for submission. (1) Quarterly reports must be 
submitted within 90 days of the end of the calendar quarter to: Group 
Manager, Engine Compliance Programs Group, Engine Programs and 
Compliance Division U.S. Environmental Protection Agency, 6403-J, 401 M 
St., SW., Washington, DC 20460.
    (2) End-of-year reports must be submitted within 120 days of the end 
of the calendar year to: Group Manager, Engine Compliance Programs 
Group, Engine Programs and Compliance Division, U.S. Environmental 
Protection Agency, 6403-J, 401 M St., SW., Washington, DC 20460.
    (3) Failure by a manufacturer or a remanufacturer participating in 
the averaging, banking, or trading program to submit any quarterly or 
end-of-year reports in the specified time for all engines is a violation 
of sections 203(a)(1) and 213 of the Clean Air Act for each locomotive 
or locomotive engine.
    (4) A manufacturer or remanufacturer generating credits for banking 
only who fails to submit end-of-year reports in the applicable specified 
time period (120 days after the end of the calendar year) may not use or 
trade the credits until such reports are received and reviewed by EPA. 
Use of projected credits pending EPA review is not permitted in these 
circumstances.
    (g) Reporting errors. (1) Errors discovered by EPA or the 
manufacturer or the remanufacturer as applicable in the end-of-year 
report, including errors in credit calculation, may be corrected 180-
days subsequent to submission of the end-of-year report. Errors 
discovered by EPA after 180-days shall be correctable if, as a result of 
the correction, the manufacturer's or remanufacturer's credits are 
reduced. Errors in the manufacturer's or remanufacturer's favor are not 
corrected if discovered after the 180-day correction period allowed.
    (2) If EPA or the manufacturer or remanufacturer determines that a 
reporting error occurred on an end of year report previously submitted 
to EPA under this section, the manufacturer's or remanufacturer's 
credits and credit calculations will be recalculated. Erroneous positive 
credits will be void. Erroneous negative credit balances may be 
corrected by EPA.
    (3) If EPA review of a manufacturer's or remanufacturers end-of-year 
report indicates a credit shortfall, the manufacturer or remanufacturer 
will be permitted to purchase the necessary credits to bring the credit 
balance to zero. These credits must be supplied at the ratio of 1.1 
credits for each 1.0 credit needed. If sufficient credits are not 
available to bring the credit balance to zero for the family(ies) 
involved, EPA may void the certificate(s) for that family(ies) ab 
initio. In addition, all locomotives and locomotive engines within an 
engine family for which there are insufficient credits will be 
considered to have violated the conditions of the certificate of 
conformity and therefore not covered by that certificate.
    (4) If within 180 days of receipt of the manufacturer's or 
remanufacturer's end-of-year report, EPA review determines a reporting 
error in the manufacturer's or remanufacturer's favor (that is, 
resulting in an increased credit balance) or if the manufacturer or 
remanufacturer discovers such an error within 180 days of EPA receipt of 
the end-of-year report, the credits are restored for use by the 
manufacturer or remanufacturer.

    Effective Date Note: At 63 FR 19057, Apr. 16, 1998, Sec. 92.309 was 
added. This section contains information collection and recordkeeping 
requirements and will not become effective until approval has been given 
by the Office of Management and Budget.



Sec. 92.310  Notice of opportunity for hearing.

    Any voiding of the certificate under this subpart will be made only 
after the manufacturer or remanufacturer concerned has been offered an 
opportunity for a hearing conducted in accordance with Sec. 92.216 and, 
if a manufacturer or remanufacturer requests such a hearing, will be 
made only after an initial decision by the Presiding Officer.

[[Page 488]]



  Subpart E--Emission-Related Defect Reporting Requirements, Voluntary 
                         Emission Recall Program



Sec. 92.401  Applicability.

    The requirements of this subpart are applicable to manufacturers and 
remanufacturers of locomotives and locomotive engines subject to the 
provisions of subpart A of this part. The requirement to report 
emission-related defects affecting a given class or category of 
locomotives or locomotive engines applies for eight years from the end 
of the year in which such locomotives or locomotive engines were 
manufactured, or remanufactured, as applicable.



Sec. 92.402  Definitions.

    The definitions of subpart A of this part apply to this subpart.



Sec. 92.403  Emission defect information report.

    (a) A manufacturer or remanufacturer must file a defect information 
report whenever it determines, in accordance with procedures it 
established to identify either safety-related or performance defects, 
(or based on other information) that a specific emission-related defect 
exists in ten or more locomotives or locomotive engines. No report must 
be filed under this paragraph for any emission-related defect corrected 
prior to the sale, or reintroduction into service of a remanufactured 
locomotive or locomotive engine, of the affected locomotives or 
locomotive engines to an ultimate purchaser.
    (b) Defect information reports required under paragraph (a) of this 
section must be submitted not more than 15 working days after the same 
emission-related defect is found to effect 10 or more locomotives or 
locomotive engines. Information required by paragraph (c) of this 
section that is either not available within 15 working days or is 
significantly revised must be submitted as it becomes available.
    (c) Except as provided in paragraph (b) of this section, each defect 
report must contain the following information in substantially the 
format outlined as follows:
    (1) The manufacturer's or remanufacturer's corporate name.
    (2) A description of the defect.
    (3) A description of each class or category of locomotives or 
locomotive engines potentially affected by the defect including make, 
model, calendar year produced, purchaser (or owner) and any other 
information as may be required to identify the locomotives or locomotive 
engines affected.
    (4) For each class or category of locomotives and locomotive engines 
described in response to paragraph (c)(3) of this section, the following 
shall also be provided:
    (i) The number of locomotives and/or locomotive engines known or 
estimated to have the defect and an explanation of the means by which 
this number was determined.
    (ii) The address of the plant(s) at which the potentially defective 
locomotives or locomotive engines were produced.
    (5) An evaluation of the emissions impact of the defect and a 
description of any operational or performance problems which a defective 
locomotive or locomotive engine might exhibit.
    (6) Available emissions data which relate to the defect.
    (7) An indication of any anticipated follow-up by the manufacturer 
or remanufacturer.



Sec. 92.404  Voluntary emissions recall reporting.

    (a) When any manufacturer or remanufacturer initiates a voluntary 
emissions recall campaign involving a locomotive or locomotive engine, 
the manufacturer or remanufacturer shall submit to EPA a report 
describing the manufacturer's or remanufacturer's voluntary emissions 
recall plan as prescribed by this section within 15 working days of the 
date owner notification was begun. The report shall contain the 
following:
    (1) A description of each class or category of locomotives or 
locomotive engines recalled including the number of locomotives or 
locomotive engines to be recalled, the calendar year if applicable, the 
make, the model, and such other information as may be required to 
identify the locomotives or locomotive engines recalled.

[[Page 489]]

    (2) A description of the specific modifications, alterations, 
repairs, corrections, adjustments, or other changes to be made to 
correct the locomotives or locomotive engines affected by the emission-
related defect.
    (3) A description of the method by which the manufacturer or 
remanufacturer will notify locomotive or locomotive engine owners.
    (4) A description of the proper maintenance or use, if any, upon 
which the manufacturer or remanufacturer conditions eligibility for 
repair under the remedial plan, an explanation of the manufacturer's or 
remanufacturer's reasons for imposing any such condition, and a 
description of the proof to be required of a locomotive or locomotive-
engine owner to demonstrate compliance with any such condition.
    (5) A description of the procedure to be followed by locomotive or 
locomotive-engine owners to obtain correction of the nonconformity. This 
shall include designation of the date on or after which the owner can 
have the nonconformity remedied, the time reasonably necessary to 
perform the labor to remedy the defect, and the designation of 
facilities at which the defect can be remedied.
    (6) If some or all the nonconforming locomotives or locomotive 
engines are to be remedied by persons other than authorized warranty 
agents of the manufacturer or remanufacturer, a description of the class 
of persons other than authorized warranty agents of the manufacturer or 
remanufacturer who will remedy the defect.
    (7) A copy of any written notification sent to locomotive or 
locomotive-engine owners.
    (8) A description of the system by which the manufacturer or 
remanufacturer will assure that an adequate supply of parts will be 
available to perform the repair under the remedial plan including the 
date by which an adequate supply of parts will be available to initiate 
the repair campaign, the percentage of the total parts requirement of 
each person who is to perform the repair under the remedial plan to be 
shipped to initiate the campaign, and the method to be used to assure 
the supply remains both adequate and responsive to owner demand.
    (9) Three copies of all necessary instructions to be sent to those 
persons who are to perform the repair under the remedial plan.
    (10) A description of the impact of the changes on fuel consumption, 
operation or performance, and safety of each class or category of 
locomotives or locomotive engines to be recalled.
    (11) A sample of any label to be applied to locomotives or 
locomotive engines which participate in the voluntary recall campaign.
    (b) Unless otherwise specified by the Administrator, the 
manufacturer or remanufacturer shall report on the progress of the 
recall campaign by submitting subsequent reports for six consecutive 
quarters, or until proven that remedial action has been adequately taken 
on all affected locomotives or locomotive engines, whichever occurs 
first, commencing with the quarter after the voluntary emissions recall 
campaign actually begins. Such reports shall be submitted no later than 
25 working days after the close of each calendar quarter. For each class 
or category of locomotive or locomotive engine subject to the voluntary 
emissions recall campaign, the quarterly report shall contain the:
    (1) Emission recall campaign number, if any, designated by the 
manufacturer or remanufacturer.
    (2) Date owner notification was begun, and date completed.
    (3) Number of locomotives or locomotive engines involved in the 
voluntary emissions recall campaign.
    (4) Number of locomotives or locomotive engines known or estimated 
to be affected by the emission-related defect and an explanation of the 
means by which this number was determined.
    (5) Number of locomotives or locomotive engines inspected pursuant 
to voluntary emission recall plan.
    (6) Number of inspected locomotives or locomotive engines found to 
be affected by the emissions-related defect.
    (7) Number of locomotives or locomotive engines actually receiving 
repair under the remedial plan.
    (8) Number of locomotives or locomotive engines determined to be 
unavailable for inspection or repair under the remedial plan due to 
exportation,

[[Page 490]]

scrappage, or for other reasons (specify).
    (9) Number of locomotives or locomotive engines determined to be 
ineligible for remedial action due to a failure to properly maintain or 
use such locomotives or locomotive engines.
    (10) Three copies of any service bulletins which relate to the 
defect to be corrected and which have not previously been reported.
    (11) Three copies of all communications transmitted to locomotive or 
locomotive-engine owners which relate to the defect to be corrected and 
which have not previously been submitted.
    (c) If the manufacturer or remanufacturer determines that any of the 
information requested in paragraph (b) of this section has changed or 
was incorrect, revised information and an explanatory note shall be 
submitted. Answers to paragraphs (b) (5), (6), (7), (8), and (9) of this 
section shall be cumulative totals.
    (d) The manufacturer or remanufacturer shall maintain in a form 
suitable for inspection, such as computer information storage devices or 
card files, the names and addresses of locomotive and locomotive-engine 
owners:
    (1) To whom notification was given;
    (2) Who received remedial repair or inspection under the remedial 
plan; and
    (3) Who were determined not to qualify for such remedial action when 
eligibility is conditioned on proper maintenance or use.
    (e) The records described in paragraph (d) of this section shall be 
made available to the Administrator upon request.



Sec. 92.405  Alternative report formats.

    (a) Any manufacturer or remanufacturer may submit a plan for making 
either of the reports required by Secs. 92.403 and 92.404 on computer 
diskettes, magnetic tape or other machine readable format. The plan 
shall be accompanied by sufficient technical detail to allow a 
determination that data requirements of these sections will be met and 
that the data in such format will be usable by EPA.
    (b) Upon approval by the Administrator of the reporting system, the 
manufacturer or remanufacturer may use such system until otherwise 
notified by the Administrator.



Sec. 92.406  Reports filing: record retention.

    (a) The reports required by Secs. 92.403 and 92.404 shall be sent 
to: Group Manager, Engine Compliance Programs Group, Engine Programs and 
Compliance Division, U.S. Environmental Protection Agency, 6403-J, 401 M 
St., SW., Washington, DC 20460.
    (b) The information gathered by the manufacturer or remanufacturer 
to compile the reports required by Secs. 92.403 and 92.404 shall be 
retained for not less than 8 years from the date of the manufacture of 
the locomotives or locomotive engines and shall be made available to 
duly authorized officials of the EPA upon request.

    Effective Date Note: At 63 FR 19059, Apr. 16, 1998, Sec. 92.406 was 
added. This section contains information collection and recordkeeping 
requirements and will not become effective until approval has been given 
by the Office of Management and Budget.



Sec. 92.407  Responsibility under other legal provisions preserved.

    The filing of any report under the provisions of this subpart shall 
not affect a manufacturer's or a remanufacturer's responsibility to file 
reports or applications, obtain approval, or give notice under any 
provision of law.



Sec. 92.408  Disclaimer of production warranty applicability.

    (a) The act of filing an Emission Defect Information Report pursuant 
to Sec. 92.403 is inconclusive as to the existence of a defect subject 
to the warranty provided by section 207(a) of the Act.
    (b) A manufacturer or remanufacturer may include on each page of its 
Emission Defect Information Report a disclaimer stating that the filing 
of a Defect Information Report pursuant to these regulations is not 
conclusive as to the applicability of the Production Warranty provided 
by section 207(a) of the Act.

[[Page 491]]



 Subpart F--Manufacturer and Remanufacturer Production Line Testing and 
                             Audit Programs



Sec. 92.501  Applicability.

    The requirements of this subpart are applicable to manufacturers and 
remanufacturers of locomotives and locomotive engines subject to the 
provisions of subpart A of this part, except as follows:
    (a) The requirements of Secs. 92.503, 92.505, 92.506, 92.507, 
92.508, and 92.510 only apply to manufacturers of freshly manufactured 
locomotives or locomotive engines (including those used for repowering). 
The Administrator may also apply these requirements to remanufacturers 
of any locomotives or locomotive engines for which there is reason to 
believe production problems exist that could affect emissions 
performance. EPA will notify such remanufacturers when it makes a 
determination that production problems may exist that could affect 
emissions performance, and the requirements of these sections shall 
apply as specified in the notice.
    (b) The requirements of Sec. 92.511 only apply to remanufacturers of 
locomotives and locomotive engines.



Sec. 92.502  Definitions.

    The definitions in subpart A of this part apply to this subpart.



Sec. 92.503  General Requirements.

    (a) Manufacturers (and remanufacturers, where applicable) shall test 
production line locomotives or locomotive engines using the test 
procedures specified in Sec. 92.506. The Administrator may require 
manufacturers and remanufacturers to conduct production line testing on 
locomotives. If the Administrator determines that locomotive testing is 
required, he/she shall notify the manufacturer or remanufacturer, and 
shall specify in such notice the time period in which the manufacturer 
or remanufacturer shall complete such testing.
    (b) Remanufacturers of locomotives and locomotive engines shall 
conduct audits pursuant to the requirements of Sec. 92.511 to ensure 
that remanufactured locomotives and locomotive engines comply with the 
requirements of this part.



Sec. 92.504  Right of entry and access.

    (a) To allow the Administrator to determine whether a manufacturer 
or remanufacturer is complying with the provisions of this part, one or 
more EPA enforcement officers may enter during operating hours and upon 
presentation of credentials any of the following places:
    (1) Any facility, including ports of entry, where any locomotive or 
locomotive engine is to be introduced into commerce or any emission-
related component is manufactured, remanufactured, assembled, or stored;
    (2) Any facility where any test or audit conducted pursuant to a 
manufacturer's or remanufacturer's production line testing or auditing 
program or any procedure or activity connected with such test or audit 
is or was performed;
    (3) Any facility where any test locomotive or locomotive engine is 
present; and
    (4) Any facility where any record required under Sec. 92.509 or 
other document relating to this subpart is located.
    (b) Upon admission to any facility referred to in paragraph (a) of 
this section, EPA enforcement officers are authorized to perform the 
following inspection-related activities:
    (1) To inspect and monitor any aspect of locomotive or locomotive 
engine manufacture, remanufacture, assembly, storage, testing and other 
procedures, and to inspect and monitor the facilities in which these 
procedures are conducted;
    (2) To inspect and monitor any aspect of locomotive or locomotive 
engine test procedures or activities, including test locomotive or 
engine selection, preparation and service accumulation, emission test 
cycles, and maintenance and verification of test equipment calibration;
    (3) To inspect and make copies of any records or documents related 
to the assembly, storage, selection, and testing of a locomotive or 
locomotive engine; and
    (4) To inspect and photograph any part or aspect of any locomotive 
or locomotive engine and any component

[[Page 492]]

used in the assembly thereof that is reasonably related to the purpose 
of the entry.
    (c) EPA enforcement officers are authorized to obtain reasonable 
assistance without cost from those in charge of a facility to help the 
officers perform any function listed in this subpart and they are 
authorized to request the manufacturer or remanufacturer to make 
arrangements with those in charge of a facility operated for the 
manufacturer or remanufacturer's benefit to furnish reasonable 
assistance without cost to EPA.
    (1) Reasonable assistance includes, but is not limited to, clerical, 
copying, interpretation and translation services; the making available 
on an EPA enforcement officer's request of personnel of the facility 
being inspected during their working hours to inform the EPA enforcement 
officer of how the facility operates and to answer the officer's 
questions; and the performance on request of emission tests on any 
locomotive or engine which is being, has been, or will be used for 
production line testing or auditing.
    (2) By written request, signed by the Assistant Administrator for 
Air and Radiation or the Assistant Administrator for Enforcement and 
Compliance Assurance, and served on the manufacturer or remanufacturer, 
a manufacturer or remanufacturer may be compelled to cause the personal 
appearance of any employee at such a facility before an EPA enforcement 
officer. Any such employee who has been instructed by the manufacturer 
or remanufacturer to appear will be entitled to be accompanied, 
represented, and advised by counsel.
    (d) EPA enforcement officers are authorized to seek a warrant or 
court order authorizing the EPA enforcement officers to conduct the 
activities authorized in this section, as appropriate, to execute the 
functions specified in this section. EPA enforcement officers may 
proceed ex parte to obtain a warrant or court order whether or not the 
EPA enforcement officers first attempted to seek permission from the 
manufacturer or remanufacturer or the party in charge of the 
facility(ies) in question to conduct the activities authorized in this 
section.
    (e) A manufacturer or remanufacturer is responsible for locating its 
foreign testing, manufacturing, and remanufacturing facilities in 
jurisdictions where local law does not prohibit an EPA enforcement 
officer(s) from conducting the activities specified in this section. EPA 
will not attempt to make any inspections which it has been informed 
local foreign law prohibits.

    Effective Date Note: At 63 FR 19060, Apr. 16, 1998, Sec. 92.504 was 
added. This section contains information collection and recordkeeping 
requirements and will not become effective until approval has been given 
by the Office of Management and Budget.



Sec. 92.505  Sample selection for testing.

    (a) At the start of each model year, the manufacturer or 
remanufacturer will begin to randomly select locomotives or locomotive 
engines from each engine family for production line testing at a rate of 
one percent. Each locomotive or locomotive engine will be selected from 
the end of the production line. Testing shall be performed throughout 
the entire model year to the extent possible.
    (1) The required sample size for an engine family is the lesser of 
five tests per model year or one percent of projected annual production, 
with a minimum sample size for an engine family of one test per model 
year provided that no engine tested fails to meet applicable emission 
standards.
    (2) Manufacturers and remanufacturers may elect to test additional 
locomotives or locomotive engines. All additional locomotives or 
locomotive engines must be tested in accordance with the applicable test 
procedures of this part.
    (b) The manufacturer or remanufacturer must assemble the test 
locomotives or locomotive engines using the same mass production process 
that will be used for locomotives or locomotive engines to be introduced 
into commerce.
    (c) No quality control, testing, or assembly procedures will be used 
on any test locomotive or locomotive engine or any portion thereof, 
including parts and subassemblies, that have not been

[[Page 493]]

or will not be used during the production and assembly of all other 
locomotives or locomotive engines of that family, except with the 
approval of the Administrator.



Sec. 92.506  Test procedures.

    (a)(1) For locomotives and locomotive engines subject to the 
provisions of this subpart, the prescribed test procedures are those 
procedures described in subpart B of this part, except as provided in 
this section.
    (2) The Administrator may, on the basis of a written application by 
a manufacturer or remanufacturer, prescribe test procedures other than 
those specified in paragraph (a)(1) of this section for any locomotive 
or locomotive engine he/she determines is not susceptible to 
satisfactory testing using procedures specified in paragraph (a)(1) of 
this section.
    (3) If test procedures other than those in subpart B were used in 
certification of the engine family being tested under this subpart 
(other than alternate test procedures necessary for testing of a 
development engine instead of a low mileage locomotive or a low hour 
engine under Sec. 92.9), the manufacturer or remanufacturer shall use 
the test procedures used in certification for production line testing.
    (b)(1) The manufacturer or remanufacturer may not adjust, repair, 
prepare, modify, or perform any emission test on, any test locomotive or 
locomotive engine unless this adjustment, repair, preparation, 
modification and/or test is documented in the manufacturer's or 
remanufacturer's locomotive or engine assembly and inspection procedures 
and is actually performed by the manufacturer or remanufacturer or 
unless this adjustment, repair, preparation, modification and/or test is 
required or permitted under this subpart or is approved in advance by 
the Administrator.
    (2) Any adjustable locomotive or locomotive engine parameter must be 
set to values or positions that are within the range recommended to the 
ultimate purchaser.
    (3) The Administrator may adjust or require to be adjusted any 
engine parameter which the Administrator has determined to be subject to 
adjustment for certification and production line testing, to any setting 
within the specified adjustable range of that parameter, as determined 
by the Administrator, prior to the performance of any test.
    (c) Service Accumulation/Green Engine factor. The manufacturer or 
remanufacturer shall accumulate service on the locomotives and 
locomotive engines to be tested equivalent to 300 hours of operation. In 
lieu of conducting such service accumulation, the manufacturer or 
remanufacturer may establish a Green Engine factor for each regulated 
pollutant for each engine family to be used in calculating emissions 
test results. The manufacturer or remanufacturer shall obtain the 
approval of the Administrator prior to using a Green Engine factor.
    (d) The manufacturer or remanufacturer may not perform any 
maintenance on test locomotives or locomotive engines after selection 
for testing.
    (e) If a locomotive or locomotive engine is shipped to a facility 
other than the production facility for production line testing, and an 
adjustment or repair is necessary because of such shipment, the 
locomotive or locomotive engine manufacturer or remanufacturer must 
perform the necessary adjustment or repair only after the initial test 
of the locomotive or locomotive engine, except where the Administrator 
has determined that the test would be impossible to perform or would 
permanently damage the locomotive engine.
    (f) If a locomotive or locomotive engine cannot complete the service 
accumulation, if applicable, or an emission test, because of a 
malfunction, the manufacturer or remanufacturer may request that the 
Administrator authorize either the repair of that locomotive or 
locomotive engine or its deletion from the test sequence.
    (g) Retesting. (1) If a locomotive or locomotive engine manufacturer 
or remanufacturer determines that any production line emission test of a 
locomotive or locomotive engine is invalid, the locomotive or locomotive 
engine must be retested in accordance with

[[Page 494]]

the requirements of this subpart. Emission results from all tests must 
be reported to EPA, including test results the manufacturer or 
remanufacturer determines are invalid. The locomotive or locomotive 
engine manufacturer or remanufacturer must also include a detailed 
explanation of the reasons for invalidating any test in the quarterly 
report required in Sec. 92.508(e). In the event a retest is performed, a 
request may be made to the Administrator, within ten days of the end of 
the production quarter, for permission to substitute the after-repair 
test results for the original test results. The Administrator will 
either affirm or deny the request by the locomotive or locomotive engine 
manufacturer or remanufacturer within ten working days from receipt of 
the request.



Sec. 92.507  Sequence of testing.

    If one or more locomotives or locomotive engines fail a production 
line test, then the manufacturer or remanufacturer must test two 
additional locomotives or locomotive engines from the next fifteen 
produced in that engine family, for each locomotive or locomotive engine 
that fails.



Sec. 92.508  Calculation and reporting of test results.

    (a) Manufacturers and remanufacturers shall calculate initial test 
results using the applicable test procedure specified in Sec. 92.506(a). 
These results must also include the green engine factor, if applicable. 
The manufacturer or remanufacturer shall round these results, in 
accordance with ASTM E29-93a (incorporated by reference at Sec. 92.5), 
to the number of decimal places contained in the applicable emission 
standard expressed to one additional significant figure.
    (b) Final test results shall be calculated by summing the initial 
test results derived in paragraph (a) of this section for each test 
locomotive or locomotive engine, dividing by the number of tests 
conducted on the locomotive or locomotive engine, and rounding in 
accordance with ASTM E29-93a (incorporated by reference at Sec. 92.5) to 
the same number of decimal places contained in the applicable standard 
expressed to one additional significant figure.
    (c) Manufacturers and remanufacturers shall calculate the final test 
results for each test locomotive or locomotive engine by applying the 
appropriate deterioration factors, derived in the certification process 
for the engine family, to the final test results, and rounding in 
accordance with ASTM E 29-93a (incorporated by reference at Sec. 92.5) 
to the same number of decimal places contained in the applicable 
standard expressed to one additional significant figure.
    (d) If, subsequent to an initial failure of a production line test, 
the average of the test results for the failed locomotive or locomotive 
engine and the two additional locomotives or locomotive engines tested, 
is greater than any applicable emission standard or FEL, the engine 
family is deemed to be in non-compliance with applicable emission 
standards, and the manufacturer or remanufacturer must notify EPA within 
2 working days of such noncompliance.
    (e) Within 30 calendar days of the end of each quarter, each 
manufacturer or remanufacturer must submit to the Administrator a report 
which includes the following information:
    (1) The location and description of the manufacturer's or 
remanufacturer's emission test facilities which were utilized to conduct 
testing reported pursuant to this section;
    (2) Total production and sample size for each engine family;
    (3) The applicable standards and/or FELs against which each engine 
family was tested;
    (4) A description of the test locomotives or locomotive engines;
    (5) For each test conducted:
    (i) A description of the test locomotive or locomotive engine, 
including:
    (A) Configuration and engine family identification;
    (B) Year, make, and build date;
    (C) Engine identification number;
    (D) Number of megawatt-hours (or miles if applicable) of service 
accumulated on locomotive or locomotive engine prior to testing; and

[[Page 495]]

    (E) Description of green engine factor; how it is determined and how 
it is applied;
    (ii) Location(s) where service accumulation was conducted and 
description of accumulation procedure and schedule, if applicable;
    (iii) Test number, date, test procedure used, initial test results 
before and after rounding, and final test results for all production 
line emission tests conducted, whether valid or invalid, and the reason 
for invalidation of any test results, if applicable;
    (iv) A complete description of any adjustment, modification, repair, 
preparation, maintenance, and testing which was performed on the test 
locomotive or locomotive engine, has not been reported pursuant to any 
other paragraph of this subpart, and will not be performed on other 
production locomotive or locomotive engines;
    (v) Any other information the Administrator may request relevant to 
the determination whether the new locomotives or locomotive engines 
being manufactured or remanufactured by the manufacturer or 
remanufacturer do in fact conform with the regulations with respect to 
which the certificate of conformity was issued;
    (6) For each failed locomotive or locomotive engine as defined in 
Sec. 92.510(a), a description of the remedy and test results for all 
retests as required by Sec. 92.512(g);
    (7) The date of the end of the locomotive or locomotive engine 
manufacturer's model year production for each engine family tested; and
    (8) The following signed statement and endorsement by an authorized 
representative of the manufacturer or remanufacturer:

    This report is submitted pursuant to Sections 213 and 208 of the 
Clean Air Act. This production line testing program was conducted in 
complete conformance with all applicable regulations under 40 CFR part 
92. No emission-related changes to production processes or quality 
control procedures for the engine family tested have been made during 
this production line testing program that affect locomotives or 
locomotive engines from the production line. All data and information 
reported herein is, to the best of (Company Name) knowledge, true and 
accurate. I am aware of the penalties associated with violations of the 
Clean Air Act and the regulations thereunder. (Authorized Company 
Representative.)



Sec. 92.509  Maintenance of records; submittal of information.

    (a) The manufacturer or remanufacturer for any new locomotive or 
locomotive engine subject to any of the provisions of this subpart must 
establish, maintain, and retain the following adequately organized and 
indexed records:
    (1) General records. A description of all equipment used to test 
engines in accordance with Sec. 92.503. The equipment requirements in 
subpart B of this part apply to tests performed under this subpart.
    (2) Individual records. These records pertain to each production 
line test or audit conducted pursuant to this subpart and include:
    (i) The date, time, and location of each test or audit;
    (ii) The method by which the green engine factor was calculated or 
the number of hours of service accumulated on the test locomotive or 
locomotive engine when the test began and ended;
    (iii) The names of all supervisory personnel involved in the conduct 
of the production line test or audit;
    (iv) A record and description of any adjustment, repair, preparation 
or modification performed on test locomotives or locomotive engines, 
giving the date, associated time, justification, name(s) of the 
authorizing personnel, and names of all supervisory personnel 
responsible for the conduct of the action;
    (v) If applicable, the date the locomotive or locomotive engine was 
shipped from the assembly plant, associated storage facility or port 
facility, and the date the locomotive or locomotive engine was received 
at the testing facility;
    (vi) A complete record of all emission tests or audits performed 
pursuant to this subpart (except tests performed directly by EPA), 
including all individual worksheets and/or other documentation relating 
to each test, or exact copies thereof, in accordance with the record 
requirements specified in subpart B of this part;

[[Page 496]]

    (vii) A brief description of any significant events during testing 
not otherwise described under this paragraph (a)(2) of this section , 
commencing with the test locomotive or locomotive engine selection 
process and including such extraordinary events as engine damage during 
shipment.
    (3) The manufacturer or remanufacturer must establish, maintain and 
retain general records, pursuant to paragraph (a)(1) of this section, 
for each test cell that can be used to perform emission testing under 
this subpart.
    (b) The manufacturer or remanufacturer must retain all records 
required to be maintained under this subpart for a period of eight (8) 
years after completion of all testing. Records may be retained as hard 
copy (i.e., on paper) or reduced to microfilm, floppy disk, or some 
other method of data storage, depending upon the manufacturer's or 
remanufacturer's record retention procedure; provided, that in every 
case, all the information contained in the hard copy is retained.
    (c) The manufacturer or remanufacturer must, upon request by the 
Administrator, submit the following information with regard to 
locomotive or locomotive engine production:
    (1) Projected production for each configuration within each engine 
family for which certification has been requested and/or approved.
    (2) Number of locomotives or engines, by configuration and assembly 
plant, scheduled for production.
    (d) Nothing in this section limits the Administrator's discretion to 
require a manufacturer or remanufacturer to establish, maintain, retain 
or submit to EPA information not specified by this section.
    (e) All reports, submissions, notifications, and requests for 
approval made under this subpart must be addressed to: Group Manager, 
Engine Compliance Programs Group, Engine Programs and Compliance 
Division 6403-J, U.S. Environmental Protection Agency, 401 M Street SW., 
Washington, DC 20460.
    (f) The manufacturer or remanufacturer must electronically submit 
the results of its production line testing or auditing using an EPA 
information format.



Sec. 92.510  Compliance with criteria for production line testing.

    (a) A failed locomotive or locomotive engine is one whose final test 
results pursuant to Sec. 92.508(c), for one or more of the applicable 
pollutants, exceed the applicable emission standard or FEL.
    (b) An engine family is deemed to be in noncompliance, for purposes 
of this subpart, if at any time throughout the model year, the average 
of an initial failed locomotive or locomotive engine and the two 
additional locomotives or locomotive engines tested, is greater than any 
applicable emission standard or FEL.



Sec. 92.511  Remanufactured locomotives: installation audit requirements.

    (a) Remanufacturers of locomotives or locomotive engines shall audit 
the remanufacture of locomotives covered by its certificate(s) of 
conformity for proper components, component settings and component 
installations on randomly chosen locomotives in an engine family. Such 
audits shall be conducted in compliance with the requirements of this 
section.
    (1) The remanufacturer must ensure that all emission related 
components are properly installed on the locomotive or locomotive 
engine.
    (2) The remanufacturer must ensure that all emission related 
components are set to the proper specification as indicated in the 
remanufacture instructions.
    (3) Remanufacturers are allowed to submit audits performed by the 
owners or operators of the locomotives, provided the audits are 
performed in accordance with the provisions of this section.
    (b)(1) The required initial sample size (i.e., the sample size if no 
failures occur) for each remanufacturer is five percent of the 
remanufacturer's annual sales per model year per installer, with a 
maximum number of ten per engine family per installer.
    (2) The locomotives audited shall be randomly selected after the 
remanufacture is complete. The Administrator may allow the locomotives 
to be selected prior to the completion of the remanufacture, where such 
preselection would not have the potential to affect the manner in which 
the

[[Page 497]]

locomotive was remanufactured (e.g., where the installer is not aware of 
the selection prior to the completion of the remanufacture).
    (c) The remanufactured locomotive or locomotive engine may 
accumulate no more than 10,000 miles prior to an audit.
    (d) A failed remanufactured locomotive or locomotive engine is one 
on which any remanufacture components are found to be improperly 
installed, improperly adjusted or incorrectly used.
    (e) If a remanufactured locomotive or locomotive engine fails an 
audit, then the remanufacturer must audit two additional locomotives or 
locomotive engines from the next ten remanufactured in that engine 
family by that installer.
    (f) An engine family is determined to have failed an audit, if at 
any time during the model year, the remanufacturer determines that the 
three locomotives audited are found to have had any improperly 
installed, improperly adjusted or incorrectly used components. The 
remanufacturer must notify EPA within 2 working days of a determination 
of an engine family audit failure.
    (g) Within 30 calendar days of the end of each quarter, each 
remanufacturer must submit to the Administrator a report which includes 
the following information:
    (1) The location and description of the remanufacturer's audit 
facilities which were utilized to conduct auditing reported pursuant to 
this section;
    (2) Total production and sample size for each engine family;
    (3) The applicable standards and/or FELs against which each engine 
family was audited;
    (4) For each audit conducted:
    (i) A description of the audit locomotive or locomotive engine, 
including:
    (A) Configuration and engine family identification;
    (B) Year, make, build date, and remanufacturer date; and
    (C) Engine identification number;
    (ii) Any other information the Administrator may request relevant to 
the determination whether the new locomotives or locomotive engines 
being manufactured or remanufactured by the remanufacturer do in fact 
conform with the regulations in this part with respect to which the 
certificate of conformity was issued;
    (5) For each failed locomotive or locomotive engine as defined in 
paragraph (d) of this section, a description of the remedy as required 
by Sec. 92.512(g);
    (6) The following signed statement and endorsement by an authorized 
representative of the remanufacturer:

    This report is submitted pursuant to Sections 213 and 208 of the 
Clean Air Act. This production line auditing program was conducted in 
complete conformance with all applicable regulations under 40 CFR part 
92. No emission-related changes to production processes or quality 
control procedures for the engine family audited have been made during 
this production line auditing program that affect locomotives or 
locomotive engines from the production line. All data and information 
reported herein is, to the best of (Company Name) knowledge, true and 
accurate. I am aware of the penalties associated with violations of the 
Clean Air Act and the regulations thereunder. (Authorized Company 
Representative.)



Sec. 92.512  Suspension and revocation of certificates of conformity.

    (a)(1) The certificate of conformity is suspended with respect to 
any locomotive or locomotive engine that fails a production line test 
pursuant to Sec. 92.510(a), effective from the time the testing of that 
locomotive or locomotive engine is completed.
    (2) The certificate of conformity is suspended with respect to any 
locomotive or locomotive engine that fails an audit pursuant to 
Sec. 92.511(d), effective from the time that auditing of that locomotive 
or locomotive engine is completed.
    (b)(1) The Administrator may suspend the certificate of conformity 
for an engine family which is in noncompliance pursuant to 
Sec. 92.510(b), thirty days after the engine family is deemed to be in 
noncompliance.
    (2) The Administrator may suspend the certificate of conformity for 
an engine family which is determined to have failed an audit pursuant to 
Sec. 92.511(f). This suspension will not occur before thirty days after 
the engine family is deemed to be in noncompliance.

[[Page 498]]

    (c) If the results of testing or auditing pursuant to these 
regulations indicate that locomotives or engines of a particular family 
produced at one plant of a manufacturer or remanufacturer do not conform 
to the regulations with respect to which the certificate of conformity 
was issued, the Administrator may suspend the certificate of conformity 
with respect to that family for locomotives or locomotive engines 
manufactured or remanufactured by the manufacturer or remanufacturer at 
all other plants.
    (d) The Administrator may suspend a certificate of conformity for 
any locomotive or locomotive engine family in whole or in part if:
    (1) The manufacturer or remanufacturer fails to comply with any of 
the requirements of this subpart.
    (2) The manufacturer or remanufacturer submits false or incomplete 
information in any report or information provided to the Administrator 
under this subpart.
    (3) The manufacturer or remanufacturer renders inaccurate any test 
data submitted under this subpart.
    (4) An EPA enforcement officer is denied the opportunity to conduct 
activities authorized in this subpart.
    (5) An EPA enforcement officer is unable to conduct activities 
authorized in Sec. 92.504 for any reason.
    (e) The Administrator shall notify the manufacturer or 
remanufacturer in writing of any suspension or revocation of a 
certificate of conformity in whole or in part; a suspension or 
revocation is effective upon receipt of such notification or thirty days 
from the time an engine family is deemed to be in noncompliance under 
Secs. 92.508(d), 92.510(a), 92.510(b) or 92.511(f) is made, whichever is 
earlier, except that the certificate is immediately suspended with 
respect to any failed locomotives or locomotive engines as provided for 
in paragraph (a) of this section.
    (f) The Administrator may revoke a certificate of conformity for an 
engine family when the certificate has been suspended pursuant to 
paragraph (b) or (c) of this section if the remedy is one requiring a 
design change or changes to the locomotive, engine and/or emission 
control system as described in the application for certification of the 
affected engine family.
    (g) Once a certificate has been suspended for a failed locomotive or 
locomotive engine, as provided for in paragraph (a) of this section, the 
manufacturer or remanufacturer must take the following actions before 
the certificate is reinstated for that failed locomotive or locomotive 
engine:
    (1) Remedy the nonconformity;
    (2) Demonstrate that the locomotive or locomotive engine conforms to 
applicable standards or family emission limits by retesting, or 
reauditing if applicable, the locomotive or locomotive engine in 
accordance with this part; and
    (3) Submit a written report to the Administrator, after successful 
completion of testing, or auditing if applicable, on the failed 
locomotive or locomotive engine, which contains a description of the 
remedy and test (or audit) results for each locomotive or engine in 
addition to other information that may be required by this part.
    (h) Once a certificate for a failed engine family has been suspended 
pursuant to paragraph (b) or (c) of this section, the manufacturer or 
remanufacturer must take the following actions before the Administrator 
will consider reinstating the certificate:
    (1) Submit a written report to the Administrator which identifies 
the reason for the noncompliance of the locomotives or locomotive 
engines, describes the remedy, including a description of any quality 
control and/or quality assurance measures to be taken by the 
manufacturer or remanufacturer to prevent future occurrences of the 
problem, and states the date on which the remedies will be implemented.
    (2) Demonstrate that the engine family for which the certificate of 
conformity has been suspended does in fact comply with the regulations 
of this part by testing, or auditing if applicable, locomotives or 
engines selected from normal production runs of that engine family. Such 
testing (or auditing) must comply with the provisions of this subpart. 
If the manufacturer or remanufacturer elects to continue testing, or 
auditing if applicable, individual locomotives or engines after

[[Page 499]]

suspension of a certificate, the certificate is reinstated for any 
locomotive or engine actually determined to be in conformance with the 
applicable standards or family emission limits through testing, or 
auditing if applicable, in accordance with the applicable test 
procedures, provided that the Administrator has not revoked the 
certificate pursuant to paragraph (f) of this section.
    (i) Once the certificate has been revoked for an engine family, if 
the manufacturer or remanufacturer desires to continue introduction into 
commerce of a modified version of that family, the following actions 
must be taken before the Administrator may issue a certificate for that 
modified family:
    (1) If the Administrator determines that the change(s) in locomotive 
or engine design may have an effect on emission performance 
deterioration, the Administrator shall notify the manufacturer or 
remanufacturer, within five working days after receipt of the report in 
paragraph (g) of this section, whether subsequent testing or auditing if 
applicable, under this subpart will be sufficient to evaluate the change 
or changes or whether additional testing or auditing will be required; 
and
    (2) After implementing the change or changes intended to remedy the 
nonconformity, the manufacturer or remanufacturer must demonstrate that 
the modified engine family does in fact conform with the regulations of 
this part by testing, or auditing if applicable, locomotives or engines 
selected from normal production runs of that engine family. When both of 
these requirements are met, the Administrator shall reissue the 
certificate or issue a new certificate, as the case may be, to include 
that family. If this subsequent testing, or auditing if applicable, 
reveals failing data the revocation remains in effect.
    (j) At any time subsequent to an initial suspension of a certificate 
of conformity for a test or audit locomotive or engine pursuant to 
paragraph (a) of this section, but not later than 30 days (or such other 
period as may be allowed by the Administrator) after notification of the 
Administrator's decision to suspend or revoke a certificate of 
conformity in whole or in part pursuant to paragraphs (b), (c), or (f) 
of this section, a manufacturer or remanufacturer may request a hearing 
as to whether the tests or audits have been properly conducted or any 
sampling methods have been properly applied.
    (k) Any suspension of a certificate of conformity under paragraphs 
(a), (b), (c) and (d) of this section:
    (1) Shall be made only after the manufacturer or remanufacturer 
concerned has been offered an opportunity for a hearing conducted in 
accordance with Secs. 92.513, 92.514, and 92.515 and
    (2) Need not apply to locomotives or engines no longer in the 
possession of the manufacturer or remanufacturer.
    (l) After the Administrator suspends or revokes a certificate of 
conformity pursuant to this section or voids a certificate of conformity 
under Sec. 92.215, and prior to the commencement of a hearing under 
Sec. 92.513, if the manufacturer or remanufacturer demonstrates to the 
Administrator's satisfaction that the decision to suspend, revoke, or 
void the certificate was based on erroneous information, the 
Administrator shall reinstate the certificate.
    (m) To permit a manufacturer or remanufacturer to avoid storing non-
test locomotives or locomotive engines while conducting subsequent 
testing or auditing of the noncomplying family, a manufacturer or 
remanufacturer may request that the Administrator conditionally 
reinstate the certificate for that family. The Administrator may 
reinstate the certificate subject to the following condition: the 
manufacturer or remanufacturer must commit to recall all locomotives or 
locomotive engines of that family produced from the time the certificate 
is conditionally reinstated if the family fails subsequent testing, or 
auditing if applicable, and must commit to remedy any nonconformity at 
no expense to the owner.



Sec. 92.513  Request for public hearing.

    (a) If the manufacturer or remanufacturer disagrees with the 
Administrator's decision to suspend or revoke a certificate or disputes 
the basis for an automatic suspension pursuant to Sec. 92.512(a), the 
manufacturer or remanufacturer may request a public hearing.

[[Page 500]]

    (b) The manufacturer's or remanufacturer's request shall be filed 
with the Administrator not later than 30 days after the Administrator's 
notification of his or her decision to suspend or revoke, unless 
otherwise specified by the Administrator. The manufacturer or 
remanufacturer shall simultaneously serve two copies of this request 
upon the Director of the Engine Programs and Compliance Division, Office 
of Mobile Sources and file two copies with the Hearing Clerk of the 
Agency. Failure of the manufacturer or remanufacturer to request a 
hearing within the time provided constitutes a waiver of the right to a 
hearing. Subsequent to the expiration of the period for requesting a 
hearing as of right, the Administrator may, in his or her discretion and 
for good cause shown, grant the manufacturer or remanufacturer a hearing 
to contest the suspension or revocation.
    (c) A manufacturer or remanufacturer shall include in the request 
for a public hearing:
    (1) A statement as to which configuration(s) within a family is to 
be the subject of the hearing;
    (2) A concise statement of the issues to be raised by the 
manufacturer or remanufacturer at the hearing, except that in the case 
of the hearing requested under Sec. 92.512(j), the hearing is restricted 
to the following issues:
    (i) Whether tests or audits have been properly conducted 
(specifically, whether the tests were conducted in accordance with 
applicable regulations under this part and whether test equipment was 
properly calibrated and functioning);
    (ii) Whether there exists a basis for distinguishing locomotives or 
locomotive engines produced at plants other than the one from which 
locomotives or locomotive engines were selected for testing or auditing 
which would invalidate the Administrator's decision under 
Sec. 92.512(c));
    (3) A statement specifying reasons why the manufacturer or 
remanufacturer believes it will prevail on the merits of each of the 
issues raised; and
    (4) A summary of the evidence which supports the manufacturer's or 
remanufacturer's position on each of the issues raised.
    (d) A copy of all requests for public hearings will be kept on file 
in the Office of the Hearing Clerk and will be made available to the 
public during Agency business hours.



Sec. 92.514  Administrative procedures for public hearing.

    (a) The Presiding Officer shall be an Administrative Law Judge 
appointed pursuant to 5 U.S.C. 3105 (see also 5 CFR part 930).
    (b) The Judicial Officer shall be an officer or employee of the 
Agency appointed as a Judicial Officer by the Administrator, pursuant to 
this section, who shall meet the qualifications and perform functions as 
follows:
    (1) Qualifications. A Judicial Officer may be a permanent or 
temporary employee of the Agency who performs other duties for the 
Agency. The Judicial Officer shall not be employed by the Office of 
Enforcement or have any connection with the preparation or presentation 
of evidence for a hearing held pursuant to this subpart. The Judicial 
Officer 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.
    (2) Functions. The Administrator may consult with the Judicial 
Officer or delegate all or part of the Administrator's authority to act 
in a given case under this section to a Judicial Officer, provided that 
this delegation does not preclude the Judicial Officer from referring 
any motion or case to the Administrator when the Judicial Officer 
determines such referral to be appropriate.
    (c) For the purposes of this section, one or more Judicial Officers 
may be designated by the Administrator. As work requires, a Judicial 
Officer may be designated to act for the purposes of a particular case.
    (d) Summary decision. (1) In the case of a hearing requested under 
Sec. 92.512(j), when it clearly appears from the data and other 
information contained in the request for a hearing that no genuine and 
substantial question of fact or law exists with respect to the issues 
specified in Sec. 92.513(c)(2), the Administrator may enter an order 
denying the request

[[Page 501]]

for a hearing and reaffirming the original decision to suspend or revoke 
a certificate of conformity.
    (2) In the case of a hearing requested under Sec. 92.513 to 
challenge a suspension of a certificate of conformity for the reason(s) 
specified in Sec. 92.512(d), when it clearly appears from the data and 
other information contained in the request for the hearing that no 
genuine and substantial question of fact or law exists with respect to 
the issue of whether the refusal to comply with this subpart was caused 
by conditions and circumstances outside the control of the manufacturer 
or remanufacturer, the Administrator may enter an order denying the 
request for a hearing and suspending the certificate of conformity.
    (3) Any order issued under paragraph (d)(1) or (d)(2) of this 
section has the force and effect of a final decision of the 
Administrator, as issued pursuant to Sec. 92.516.
    (4) If the Administrator determines that a genuine and substantial 
question of fact or law does exist with respect to any of the issues 
referred to in paragraphs (d)(1) and (d)(2) of this section, the 
Administrator shall grant the request for a hearing and publish a notice 
of public hearing in the Federal Register or by such other means as the 
Administrator finds appropriate to provide notice to the public.
    (e) Filing and service. (1) An original and two copies of all 
documents or papers required or permitted to be filed pursuant to this 
section and Sec. 92.513(c) must be filed with the Hearing Clerk of the 
Agency. Filing is considered timely if mailed, as determined by the 
postmark, to the Hearing Clerk within the time allowed by this section 
and Sec. 92.513(b). If filing is to be accomplished by mailing, the 
documents must be sent to the address set forth in the notice of public 
hearing referred to in paragraph (d)(4) of this section.
    (2) To the maximum extent possible, testimony will be presented in 
written form. Copies of written testimony will be served upon all 
parties as soon as practicable prior to the start of the hearing. A 
certificate of service will be provided on or accompany each document or 
paper filed with the Hearing Clerk. Documents to be served upon the 
Director of the Engine Programs and Compliance Division must be sent by 
registered mail to: Director, Engine Programs and Compliance Division 
6403-J, U.S. Environmental Protection Agency, 401 M Street SW., 
Washington, DC 20460. Service by registered mail is complete upon 
mailing.
    (f) Computation of time. (1) In computing any period of time 
prescribed or allowed by this section, except as otherwise provided, the 
day of the act or event from which the designated period of time begins 
to run is not included. Saturdays, Sundays, and federal legal holidays 
are included in computing the period allowed for the filing of any 
document or paper, except that when the period expires on a Saturday, 
Sunday, or federal legal holiday, the period is extended to include the 
next following business day.
    (2) A prescribed period of time within which a party is required or 
permitted to do an act is computed from the time of service, except that 
when service is accomplished by mail, three days will be added to the 
prescribed period.
    (g) Consolidation. The Administrator or the Presiding Officer in his 
or her discretion may consolidate two or more proceedings to be held 
under this section for the purpose of resolving one or more issues 
whenever it appears that consolidation will expedite or simplify 
consideration of these issues. Consolidation does not affect the right 
of any party to raise issues that could have been raised if 
consolidation had not occurred.
    (h) Hearing date. To the extent possible hearings under Sec. 92.513 
will be scheduled to commence within 14 days of receipt of the request 
for a hearing.



Sec. 92.515  Hearing procedures.

    The procedures provided in Sec. 86.1014-84(i) through (s) of this 
chapter apply for hearings requested pursuant to Sec. 92.513 regarding 
suspension, revocation, or voiding of a certificate of conformity.



Sec. 92.516  Appeal of hearing decision.

    The procedures provided in Sec. 86.1014-84(t) through (aa) of this 
chapter apply for appeals filed with respect to hearings held pursuant 
to Sec. 92.515.

[[Page 502]]



Sec. 92.517  Treatment of confidential information.

    Except for information required by Sec. 92.508(e)(2) and quarterly 
emission test results described in Sec. 92.508(e), information submitted 
pursuant to this subpart shall be made available to the public by EPA 
notwithstanding any claim of confidentiality made by the submitter. The 
provisions for treatment of confidential information described in 
Sec. 92.4 apply to the information required by Sec. 92.508(e)(2) and all 
other information submitted pursuant to this subpart.



                    Subpart G--In-Use Testing Program



Sec. 92.601  Applicability.

    The requirements of this subpart are applicable to all manufacturers 
and remanufacturers of locomotives subject to the provisions of subpart 
A of this part, including all locomotives powered by any locomotive 
engines subject to the provisions of subpart A of this part.



Sec. 92.602  Definitions.

    Except as otherwise provided, the definitions in subpart A of this 
part apply to this subpart.



Sec. 92.603  General provisions.

    (a) EPA shall annually identify engine families and configurations 
within families on which the manufacturer or remanufacturer must conduct 
in-use emissions testing pursuant to the requirements of this section.
    (1) Manufacturers and remanufacturers shall test one locomotive 
engine family each year for which it has received a certificate of 
conformity from EPA. Where a manufacturer holds certificates of 
conformity for both freshly manufactured and remanufactured locomotive 
engine families, the Administrator may require the manufacturer to test 
one freshly manufactured engine family and one remanufactured engine 
family. The Administrator may require a manufacturer or remanufacturer 
to test additional engine families if he/she has reason to believe that 
locomotives in an engine family do not comply with emission standards in 
use.
    (2) For engine families of less than 10 locomotives per year, no in-
use testing will be required, unless the Administrator has reason to 
believe that those engine families are not complying with the applicable 
emission standards in use.
    (b) Locomotive manufacturers or remanufacturers shall perform 
emission testing of a sample of in-use locomotives from an engine 
family, as specified in Sec. 92.605. Manufacturers or remanufacturers 
shall submit data from this in-use testing to EPA. EPA will use these 
data, and any other data available to EPA, to determine the compliance 
status of classes of locomotives, including for purposes of subpart H of 
this part, and whether remedial action is appropriate.



Sec. 92.604  In-use test procedure.

    (a) Testing conducted under this subpart shall be conducted on 
locomotives; testing under this subpart shall not be conducted using an 
engine that is not installed in a locomotive at the time of testing.
    (b) Locomotives tested under this subpart shall be tested using the 
locomotive test procedures outlined in subpart B of this part, except as 
provided in this section.
    (c) The test procedures used for in-use testing shall be consistent 
with the test procedures used for certification, except for cases in 
which certification testing was not conducted with locomotive, but with 
a development engine, or other engine. In such cases, the Administrator 
shall require deviations from the certification test procedures as 
appropriate, including requiring that the test be conducted on a 
locomotive. The Administrator may allow or require other alternate 
procedures, with advance approval. For all testing conducted under this 
subpart, emission rates shall be calculated in accordance with the 
provisions of subpart B of this part that apply to locomotive testing.
    (d) Any adjustable locomotive or locomotive engine parameter must be 
set to values or positions that are within the range specified in the 
certificate of conformity. If so directed by the Administrator, the 
manufacturer or remanufacturer will set these parameters

[[Page 503]]

to values specified by the Administrator.
    (e) The Administrator may waive portions or requirements of the 
applicable test procedure, if any, that are not necessary to determine 
in-use compliance.



Sec. 92.605  General testing requirements.

    (a) Number of locomotives to be tested. The manufacturer or 
remanufacturer shall test in-use locomotives, from an engine family 
selected by EPA, which have accumulated between one-half and three-
quarters of the engine family's useful life. The number of locomotives 
to be tested by a manufacturer or remanufacturer will be determined by 
the following method:
    (1) A minimum of 2 locomotives per engine family per year for each 
engine family that reaches the minimum age specified above provided that 
no locomotive tested fails to meet any applicable standard. For each 
failing locomotive, two more locomotives shall be tested until the total 
number of locomotives tested equals 10, except as provided in paragraph 
(a)(2) of this section.
    (2) If an engine family has not changed from one year to the next 
and has certified using carry over emission data and has been previously 
tested under paragraph (a)(1) of this section (and EPA has not ordered 
or begun to negotiate remedial action of that family), then only one 
locomotive per engine family per year must be tested. If such locomotive 
fails to meet applicable standards for any pollutant, testing for that 
engine family must be conducted as outlined under paragraph (a)(1) of 
this section.
    (b) At the discretion of the Administrator, a locomotive or 
locomotive engine manufacturer or remanufacturer may test more 
locomotives than the minima described above or may concede failure 
before locomotive number 10.
    (c) The Administrator will consider failure rates, average emission 
levels and the existence of any defects among other factors in 
determining whether to pursue remedial action. The Administrator may 
order a recall pursuant to subpart H of this part before testing reaches 
the tenth locomotive.
    (d) Collection of in-use locomotives. The locomotive manufacturer or 
remanufacturer shall procure in-use locomotives which have been operated 
for between one-half and three-quarters of the locomotive's useful life 
for testing under this subpart. The manufacturer or remanufacturer shall 
complete testing required by this section for any engine family before 
useful life of the locomotives in the engine family passes.



Sec. 92.606  Maintenance, procurement and testing of in-use locomotives.

    (a) A test locomotive must have a maintenance history that is 
representative of actual in-use conditions, and identical or equivalent 
to the manufacturer's or remanufacturer's recommended emission-related 
maintenance requirements.
    (1) In procuring in-use locomotives for in-use testing, a 
manufacturer or remanufacturer shall question the end users regarding 
the accumulated usage, maintenance, operating conditions, and storage of 
the test locomotives.
    (2) The selection of test locomotives is made by the manufacturer or 
remanufacturer, and is subject to EPA approval. Information used by the 
manufacturer or remanufacturer to procure locomotives for in-use testing 
shall be maintained as required in Sec. 92.215.
    (b) The manufacturer or remanufacturer may perform minimal set-to-
spec maintenance on a test locomotive prior to conducting in-use 
testing. Maintenance may include only that which is listed in the 
owner's instructions for locomotives with the amount of service and age 
of the acquired test locomotive. Documentation of all maintenance and 
adjustments shall be maintained and retained.
    (c) Results of one valid emission test using the test procedure 
outlined in subpart B of this part is required for each in-use 
locomotive.
    (d) If in-use testing results show that an in-use locomotive fails 
to comply with any applicable emission standards, the manufacturer or 
remanufacturer shall determine the reason for noncompliance. The 
manufacturer or remanufacturer must report all determinations for 
noncompliance in its

[[Page 504]]

quarterly in-use test result report pursuant to Sec. 92.607(a)(11).

    Effective Date Note: At 63 FR 19066, Apr. 16, 1998, Sec. 92.606 was 
added. This section contains information collection and recordkeeping 
requirements and will not become effective until approval has been given 
by the Office of Management and Budget.



Sec. 92.607  In-use test program reporting requirements.

    (a) The manufacturer or remanufacturer shall submit to the 
Administrator within three (3) months of completion of testing all 
emission testing results generated from the in-use testing program. The 
following information must be reported for each locomotive tested:
    (1) Engine family, and configuration;
    (2) Locomotive and engine models;
    (3) Locomotive and engine serial numbers;
    (4) Date of manufacture and/or remanufacture(s), as applicable;
    (5) Megawatt-hours of use (or miles, as applicable);
    (6) Date and time of each test attempt;
    (7) Results (if any) of each test attempt;
    (8) Results of all emission testing;
    (9) Summary of all maintenance and/or adjustments performed;
    (10) Summary of all modifications and/or repairs;
    (11) Determinations of noncompliance; and
    (12) The following signed statement and endorsement by an authorized 
representative of the manufacturer or remanufacturer:

    This report is submitted pursuant to Sections 213 and 208 of the 
Clean Air Act. This in-use testing program was conducted in complete 
conformance with all applicable regulations under 40 CFR part 92. All 
data and information reported herein is, to the best of (Company Name) 
knowledge, true and accurate. I am aware of the penalties associated 
with violations of the Clean Air Act and the regulations thereunder. 
(Authorized Company Representative.)

    (b) The manufacturer or remanufacturer shall report to the 
Administrator within three (3) months of completion of testing the 
following information for each engine family tested:
    (1) The serial numbers of all locomotive that were excluded from the 
test sample because they did not meet the maintenance requirements of 
Sec. 92.606;
    (2) The owner of each locomotive identified in paragraph (b)(1) of 
this section (or other entity responsible for the maintenance of the 
locomotive); and
    (3) The specific reasons why the locomotives were excluded from the 
test sample.
    (c) The manufacturer or remanufacturer must submit, via floppy disk, 
the information outlined in paragraphs (a) and (b) of this section using 
a pre-approved information heading. The Administrator may exempt 
manufacturers or remanufacturers from this requirement upon written 
request with supporting justification.
    (d) All testing reports and requests for approvals made under this 
subpart shall be addressed to: Group Manager, Engine Compliance Programs 
Group, Engine Programs and Compliance Division, U.S. Environmental 
Protection Agency, 6403-J, 401 M Street SW., Washington, DC 20460.



                      Subpart H--Recall Regulations



Sec. 92.701  Applicability.

    The requirements of subpart H of this part are applicable to all 
manufacturers and remanufacturers of locomotives and locomotive engines 
subject to the provisions of subpart A of this part.



Sec. 92.702  Definitions.

    The definitions of subpart A of this part apply to this subpart.



Sec. 92.703  Voluntary emissions recall.

    (a) Prior to an EPA ordered recall, a manufacturer or remanufacturer 
may perform (without petition) a voluntary emissions recall pursuant to 
regulations in subpart E of this part. Such manufacturer or 
remanufacturer is subject to the reporting requirements in subpart E of 
this part.
    (b) If a determination of nonconformity with the requirements of 
section 213 of the Act is made (i.e. if EPA orders a recall under the 
provisions of section 207(c)), the manufacturer(s) or remanufacturer(s) 
will not have the option of an alternate remedial action and an actual 
recall would be required.

[[Page 505]]



Sec. 92.704  Notice to manufacturer or remanufacturer of nonconformity; submission of remedial plan.

    (a) The manufacturer or remanufacturer will be notified whenever the 
Administrator has determined that a substantial number of a class or 
category of locomotives or locomotive engines produced by that 
manufacturer or remanufacturer, although properly maintained and used, 
do not conform to the regulations prescribed under the Act in effect 
during, and applicable to the model year of such locomotives or 
locomotive engines. The notification will include a description of each 
class or category of locomotives or locomotive engines encompassed by 
the determination of nonconformity, will give the factual basis for the 
determination of nonconformity (except information previously provided 
the manufacturer or remanufacturer by the Agency), and will designate a 
date, no sooner than 45 days from the date of receipt of such 
notification, by which the manufacturer or remanufacturer shall have 
submitted a plan to remedy the nonconformity.
    (b) Unless a hearing is requested pursuant to Sec. 92.709, the 
remedial plan shall be submitted to the Administrator within the time 
limit specified in the Administrator's notification, provided that the 
Administrator may grant a manufacturer or remanufacturer an extension 
upon good cause shown.
    (c) If a manufacturer or remanufacturer requests a public hearing 
pursuant to Sec. 92.709, unless as a result of such hearing the 
Administrator withdraws his determination of nonconformity, the 
manufacturer or remanufacturer shall submit the remedial plan within 30 
days of the end of such hearing.



Sec. 92.705  Remedial plan.

    (a) When any manufacturer or remanufacturer is notified by the 
Administrator that a substantial number of any class or category of 
locomotives or locomotive engines, although properly maintained and 
used, do not conform to the applicable regulations of this part 
(including emission standards or family emission limits), the 
manufacturer or remanufacturer shall submit a plan to the Administrator 
to remedy such nonconformity. The plan shall contain the following:
    (1) A description of each class or category of locomotive or 
locomotive engine to be recalled including the year(s) of manufacture or 
remanufacture, the make, the model, the calendar year and such other 
information as may be required to identify the locomotives or locomotive 
engines to be recalled.
    (2) A description of the specific modifications, alterations, 
repairs, corrections, adjustments or other changes to be made to bring 
the locomotives or locomotive engines into conformity, including a brief 
summary of the data and technical studies which support the 
manufacturer's or remanufacturer's decision as to the particular 
remedial changes to be used in correcting the nonconformity.
    (3) A description of the method by which the manufacturer or 
remanufacturer will determine the names and addresses of locomotive or 
locomotive engine owners.
    (4) A description of the proper maintenance or use, if any, upon 
which the manufacturer or remanufacturer conditions eligibility for 
repair under the remedial plan, an explanation of the manufacturer's or 
remanufacturer's reasons for imposing any such condition, and a 
description of the proof to be required of a locomotive or locomotive 
engine owner to demonstrate compliance with any such condition. 
Eligibility may not be denied solely on the basis that the locomotive or 
locomotive engine owner used parts not manufactured or remanufactured by 
the original locomotive or locomotive engine manufacturer or 
remanufacturer, or had repairs not performed by such manufacturer or 
remanufacturer. No maintenance or use condition may be imposed unless it 
is, in the judgement of the Administrator, demonstrably related to 
preventing the nonconformity.
    (5) A description of the procedure to be followed by locomotive or 
locomotive engine owners to obtain correction of the nonconformity. This 
shall include designation of the date on or after which the owner can 
have the nonconformity remedied, the time reasonably necessary to 
perform the labor

[[Page 506]]

required to correct the nonconformity, and the designation of facilities 
at which the nonconformity can be remedied: Provided, That repair shall 
be completed within a reasonable time designated by the Administrator 
from the date the owner first tenders his locomotive or locomotive 
engine after the date designated by the manufacturer or remanufacturer 
as the date on or after which the owner can have the nonconformity 
remedied.
    (6) If some or all of the nonconforming locomotives or locomotive 
engines are to be remedied by persons other than authorized warranty 
agents of the manufacturer or remanufacturer, a description of the class 
of persons other than authorized warranty agents of the manufacturer or 
remanufacturer who will remedy the nonconformity, and a statement 
indicating that the participating members of the class will be properly 
equipped to perform such remedial action.
    (7) Three copies of the letters of notification to be sent to 
locomotive or locomotive engine owners.
    (8) A description of the system by which the manufacturer or 
remanufacturer will assure that an adequate supply of parts will be 
available to perform the repair under the remedial plan including the 
date by which an adequate supply of parts will be available to initiate 
the repair campaign, the percentage of the total parts requirement of 
each person who is to perform the repair under the remedial plan to be 
shipped to initiate the campaign, and the method to be used to assure 
the supply remains both adequate and responsive to owner demand.
    (9) Three copies of all necessary instructions to be sent to those 
persons who are to perform the repair under the remedial plan.
    (10) A description of the impact of the changes on fuel consumption, 
operability, and safety of each class or category of locomotives or 
locomotive engines to be recalled and a brief summary of the data, 
technical studies, or engineering evaluations which support these 
conclusions.
    (11) Any other information, reports or data which the Administrator 
may reasonably determine is necessary to evaluate the remedial plan.
    (b)(1) Notification to locomotive or locomotive engine owners shall 
be made by first class mail or by such means as approved by the 
Administrator.
    (2) The manufacturer or remanufacturer shall use all reasonable 
means necessary to locate locomotive or locomotive engine owners.
    (3) The Administrator reserves the right to require the manufacturer 
or remanufacturer to send by certified mail or other reasonable means 
subsequent notification to locomotive or locomotive engine owners.
    (c)(1) The manufacturer or remanufacturer shall require those who 
perform the repair under the remedial plan to affix a label to each 
locomotive or locomotive engine repaired or, when required, inspected 
under the remedial plan.
    (2) The label shall be placed in such location as approved by the 
Administrator consistent with Federal Railroad Administration 
regulations and shall be fabricated of a material suitable for the 
location in which it is installed and which is not readily removable 
intact.
    (3) The label shall contain:
    (i) The recall campaign number; and
    (ii) A code designating the campaign facility at which the repair, 
or inspection for repair was performed.
    (4) The Administrator reserves the right to waive any or all of the 
requirements of this paragraph (c) if he/she determines that they 
constitute an unwarranted burden to the manufacturer or remanufacturer.
    (d) The Administrator may require the manufacturer or remanufacturer 
to conduct tests on components and locomotives or locomotive engines 
incorporating a change, repair, or modification reasonably designed and 
necessary to demonstrate the effectiveness of the change, repair, or 
modification.

    Note to Sec. 92.705: An interpretive ruling regarding Sec. 92.705 is 
published in Appendix II to this part.



Sec. 92.706  Approval of plan: Implementation.

    (a) If the Administrator finds that the remedial plan is designed 
and effective to correct the nonconformity, he/she will so notify the 
manufacturer or

[[Page 507]]

remanufacturer in writing. If the remedial plan is not approved, the 
Administrator will provide the manufacturer or remanufacturer notice of 
the disapproval and the reasons for the disapproval in writing.
    (b) Upon receipt of notice from the Administrator that the remedial 
plan has been approved, the manufacturer or remanufacturer shall 
commence implementation of the approved plan. Notification of locomotive 
or locomotive engine owners shall be in accordance with requirements of 
this subpart and shall proceed as follows:
    (1) When no public hearing as described in Sec. 92.709 is requested 
by the manufacturer or remanufacturer, notification of locomotive or 
locomotive engine owners shall commence within 15 working days of the 
receipt by the manufacturer or remanufacturer of the Administrator's 
approval unless otherwise specified by the Administrator.
    (2) When a public hearing as described in Sec. 92.709 is held, 
unless as a result of such hearing the Administrator withdraws the 
determination of nonconformity, the Administrator shall, within 60 days 
after the completion of such hearing, order the manufacturer or 
remanufacturer to provide prompt notification of such nonconformity.



Sec. 92.707  Notification to locomotive or locomotive engine owners.

    (a) The notification of locomotive or locomotive engine owners shall 
contain the following:
    (1) The statement: ``The Administrator of the U.S. Environmental 
Protection Agency has determined that your locomotive or locomotive 
engine may be emitting pollutants in excess of the federal emission 
standards or family emission limits, as defined in 40 CFR part 92. These 
standards or family emission limits, as defined in 40 CFR part 92 were 
established to protect the public health or welfare from the dangers of 
air pollution.''
    (2) A statement that the nonconformity of any such locomotives or 
locomotive engines which have been, if required by the remedial plan, 
properly maintained and used, will be remedied at the expense of the 
manufacturer or remanufacturer.
    (3) A description of the proper maintenance or use, if any, upon 
which the manufacturer or remanufacturer conditions eligibility for 
repair under the remedial plan and a description of the proof to be 
required of a locomotive or locomotive engine owner to demonstrate 
compliance with such condition. Eligibility may not be denied solely on 
the basis that the locomotive or locomotive engine owner used parts not 
manufactured or remanufactured by the manufacturer or remanufacturer, or 
had repairs not performed by the manufacturer or remanufacturer.
    (4) A clear description of the components which will be affected by 
the remedy and a general statement of the measures to be taken to 
correct the nonconformity.
    (5) A description of the adverse effects, if any, that an 
uncorrected nonconformity would have on the performance or operability 
of the locomotive or locomotive engine.
    (6) A description of the adverse effects, if any, that such 
nonconformity would have on the performance or operability of the 
locomotive or locomotive engine.
    (7) A description of the average effects, if any, that such 
nonconformity would have on the functions of other locomotive or 
locomotive engine components.
    (8) A description of the procedure which the locomotive or 
locomotive engine owner should follow to obtain correction of the 
nonconformity. This shall include designation of the date on or after 
which the owner can have the nonconformity remedied, the time reasonably 
necessary to perform the labor required to correct the nonconformity, 
and the designation of facilities at which the nonconformity can be 
remedied.
    (9) A telephone number provided by the manufacturer or 
remanufacturer, which may be used to report difficulty in obtaining 
recall repairs.
    (10) The statement: ``In order to ensure your full protection under 
the emission warranty made applicable to your (locomotive or locomotive 
engine) by federal law, and your right to participate in future recalls, 
it is recommended that you have (locomotive or locomotive engine) 
serviced as soon

[[Page 508]]

as possible. Failure to do so could legally be determined to be a lack 
of proper maintenance of your (locomotive or locomotive engine).''
    (b) No notice sent pursuant to paragraph (a) of this section nor any 
other contemporaneous communication sent to locomotive or locomotive 
engine owners or dealers shall contain any statement or implication that 
the nonconformity does not exist or that the nonconformity will not 
degrade air quality.
    (c) The manufacturer or remanufacturer shall be informed of any 
other requirements pertaining to the notification under this section 
which the Administrator has determined are reasonable and necessary to 
ensure the effectiveness of the recall campaign.



Sec. 92.708  Records and reports.

    (a) The manufacturer or remanufacturer shall provide to the 
Administrator a copy of all communications which relate to the remedial 
plan directed to persons who are to perform the repair under the 
remedial plan. Such copies shall be mailed to the Administrator 
contemporaneously with their transmission to persons who are to perform 
the repair under the remedial plan.
    (b) The manufacturer or remanufacturer shall provide for the 
establishment and maintenance of records to enable the Administrator to 
conduct a continuing analysis of the adequacy of the recall campaign. 
The records shall include, for each class or category of locomotive or 
locomotive engine, but need not be limited to, the following:
    (1) Recall campaign number as designated by the manufacturer or 
remanufacturer.
    (2) Date owner notification was begun, and date completed.
    (3) Number of locomotives or locomotive engines involved in the 
recall campaign.
    (4) Number of locomotives or locomotive engines known or estimated 
to be affected by the nonconformity.
    (5) Number of locomotives or locomotive engines inspected pursuant 
to the remedial plan.
    (6) Number of inspected locomotives or locomotive engines found to 
be affected by the nonconformity.
    (7) Number of locomotives or locomotive engines actually receiving 
repair under the remedial plan.
    (8) Number of locomotives or locomotive engines determined to be 
unavailable for inspection or repair under the remedial plan due to 
exportation, scrapping or for other reasons (specify).
    (9) Number of locomotives or locomotive engines determined to be 
ineligible for remedial action due to a failure to properly maintain or 
use such locomotives or locomotive engines.
    (c) If the manufacturer or remanufacturer determines that the 
original answers for paragraphs (b)(3) and (b)(4) of this section are 
incorrect, revised figures and an explanatory note shall be submitted. 
Answers to paragraphs (b)(5), (b)(6), (b)(7), (b)(8), and (b)(9) of this 
section shall be cumulative totals.
    (d) Unless otherwise directed by the Administrator, the information 
specified in paragraph (b) of this section shall be included in 
quarterly reports, with respect to each recall campaign, for six 
consecutive quarters beginning with the quarter in which the 
notification of owners was initiated, or until all nonconforming 
locomotives or locomotive engines involved in the campaign have been 
remedied, whichever occurs sooner. Such reports shall be submitted no 
later than 25 working days after the close of each calendar quarter.
    (e) The manufacturer or remanufacturer shall maintain in a form 
suitable for inspection, such as computer information storage devices or 
card files, lists of the names and addresses of locomotive or locomotive 
engine owners:
    (1) To whom notification was given;
    (2) Who received remedial repair or inspection under the remedial 
plan; and
    (3) When eligibility for repair is conditioned on proper maintenance 
or use, that were determined not to qualify for such remedial action.
    (f) The records described in paragraph (e) of this section shall be 
made available to the Administrator upon request.
    (g) The records and reports required by this section shall be 
retained for not less than eight (8) years.

[[Page 509]]


    Effective Date Note: At 63 FR 19069, Apr. 16, 1998, Sec. 92.708 was 
added. This section contains information collection and recordkeeping 
requirements and will not become effective until approval has been given 
by the Office of Management and Budget.



Sec. 92.709  Public hearings.

    (a) Definitions. The following definitions shall be applicable to 
this section:
    (1) Hearing Clerk shall mean the Hearing Clerk of the Environmental 
Protection Agency.
    (2) Intervenor shall mean a person who files a petition to be made 
an intervenor pursuant to paragraph (g) of this section and whose 
petition is approved.
    (3) Manufacturer or remanufacturer refers to a manufacturer or 
remanufacturer contesting a recall order directed at that manufacturer 
or remanufacturer.
    (4) Party shall include the Environmental Protection Agency, the 
manufacturer or remanufacturer, and any intervenors.
    (5) Presiding Officer shall mean an Administrative Law Judge 
appointed pursuant to 5 U.S.C. 3105 (see also 5 CFR part 930).
    (6) Environmental Appeals Board shall mean the Board within the 
Agency described in Sec. 1.25 of this chapter. The Administrator 
delegates authority to the Environmental Appeals Board to issue final 
decisions in appeals filed under this subpart. Appeals directed to the 
Administrator, rather than to the Environmental Appeals Board, will not 
be considered. This delegation of authority to the Environmental Appeals 
Board does not preclude the Environmental Appeals Board from referring 
an appeal or a motion filed under this subpart to the Administrator for 
decision when the Environmental Appeals Board, in its discretion, deems 
it appropriate to do so. When an appeal or motion is referred to the 
Administrator, all parties shall be so notified and the rules in this 
part referring to the Environmental Appeals Board shall be interpreted 
as referring to the Administrator.
    (b) Request for public hearing. (1)(i) If the manufacturer or 
remanufacturer disagrees with the Administrator's finding of 
nonconformity he may request a public hearing as described in this 
section. Requests for such a hearing shall be filed with the 
Administrator not later than 45 days after the receipt of the 
Administrator's notification of nonconformity unless otherwise specified 
by the Administrator. Two copies of such request shall simultaneously be 
served upon the Director of the Engine Programs and Compliance Division 
and two copies filed with the Hearing Clerk. Failure of the manufacturer 
or remanufacturer to request a hearing within the time provided shall 
constitute a waiver of his right to such a hearing. In such a case, the 
manufacturer or remanufacturer shall carry out the recall order as 
required by Sec. 92.705.
    (ii) Subsequent to the expiration of the period for requesting a 
hearing as of right, the Administrator may, in his discretion and for 
good cause shown, grant the manufacturer or remanufacturer a hearing to 
contest the nonconformity.
    (2) The request for a public hearing shall contain:
    (i) A statement as to which classes or categories of locomotives or 
locomotive engines are to be the subject of the hearing;
    (ii) A concise statement of the issues to be raised by the 
manufacturer or remanufacturer at the hearing for each class or category 
of locomotive or locomotive engine for which the manufacturer or 
remanufacturer has requested the hearing; and
    (iii) A statement as to reasons the manufacturer or remanufacturer 
believes it will prevail on the merits on each of the issues so raised.
    (3) A copy of all requests for public hearings shall be kept on file 
in the Office of the Hearing Clerk and shall be made available to the 
public during Agency business hours.
    (c) Filing and service. (1) An original and two copies of all 
documents or papers required or permitted to be filed pursuant to this 
section shall be filed with the Hearing Clerk. Filing shall be deemed 
timely if mailed, as determined by the postmark, to the Hearing Clerk 
within the time allowed by this section. If filing is to be accomplished 
by mailing, the documents shall be sent to the address set forth in the 
notice of

[[Page 510]]

public hearing as described in paragraph (f) of this section.
    (2) Except for requests to commence a hearing, at the same time a 
party files with the Hearing Clerk any additional issues for 
consideration at the hearing or any written testimony, documents, 
papers, exhibits, or materials, to be introduced into evidence or papers 
filed in connection with any appeal, it shall serve upon all other 
parties copies thereof. A certificate of service shall be provided on or 
accompany each document or paper filed with the Hearing Clerk. Documents 
to be served upon the Director of the Engine Programs and Compliance 
Division shall be mailed to: Director, Engine Programs and Compliance 
Division 6403-J, U.S. Environmental Protection Agency, 401 M Street SW., 
Washington, DC 20460. Service by mail is complete upon mailing.
    (d) Time. (1) In computing any period of time prescribed or allowed 
by this section, except as otherwise provided, the day of the act or 
event from which the designated period of time begins to run shall not 
be included. Saturdays, Sundays, and Federal legal holidays shall be 
included in computing any such period allowed for the filing of any 
document or paper, except that when such period expires on a Saturday, 
Sunday, or Federal legal holiday, such period shall be extended to 
include the next following business day.
    (2) A prescribed period of time within which a party is required or 
permitted to do an act shall be computed from the time of service, 
except that when service is accomplished by mail, three days shall be 
added to the prescribed period.
    (e) Consolidation. The Administrator or the Presiding Officer in his 
discretion may consolidate two or more proceedings to be held under this 
section for the purpose of resolving one or more issues whenever it 
appears that such consolidation will expedite or simplify consideration 
of such issues. Consolidation shall not affect the right of any party to 
raise issues that could have been raised if consolidation had not 
occurred.
    (f) Notice of public hearings. (1) Notice of a public hearing under 
this section shall be given by publication in the Federal Register. 
Notice will be given at least 30 days prior to the commencement of such 
hearings.
    (2) The notice of a public hearing shall include the following 
information:
    (i) The purpose of the hearing and the legal authority under which 
the hearing is to be held;
    (ii) A brief summary of the Administrator's determination of 
nonconformity;
    (iii) A brief summary of the manufacturer's or remanufacturer's 
basis for contesting the Administrator's determination of nonconformity;
    (iv) Information regarding the time and location of the hearing and 
the address to which all documents required or permitted to be filed 
should be sent;
    (v) The address of the Hearing Clerk to whom all inquiries should be 
directed and with whom documents are required to be filed;
    (vi) A statement that all petitions to be made an intervenor must be 
filed with the Hearing Clerk within 25 days from the date of the notice 
of public hearing and must conform to the requirements of paragraph (g) 
of this section.
    (3) The notice of public hearing shall be issued by the General 
Counsel.
    (g) Intervenors. (1) Any person desiring to intervene in a hearing 
to be held under section 207(c)(1) of the Act shall file a petition 
setting forth the facts and reasons why he/she thinks he/she should be 
permitted to intervene.
    (2) In passing upon a petition to intervene, the following factors, 
among other things, shall be considered by the Presiding Officer:
    (i) The nature of the petitioner's interest including the nature and 
the extent of the property, financial, environmental protection, or 
other interest of the petitioner;
    (ii) The effect of the order which may be entered in the proceeding 
on petitioner's interest;
    (iii) The extent to which the petitioner's interest will be 
represented by existing parties or may be protected by other means;
    (iv) The extent to which petitioner's participation may reasonably 
be expected to assist materially in the development of a complete 
record;

[[Page 511]]

    (v) The effect of the intervention on the Agency's statutory 
mandate.
    (3) A petition to intervene must be filed within 25 days following 
the notice of public hearing under section 207(c)(1) of the Act and 
shall be served on all parties. Any opposition to such petition must be 
filed within five days of such service.
    (4) All petitions to be made an intervenor shall be reviewed by the 
Presiding Officer using the criteria set forth in paragraph (g)(2) of 
this section and considering any oppositions to such petition. Where the 
petition demonstrates that the petitioner's interest is limited to 
particular issues, the Presiding Officer may, in granting such petition, 
limit petitioner's participation to those particular issues only.
    (5) If the Presiding Officer grants the petition with respect to any 
or all issues, he/she shall so notify, or direct the Hearing Clerk to 
notify, the petitioner and all parties. If the Presiding Officer denies 
the petition he/she shall so notify, or direct the Hearing Clerk to 
notify, the petitioner and all parties and shall briefly state the 
reasons why the petition was denied.
    (6) All petitions to be made an intervenor shall include an 
agreement by the petitioner, and any person represented by the 
petitioner, to be subject to examination and cross-examination and to 
make any supporting and relevant records available at its own expense 
upon the request of the Presiding Officer, on his/her own motion or the 
motion of any party or other intervenor. If the intervenor fails to 
comply with any such request, the Presiding Officer may in his/her 
discretion, terminate his/her status as an intervenor.
    (h) Intervention by motion. Following the expiration of the time 
prescribed in paragraph (g) of this section for the submission of 
petitions to intervene in a hearing, any person may file a motion with 
the Presiding Officer to intervene in a hearing. Such a motion must 
contain the information and commitments required by paragraphs (g)(2) 
and (g)(6) of this section, and, in addition, must show that there is 
good cause for granting the motion and must contain a statement that the 
intervenor shall be bound by agreements, arrangements, and other 
determinations which may have been made in the proceeding.
    (i) Amicus Curiae. Persons not parties to the proceedings wishing to 
file briefs may do so by leave of the Presiding Officer granted on 
motion. A motion for leave shall identify the interest of the applicant 
and shall state the reasons why the amicus brief is desirable.
    (j) Presiding Officer. The Presiding Officer shall have the duty to 
conduct a fair and impartial hearing in accordance with 5 U.S.C. 554, 
556 and 557, to take all necessary action to avoid delay in the 
disposition of the proceedings and to maintain order. He/she shall have 
all power consistent with Agency rule and with the Administrative 
Procedure Act (5 U.S.C. 551 et seq.) necessary to this end, including 
the following:
    (1) To administer oaths and affirmations;
    (2) To rule upon offers of proof and receive relevant evidence;
    (3) To regulate the course of the hearings and the conduct of the 
parties and their counsel therein;
    (4) To hold conferences for simplification of the issues or any 
other proper purpose;
    (5) To consider and rule upon all procedural and other motions 
appropriate in such proceedings;
    (6) To require the submission of direct testimony in written form 
with or without affidavit whenever, in the opinion of the Presiding 
Officer, oral testimony is not necessary for full and true disclosure of 
the facts. Testimony concerning the conduct and results of tests and 
inspections may be submitted in written form;
    (7) To enforce agreements and orders requiring access as authorized 
by law;
    (8) To require the filing of briefs on any matter on which he/she is 
required to rule;
    (9) To require any party or any witness, during the course of the 
hearing, to state his/her position on any issue;
    (10) To take or cause depositions to be taken whenever the ends of 
justice would be served thereby;
    (11) To make decisions or recommend decisions to resolve the 
disputed issues of the record of the hearing;

[[Page 512]]

    (12) To issue, upon good cause shown, protective orders as described 
in paragraph (n) of this section.
    (k) Conferences. (1) At the discretion of the Presiding Officer, 
conferences may be held prior to or during any hearing. The Presiding 
Officer shall direct the Hearing Clerk to notify all parties and 
intervenors of the time and location of any such conference. At the 
discretion of the Presiding Officer, persons other than parties may 
attend. At a conference the Presiding Officer may:
    (i) Obtain stipulations and admissions, receive requests and order 
depositions to be taken, identify disputed issues of fact and law, and 
require or allow the submission of written testimony from any witness or 
party;
    (ii) Set a hearing schedule for as many of the following as are 
deemed necessary by the Presiding Officer:
    (A) Oral and written statements;
    (B) Submission of written direct testimony as required or authorized 
by the Presiding Officer;
    (C) Oral direct and cross-examination of a witness where necessary 
as prescribed in paragraph (p) of this section;
    (D) Oral argument, if appropriate;
    (iii) Identify matters of which official notice may be taken;
    (iv) Consider limitation of the number of expert and other 
witnesses;
    (v) Consider the procedure to be followed at the hearing; and
    (vi) Consider any other matter that may expedite the hearing or aid 
in the disposition of the issue.
    (2) The results of any conference including all stipulations shall, 
if not transcribed, be summarized in writing by the Presiding Officer 
and made part of the record.
    (l) Primary discovery (exchange of witness lists and documents). (1) 
At a prehearing conference or within some reasonable time set by the 
Presiding Officer prior to the hearing, each party shall make available 
to the other parties the names of the expert and other witnesses the 
party expects to call, together with a brief summary of their expected 
testimony and a list of all documents and exhibits which the party 
expects to introduce into evidence. Thereafter, witnesses, documents, or 
exhibits may be added and summaries of expected testimony amended upon 
motion by a party.
    (2)(i) The Presiding Officer, may, upon motion by a party or other 
person, and for good cause shown, by order:
    (A) Restrict or defer disclosure by a party of the name of a witness 
or a narrative summary of the expected testimony of a witness; and
    (B) Prescribe other appropriate measures to protect a witness.
    (ii) Any party affected by any such action shall have an adequate 
opportunity, once he learns the name of a witness and obtains the 
narrative summary of his expected testimony, to prepare for the 
presentation of his case.
    (m) Other discovery. (1) Except as so provided by paragraph (l) of 
this section, further discovery, under this paragraph (m), shall be 
permitted only upon determination by the Presiding Officer:
    (i) That such discovery will not in any way unreasonably delay the 
proceeding;
    (ii) That the information to be obtained is not obtainable 
voluntarily; and
    (iii) That such information has significant probative value. The 
Presiding Officer shall be guided by the procedures set forth in the 
Federal Rules of Civil Procedure (28 U.S.C.), where practicable, and the 
precedents thereunder, except that no discovery shall be undertaken 
except upon order of the Presiding Officer or upon agreement of the 
parties.
    (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 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 or motions 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

[[Page 513]]

    (iii) The time and place where it will be taken. If the Presiding 
Officer determines the motion should be granted, he shall issue an order 
for the taking of such discovery together with the conditions and terms 
thereof.
    (4) Failure to comply with an order issued pursuant to this 
paragraph (m) may lead to the inference that the information to be 
discovered would be adverse to the person or party from whom the 
information was sought.
    (n) Protective orders: in camera proceedings. (1) Upon motion by a 
party or by the person from whom discovery is sought, and upon a showing 
by the movant that the disclosure of the information to be discovered, 
or a particular part thereof, (other than emission data) would result in 
methods or processes entitled to protection as trade secrets of such 
person being divulged, the Presiding Officer may enter a protective 
order with respect to such material. Any protective order shall contain 
such terms governing the treatment of the information as may be 
appropriate under the circumstances to prevent disclosure outside the 
hearing: Provided, That the order shall state that the material shall be 
filed separately from other evidence and exhibits in the hearing. 
Disclosure shall be limited to parties to the hearing, their counsel and 
relevant technical consultants, and authorized representatives of the 
United States concerned with carrying out the Act. Except in the case of 
the government, disclosure may be limited to counsel to parties who 
shall not disclose such information to the parties themselves. Except in 
the case of the government, disclosure to a party or his counsel shall 
be conditioned on execution of a sworn statement that no disclosure of 
the information will be made to persons not entitled to receive it under 
the terms of the protective order. (No such provision is necessary where 
government employees are concerned because disclosure by them is subject 
to the terms of 18 U.S.C. 1905.)
    (2)(i) A party or person seeking a protective order may be permitted 
to make all or part of the required showing in camera. A record shall be 
made of such in camera proceedings. If the Presiding Officer enters a 
protective order following a showing in camera, the record of such 
showing shall be sealed and preserved and made available to the Agency 
or court in the event of appeal.
    (ii) Attendance at any in camera proceeding may be limited to the 
Presiding Officer, the Agency, and the person or party seeking the 
protective order.
    (3) Any party, subject to the terms and conditions of any protective 
order issued pursuant to paragraph (n)(1) of this section, desiring for 
the presentation of his/her case to make use of any in camera documents 
or testimony shall make application to the Presiding Officer by motion 
setting forth the justification therefor. The Presiding Officer, in 
granting any such motion, shall enter an order protecting the rights of 
the affected persons and parties and preventing unnecessary disclosure 
of such information, including the presentation of such information and 
oral testimony and cross-examination concerning it in executive session, 
as in his/her discretion is necessary and practicable.
    (4) In the submittal of findings, briefs, or other papers, counsel 
for all parties shall make a good faith attempt to refrain from 
disclosing the specific details of in camera documents and testimony. 
This shall not preclude references in such findings, briefs, or other 
papers to such documents or testimony including generalized statements 
based on their contents. To the extent that counsel consider it 
necessary to include specific details in their presentations, such data 
shall be incorporated in separate findings, briefs, or other papers 
marked ``confidential'', which shall become part of the in camera 
record.
    (o) Motions. (1) All motions, except those made orally during the 
course of the hearing, shall be in writing and shall state with 
particularity the grounds therefor, shall set forth the relief or order 
sought, and shall be filed with the Hearing Clerk and served upon all 
parties.
    (2) Within ten days after service of any motion filed pursuant to 
this section, or within such other time as may be fixed by the 
Environmental Appeals

[[Page 514]]

Board or the Presiding Officer, as appropriate, any party may serve and 
file an answer to the motion. The movant shall, if requested by the 
Environmental Appeals Board or the Presiding Officer, as appropriate, 
serve and file reply papers within the time set by the request.
    (3) The Presiding Officer shall rule upon all motions filed or made 
prior to the filing of his decision or accelerated decision, as 
appropriate. The Environmental Appeals Board shall rule upon all motions 
filed prior to the appointment of a Presiding Officer and all motions 
filed after the filing of the decision of the Presiding Officer or 
accelerated decision. Oral argument of motions will be permitted only if 
the Presiding Officer or the Environmental Appeals Board, as 
appropriate, deems it necessary.
    (p) Evidence. (1) The official transcripts and exhibits, together 
with all papers and requests filed in the proceeding, shall constitute 
the record. Immaterial or irrelevant parts of an admissible document 
shall be segregated and excluded so far as practicable. Documents or 
parts thereof subject to a protective order under paragraph (n) of this 
section shall be segregated. Evidence may be received at the hearing 
even though inadmissible under the rules of evidence applicable to 
judicial proceedings. The weight to be given evidence shall be 
determined by its reliability and probative value.
    (2) The Presiding Officer shall allow the parties to examine and to 
cross-examine a witness to the extent that such examination and cross-
examination is necessary for a full and true disclosure of the facts.
    (3) Rulings of the Presiding Officer on the admissibility of 
evidence, the propriety of examination and cross-examination and other 
procedural matters shall appear in the record.
    (4) Parties shall automatically be presumed to have taken exception 
to an adverse ruling.
    (q) Interlocutory appeal. (1) An interlocutory appeal may be taken 
to the Environmental Appeals Board either:
    (i) With the consent of the Presiding Officer and where he certifies 
on the record or in writing that the allowance of an interlocutory 
appeal is clearly necessary to prevent exceptional delay, expense or 
prejudice to any party or substantial detriment to the public interest; 
or
    (ii) Absent the consent of the Presiding Officer, by permission of 
the Environmental Appeals Board.
    (2) Applications for interlocutory appeal of any ruling or order of 
the Presiding Officer may be filed with the Presiding Officer within 5 
days of the issuance of the ruling or order being appealed. Answers 
thereto by other parties may be filed within 5 days of the service of 
such applications.
    (3) The Presiding Officer shall rule on such applications within 5 
days of the filing of such application or answers thereto.
    (4) Applications to file such appeals absent consent of the 
Presiding Officer shall be filed with the Environmental Appeals Board 
within 5 days of the denial of any appeal by the Presiding Officer.
    (5) The Environmental Appeals Board will consider the merits of the 
appeal on the application and any answers thereto. No oral argument will 
be heard nor other briefs filed unless the Environmental Appeals Board 
directs otherwise.
    (6) Except under extraordinary circumstances as determined by the 
Presiding Officer, the taking of an interlocutory appeal will not stay 
the hearing.
    (r) Record. (1) Hearings shall be stenographically reported and 
transcribed, and the original transcript shall be part of the record and 
the sole official transcript. Copies of the record shall be filed with 
the Hearing Clerk and made available during Agency business hours for 
public inspection. Any person desiring a copy of the record of the 
hearing or any part thereof shall be entitled to the same upon payment 
of the cost thereof.
    (2) The official transcripts and exhibits, together with all papers 
and requests filed in the proceeding, shall constitute the record.
    (s) Findings, conclusions. (1) Within 20 days of the close of the 
reception of evidence, or within such longer time as may be fixed by the 
Presiding Officer,

[[Page 515]]

any party may submit for the consideration of the Presiding Officer 
findings of fact, conclusions of law, and a rule or order, together with 
reasons therefor and briefs in support thereof. Such proposals shall be 
in writing, shall be served upon all parties, and shall contain adequate 
references to the record and authorities relied on.
    (2) The record shall show the Presiding Officer's ruling on the 
findings and conclusions except when his/her order disposing of the 
proceeding otherwise informs the parties of the action taken by him/her 
thereon.
    (t) Decision of the Presiding Officer. (1) Unless extended by the 
Environmental Appeals Board, the Presiding Officer shall issue and file 
with the Hearing Clerk his decision within 30 days after the period for 
filing findings as provided for in paragraph (s) of this section has 
expired.
    (2) The Presiding Officer's decision shall become the opinion of the 
Environmental Appeals Board:
    (i) When no notice of intention to appeal as described in paragraph 
(u) of this section is filed, 30 days after the issuance thereof, unless 
in the interim the Environmental Appeals Board shall have taken action 
to review or stay the effective date of the decision; or
    (ii) When a notice of intention to appeal is filed but the appeal is 
not perfected as required by paragraph (u) of this section, 5 days after 
the period allowed for perfection of an appeal has expired unless within 
that 5 day period, the Environmental Appeals Board shall have taken 
action to review or stay the effective date of the decision.
    (3) The Presiding Officer's decision shall include a statement of 
findings and conclusions, as well as the reasons or basis therefor, upon 
all the material issues of fact or law presented on the record and an 
appropriate rule or order. Such decision shall be supported by 
substantial evidence and based upon a consideration of the whole record.
    (4) At any time prior to the issuance of his decision, the Presiding 
Officer may reopen the proceeding for the reception of further evidence. 
Except for the correction of clerical errors, the jurisdiction of the 
Presiding Officer is terminated upon the issuance of his/her decision.
    (u) Appeal from the decision of the Presiding Officer. (1) Any party 
to a proceeding may appeal the Presiding Officer's decision to the 
Environmental Appeals Board, Provided, That within 10 days after 
issuance of the Presiding Officer's decision such party files a notice 
of intention to appeal and an appeal brief within 30 days of such 
decision.
    (2) When an appeal is taken from the decision of the Presiding 
Officer, any party may file a brief with respect to such appeal. The 
brief shall be filed within 20 days of the date of the filing of the 
appellant's brief.
    (3) Any brief filed pursuant to this paragraph (u) shall contain in 
the order indicated, the following:
    (i) A subject index of the matter in the brief, with page 
references, and a table of cases (alphabetically arranged), textbooks, 
statutes, and other material cited, with page references thereto;
    (ii) A specification of the issues intended to be urged;
    (iii) The argument presenting clearly the points of fact and law 
relied upon in support of the position taken on each issue, with 
specific page references to the record and the legal or other material 
relied upon; and
    (iv) A form of rule or order for the Environmental Appeals Board's 
consideration if different from the rule or order contained in the 
Presiding Officer's decision.
    (4) No brief in excess of 40 pages shall be filed without leave of 
the Environmental Appeals Board.
    (5) Oral argument will be allowed in the discretion of the 
Environmental Appeals Board.
    (v) Review of the Presiding Officer's decision in absence of appeal. 
(1) If, after the expiration of the period for taking an appeal as 
provided for by paragraph (u) of this section, no notice of intention to 
appeal the decision of the Presiding Officer has been filed, or if 
filed, not perfected, the Hearing Clerk shall so notify the 
Environmental Appeals Board.
    (2) The Environmental Appeals Board, upon receipt of notice from the 
Hearing Clerk that no notice of intention to appeal has been filed, or 
if filed, not perfected pursuant to paragraph (u)

[[Page 516]]

of this section, may, on its own motion, within the time limits 
specified in paragraph (t)(2) of this section, review the decision of 
the Presiding Officer. Notice of the intention of the Environmental 
Appeals Board to review the decision of the Presiding Officer shall be 
given to all parties and shall set forth the scope of such review and 
the issue which shall be considered and shall make provision for filing 
of briefs.
    (w) Decision on appeal or review. (1) Upon appeal from or review of 
the Presiding Officer's decision, the Environmental Appeals Board shall 
consider such parts of the record as are cited or as may be necessary to 
resolve the issues presented and, in addition shall to the extent 
necessary or desirable exercise all the powers which it could have 
exercised if it had presided at the hearing.
    (2) In rendering its decision, the Environmental Appeals Board shall 
adopt, modify, or set aside the findings, conclusions, and rule or order 
contained in the decision of the Presiding Officer and shall set forth 
in its decision a statement of the reasons or bases for its action.
    (3) In those cases where the Environmental Appeals Board determines 
that it should have further information or additional views of the 
parties as to the form and content of the rule or order to be issued, 
the Environmental Appeals Board, in its discretion, may withhold final 
action pending the receipt of such additional information or views, or 
may remand the case to the Presiding Officer.
    (x) Reconsideration. Within twenty (20) days after issuance of the 
Environmental Appeals Board's decision, any party may file with the 
Environmental Appeals Board a petition for reconsideration of such 
decision, setting forth the relief desired and the grounds in support 
thereof. Any petition filed under this paragraph (x) must be confined to 
new questions raised by the decision or the final order and upon which 
the petitioner had no opportunity to argue before the Presiding Officer 
or the Environmental Appeals Board. Any party desiring to oppose such a 
petition shall file and answer thereto within ten (10) days after the 
filing of the petition. The filing of a petition for reconsideration 
shall not operate to stay the effective date of the decision or order or 
to toll the running of any statutory time period affecting such decision 
or order unless specifically so ordered by the Environmental Appeals 
Board.
    (y) Accelerated decision: Dismissal. (1) The Presiding Officer, upon 
motion of any party or sua sponte, may at any time render an accelerated 
decision in favor of the Agency or the manufacturer or remanufacturer as 
to all or any part of the proceeding, without further hearing or upon 
such limited additional evidence such as affidavits as he/she may 
require, or dismiss any party with prejudice, under any of the following 
conditions:
    (i) Failure to state a claim upon which relief can be granted, or 
direct or collateral estoppel;
    (ii) There is no genuine issue of material fact and a party is 
entitled to judgment as a matter of law; or
    (iii) Such other and further reasons as are just, including 
specifically failure to obey a procedural order of the Presiding 
Officer.
    (2) If under this paragraph (y) an accelerated decision is issued as 
to all the issues and claims joined in the proceeding, the decision 
shall be treated for the purposes of these procedures as the decision of 
the Presiding Officer as provided in paragraph (p) of this section.
    (3) If under this paragraph (y), judgment 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 are actually and in good faith controverted. He/she 
shall thereupon issue an order specifying the facts which appear without 
substantial controversy, and the issues and claims upon which the 
hearing will proceed.
    (z) Conclusion of hearing. (1) If, after the expiration of the 
period for taking an appeal as provided for by paragraph (u) of this 
section, no appeal has been taken from the Presiding Officer's decision, 
and, after the expiration of the period for review by the Environmental 
Appeals Board on its own motion as provided for by paragraph (v) of this

[[Page 517]]

section, the Environmental Appeals Board does not move to review such 
decision, the hearing will be deemed to have ended at the expiration of 
all periods allowed for such appeal and review.
    (2) If an appeal of the Presiding Officer's decision is taken 
pursuant to paragraph (u) of this section, or if, in the absence of such 
appeal, the Environmental Appeals Board moves to review the decision of 
the Presiding Officer pursuant to paragraph (v) of this section, the 
hearing will be deemed to have ended upon the rendering of a final 
decision by the Environmental Appeals Board.
    (aa) Judicial review. (1) The Administrator hereby designates the 
Deputy General Counsel, Environmental Protection Agency as the officer 
upon whom copy of any petition for judicial review shall be served. Such 
officer shall be responsible for filing in the court the record on which 
the order of the Environmental Appeals Board is based.
    (2) Before forwarding the record to the court, the Agency shall 
advise the petitioner of costs of preparing it and as soon as payment to 
cover fees is made shall forward the record to the court.



   Subpart I--Importation of Nonconforming Locomotives and Locomotive 
                                 Engines



Sec. 92.801  Applicability.

    (a) Except where otherwise indicated, this subpart is applicable to 
importers of locomotives or locomotive engines for which the 
Administrator has promulgated regulations under this part prescribing 
emission standards, that are offered for importation or imported into 
the United States, but which locomotives or locomotive engines, at the 
time of importation or being offered for importation, are not covered by 
certificates of conformity issued under section 213 and section 206(a) 
of the Clean Air Act (that is, which are nonconforming locomotives or 
locomotive engines as defined in Sec. 92.2), and this part. Compliance 
with regulations under this subpart does not relieve any person or 
entity from compliance with other applicable provisions of the Clean Air 
Act.
    (b) Regulations prescribing further procedures for the importation 
of locomotives and locomotive engines into the Customs territory of the 
United States, as defined in 19 U.S.C. 1202, are set forth in U.S. 
Customs Service regulations (19 CFR chapter I).



Sec. 92.802  Definitions.

    The definitions of subpart A of this part apply to this subpart.



Sec. 92.803  Admission.

    A nonconforming locomotive or locomotive engine offered for 
importation may be admitted into the United States pursuant to the 
provisions of this subpart. In order to obtain admission the importer 
must submit to the Administrator a written request for approval 
containing the following:
    (a) Identification of the importer of the locomotive or locomotive 
engine and the importer's address, telephone number, and taxpayer 
identification number;
    (b) Identification of the locomotive's or locomotive engine's owner, 
the owner's address, telephone number, and taxpayer identification 
number;
    (c) Identification of the locomotive and/or locomotive engine 
including make, model, identification number, and original production 
year;
    (d) Information indicating the provision in this subpart under which 
the locomotive or locomotive engine is to be imported;
    (e) Identification of the place(s) where the locomotive or 
locomotive engine is to be stored until EPA approval of the importer's 
application to the Administrator for final admission;
    (f) Authorization for EPA enforcement officers to conduct 
inspections or testing otherwise permitted by the Act or regulations 
thereunder; and
    (g) Such other information as is deemed necessary by the 
Administrator.



Sec. 92.804  Exemptions.

    (a) Unless otherwise specified, any person may apply for the 
exemptions allowed by this section.
    (b) Notwithstanding other requirements of this subpart, a 
nonconforming locomotive or locomotive engine that qualifies for a 
temporary exemption

[[Page 518]]

under this paragraph may be conditionally admitted into the United 
States if prior written approval for the conditional admission is 
obtained from the Administrator. Conditional admission is to be under 
bond. The Administrator may request that the U.S. Customs Service 
require a specific bond amount to ensure compliance with the 
requirements of the Act and this subpart. A written request for a 
temporary exemption from the Administrator shall contain the 
identification required in Sec. 92.803 and information that demonstrates 
that the locomotives and or locomotive engines qualify for an exemption. 
Noncompliance with provisions of this section may result in the 
forfeiture of the total amount of the bond and/or exportation of the 
locomotive or locomotive engine. The following temporary exemptions are 
permitted by this paragraph (b):
    (1) Exemption for repairs or alterations. Upon written approval by 
EPA, a person may conditionally import under bond a nonconforming 
locomotive or locomotive engine solely for purpose of repair(s) or 
alteration(s). The locomotive or locomotive engine may not be operated 
in the United States other than for the sole purpose of repair or 
alteration or shipment to the point of repair or alteration and to the 
port of export. It may not be sold or leased in the United States and is 
to be exported upon completion of the repair(s) or alteration(s).
    (2) Testing exemption. A nonconforming test locomotive or locomotive 
engine may be conditionally imported by a person subject to the 
requirements of Sec. 92.905. A test locomotive or locomotive engine may 
be operated in the United States provided that the operation is an 
integral part of the test. This exemption is limited to a period not 
exceeding one year from the date of importation unless a request is made 
by the appropriate importer, and subsequently granted by EPA, concerning 
the locomotive or locomotive engine in accordance with Sec. 92.905 for a 
subsequent one-year period.
    (3) Display exemptions. (i) A nonconforming locomotive or locomotive 
engine intended solely for display may be conditionally imported under 
bond subject to the requirements of Sec. 92.906(b).
    (ii) A display locomotive or locomotive engine may be imported by 
any person for purposes related to a business or the public interest. 
Such purposes do not include collections normally inaccessible or 
unavailable to the public on a daily basis, display of a locomotive or 
locomotive engine at a dealership, private use, or other purpose that 
the Administrator determines is not appropriate for display exemptions. 
A display locomotive or locomotive engine may not be sold or leased in 
the United States and may not be operated in the United States except 
for the operation incident and necessary to the display purpose.
    (iii) A display exemption is granted for 12 months or for the 
duration of the display purpose, whichever is shorter. Extensions of up 
to 12 months each are available upon approval by the Administrator. In 
no circumstances, however, may the total period of exemption exceed 36 
months.
    (c) National security exemption. Notwithstanding any other 
requirement of this subpart, a locomotive or locomotive engine may be 
permanently imported into the United States under the national security 
exemption found at Sec. 92.908, if prior written approval for such 
permanent importation is obtained from the Administrator. A request for 
approval is to contain the identification information required in 
Sec. 92.803 and information that demonstrates that the importer is 
entitled to the exemption.
    (d) An application for exemption provided for in paragraphs (b) and 
(c) of this section shall be mailed to: Group Manager, Engine Compliance 
Programs Group, Engine Programs and Compliance Division U.S. 
Environmental Protection Agency, 6403-J, 401 M St., SW., Washington, DC 
20460, Attention: Imports.
    (e) Incidental use exemption. Locomotives that are operated 
primarily outside of the United States, and that enter the United States 
temporarily from Canada or Mexico are exempt from the requirements and 
prohibitions of this part without application, provided that the 
operation within the United States is not extensive and is incidental to 
their primary operation.

[[Page 519]]



Sec. 92.805  Prohibited acts; penalties.

    (a) The importation of a locomotive or locomotive engine which is 
not covered by a certificate of conformity other than in accordance with 
this subpart and the entry regulations of the U.S. Customs Service is 
prohibited. Failure to comply with this section is a violation of 
section 213(d) and section 203 of the Act.
    (b) Unless otherwise permitted by this subpart, during a period of 
conditional admission, the importer of a locomotive or locomotive engine 
may not:
    (1) Operate the locomotive or locomotive engine in the United 
States;
    (2) Sell or lease or offer the locomotive or locomotive engine for 
sale or lease.
    (c) A locomotive or locomotive engine conditionally admitted 
pursuant to Sec. 92.804 and not otherwise permanently exempted or 
excluded by the end of the period of conditional admission, or within 
such additional time as the Administrator and the U.S. Customs Service 
may allow, is deemed to be unlawfully imported into the United States in 
violation of section 213(d) and section 203 of the Act, unless the 
locomotive or locomotive engine has been delivered to the U.S. Customs 
Service for export or other disposition under applicable Customs laws 
and regulations by the end of the period of conditional admission. A 
locomotive or locomotive engine not so delivered is subject to seizure 
by the U.S. Customs Service.
    (d) An importer who violates section 213(d) and section 203 of the 
Act is subject to a civil penalty under section 205 of the Act and 
Sec. 92.1106. In addition to the penalty provided in the Act and 
Sec. 92.1106, where applicable, a person or entity who imports an engine 
under the exemption provisions of Sec. 92.804 and, who fails to deliver 
the locomotive or locomotive engine to the U.S. Customs Service by the 
end of the period of conditional admission is liable for liquidated 
damages in the amount of the bond required by applicable Customs laws 
and regulations.



              Subpart J--Exclusion and Exemption Provisions



Sec. 92.901  Purpose and applicability.

    The provisions of this subpart identify excluded locomotives (i.e., 
locomotives not covered by the Act) and allow for the exemption of 
locomotives and locomotive engines from certain provisions of this part. 
The applicability of the exclusions is described in Sec. 92.903, and the 
applicability of the exemption allowances is described in Secs. 92.904 
through 92.909.



Sec. 92.902  Definitions.

    The definitions of subpart A of this part apply to this subpart.



Sec. 92.903  Exclusions.

    (a) Upon written request with supporting documentation, EPA will 
make written determinations as to whether certain locomotives are 
excluded from applicability of this part. Any locomotives that are 
determined to be excluded are not subject to the regulations under this 
part. Requests to determine whether certain locomotives are excluded 
should be sent to: Group Manager, Engine Compliance Programs Group, 
Engine Programs and Compliance Division U.S. Environmental Protection 
Agency, 6403-J, 401 M St., SW, Washington, DC 20460.
    (b) EPA will maintain a list of models of locomotives that have been 
determined to be excluded from coverage under this part. This list will 
be available to the public and may be obtained by writing to the address 
in paragraph (a) of this section.
    (c) In addition to the locomotives excluded in paragraph (a) of this 
section, certain vehicles are not subject to the requirements and 
prohibitions of this part because they are excluded from the definitions 
of ``locomotive'' and/or ``new locomotive'' in Sec. 92.2.



Sec. 92.904  Exemptions.

    (a) Except as specified otherwise in this subpart, the provisions of 
Secs. 92.904 through 92.911 exempt certain new locomotives and new 
locomotive engines from the standards, other requirements, and 
prohibitions of this part,

[[Page 520]]

except for the requirements of this subpart and the requirements of 
Sec. 92.1104.
    (b)(1) Any person may request a testing exemption subject to the 
provisions of Sec. 92.905.
    (2) Any locomotive or locomotive engine manufacturer or 
remanufacturer may request a national security exemption subject to the 
provisions of Sec. 92.908.
    (3) Locomotive or locomotive engines manufactured or remanufactured 
for export purposes are exempt without application, subject to the 
provisions of Sec. 92.909, except as otherwise specified by Sec. 92.909.
    (4) Manufacturer-owned and remanufacturer-owned locomotive or 
locomotive engines are exempt without application, subject to the 
provisions of Sec. 92.906(a).
    (5) Display locomotive or locomotive engines are exempt without 
application, subject to the provisions of Sec. 92.906(b).
    (6) Locomotive propulsion engines that are identical to engines that 
are covered by a certificate of conformity issued under 40 CFR part 89, 
and the locomotives in which they are used, are exempt, subject to the 
provisions of Sec. 92.907.



Sec. 92.905  Testing exemption.

    (a)(1) The Administrator may exempt from the standards and/or other 
requirements and prohibitions of this part new locomotives or new 
locomotive engines that are being used solely for the purpose of 
conducting a test program. Any person requesting an exemption for the 
purpose of conducting a test program must demonstrate the following:
    (i) That the test program has a purpose which constitutes an 
appropriate basis for an exemption in accordance this section;
    (ii) That the proposed test program necessitates the granting of an 
exemption;
    (iii) That the proposed test program exhibits reasonableness in 
scope; and
    (iv) That the proposed test program exhibits a degree of oversight 
and control consonant with the purpose of the test program and EPA's 
monitoring requirements.
    (2) Paragraphs (b), (c), (d), and (e) of this section describe what 
constitutes a sufficient demonstration for each of the four elements 
identified in paragraphs (a)(1)(i) through (iv) of this section.
    (b) With respect to the purpose of the proposed test program, an 
appropriate purpose would be research, investigations, studies, 
demonstrations, technology development, or training, but not national 
security. A concise statement of purpose is a required item of 
information.
    (c) With respect to the necessity that an exemption be granted, 
necessity arises from an inability to achieve the stated purpose in a 
practicable manner without performing or causing to be performed one or 
more of the prohibited acts under Sec. 92.1103. In appropriate 
circumstances, time constraints may be a sufficient basis for necessity, 
but the cost of certification alone, in the absence of extraordinary 
circumstances, is not a basis for necessity.
    (d) With respect to reasonableness, a test program must exhibit a 
duration of reasonable length and affect a reasonable number of engines. 
In this regard, required items of information include:
    (1) An estimate of the program's duration; and
    (2) The maximum number of locomotives or locomotive engines 
involved.
    (e) With respect to control, the test program must incorporate 
procedures consistent with the purpose of the test and be capable of 
affording EPA monitoring capability. As a minimum, required items of 
information include:
    (1) The technical nature of the testing;
    (2) The location(s) of the testing;
    (3) The time, work, or mileage duration of the testing;
    (4) The ownership arrangement with regard to the locomotives and 
engines involved in the testing;
    (5) The intended final disposition of the locomotives and engines;
    (6) The manner in which the locomotive or engine identification 
numbers will be identified, recorded, and made available; and

[[Page 521]]

    (7) The means or procedure whereby test results will be recorded.
    (f) A manufacturer or remanufacturer of new locomotives or 
locomotive engines may request a testing exemption to cover locomotives 
or locomotive engines intended for use in test programs planned or 
anticipated over the course of a subsequent two-year period. Unless 
otherwise required by the Director, Engine Programs and Compliance 
Division, a manufacturer or remanufacturer requesting such an exemption 
need only furnish the information required by paragraphs (a)(1) and 
(d)(2) of this section along with a description of the recordkeeping and 
control procedures that will be employed to assure that the locomotives 
or locomotive engines are used for purposes consistent with paragraph 
(a) of this section.
    (g) For locomotives being used for the purpose of developing a 
fundamentally new emission control technology related either to an 
alternative fuel or an aftertreatment device, the Administrator may 
exempt the locomotive from some or all of the applicable standards of 
this part for the full useful life of the locomotive, subject to the 
provisions of paragraphs (a) through (f) of this section.



Sec. 92.906  Manufacturer-owned, remanufacturer-owned exemption and display exemption.

    (a) Any manufacturer-owned or remanufacturer-owned locomotive or 
locomotive engine, as defined by Sec. 92.2, is exempt from Sec. 92.1103, 
without application, if the manufacturer complies with the following 
terms and conditions:
    (1) The manufacturer or remanufacturer must establish, maintain, and 
retain the following adequately organized and indexed information on 
each exempted locomotive or locomotive engine:
    (i) Locomotive or engine identification number;
    (ii) Use of the locomotive or engine on exempt status; and
    (iii) Final disposition of any locomotive or engine removed from 
exempt status.
    (2) The manufacturer or remanufacturer must provide right of entry 
and access to these records to EPA Enforcement Officers as outlined in 
Sec. 92.208.
    (3) The manufacturer or remanufacturer must permanently affix a 
label to each locomotive or locomotive engine on exempt status, unless 
the requirement is waived or an alternate procedure is approved by the 
Director, Engine Programs and Compliance Division. This label should:
    (i) Be affixed in a readily visible portion of the locomotive or 
locomotive engine;
    (ii) Be attached in such a manner that cannot be removed without 
destruction or defacement;
    (iii) State in the English language and in block letters and 
numerals of a color that contrasts with the background of the label, the 
following information:
    (A) The label heading ``Emission Control Information'';
    (B) Full corporate name and trademark of manufacturer or 
remanufacturer;
    (C) Engine displacement, engine family identification, and model 
year of engine; or person of office to be contacted for further 
information about the engine;
    (D) The statement ``This locomotive or locomotive engine is exempt 
from the prohibitions of 40 CFR 92.1103.''
    (4) No provision of paragraph (a)(3) of this section prevents a 
manufacturer or remanufacturer from including any other information it 
desires on the label.
    (5) The locomotive or locomotive engine is not used in revenue-
generating service, or sold.
    (b) Display exemption. An uncertified locomotive or locomotive 
engine that is to be used solely for display purposes, and that will 
only be operated incident and necessary to the display purpose, and will 
not be sold unless an applicable certificate of conformity has been 
obtained for the locomotive or engine, is exempt without request from 
the standards of this part.



Sec. 92.907  Non-locomotive-specific engine exemption.

    (a) For manufacturers selling non-locomotive-specific engines to be 
used as propulsion engines in remanufactured

[[Page 522]]

locomotives, such locomotives and engines are exempt, provided:
    (1) The engines are covered by a certificate of conformity issued 
under 40 CFR part 89;
    (2) More engines are reasonably projected to be sold and used under 
the certificate for non-locomotive use than for use in locomotives;
    (3) The number of such engines exempted under this paragraph (a) 
does not exceed 25 per manufacturer in any calendar year;
    (4) The Administrator has approved the exemption as specified in 
paragraph (e) of this section.
    (b) For manufacturers of freshly manufactured switch locomotives 
powered by non-locomotive-specific engines, such freshly manufactured 
switch locomotives are exempt, provided:
    (1) The engines are covered by a certificate of conformity issued 
under 40 CFR part 89;
    (2) More engines are reasonably projected to be sold and used under 
the certificate for non-locomotive use than for use in locomotives;
    (3) The number of such locomotives sold within any three-year period 
by the manufacturer, and exempted under this paragraph (b) does not 
exceed 15; and
    (4) The Administrator has approved the exemption as specified in 
paragraph (e) of this section.
    (c)(1) The remanufacture of locomotive engines that have been 
exempted under this section is exempt without request provided that the 
remanufacturer remanufactures them to a previously-certified 
configuration, or to be equivalent to engines that have been previously 
certified under this part or 40 CFR part 89.
    (2) The remanufacture of non-locomotive-specific engines that were 
used in locomotives prior to January 1, 2000 is exempt from the 
requirements of this part provided: The remanufacturer remanufactures 
them to be equivalent to engines that have been previously certified 
under this part or 40 CFR part 89, or demonstrates that the 
NOX emissions from the remanufactured locomotive engine are 
at least 40 percent less than its emissions prior to certification; and 
the Administrator has approved the exemption as specified in paragraph 
(e) of this section.
    (d) Manufacturers and remanufacturers of engines and/or locomotives 
exempted under this section shall:
    (1) Report annually to EPA the number of engines exempted under 
paragraph (a) of this section;
    (2) Report annually to EPA the number of locomotives exempted under 
paragraph (b) of this section; and
    (3) Upon the Administrator's request, provide test data showing the 
emissions of the engine or locomotive when it is operated at the actual 
in-use locomotive power points.
    (e)(1) Manufacturers and remanufacturers seeking an exemption under 
this section shall notify the Administrator of such intent at least 90 
days prior to selling or placing into service the locomotives or 
locomotive engines.
    (2) The Administrator shall deny a non-locomotive-specific exemption 
in any case where he/she has evidence that approving such an exemption 
would be inappropriate because of adverse environmental or economic 
impacts.
    (3) When denying an exemption, the Administrator shall notify the 
manufacturer or remanufacturer of EPA's decision to deny or consider 
denying the exemption within 60 days of the manufacturer's or 
remanufacturer's notification in paragraph (e)(1) of this section.
    (4) Unless the Administrator notifies the manufacturer or 
remanufacturer of EPA's decision to deny or consider denying the 
exemption within 60 days of the manufacturer's or remanufacturer's 
notification in paragraph (e)(1) of this section, the exemption shall be 
considered approved 90 days of the manufacturer's or remanufacturer's 
notification.



Sec. 92.908  National security exemption.

    A manufacturer or remanufacturer requesting a national security 
exemption must state the purpose for which the exemption is required and 
the request must be endorsed by an agency of the federal government 
charged with responsibility for national defense.

[[Page 523]]



Sec. 92.909  Export exemptions.

    (a) A new locomotive or locomotive engine intended solely for 
export, and so labeled or tagged on the outside of any container, the 
locomotive and on the engine itself, is subject to the provisions of 
Sec. 92.1103, unless the importing country has new locomotive or new 
locomotive engine emission standards which differ from EPA standards.
    (b) For the purpose of paragraph (a) of this section, a country 
having no standards whatsoever is deemed to be a country having emission 
standards which differ from EPA standards.
    (c) It is a condition of any exemption for the purpose of export 
under paragraph (a) of this section, that such exemption is void ab 
initio with respect to a new locomotive or locomotive engine intended 
solely for export, where such locomotive or locomotive engine is sold, 
or offered for sale, to an ultimate purchaser or otherwise distributed 
or introduced into commerce in the United States for purposes other than 
export.



Sec. 92.910  Granting of exemptions.

    (a) If upon completion of the review of an exemption request made 
pursuant to Sec. 92.905 or Sec. 92.908, EPA determines it is appropriate 
to grant such an exemption, a memorandum of exemption is to be prepared 
and submitted to the person requesting the exemption. The memorandum is 
to set forth the basis for the exemption, its scope, and such terms and 
conditions as are deemed necessary. Such terms and conditions generally 
include, but are not limited to, agreements by the applicant to conduct 
the exempt activity in the manner described to EPA, create and maintain 
adequate records accessible to EPA at reasonable times, employ labels 
for the exempt locomotives or engines setting forth the nature of the 
exemption, take appropriate measures to assure that the terms of the 
exemption are met, and advise EPA of the termination of the activity and 
the ultimate disposition of the locomotives or engines.
    (b) Any exemption granted pursuant to paragraph (a) of this section 
is deemed to cover any subject locomotive or engine only to the extent 
that the specified terms and conditions are complied with. A breach of 
any term or condition causes the exemption to be void ab initio with 
respect to any locomotive or engine. Consequently, the causing or the 
performing of an act prohibited under Sec. 92.1103(a)(1) or (a)(3), 
other than in strict conformity with all terms and conditions of this 
exemption, renders the person to whom the exemption is granted, and any 
other person to whom the provisions of Sec. 92.1103(a) are applicable, 
liable to suit under sections 204 and 205 of the Act.

    Effective Date Note: At 63 FR 19077, Apr. 16, 1998, Sec. 92.910 was 
added. This section contains information collection and recordkeeping 
requirements and will not become effective until approval has been given 
by the Office of Management and Budget.



Sec. 92.911  Submission of exemption requests.

    Requests for exemption or further information concerning exemptions 
and/or the exemption request review procedure should be addressed to: 
Group Manager, Engine Compliance Programs Group, Engine Programs and 
Compliance Division U.S. Environmental Protection Agency, 6403-J, 401 M 
St., SW., Washington, DC 20460.



     Subpart K--Requirements Applicable to Owners and Operators of 
                   Locomotives and Locomotive Engines



Sec. 92.1001  Applicability.

    The requirements of this subpart are applicable to railroads and all 
other owners and operators of locomotives and locomotive engines subject 
to the provisions of subpart A of this part, except as otherwise 
specified.



Sec. 92.1002  Definitions.

    The definitions of subpart A of this part apply to this subpart.



Sec. 92.1003  In-use testing program.

    (a) Applicability. This section applies to all Class I freight 
railroads, beginning on January 1, 2005.
    (b) Testing requirements. Each railroad subject to the provisions of 
this section shall annually test a sample of locomotives in its fleet. 
For the purpose of this section, a railroad's fleet includes

[[Page 524]]

both the locomotives that it owns and the locomotives that it is 
leasing.
    (1)(i) Except as specified in paragraphs (b)(1) (ii) and (iii) of 
this section, the number of locomotives to be tested shall be at least 
0.15 percent of the average number of locomotives in the railroad's 
fleet during the previous calendar year (i.e., the number tested shall 
be 0.0015 multiplied by the number of locomotives in the fleet, rounded 
up to the next whole number).
    (ii) After December 31, 2015, the number of locomotives to be tested 
by railroads with 500 or more locomotives shall be at least 0.10 percent 
of the average number of locomotives in the railroad's fleet during the 
previous calendar year (i.e., the number tested shall be 0.0010 
multiplied by the number of locomotives in the fleet, rounded up to the 
next whole number). After December 31, 2015, the number of locomotives 
to be tested by railroads with fewer than 500 locomotives shall be zero. 
The provisions of this paragraph (b)(1)(ii) apply only when:
    (A) No new locomotive emission standards have taken effect during 
the previous 5 years;
    (B) Locomotive emission controls have not changed fundamentally, 
during the previous 5 years, in any manner that could reasonably be 
expected to have the potential to significantly affect emissions 
durability; and
    (C) Testing during the previous 5 years has shown, to the 
satisfaction of the Administrator, that the degree of noncompliance for 
tested locomotives is low enough that the higher rate of testing 
specified in paragraph (b)(1)(i) of this section is not needed.
    (iii) The Administrator may allow a railroad to perform a smaller 
number of tests than specified in paragraphs (b)(1) (i) or (ii) of this 
section, where he/she determines that the number of tests specified in 
paragraphs (b)(1)(i) or (ii) of this section is not necessary.
    (2) Testing shall be performed according to the test procedures in 
subpart B of this part, unless otherwise approved by the Administrator.
    (c) Test locomotive selection. (1)(i) A representative sample of 
locomotives shall be randomly selected for testing.
    (ii) Unless otherwise specified by the Administrator, the selection 
shall be made by the railroad.
    (iii) The railroad shall select locomotives from each manufacturer 
and remanufacturer, and from each tier level (e.g., Tier 0, Tier 1 and 
Tier 2) in proportion to their numbers in the railroad's fleet, except 
where specified or allowed otherwise by the Administrator.
    (iv) Locomotives tested during the previous year shall be excluded 
from the sample.
    (v) Locomotives may not be excluded from the sample because of 
visible smoke, a history of durability problems, or other evidence of 
malmaintenance.
    (2)(i) Locomotives selected for testing according to the provisions 
of this section shall have been certified in compliance with 
requirements in subpart A of this part, and shall have been operated for 
at least 100 percent of their useful lives.
    (ii) Where the number of locomotives that have been operated for at 
least 100 percent of their useful lives is not large enough to fulfill 
the testing requirement, locomotives still within their useful lives 
shall be tested. In this case, the locomotives must have been operated 
longer than at least 80 percent of the locomotives in the railroad's 
fleet.
    (3) Where specified by the Administrator, the railroad shall test 
specified locomotives in its fleet, including locomotives that do not 
meet the criteria specified in paragraph (c)(2) of this section.
    (d) Reporting requirements. All testing done in compliance with the 
provisions of this section shall be reported to EPA within thirty 
calendar days of the end of each year. At a minimum, each report shall 
contain the following:
    (1) Full corporate name and address of the railroad providing the 
report.
    (2) For each locomotive tested, the following:
    (i) Corporate name of the manufacturer and last remanufacturer(s) 
(including both certificate holder and installer, where different) of 
the locomotive, and the corporate name of the manufacturer or last 
remanufacturer(s) of the engine if different than that of

[[Page 525]]

the manufacturer or remanufacturer(s) of the locomotive;
    (ii) Year, and if known month of original manufacture of the 
locomotive and the engine, and the manufacturer's model designation of 
the locomotive and manufacturer's model designation of the engine, and 
the locomotive identification number;
    (iii) Year, and if known month that the engine last underwent 
remanufacture, and the engine remanufacturer's designation which either 
reflects, or most closely reflects, the engine after the last 
remanufacture, and the engine family identification;
    (iv) The number of MW-hrs and miles (where available) the locomotive 
has been operated since its last remanufacture; and
    (v) The emission test results for all measured pollutants.
    (e) Any railroad that performed no emission testing during a given 
year is exempt from the reporting requirements described in paragraph 
(d) of this section for that year.
    (f) In lieu of some or all of the test data required by this 
section, railroads may submit equivalent emission data collected for 
other purposes. The Administrator may also allow emission data collected 
using other testing or sampling procedures to be submitted in lieu of 
some or part of the data required by this section with advance approval.
    (g) All reports submitted to EPA in compliance with the provisions 
of this subpart must be addressed to: Group Manager, Engine Compliance 
Programs Group, Engine Programs and Compliance Division 6403-J, 
Environmental Protection Agency, 401 M St., SW., Washington, DC 20460.



Sec. 92.1004  Maintenance and repair.

    (a) Unless otherwise approved by the Administrator, all owners of 
locomotives subject to the provisions of this part shall ensure that all 
emission-related maintenance is performed on the locomotives, as 
specified in the maintenance instructions provided by the certifying 
manufacturer or remanufacturer in compliance with Sec. 92.211 (or 
maintenance that is equivalent to the maintenance specified by the 
certifying manufacturer or remanufacturer in terms of maintaining 
emissions performance).
    (b) Unless otherwise approved by the Administrator, all maintenance 
and repair of locomotives and locomotive engines subject to the 
provisions of this part performed by any owner, operator or other 
maintenance provider, including maintenance that is not covered by 
paragraph (a) of this section, shall be performed, using good 
engineering judgement, in such a manner that the locomotive or 
locomotive engine continues (after the maintenance or repair) to the 
meet the emission standards or family emission limits (as applicable) it 
was certified as meeting prior to the need for maintenance or repair.
    (c) The owner of the locomotive shall maintain records of all 
maintenance and repair that could reasonably affect the emission 
performance of any locomotive or locomotive engine subject to the 
provision of this part.



Sec. 92.1005  In-use locomotives.

    (a)(1) Any Class I railroad subject to the provisions of this 
subpart shall supply to the Administrator, upon request, in-use 
locomotives, selected by the Administrator. The number of locomotives 
which the Administrator requests under this paragraph (a)(1) shall not 
exceed five locomotives per railroad per calendar year. These 
locomotives or engines shall be supplied for testing at such reasonable 
time and place and for such reasonable periods as the Administrator may 
require. The Administrator shall make reasonable allowances to the 
railroad to schedule the supply of locomotives for testing in such a 
manner that it minimizes disruption of its operational schedule.
    (2) Any non-Class I railroad or other entity subject to the 
provisions of this subpart shall supply to the Administrator, upon 
request, in-use locomotives, selected by the Administrator. The number 
of locomotives which the Administrator requests under this paragraph 
(a)(2) shall not exceed two locomotives per railroad (or other entity) 
per calendar year. These locomotives or engines shall be supplied for 
testing at such reasonable time and place and for such reasonable

[[Page 526]]

periods as the Administrator may require. The Administrator shall make 
reasonable allowances to the railroad or other entity to schedule the 
supply of locomotives for testing in such a manner that it minimizes 
disruption of its operational schedule. The Administrator shall request 
locomotives under this paragraph (a)(2) only for purposes which cannot 
be accomplished using locomotives supplied under paragraph (a)(1) of 
this section.
    (b) Any railroad or other entity subject to the provisions of this 
subpart shall make reasonable efforts to supply manufacturers and 
remanufacturers of locomotives and locomotive engines with the test 
locomotives and locomotive engines needed to fulfill the in-use testing 
requirements contained in subpart G of this part.



Sec. 92.1006  Refueling requirements.

    (a) Refueling equipment used by a locomotive operator for 
locomotives fueled with a volatile fuel shall be designed in such a 
manner so as not to render inoperative or reduce the effectiveness of 
the controls on the locomotive that are intended to minimize the escape 
of fuel vapors.
    (b) Hoses used to refuel gaseous-fueled locomotives shall not be 
designed to be bled or vented to the atmosphere under normal operating 
conditions.



      Subpart L--General Enforcement Provisions and Prohibited Acts



Sec. 92.1101  Applicability.

    The requirements of this subpart are applicable to all 
manufacturers, remanufacturers, owners and operators of locomotives and 
locomotive engines subject to the provisions of subpart A of this part.



Sec. 92.1102  Definitions.

    The definitions of subpart A of this part apply to this subpart.



Sec. 92.1103  Prohibited acts.

    (a) The following acts and the causing thereof are prohibited:
    (1)(i)(A) In the case of a manufacturer or remanufacturer of new 
locomotives or new locomotive engines, the sale, the offering for sale, 
the introduction into commerce, the delivery for introduction into 
commerce, or the distribution in commerce of any new locomotive or new 
locomotive engine manufactured or remanufactured after the effective 
date of applicable emission standards under this part, unless such 
locomotive or locomotive engine is covered by a certificate of 
conformity issued (and in effect) under regulations found in this part. 
(Introduction into commerce includes placement of a new locomotive or 
new locomotive engine back into service following remanufacturing.)
    (B) The manufacture or remanufacture of a locomotive or locomotive 
engine for the purpose of an act listed in paragraph (a)(1)(i)(A) of 
this section unless such locomotive or locomotive engine is covered by a 
certificate of conformity issued (and in effect) under regulations found 
in this part prior to its introduction into commerce.
    (ii) In the case of any person, except as provided in Subpart I of 
this part, the importation into the United States of any locomotive or 
locomotive engine manufactured or remanufactured after June 15, 1998, 
unless such locomotive or locomotive engine is covered by a certificate 
of conformity issued (and in effect) under regulations found in this 
part.
    (2)(i) For a person to fail or refuse to permit access to or copying 
of records or to fail to make reports or provide information required 
under this part.
    (ii) For a person to fail or refuse to permit entry, testing, or 
inspection authorized under this part.
    (iii) For a person to fail or refuse to perform tests, or to have 
tests performed as required by this part.
    (iv) For a person to fail to establish or maintain records as 
required under this part.
    (3)(i) For a person to remove or render inoperative a device or 
element of design installed on or in a locomotive or locomotive engine 
in compliance with regulations under this part, or to set any adjustable 
parameter to a setting outside of the range specified by the 
manufacturer or remanufacturer, as approved in the application for 
certification by the Administrator.

[[Page 527]]

    (ii) For a person to manufacture, remanufacture, sell or offer to 
sell, or install, a part or component intended for use with, or as part 
of, a locomotive or locomotive engine, where a principal effect of the 
part or component is to bypass, defeat, or render inoperative a device 
or element of design installed on or in a locomotive or locomotive 
engine in compliance with regulations issued under this part, and where 
the person knows or should know that the part or component is being 
offered for sale or installed for this use or put to such use.
    (iii) For a locomotive owner or operator to fail to comply with the 
maintenance and repair requirements of Sec. 92.1004.
    (4) For a manufacturer or a remanufacturer of a new locomotive or 
locomotive engine subject to standards prescribed under this part:
    (i) To sell, offer for sale, or introduce or deliver for 
introduction into commerce, a new locomotive or new locomotive engine 
unless the manufacturer or remanufacturer has complied with the 
requirements of Sec. 92.1107.
    (ii) To sell, offer for sale, or introduce or deliver for 
introduction into commerce, a new locomotive or new locomotive engine 
unless all required labels and tags are affixed to the engine in 
accordance with Sec. 92.212.
    (iii) To fail or refuse to comply with the requirements of 
Sec. 92.1108.
    (iv) Except as provided in Sec. 92.211, to provide directly or 
indirectly in any communication to the ultimate purchaser or a 
subsequent purchaser that the coverage of a warranty under the Act is 
conditioned upon use of a part, component, or system manufactured by the 
manufacturer or remanufacturer or a person acting for the manufacturer 
or remanufacturer or under its control, or conditioned upon service 
performed by such persons.
    (v) To fail or refuse to comply with the terms and conditions of the 
warranty under Sec. 92.1107.
    (5) For a manufacturer or remanufacturer of locomotives to 
distribute in commerce, sell, offer for sale, or deliver for 
introduction into commerce new locomotives (including all locomotives 
which contain a new engine) not covered by a certificate of conformity.
    (b) For the purposes of enforcement of this part, the following 
apply:
    (1) Nothing in paragraph (a)(3) of this section is to be construed 
to require the use of any manufacturer's or remanufacturer's parts in 
maintaining or repairing a locomotive or locomotive engine.
    (2) Actions for the purpose of repair or replacement of a device or 
element of design or any other item are not considered prohibited acts 
under paragraph (a)(3)(i) of this section if the action is a necessary 
and temporary procedure, the device or element is replaced upon 
completion of the procedure, and the action results in the proper 
functioning of the device or element of design.
    (3) Actions for the purpose of remanufacturing a locomotive are not 
considered prohibited acts under paragraph (a)(3)(i) of this section if 
the new remanufactured locomotive is covered by a certificate of 
conformity and complies with all applicable requirements of this part.



Sec. 92.1104  General enforcement provisions.

    (a) Information collection provisions. (1)(i) Every manufacturer or 
remanufacturer of new locomotives and/or new locomotive engines and 
other persons subject to the requirements of this part must establish 
and maintain records, perform tests, make reports and provide 
information the Administrator may reasonably require to determine 
whether the manufacturer or remanufacturer or other person has acted or 
is acting in compliance with this part or to otherwise carry out the 
provisions of this part, and must, upon request of an officer or 
employee duly designated by the Administrator, permit the officer or 
employee at reasonable times to have access to and copy such records. 
The manufacturer or remanufacturer shall comply in all respects with the 
requirements of subpart E of this part.
    (ii) Every manufacturer, remanufacturer, owner, or operator of 
locomotives or locomotive engines exempted from the standards or 
requirements

[[Page 528]]

of this part must establish and maintain records, perform tests, make 
reports and provide information the Administrator may reasonably require 
regarding the emissions of such locomotives or locomotive engines.
    (2) For purposes of enforcement of this part, an officer or employee 
duly designated by the Administrator, upon presenting appropriate 
credentials, is authorized:
    (i) To enter, at reasonable times, any establishment of the 
manufacturer or remanufacturer, or of any person whom the manufacturer 
or remanufacturer engaged to perform any activity required under 
paragraph (a)(1) of this section, for the purposes of inspecting or 
observing any activity conducted pursuant to paragraph (a)(1) of this 
section; and
    (ii) To inspect records, files, papers, processes, controls, and 
facilities used in performing an activity required by paragraph (a)(1) 
of this section, by the manufacturer or remanufacturer or by a person 
whom the manufacturer or remanufacturer engaged to perform the activity.
    (b) Exemption provision. The Administrator may exempt a new 
locomotive or new locomotive engine from Sec. 92.1103 upon such terms 
and conditions as the Administrator may find necessary for the purpose 
of export, research, investigations, studies, demonstrations, or 
training, or for reasons of national security, or for other purposes 
allowed by subpart J of this part.
    (c) Importation provision. (1) A new locomotive or locomotive 
engine, offered for importation or imported by a person in violation of 
Sec. 92.1103 is to be refused admission into the United States, but the 
Secretary of the Treasury and the Administrator may, by joint 
regulation, provide for deferring a final determination as to admission 
and authorizing the delivery of such a locomotive or locomotive engine 
offered for import to the owner or consignee thereof upon such terms and 
conditions (including the furnishing of a bond) as may appear to them 
appropriate to insure that the locomotive or locomotive engine will be 
brought into conformity with the standards, requirements, and 
limitations applicable to it under this part.
    (2) If a locomotive or locomotive engine is finally refused 
admission under this paragraph (c), the Secretary of the Treasury shall 
cause disposition thereof in accordance with the customs laws unless it 
is exported, under regulations prescribed by the Secretary, within 90 
days of the date of notice of the refusal or additional time as may be 
permitted pursuant to the regulations.
    (3) Disposition in accordance with the customs laws may not be made 
in such manner as may result, directly or indirectly, in the sale, to 
the ultimate consumer, of a new locomotive or locomotive engine that 
fails to comply with applicable standards of the Administrator under 
this part.
    (d) Export provision. A new locomotive or locomotive engine intended 
solely for export, and so labeled or tagged on the outside of the 
container if used and on the engine, shall be subject to the provisions 
of Sec. 92.1103, except that if the country that is to receive the 
locomotive or locomotive engine has emission standards that differ from 
the standards prescribed under subpart A of this part, then the 
locomotive or locomotive engine must comply with the standards of the 
country that is to receive the locomotive or locomotive engine.
    (e) Recordkeeping. Except where specified otherwise, records 
required by this part must be kept for eight (8) years.



Sec. 92.1105  Injunction proceedings for prohibited acts.

    (a) The district courts of the United States have jurisdiction to 
restrain violations of Sec. 92.1103(a).
    (b) Actions to restrain violations of Sec. 92.1103(a) must be 
brought by and in the name of the United States. In an action, subpoenas 
for witnesses who are required to attend a district court in any 
district may run into any other district.



Sec. 92.1106  Penalties.

    (a) Violations. A violation of the requirements of this subpart is a 
violation of the applicable provisions of the Act, including sections 
213(d) and 203, and is subject to the penalty provisions thereunder.

[[Page 529]]

    (1) A person who violates Sec. 92.1103(a)(1), (a)(4), or (a)(5), or 
a manufacturer, remanufacturer, dealer or railroad who violates 
Sec. 92.1103(a)(3)(i) or (iii) is subject to a civil penalty of not more 
than $25,000 for each violation unless modified by the Debt Collection 
Improvement Act (31 U.S.C. 3701 et seq.) and/or regulations issued 
thereunder.
    (2) A person other than a manufacturer, remanufacturer, dealer, or 
railroad who violates Sec. 92.1103(a)(3)(i) or any person who violates 
Sec. 92.1103(a)(3)(ii) is subject to a civil penalty of not more than 
$2,500 for each violation unless modified by the Debt Collection 
Improvement Act and/or regulations issued thereunder.
    (3) A violation with respect to Sec. 92.1103(a)(1), (a)(3)(i), 
(a)(3)(iii), (a)(4), or (a)(5) constitutes a separate offense with 
respect to each locomotive or locomotive engine.
    (4) A violation with respect to Sec. 92.1103(a)(3)(ii) constitutes a 
separate offense with respect to each part or component. Each day of a 
violation with respect to Sec. 92.1103(a)(5) constitutes a separate 
offense.
    (5) A person who violates Sec. 92.1103(a)(2) or (a)(5) is subject to 
a civil penalty of not more than $25,000 per day of violation unless 
modified by the Debt Collection Improvement Act and/or regulations 
issued thereunder.
    (b) Civil actions. The Administrator may commence a civil action to 
assess and recover any civil penalty under paragraph (a) of this 
section.
    (1) An action under this paragraph (b) may be brought in the 
district court of the United States for the district in which the 
defendant resides or has the Administrator's principal place of 
business, and the court has jurisdiction to assess a civil penalty.
    (2) In determining the amount of a civil penalty to be assessed 
under this paragraph (b), the court is to take into account the gravity 
of the violation, the economic benefit or savings (if any) resulting 
from the violation, the size of the violator's business, the violator's 
history of compliance with Title II of the Act, action taken to remedy 
the violation, the effect of the penalty on the violator's ability to 
continue in business, and such other matters as justice may require.
    (3) In any such action, subpoenas for witnesses who are required to 
attend a district court in any district may run into any other district.
    (c) Administrative assessment of certain penalties. (1) 
Administrative penalty authority. In lieu of commencing a civil action 
under paragraph (b) of this section, the Administrator may assess any 
civil penalty prescribed in paragraph (a) of this section, except that 
the maximum amount of penalty sought against each violator in a penalty 
assessment proceeding shall not exceed $200,000, unless the 
Administrator and the Attorney General jointly determine that a matter 
involving a larger penalty amount is appropriate for administrative 
penalty assessment. Any such determination by the Administrator and the 
Attorney General is not subject to judicial review. Assessment of a 
civil penalty shall be by an order made on the record after opportunity 
for a hearing held in accordance with the procedures found at part 22 of 
this chapter. The Administrator may compromise, or remit, with or 
without conditions, any administrative penalty which may be imposed 
under this section.
    (2) Determining amount. In determining the amount of any civil 
penalty assessed under this paragraph (c), the Administrator shall take 
into account the gravity of the violation, the economic benefit or 
savings (if any) resulting from the violation, the size of the 
violator's business, the violator's history of compliance with Title II 
of the Act, action taken to remedy the violation, the effect of the 
penalty on the violator's ability to continue in business, and such 
other matters as justice may require.
    (3) Effect of administrator's action. (i) Action by the 
Administrator under this paragraph (c) does not affect or limit the 
Administrator's authority to enforce any provisions of the Act; except 
that any violation with respect to which the Administrator has commenced 
and is diligently prosecuting an action under this paragraph (c), or for 
which the Administrator has issued a final order not subject to further 
judicial review and for which the violator has paid a penalty assessment 
under this paragraph shall not be the subject

[[Page 530]]

of a civil penalty action under paragraph (b) of this section.
    (ii) No action by the Administrator under this paragraph (c) shall 
affect a person's obligation to comply with a section of this part.
    (4) Finality of order. An order issued under this paragraph (c) is 
to become final 30 days after its issuance unless a petition for 
judicial review is filed under paragraph (c)(5) of this section.
    (5) Judicial review. A person against whom a civil penalty is 
assessed in accordance with this paragraph (c) may seek review of the 
assessment in the United States District Court for the District of 
Columbia or for the district in which the violation is alleged to have 
occurred, in which such person resides, or where the person's principal 
place of business is located, within the 30-day period beginning on the 
date a civil penalty order is issued. The person shall simultaneously 
send a copy of the filing by certified mail to the Administrator and the 
Attorney General. The Administrator shall file in the court within 30 
days a certified copy, or certified index, as appropriate, of the record 
on which the order was issued. The court is not to set aside or remand 
any order issued in accordance with the requirements of this paragraph 
(c) unless substantial evidence does not exist in the record, taken as a 
whole, to support the finding of a violation or unless the 
Administrator's assessment of the penalty constitutes an abuse of 
discretion, and the court is not to impose additional civil penalties 
unless the Administrator's assessment of the penalty constitutes an 
abuse of discretion. In any proceedings, the United States may seek to 
recover civil penalties assessed under this section.
    (6) Collection. (i) If any person fails to pay an assessment of a 
civil penalty imposed by the Administrator as provided in this part 
after the order making the assessment has become final or after a court 
in an action brought under paragraph (c)(5) of this section has entered 
a final judgment in favor of the Administrator, the Administrator shall 
request that the Attorney General bring a civil action in an appropriate 
district court to recover the amount assessed (plus interest at rates 
established pursuant to section 6621(a)(2) of the Internal Revenue Code 
of 1986 (26 U.S.C. 6621(a)(2)) from the date of the final order or the 
date of final judgment, as the case may be). In such an action, the 
validity, amount, and appropriateness of the penalty is not subject to 
review.
    (ii) A person who fails to pay on a timely basis the amount of an 
assessment of a civil penalty as described in paragraph (c)(6)(i) of 
this section shall be required to pay, in addition to that amount and 
interest, the United States' enforcement expenses, including attorney's 
fees and costs for collection proceedings, and a quarterly nonpayment 
penalty for each quarter during which the failure to pay persists. The 
nonpayment penalty is an amount equal to ten percent of the aggregate 
amount of that person's penalties and nonpayment penalties which are 
unpaid as of the beginning of such quarter.



Sec. 92.1107  Warranty provisions.

    (a) The manufacturer or remanufacturer of each locomotive or 
locomotive engine must warrant to the ultimate purchaser and each 
subsequent purchaser or owner that the locomotive or locomotive engine 
is designed, built, and equipped so as to conform at the time of sale or 
time of return to service following remanufacture with applicable 
regulations under section 213 of the Act, and is free from defects in 
materials and workmanship which cause such locomotive or locomotive 
engine to fail to conform with applicable regulations for its warranty 
period (as determined under Sec. 92.10).
    (b) For the purposes of this section, the owner of any locomotive or 
locomotive engine warranted under this part is responsible for the 
proper maintenance of the locomotive and the locomotive engine. Proper 
maintenance includes replacement and/or service, as needed, at the 
owner's expense at a service establishment or facility of the owner's 
choosing, of all parts, items, or devices which were in general use with 
locomotives or locomotive engines prior to 1999. For diesel engines, 
this would generally include replacement or cleaning of the fuel 
delivery and injection system.

[[Page 531]]



Sec. 92.1108  In-use compliance provisions.

    (a) Effective with respect to locomotives and locomotive engines 
subject to the requirements of this part:
    (1) If the Administrator determines that a substantial number of any 
class or category of locomotives or locomotive engines, although 
properly maintained and used, do not conform to the regulations 
prescribed under section 213 of the Act when in actual use throughout 
their useful life period (as defined under Sec. 92.2), the Administrator 
shall immediately notify the manufacturer or remanufacturer of such 
nonconformity and require the manufacturer or remanufacturer to submit a 
plan for remedying the nonconformity of the locomotives or locomotive 
engines with respect to which such notification is given.
    (i) The manufacturer's or remanufacturer's plan shall provide that 
the nonconformity of any such locomotives or locomotive engines which 
are properly used and maintained will be remedied at the expense of the 
manufacturer or remanufacturer.
    (ii) If the manufacturer or remanufacturer disagrees with such 
determination of nonconformity and so advises the Administrator, the 
Administrator shall afford the manufacturer or remanufacturer and other 
interested persons an opportunity to present their views and evidence in 
support thereof at a public hearing. Unless, as a result of such 
hearing, the Administrator withdraws such determination of 
nonconformity, the Administrator shall, within 60 days after the 
completion of such hearing, order the manufacturer or remanufacturer to 
provide prompt notification of such nonconformity in accordance with 
paragraph (a)(2) of this section. The manufacturer or remanufacturer 
shall comply in all respects with the requirements of subpart G of this 
part.
    (2) Any notification required to be given by the manufacturer or 
remanufacturer under paragraph (a)(1) of this section with respect to 
any class or category of locomotives or locomotive engines shall be 
given to ultimate purchasers, subsequent purchasers (if known), and 
dealers (as applicable) in such manner and containing such information 
as required in Subparts E and H of this part.
    (3)(i) The certifying manufacturer or remanufacturer shall furnish 
with each new locomotive or locomotive engine written instructions for 
the proper maintenance and use of the engine by the ultimate purchaser 
as required under Sec. 92.211.
    (ii) The instruction under paragraph (a)(3)(i) of this section must 
not include any condition on the ultimate purchaser's using, in 
connection with such locomotive or locomotive engine, any component or 
service (other than a component or service provided without charge under 
the terms of the purchase agreement) which is identified by brand, 
trade, or corporate name. Such instructions also must not directly or 
indirectly distinguish between service performed by the franchised 
dealers of such manufacturer or remanufacturer, or any other service 
establishments with which such manufacturer or remanufacturer has a 
commercial relationship, and service performed by independent locomotive 
or locomotive engine repair facilities with which such manufacturer or 
remanufacturer has no commercial relationship.
    (iii) The prohibition of paragraph (a)(3)(ii) of this section may be 
waived by the Administrator if:
    (A) The manufacturer or remanufacturer satisfies the Administrator 
that the locomotive or locomotive engine will function properly only if 
the component or service so identified is used in connection with such 
engine; and
    (B) The Administrator finds that such a waiver is in the public 
interest.
    (iv) In addition, the manufacturer or remanufacturer shall indicate 
by means of a label or tag permanently affixed to the locomotive and to 
the engine that the locomotive and/or the locomotive engine is covered 
by a certificate of conformity issued for the purpose of assuring 
achievement of emission standards prescribed under section 213 of the 
Act. This label or tag shall also contain information relating to 
control of emissions as prescribed under Sec. 92.212.
    (b) The manufacturer or remanufacturer bears all cost obligation any 
dealer incurs as a result of a requirement imposed by paragraph (a) of 
this

[[Page 532]]

section. The transfer of any such cost obligation from a manufacturer or 
remanufacturer to a dealer through franchise or other agreement is 
prohibited.
    (c) If a manufacturer or remanufacturer includes in an advertisement 
a statement respecting the cost or value of emission control devices or 
systems, the manufacturer or remanufacturer shall set forth in the 
statement the cost or value attributed to these devices or systems by 
the Secretary of Labor (through the Bureau of Labor Statistics). The 
Secretary of Labor, and his or her representatives, has the same access 
for this purpose to the books, documents, papers, and records of a 
manufacturer or remanufacturer as the Comptroller General has to those 
of a recipient of assistance for purposes of section 311 of the Act.

Appendix I to Part 92--Emission Related Locomotive and Engine Parameters 
                           and Specifications

I. Basic Engine Parameters--Reciprocating Engines.
    1. Compression ratio.
    2. Type of air aspiration (natural, Roots blown, supercharged, 
turbocharged).
    3. Valves (intake and exhaust).
a. Head diameter dimension.
b. Valve lifter or actuator type and valve lash dimension.
    4. Camshaft timing.
a. Valve opening--intake exhaust (degrees from TDC or BDC).
b. Valve closing--intake exhaust (degrees from TDC or BDC).
c. Valve overlap (degrees).
    5. Ports--two stroke engines (intake and/or exhaust).
a. Flow area.
b. Opening timing (degrees from TDC or BDC).
c. Closing timing (degrees from TDC or BDC).
II. Intake Air System.
    1. Roots blower/supercharger/turbocharger calibration.
    2. Charge air cooling.
a. Type (air-to-air; air-to-liquid).
b. Type of liquid cooling (engine coolant, dedicated cooling system).
c. Performance (charge air delivery temperature (  deg.F) at rated power 
and one other power level under ambient conditions of 80  deg.F and 110 
deg.F, and 3 minutes and 15 minutes after selecting rated power, and 3 
minutes and 5 minutes after selecting other power level).
    3. Temperature control system calibration.
    4. Maximum allowable inlet air restriction.
III. Fuel System.
    1. General.
a. Engine idle speed.
    2. Carburetion.
a. Air-fuel flow calibration.
b. Idle mixture.
c. Transient enrichment system calibration.
d. Starting enrichment system calibration.
e. Altitude compensation system calibration.
f. Hot idle compensation system calibration.
    3. Fuel injection--non-compression ignition engines.
a. Control parameters and calibrations.
b. Idle mixture.
c. Fuel shutoff system calibration.
d. Starting enrichment system calibration.
e. Transient enrichment system calibration.
f. Air-fuel flow calibration.
g. Altitude compensation system calibration.
h. Operating pressure(s).
i. Injector timing calibration.
    4. Fuel injection--compression ignition engines.
a. Control parameters and calibrations.
b. Transient enrichment system calibration.
c. Air-fuel flow calibration.
d. Altitude compensation system calibration.
e. Operating pressure(s).
f. Injector timing calibration.
IV. Ignition System--non-compression ignition engines.
    1. Control parameters and calibration.
    2. Initial timing setting.
    3. Dwell setting.
    4. Altitude compensation system calibration.
    5. Spark plug voltage.
V. Engine Cooling System.
    1. Thermostat calibration.
VI. Exhaust System.
    1. Maximum allowable back pressure.
VII. Exhaust Emission Control System.
    1. Air injection system.
a. Control parameters and calibrations.
b. Pump flow rate.
    2. EGR system.
a. Control parameters and calibrations.
b. EGR valve flow calibration.
    3. Catalytic converter system.
a. Active surface area.
b. Volume of catalyst.
c. Conversion efficiency.
    4. Backpressure.
VIII. Crankcase Emission Control System.
    1. Control parameters and calibrations.
    2. Valve calibrations.
IX. Auxiliary Emission Control Devices (AECD).

[[Page 533]]

    1. Control parameters and calibrations.
    2. Component calibration(s).
X. Evaporative Emission Control System.
    1. Control parameters and calibrations.
    2. Fuel tank.
a. Volume.
b. Pressure and vacuum relief settings.

 Appendix II to Part 292--Interpretive Ruling for Sec. 92.705--Remedial 
                                  Plans

    The following is an interpretive ruling set forth previously by EPA 
for on-highway vehicles. EPA expects to apply the same principles to 
locomotives.
    (1) The purpose of this ruling is to set forth EPA's interpretation 
regarding one aspect of a motor vehicle or motor vehicle engine 
manufacturer's recall liability under section 207(c)(1) of the Clean Air 
Act, 42 U.S.C. 7641(c)(1). This ruling will provide guidance to vehicle 
and engine manufacturers to better enable them to submit acceptable 
remedial plans.
    (2) Section 207(c)(1) requires the Administrator to base a recall 
order on a determination that a substantial number of in-use vehicles or 
engines within a given class or category of vehicles or engines, 
although properly maintained and used, fail to conform to the 
regulations prescribed under section 202 when in actual use throughout 
their useful lives. After making such a determination, he shall require 
the manufacturer to submit a plan to remedy the nonconformity of any 
such vehicles or engines. The plan shall provide that the manufacturer 
will remedy, at the manufacturer's expense, all properly maintained and 
used vehicles which experienced the nonconformity during their useful 
lives regardless of their age or mileage at the time of repair.
      Appendix III to Part 92--Smoke Standards for Non-Normalized 
                             Measurements

                     Table III-1--Equivalent Smoke Standards for Non-Normalized Measurements
----------------------------------------------------------------------------------------------------------------
                  Path length                                               Standards
----------------------------------------------------------------------------------------------------------------
             If the path length is:                              Then the opacity may not exceed:
----------------------------------------------------------------------------------------------------------------
                                                           Peak                         Steady-State
              cm                    inches      ----------------------------------------------------------------
                                                    3-sec        30-sec       Tier 0       Tier 1       Tier 2
----------------------------------------------------------------------------------------------------------------
10.0-19.9....................  3.94-7.86.......            7            5            4            3            2
20.0-29.9....................  7.87-11.80......           13           10            7            6            4
30.0-39.9....................  11.81-15.74.....           19           14           10            8            6
40.0-49.9....................  15.75-19.68.....           24           18           13           11            9
50.0-59.9....................  19.69-23.61.....           29           23           16           13           11
60.0-69.9....................  23.62-27.55.....           34           26           19           16           13
70.0-79.9....................  27.56-31.49.....           38           30           22           18           14
80.0-89.9....................  31.50-35.42.....           43           34           25           21           16
90.0-99.9....................  35.43-39.36.....           46           37           27           23           18
100.0-109.9..................  39.37-43.30.....           50           40           30           25           20
110.0-119.9..................  43.31-47.23.....           53           43           32           27           22
120.0-129.9..................  47.24-51.17.....           56           46           35           29           23
130.0-139.9..................  51.18-55.11.....           59           49           37           31           25
140.0-149.9..................  55.12-59.05.....           62           51           39           33           27
150.0-159.9..................  59.06-62.98.....           65           54           41           35           28
160.0-169.9..................  62.99-66.92.....           67           56           43           37           30
170.0-179.9..................  66.93-70.86.....           69           58           45           39           32
180.0-189.9..................  70.87-74.79.....           71           60           47           40           33
190.0-199.9..................  74.80-78.73.....           73           62           49           42           35
200...............  78.74           75           64           51           44           36
----------------------------------------------------------------------------------------------------------------

 Appendix IV to Part 92--Guidelines for Determining Equivalency Between 
                      Emission Measurement Systems

    This appendix describes a series of correlation criteria that EPA 
considers to be reasonable for the purpose of demonstrating equivalency 
between two test systems designed to measure the same emissions during 
FTP locomotive testing. These criteria are presented here only as 
guidelines. When requested to make a finding of equivalency, EPA could 
base its decision on criteria other than those listed here, where EPA 
has reason to believe that these criteria are not appropriate.
    (a) General approach. (1) Multiple tests should be conducted in 
pairs on the same locomotive or engine using each of the measurement 
systems.
    (2) Variations for other parameters, such as test fuel, should be 
minimized to the maximum extent possible.

[[Page 534]]

    (3) Locomotive and/or locomotive engine tests conducted in 
accordance with the provisions of Subpart B of this part are preferred. 
Where appropriate, engine tests conducted in accordance with 40 CFR part 
89 may also be used.
    (4) Equivalency of the systems should be determined by comparing 
individual modal data, individual cycle-weighted data, and the average 
cycle-weighted results from each system.
    (b) Correlation criteria for particulate measurements. (1) The 
correlation coefficient (R2) for individual modal data should 
be 0.90, or higher.
    (2) The maximum deviation between any pair of cycle-weighted data 
should be 15 percent, or less.
    (3) The ratio of average cycle-weighted results using the alternate 
system to the average cycle-weighted results using the specified Part 92 
system (i.e., avgalt/avgspc) should be between 
0.97 and 1.05.
    (c) Correlation criteria for other measurements. Correlation 
parameters for gaseous pollutants should be better than those specified 
in paragraph (b) of this appendix for particulate measurements.
    (d) Minimum number of tests. The recommended minimum number of tests 
with each system necessary to determine equivalency is:
    (1) Four 13-mode locomotive or locomotive engine tests, conducted in 
accordance with the provisions of subpart B of this part; or
    (2) Seven 8-mode nonroad engine tests, conducted in accordance with 
the provisions of 40 CFR part 89.
    (e) Statistical outliers. Statistical outliers may be excluded 
consistent with good engineering judgement. Outliers should be replaced 
by rerunning each excluded test point. Where more than one outlier is 
excluded, is recommended to perform one additional pair of tests (in 
addition to the minimum number specified in paragraph (d) of this 
appendix) for each two outliers excluded.



PART 93--DETERMINING CONFORMITY OF FEDERAL ACTIONS TO STATE OR FEDERAL IMPLEMENTATION PLANS--Table of Contents




   Subpart A--Conformity to State or Federal Implementation Plans of 
   Transportation Plans, Programs, and Projects Developed, Funded or 
       Approved Under Title 23 U.S.C. or the Federal Transit Laws

Sec.
93.100  Purpose.
93.101  Definitions.
93.102  Applicability.
93.103  Priority.
93.104  Frequency of conformity determinations.
93.105  Consultation.
93.106  Content of transportation plans.
93.107  Relationship of transportation plan and TIP conformity with the 
          NEPA process.
93.108  Fiscal constraints for transportation plans and TIPs.
93.109  Criteria and procedures for determining conformity of 
          transportation plans, programs, and projects: General.
93.110  Criteria and procedures: Latest planning assumptions.
93.111  Criteria and procedures: Latest emissions model.
93.112  Criteria and procedures: Consultation.
93.113  Criteria and procedures: Timely implementation of TCMs.
93.114  Criteria and procedures: Currently conforming transportation 
          plan and TIP.
93.115  Criteria and procedures: Projects from a plan and TIP.
93.116  Criteria and procedures: Localized CO and PM10 
          violations (hot spots).
93.117  Criteria and procedures: Compliance with PM10 control 
          measures.
93.118  Criteria and procedures: Motor vehicle emissions budget.
93.119  Criteria and procedures: Emission reductions in areas without 
          motor vehicle emissions budgets.
93.120   Consequences of control strategy implementation plan failures.
93.121  Requirements for adoption or approval of projects by other 
          recipients of funds designated under title 23 U.S.C. or the 
          Federal Transit Laws.
93.122  Procedures for determining regional transportation-related 
          emissions.
93.123  Procedures for determining localized CO and PM10 
          concentrations (hot-spot analysis).
93.124  Using the motor vehicle emissions budget in the applicable 
          implementation plan (or implementation plan submission).
93.125  Enforceability of design concept and scope and project-level 
          mitigation and control measures.
93.126  Exempt projects.
93.127  Projects exempt from regional emissions analyses.
93.128  Traffic signal synchronization projects.
93.129  Special exemptions from conformity requirements for pilot 
          program areas.

Subpart B--Determining Conformity of General Federal Actions to State or 
                      Federal Implementation Plans

93.150  Prohibition.
93.151  State implementation plan (SIP) revision.
93.152  Definitions.

[[Page 535]]

93.153  Applicability.
93.154  Conformity analysis.
93.155  Reporting requirements.
93.156  Public participation.
93.157  Frequency of conformity determinations.
93.158  Criteria for determining conformity of general Federal actions.
93.159  Procedures for conformity determinations of general Federal 
          actions.
93.160  Mitigation of air quality impacts.

    Authority: 42 U.S.C. 7401-7671q.

    Source: 58 FR 62235, Nov. 24, 1993, unless otherwise noted.



   Subpart A--Conformity to State or Federal Implementation Plans of 
   Transportation Plans, Programs, and Projects Developed, Funded or 
       Approved Under Title 23 U.S.C. or the Federal Transit Laws

    Source: 62 FR 43801, Aug. 15, 1997, unless otherwise noted.



Sec. 93.100  Purpose.

    The purpose of this subpart is to implement section 176(c) of the 
Clean Air Act (CAA), as amended (42 U.S.C. 7401 et seq.), and the 
related requirements of 23 U.S.C. 109(j), with respect to the conformity 
of transportation plans, programs, and projects which are developed, 
funded, or approved by the United States Department of Transportation 
(DOT), and by metropolitan planning organizations (MPOs) or other 
recipients of funds under title 23 U.S.C. or the Federal Transit Laws 
(49 U.S.C. Chapter 53). This subpart sets forth policy, criteria, and 
procedures for demonstrating and assuring conformity of such activities 
to an applicable implementation plan developed pursuant to section 110 
and Part D of the CAA.



Sec. 93.101  Definitions.

    Terms used but not defined in this subpart shall have the meaning 
given them by the CAA, titles 23 and 49 U.S.C., other Environmental 
Protection Agency (EPA) regulations, or other DOT regulations, in that 
order of priority.
    Applicable implementation plan is defined in section 302(q) of the 
CAA and means the portion (or portions) of the implementation plan, or 
most recent revision thereof, which has been approved under section 110, 
or promulgated under section 110(c), or promulgated or approved pursuant 
to regulations promulgated under section 301(d) and which implements the 
relevant requirements of the CAA.
    CAA means the Clean Air Act, as amended (42 U.S.C. 7401 et seq.).
    Cause or contribute to a new violation for a project means:
    (1) To cause or contribute to a new violation of a standard in the 
area substantially affected by the project or over a region which would 
otherwise not be in violation of the standard during the future period 
in question, if the project were not implemented; or
    (2) To contribute to a new violation in a manner that would increase 
the frequency or severity of a new violation of a standard in such area.
    Clean data means air quality monitoring data determined by EPA to 
meet the requirements of 40 CFR part 58 that indicate attainment of the 
national ambient air quality standard.
    Control strategy implementation plan revision is the implementation 
plan which contains specific strategies for controlling the emissions of 
and reducing ambient levels of pollutants in order to satisfy CAA 
requirements for demonstrations of reasonable further progress and 
attainment (CAA sections 182(b)(1), 182(c)(2)(A), 182(c)(2)(B), 
187(a)(7), 189(a)(1)(B), and 189(b)(1)(A); and sections 192(a) and 
192(b), for nitrogen dioxide).
    Design concept means the type of facility identified by the project, 
e.g., freeway, expressway, arterial highway, grade-separated highway, 
reserved right-of-way rail transit, mixed-traffic rail transit, 
exclusive busway, etc.
    Design scope means the design aspects which will affect the proposed 
facility's impact on regional emissions, usually as they relate to 
vehicle or person carrying capacity and control, e.g., number of lanes 
or tracks to be constructed or added, length of project, signalization, 
access control including approximate number and location of 
interchanges, preferential treatment for high-occupancy vehicles, etc.
    DOT means the United States Department of Transportation.

[[Page 536]]

    EPA means the Environmental Protection Agency.
    FHWA means the Federal Highway Administration of DOT.
    FHWA/FTA project, for the purpose of this subpart, is any highway or 
transit project which is proposed to receive funding assistance and 
approval through the Federal-Aid Highway program or the Federal mass 
transit program, or requires Federal Highway Administration (FHWA) or 
Federal Transit Administration (FTA) approval for some aspect of the 
project, such as connection to an interstate highway or deviation from 
applicable design standards on the interstate system.
    Forecast period with respect to a transportation plan is the period 
covered by the transportation plan pursuant to 23 CFR part 450.
    FTA means the Federal Transit Administration of DOT.
    Highway project is an undertaking to implement or modify a highway 
facility or highway-related program. Such an undertaking consists of all 
required phases necessary for implementation. For analytical purposes, 
it must be defined sufficiently to:
    (1) Connect logical termini and be of sufficient length to address 
environmental matters on a broad scope;
    (2) Have independent utility or significance, i.e., be usable and be 
a reasonable expenditure even if no additional transportation 
improvements in the area are made; and
    (3) Not restrict consideration of alternatives for other reasonably 
foreseeable transportation improvements.
    Horizon year is a year for which the transportation plan describes 
the envisioned transportation system according to Sec. 93.106.
    Hot-spot analysis is an estimation of likely future localized CO and 
PM10 pollutant concentrations and a comparison of those 
concentrations to the national ambient air quality standards. Hot-spot 
analysis assesses impacts on a scale smaller than the entire 
nonattainment or maintenance area, including, for example, congested 
roadway intersections and highways or transit terminals, and uses an air 
quality dispersion model to determine the effects of emissions on air 
quality.
    Increase the frequency or severity means to cause a location or 
region to exceed a standard more often or to cause a violation at a 
greater concentration than previously existed and/or would otherwise 
exist during the future period in question, if the project were not 
implemented.
    Lapse means that the conformity determination for a transportation 
plan or TIP has expired, and thus there is no currently conforming 
transportation plan and TIP.
    Maintenance area means any geographic region of the United States 
previously designated nonattainment pursuant to the CAA Amendments of 
1990 and subsequently redesignated to attainment subject to the 
requirement to develop a maintenance plan under section 175A of the CAA, 
as amended.
    Maintenance plan means an implementation plan under section 175A of 
the CAA, as amended.
    Metropolitan planning organization (MPO) is that organization 
designated as being responsible, together with the State, for conducting 
the continuing, cooperative, and comprehensive planning process under 23 
U.S.C. 134 and 49 U.S.C. 5303. It is the forum for cooperative 
transportation decision-making.
    Milestone has the meaning given in sections 182(g)(1) and 189(c) of 
the CAA. A milestone consists of an emissions level and the date on 
which it is required to be achieved.
    Motor vehicle emissions budget is that portion of the total 
allowable emissions defined in the submitted or approved control 
strategy implementation plan revision or maintenance plan for a certain 
date for the purpose of meeting reasonable further progress milestones 
or demonstrating attainment or maintenance of the NAAQS, for any 
criteria pollutant or its precursors, allocated to highway and transit 
vehicle use and emissions.
    National ambient air quality standards (NAAQS) are those standards 
established pursuant to section 109 of the CAA.
    NEPA means the National Environmental Policy Act of 1969, as amended 
(42 U.S.C. 4321 et seq.).
    NEPA process completion, for the purposes of this subpart, with 
respect to FHWA or FTA, means the point at

[[Page 537]]

which there is a specific action to make a determination that a project 
is categorically excluded, to make a Finding of No Significant Impact, 
or to issue a record of decision on a Final Environmental Impact 
Statement under NEPA.
    Nonattainment area means any geographic region of the United States 
which has been designated as nonattainment under section 107 of the CAA 
for any pollutant for which a national ambient air quality standard 
exists.
    Project means a highway project or transit project.
    Protective finding means a determination by EPA that a submitted 
control strategy implementation plan revision contains adopted control 
measures or written commitments to adopt enforceable control measures 
that fully satisfy the emissions reductions requirements relevant to the 
statutory provision for which the implementation plan revision was 
submitted, such as reasonable further progress or attainment.
    Recipient of funds designated under title 23 U.S.C. or the Federal 
Transit Laws means any agency at any level of State, county, city, or 
regional government that routinely receives title 23 U.S.C. or Federal 
Transit Laws funds to construct FHWA/FTA projects, operate FHWA/FTA 
projects or equipment, purchase equipment, or undertake other services 
or operations via contracts or agreements. This definition does not 
include private landowners or developers, or contractors or entities 
that are only paid for services or products created by their own 
employees.
    Regionally significant project means a transportation project (other 
than an exempt project) that is on a facility which serves regional 
transportation needs (such as access to and from the area outside of the 
region, major activity centers in the region, major planned developments 
such as new retail malls, sports complexes, etc., or transportation 
terminals as well as most terminals themselves) and would normally be 
included in the modeling of a metropolitan area's transportation 
network, including at a minimum all principal arterial highways and all 
fixed guideway transit facilities that offer an alternative to regional 
highway travel.
    Safety margin means the amount by which the total projected 
emissions from all sources of a given pollutant are less than the total 
emissions that would satisfy the applicable requirement for reasonable 
further progress, attainment, or maintenance.
    Standard means a national ambient air quality standard.
    Transit is mass transportation by bus, rail, or other conveyance 
which provides general or special service to the public on a regular and 
continuing basis. It does not include school buses or charter or 
sightseeing services.
    Transit project is an undertaking to implement or modify a transit 
facility or transit-related program; purchase transit vehicles or 
equipment; or provide financial assistance for transit operations. It 
does not include actions that are solely within the jurisdiction of 
local transit agencies, such as changes in routes, schedules, or fares. 
It may consist of several phases. For analytical purposes, it must be 
defined inclusively enough to:
    (1) Connect logical termini and be of sufficient length to address 
environmental matters on a broad scope;
    (2) Have independent utility or independent significance, i.e., be a 
reasonable expenditure even if no additional transportation improvements 
in the area are made; and
    (3) Not restrict consideration of alternatives for other reasonably 
foreseeable transportation improvements.
    Transportation control measure (TCM) is any measure that is 
specifically identified and committed to in the applicable 
implementation plan that is either one of the types listed in section 
108 of the CAA, or any other measure for the purpose of reducing 
emissions or concentrations of air pollutants from transportation 
sources by reducing vehicle use or changing traffic flow or congestion 
conditions. Notwithstanding the first sentence of this definition, 
vehicle technology-based, fuel-based, and maintenance-based measures 
which control the emissions from vehicles under fixed traffic conditions 
are not TCMs for the purposes of this subpart.

[[Page 538]]

    Transportation improvement program (TIP) means a staged, multiyear, 
intermodal program of transportation projects covering a metropolitan 
planning area which is consistent with the metropolitan transportation 
plan, and developed pursuant to 23 CFR part 450.
    Transportation plan means the official intermodal metropolitan 
transportation plan that is developed through the metropolitan planning 
process for the metropolitan planning area, developed pursuant to 23 CFR 
part 450.
    Transportation project is a highway project or a transit project.
    Written commitment for the purposes of this subpart means a written 
commitment that includes a description of the action to be taken; a 
schedule for the completion of the action; a demonstration that funding 
necessary to implement the action has been authorized by the 
appropriating or authorizing body; and an acknowledgment that the 
commitment is an enforceable obligation under the applicable 
implementation plan.



Sec. 93.102  Applicability.

    (a) Action applicability.
    (1) Except as provided for in paragraph (c) of this section or 
Sec. 93.126, conformity determinations are required for:
    (i) The adoption, acceptance, approval or support of transportation 
plans and transportation plan amendments developed pursuant to 23 CFR 
part 450 or 49 CFR part 613 by an MPO or DOT;
    (ii) The adoption, acceptance, approval or support of TIPs and TIP 
amendments developed pursuant to 23 CFR part 450 or 49 CFR part 613 by 
an MPO or DOT; and
    (iii) The approval, funding, or implementation of FHWA/FTA projects.
    (2) Conformity determinations are not required under this subpart 
for individual projects which are not FHWA/FTA projects. However, 
Sec. 93.121 applies to such projects if they are regionally significant.
    (b) Geographic applicability. The provisions of this subpart shall 
apply in all nonattainment and maintenance areas for transportation-
related criteria pollutants for which the area is designated 
nonattainment or has a maintenance plan.
    (1) The provisions of this subpart apply with respect to emissions 
of the following criteria pollutants: ozone, carbon monoxide (CO), 
nitrogen dioxide (NO2), and particles with an aerodynamic 
diameter less than or equal to a nominal 10 micrometers 
(PM10).
    (2) The provisions of this subpart apply with respect to emissions 
of the following precursor pollutants:
    (i) Volatile organic compounds (VOC) and nitrogen oxides 
(NOx) in ozone areas;
    (ii) NOx in NO2 areas; and
    (iii) VOC, NOx, and PM10 in PM10 
areas if the EPA Regional Administrator or the director of the State air 
agency has made a finding that transportation-related precursor 
emissions within the nonattainment area are a significant contributor to 
the PM10 nonattainment problem and has so notified the MPO 
and DOT, or if the applicable implementation plan (or implementation 
plan submission) establishes a budget for such emissions as part of the 
reasonable further progress, attainment or maintenance strategy.
    (3) The provisions of this subpart apply to maintenance areas for 20 
years from the date EPA approves the area's request under section 107(d) 
of the CAA for redesignation to attainment, unless the applicable 
implementation plan specifies that the provisions of this subpart shall 
apply for more than 20 years.
    (c) Limitations. (1) Projects subject to this subpart for which the 
NEPA process and a conformity determination have been completed by DOT 
may proceed toward implementation without further conformity 
determinations unless more than three years have elapsed since the most 
recent major step (NEPA process completion; start of final design; 
acquisition of a significant portion of the right-of-way; or approval of 
the plans, specifications and estimates) occurred. All phases of such 
projects which were considered in the conformity determination are also 
included, if those phases were for the purpose of funding final design, 
right-of-way acquisition, construction, or any combination of these 
phases.

[[Page 539]]

    (2) A new conformity determination for the project will be required 
if there is a significant change in project design concept and scope, if 
a supplemental environmental document for air quality purposes is 
initiated, or if three years have elapsed since the most recent major 
step to advance the project occurred.
    (d) Grace period for new nonattainment areas. For areas or portions 
of areas which have been designated attainment for either ozone, CO, 
PM10 or NO2 since 1990 and are subsequently 
redesignated to nonattainment for any of these pollutants, the 
provisions of this subpart shall not apply for 12 months following the 
date of final designation to nonattainment for such pollutant.



Sec. 93.103  Priority.

    When assisting or approving any action with air quality-related 
consequences, FHWA and FTA shall give priority to the implementation of 
those transportation portions of an applicable implementation plan 
prepared to attain and maintain the NAAQS. This priority shall be 
consistent with statutory requirements for allocation of funds among 
States or other jurisdictions.



Sec. 93.104  Frequency of conformity determinations.

    (a) Conformity determinations and conformity redeterminations for 
transportation plans, TIPs, and FHWA/FTA projects must be made according 
to the requirements of this section and the applicable implementation 
plan.
    (b) Frequency of conformity determinations for transportation plans. 
(1) Each new transportation plan must be demonstrated to conform before 
the transportation plan is approved by the MPO or accepted by DOT.
    (2) All transportation plan revisions must be found to conform 
before the transportation plan revisions are approved by the MPO or 
accepted by DOT, unless the revision merely adds or deletes exempt 
projects listed in Sec. 93.126 or Sec. 93.127. The conformity 
determination must be based on the transportation plan and the revision 
taken as a whole.
    (3) The MPO and DOT must determine the conformity of the 
transportation plan no less frequently than every three years. If more 
than three years elapse after DOT's conformity determination without the 
MPO and DOT determining conformity of the transportation plan, the 
existing conformity determination will lapse.
    (c) Frequency of conformity determinations for transportation 
improvement programs. (1) A new TIP must be demonstrated to conform 
before the TIP is approved by the MPO or accepted by DOT.
    (2) A TIP amendment requires a new conformity determination for the 
entire TIP before the amendment is approved by the MPO or accepted by 
DOT, unless the amendment merely adds or deletes exempt projects listed 
in Sec. 93.126 or Sec. 93.127.
    (3) The MPO and DOT must determine the conformity of the TIP no less 
frequently than every three years. If more than three years elapse after 
DOT's conformity determination without the MPO and DOT determining 
conformity of the TIP, the existing conformity determination will lapse.
    (4) After an MPO adopts a new or revised transportation plan, 
conformity of the TIP must be redetermined by the MPO and DOT within six 
months from the date of DOT's conformity determination for the 
transportation plan, unless the new or revised plan merely adds or 
deletes exempt projects listed in Secs. 93.126 and 93.127. Otherwise, 
the existing conformity determination for the TIP will lapse.
    (d) Projects. FHWA/FTA projects must be found to conform before they 
are adopted, accepted, approved, or funded. Conformity must be 
redetermined for any FHWA/FTA project if three years have elapsed since 
the most recent major step to advance the project (NEPA process 
completion; start of final design; acquisition of a significant portion 
of the right-of-way; or approval of the plans, specifications and 
estimates) occurred.
    (e) Triggers for transportation plan and TIP conformity 
determinations. Conformity of existing transportation plans and TIPs 
must be redetermined within 18 months of the following, or the existing 
conformity determination will lapse, and no new project-level conformity 
determinations may be

[[Page 540]]

made until conformity of the transportation plan and TIP has been 
determined by the MPO and DOT:
    (1) November 24, 1993;
    (2) The date of the State's initial submission to EPA of each 
control strategy implementation plan or maintenance plan establishing a 
motor vehicle emissions budget;
    (3) EPA approval of a control strategy implementation plan revision 
or maintenance plan which establishes or revises a motor vehicle 
emissions budget;
    (4) EPA approval of an implementation plan revision that adds, 
deletes, or changes TCMs; and
    (5) EPA promulgation of an implementation plan which establishes or 
revises a motor vehicle emissions budget or adds, deletes, or changes 
TCMs.



Sec. 93.105  Consultation.

    (a) General. The implementation plan revision required under 
Sec. 51.390 of this chapter shall include procedures for interagency 
consultation (Federal, State, and local), resolution of conflicts, and 
public consultation as described in paragraphs (a) through (e) of this 
section. Public consultation procedures will be developed in accordance 
with the requirements for public involvement in 23 CFR part 450.
    (1) The implementation plan revision shall include procedures to be 
undertaken by MPOs, State departments of transportation, and DOT with 
State and local air quality agencies and EPA before making conformity 
determinations, and by State and local air agencies and EPA with MPOs, 
State departments of transportation, and DOT in developing applicable 
implementation plans.
    (2) Before EPA approves the conformity implementation plan revision 
required by Sec. 51.390 of this chapter, MPOs and State departments of 
transportation must provide reasonable opportunity for consultation with 
State air agencies, local air quality and transportation agencies, DOT, 
and EPA, including consultation on the issues described in paragraph 
(c)(1) of this section, before making conformity determinations.
    (b) Interagency consultation procedures: General factors. (1) States 
shall provide well-defined consultation procedures in the implementation 
plan whereby representatives of the MPOs, State and local air quality 
planning agencies, State and local transportation agencies, and other 
organizations with responsibilities for developing, submitting, or 
implementing provisions of an implementation plan required by the CAA 
must consult with each other and with local or regional offices of EPA, 
FHWA, and FTA on the development of the implementation plan, the 
transportation plan, the TIP, and associated conformity determinations.
    (2) Interagency consultation procedures shall include at a minimum 
the following general factors and the specific processes in paragraph 
(c) of this section:
    (i) The roles and responsibilities assigned to each agency at each 
stage in the implementation plan development process and the 
transportation planning process, including technical meetings;
    (ii) The organizational level of regular consultation;
    (iii) A process for circulating (or providing ready access to) draft 
documents and supporting materials for comment before formal adoption or 
publication;
    (iv) The frequency of, or process for convening, consultation 
meetings and responsibilities for establishing meeting agendas;
    (v) A process for responding to the significant comments of involved 
agencies; and
    (vi) A process for the development of a list of the TCMs which are 
in the applicable implementation plan.
    (c) Interagency consultation procedures: Specific processes. 
Interagency consultation procedures shall also include the following 
specific processes:
    (1) A process involving the MPO, State and local air quality 
planning agencies, State and local transportation agencies, EPA, and DOT 
for the following:
    (i) Evaluating and choosing a model (or models) and associated 
methods and assumptions to be used in hot-spot analyses and regional 
emissions analyses;

[[Page 541]]

    (ii) Determining which minor arterials and other transportation 
projects should be considered ``regionally significant'' for the 
purposes of regional emissions analysis (in addition to those 
functionally classified as principal arterial or higher or fixed 
guideway systems or extensions that offer an alternative to regional 
highway travel), and which projects should be considered to have a 
significant change in design concept and scope from the transportation 
plan or TIP;
    (iii) Evaluating whether projects otherwise exempted from meeting 
the requirements of this subpart (see Secs. 93.126 and 93.127) should be 
treated as non-exempt in cases where potential adverse emissions impacts 
may exist for any reason;
    (iv) Making a determination, as required by Sec. 93.113(c)(1), 
whether past obstacles to implementation of TCMs which are behind the 
schedule established in the applicable implementation plan have been 
identified and are being overcome, and whether State and local agencies 
with influence over approvals or funding for TCMs are giving maximum 
priority to approval or funding for TCMs. This process shall also 
consider whether delays in TCM implementation necessitate revisions to 
the applicable implementation plan to remove TCMs or substitute TCMs or 
other emission reduction measures;
    (v) Identifying, as required by Sec. 93.123(b), projects located at 
sites in PM10 nonattainment areas which have vehicle and 
roadway emission and dispersion characteristics which are essentially 
identical to those at sites which have violations verified by 
monitoring, and therefore require quantitative PM10 hot-spot 
analysis;
    (vi) Notification of transportation plan or TIP revisions or 
amendments which merely add or delete exempt projects listed in 
Sec. 93.126 or Sec. 93.127; and
    (vii) Choosing conformity tests and methodologies for isolated rural 
nonattainment and maintenance areas, as required by 
Sec. 93.109(g)(2)(iii).
    (2) A process involving the MPO and State and local air quality 
planning agencies and transportation agencies for the following:
    (i) Evaluating events which will trigger new conformity 
determinations in addition to those triggering events established in 
Sec. 93.104; and
    (ii) Consulting on emissions analysis for transportation activities 
which cross the borders of MPOs or nonattainment areas or air basins.
    (3) Where the metropolitan planning area does not include the entire 
nonattainment or maintenance area, a process involving the MPO and the 
State department of transportation for cooperative planning and analysis 
for purposes of determining conformity of all projects outside the 
metropolitan area and within the nonattainment or maintenance area.
    (4) A process to ensure that plans for construction of regionally 
significant projects which are not FHWA/FTA projects (including projects 
for which alternative locations, design concept and scope, or the no-
build option are still being considered), including those by recipients 
of funds designated under title 23 U.S.C. or the Federal Transit Laws, 
are disclosed to the MPO on a regular basis, and to ensure that any 
changes to those plans are immediately disclosed.
    (5) A process involving the MPO and other recipients of funds 
designated under title 23 U.S.C. or the Federal Transit Laws for 
assuming the location and design concept and scope of projects which are 
disclosed to the MPO as required by paragraph (c)(4) of this section but 
whose sponsors have not yet decided these features, in sufficient detail 
to perform the regional emissions analysis according to the requirements 
of Sec. 93.122.
    (6) A process for consulting on the design, schedule, and funding of 
research and data collection efforts and regional transportation model 
development by the MPO (e.g., household/ travel transportation surveys).
    (7) A process for providing final documents (including applicable 
implementation plans and implementation plan revisions) and supporting 
information to each agency after approval or adoption. This process is 
applicable to all agencies described in paragraph (a)(1) of this 
section, including Federal agencies.
    (d) Resolving conflicts. Conflicts among State agencies or between 
State agencies and an MPO shall be escalated

[[Page 542]]

to the Governor if they cannot be resolved by the heads of the involved 
agencies. The State air agency has 14 calendar days to appeal to the 
Governor after the State DOT or MPO has notified the State air agency 
head of the resolution of his or her comments. The implementation plan 
revision required by Sec. 51.390 of this chapter shall define the 
procedures for starting the 14-day clock. If the State air agency 
appeals to the Governor, the final conformity determination must have 
the concurrence of the Governor. If the State air agency does not appeal 
to the Governor within 14 days, the MPO or State department of 
transportation may proceed with the final conformity determination. The 
Governor may delegate his or her role in this process, but not to the 
head or staff of the State or local air agency, State department of 
transportation, State transportation commission or board, or an MPO.
    (e) Public consultation procedures. Affected agencies making 
conformity determinations on transportation plans, programs, and 
projects shall establish a proactive public involvement process which 
provides opportunity for public review and comment by, at a minimum, 
providing reasonable public access to technical and policy information 
considered by the agency at the beginning of the public comment period 
and prior to taking formal action on a conformity determination for all 
transportation plans and TIPs, consistent with these requirements and 
those of 23 CFR 450.316(b). Any charges imposed for public inspection 
and copying should be consistent with the fee schedule contained in 49 
CFR 7.95. In addition, these agencies must specifically address in 
writing all public comments that known plans for a regionally 
significant project which is not receiving FHWA or FTA funding or 
approval have not been properly reflected in the emissions analysis 
supporting a proposed conformity finding for a transportation plan or 
TIP. These agencies shall also provide opportunity for public 
involvement in conformity determinations for projects where otherwise 
required by law.



Sec. 93.106  Content of transportation plans.

    (a) Transportation plans adopted after January 1, 1997 in serious, 
severe, or extreme ozone nonattainment areas and in serious CO 
nonattainment areas. If the metropolitan planning area contains an 
urbanized area population greater than 200,000, the transportation plan 
must specifically describe the transportation system envisioned for 
certain future years which shall be called horizon years.
    (1) The agency or organization developing the transportation plan 
may choose any years to be horizon years, subject to the following 
restrictions:
    (i) Horizon years may be no more than 10 years apart;
    (ii) The first horizon year may be no more than 10 years from the 
base year used to validate the transportation demand planning model;
    (iii) If the attainment year is in the time span of the 
transportation plan, the attainment year must be a horizon year; and
    (iv) The last horizon year must be the last year of the 
transportation plan's forecast period.
    (2) For these horizon years:
    (i) The transportation plan shall quantify and document the 
demographic and employment factors influencing expected transportation 
demand, including land use forecasts, in accordance with implementation 
plan provisions and the consultation requirements specified by 
Sec. 93.105;
    (ii) The highway and transit system shall be described in terms of 
the regionally significant additions or modifications to the existing 
transportation network which the transportation plan envisions to be 
operational in the horizon years. Additions and modifications to the 
highway network shall be sufficiently identified to indicate 
intersections with existing regionally significant facilities, and to 
determine their effect on route options between transportation analysis 
zones. Each added or modified highway segment shall also be sufficiently 
identified in terms of its design concept and design scope to allow 
modeling of travel times under various traffic volumes, consistent with 
the modeling methods for area-wide transportation analysis in use by

[[Page 543]]

the MPO. Transit facilities, equipment, and services envisioned for the 
future shall be identified in terms of design concept, design scope, and 
operating policies that are sufficient for modeling of their transit 
ridership. Additions and modifications to the transportation network 
shall be described sufficiently to show that there is a reasonable 
relationship between expected land use and the envisioned transportation 
system; and
    (iii) Other future transportation policies, requirements, services, 
and activities, including intermodal activities, shall be described.
    (b) Moderate areas reclassified to serious. Ozone or CO 
nonattainment areas which are reclassified from moderate to serious and 
have an urbanized population greater than 200,000 must meet the 
requirements of paragraph (a) of this section within two years from the 
date of reclassification.
    (c) Transportation plans for other areas. Transportation plans for 
other areas must meet the requirements of paragraph (a) of this section 
at least to the extent it has been the previous practice of the MPO to 
prepare plans which meet those requirements. Otherwise, the 
transportation system envisioned for the future must be sufficiently 
described within the transportation plans so that a conformity 
determination can be made according to the criteria and procedures of 
Secs. 93.109 through 93.119.
    (d) Savings. The requirements of this section supplement other 
requirements of applicable law or regulation governing the format or 
content of transportation plans.



Sec. 93.107  Relationship of transportation plan and TIP conformity with the NEPA process.

    The degree of specificity required in the transportation plan and 
the specific travel network assumed for air quality modeling do not 
preclude the consideration of alternatives in the NEPA process or other 
project development studies. Should the NEPA process result in a project 
with design concept and scope significantly different from that in the 
transportation plan or TIP, the project must meet the criteria in 
Secs. 93.109 through 93.119 for projects not from a TIP before NEPA 
process completion.



Sec. 93.108  Fiscal constraints for transportation plans and TIPs.

    Transportation plans and TIPs must be fiscally constrained 
consistent with DOT's metropolitan planning regulations at 23 CFR part 
450 in order to be found in conformity.



Sec. 93.109  Criteria and procedures for determining conformity of transportation plans, programs, and projects: General.

    (a) In order for each transportation plan, program, and FHWA/FTA 
project to be found to conform, the MPO and DOT must demonstrate that 
the applicable criteria and procedures in this subpart are satisfied, 
and the MPO and DOT must comply with all applicable conformity 
requirements of implementation plans and of court orders for the area 
which pertain specifically to conformity. The criteria for making 
conformity determinations differ based on the action under review 
(transportation plans, TIPs, and FHWA/FTA projects), the relevant 
pollutant(s), and the status of the implementation plan.
    (b) Table 1 in this paragraph indicates the criteria and procedures 
in Secs. 93.110 through 93.119 which apply for transportation plans, 
TIPs, and FHWA/FTA projects. Paragraphs (c) through (f) of this section 
explain when the budget, emission reduction, and hot spot tests are 
required for each pollutant. Paragraph (g) of this section addresses 
isolated rural nonattainment and maintenance areas. Table 1 follows:

                      Table 1--Conformity Criteria
------------------------------------------------------------------------
 
------------------------------------------------------------------------
All Actions at all times:
  Sec.  93.110                           Latest planning assumptions
  Sec.  93.111                           Latest emissions model
  Sec.  93.112                           Consultation
Transportation Plan:
  Sec.  93.113(b)                        TCMs
  Sec.  93.118 or Sec.  93.119           Emissions budget or Emission
                                          reduction
TIP:
  Sec.  93.113(c)                        TCMs
  Sec.  93.118 or Sec.  93.119           Emissions budget or Emission
                                          reduction
Project (From a Conforming Plan and
 TIP):
  Sec.  93.114                           Currently conforming plan and
                                          TIP
  Sec.  93.115                           Project from a conforming plan
                                          and TIP

[[Page 544]]

 
  Sec.  93.116                           CO and PM10 hot spots
  Sec.  93.117                           PM10 control measures
Project (Not From a Conforming Plan and
 TIP):
  Sec.  93.113(d)                        TCMs
  Sec.  93.114                           Currently conforming plan and
                                          TIP
  Sec.  93.116                           CO and PM10 hot spots
  Sec.  93.117                           PM10 control measures
  Sec.  93.118 or Sec.  93.119           Emissions budget or Emission
                                          reduction
------------------------------------------------------------------------

    (c) Ozone nonattainment and maintenance areas. In addition to the 
criteria listed in Table 1 in paragraph (b) of this section that are 
required to be satisfied at all times, in ozone nonattainment and 
maintenance areas conformity determinations must include a demonstration 
that the budget and/or emission reduction tests are satisfied as 
described in the following:
    (1) In ozone nonattainment and maintenance areas the budget test 
must be satisfied as required by Sec. 93.118 for conformity 
determinations made:
    (i) 45 days after a control strategy implementation plan revision or 
maintenance plan has been submitted to EPA, unless EPA has declared the 
motor vehicle emissions budget inadequate for transportation conformity 
purposes; or
    (ii) After EPA has declared that the motor vehicle emissions budget 
in a submitted control strategy implementation plan revision or 
maintenance plan is adequate for transportation conformity purposes.
    (2) In ozone nonattainment areas that are required to submit a 
control strategy implementation plan revision (usually moderate and 
above areas), the emission reduction tests must be satisfied as required 
by Sec. 93.119 for conformity determinations made:
    (i) During the first 45 days after a control strategy implementation 
plan revision or maintenance plan has been submitted to EPA, unless EPA 
has declared a motor vehicle emissions budget adequate for 
transportation conformity purposes; or
    (ii) If EPA has declared the motor vehicle emissions budget in a 
submitted control strategy implementation plan revision or maintenance 
plan inadequate for transportation conformity purposes, and there is no 
previously established motor vehicle emissions budget in the approved 
implementation plan or a previously submitted control strategy 
implementation plan revision or maintenance plan.
    (3) An ozone nonattainment area must satisfy the emission reduction 
test for NOX, as required by Sec. 93.119, if the 
implementation plan or plan submission that is applicable for the 
purposes of conformity determinations is a 15% plan or Phase I 
attainment demonstration that does not include a motor vehicle emissions 
budget for NOX. The implementation plan will be considered to 
establish a motor vehicle emissions budget for NOX if the 
implementation plan or plan submission contains an explicit 
NOX motor vehicle emissions budget that is intended to act as 
a ceiling on future NOX emissions, and the NOX 
motor vehicle emissions budget is a net reduction from NOX 
emissions levels in 1990.
    (4) Ozone nonattainment areas that have not submitted a maintenance 
plan and that are not required to submit a control strategy 
implementation plan revision (usually marginal and below areas) must 
satisfy one of the following requirements:
    (i) The emission reduction tests required by Sec. 93.119; or
    (ii) The State shall submit to EPA an implementation plan revision 
that contains motor vehicle emissions budget(s) and an attainment 
demonstration, and the budget test required by Sec. 93.118 must be 
satisfied using the submitted motor vehicle emissions budget(s) (as 
described in paragraph (c)(1) of this section).
    (5) Notwithstanding paragraphs (c)(1) and (c)(2) of this section, 
moderate and above ozone nonattainment areas with three years of clean 
data that have not submitted a maintenance plan and that EPA has 
determined are not subject to the Clean Air Act reasonable further 
progress and attainment demonstration requirements must satisfy one of 
the following requirements:
    (i) The emission reduction tests as required by Sec. 93.119;
    (ii) The budget test as required by Sec. 93.118, using the motor 
vehicle emissions budgets in the submitted control strategy 
implementation plan (subject to the timing requirements of paragraph 
(c)(1) of this section); or

[[Page 545]]

    (iii) The budget test as required by Sec. 93.118, using the motor 
vehicle emissions of ozone precursors in the most recent year of clean 
data as motor vehicle emissions budgets, if such budgets are established 
by the EPA rulemaking that determines that the area has clean data.
    (d) CO nonattainment and maintenance areas. In addition to the 
criteria listed in Table 1 in paragraph (b) of this section that are 
required to be satisfied at all times, in CO nonattainment and 
maintenance areas conformity determinations must include a demonstration 
that the hot spot, budget and/or emission reduction tests are satisfied 
as described in the following:
    (1) FHWA/FTA projects in CO nonattainment or maintenance areas must 
satisfy the hot spot test required by Sec. 93.116(a) at all times. Until 
a CO attainment demonstration or maintenance plan is approved by EPA, 
FHWA/FTA projects must also satisfy the hot spot test required by 
Sec. 93.116(b).
    (2) In CO nonattainment and maintenance areas the budget test must 
be satisfied as required by Sec. 93.118 for conformity determinations 
made:
    (i) 45 days after a control strategy implementation plan revision or 
maintenance plan has been submitted to EPA, unless EPA has declared the 
motor vehicle emissions budget inadequate for transportation conformity 
purposes; or
    (ii) After EPA has declared that the motor vehicle emissions budget 
in a submitted control strategy implementation plan revision or 
maintenance plan is adequate for transportation conformity purposes.
    (3) Except as provided in paragraph (d)(4) of this section, in CO 
nonattainment areas the emission reduction tests must be satisfied as 
required by Sec. 93.119 for conformity determinations made:
    (i) During the first 45 days after a control strategy implementation 
plan revision or maintenance plan has been submitted to EPA, unless EPA 
has declared a motor vehicle emissions budget adequate for 
transportation conformity purposes; or
    (ii) If EPA has declared the motor vehicle emissions budget in a 
submitted control strategy implementation plan revision or maintenance 
plan inadequate for transportation conformity purposes, and there is no 
previously established motor vehicle emissions budget in the approved 
implementation plan or a previously submitted control strategy 
implementation plan revision or maintenance plan.
    (4) CO nonattainment areas that have not submitted a maintenance 
plan and that are not required to submit an attainment demonstration 
(e.g., moderate CO areas with a design value of 12.7 ppm or less or not 
classified CO areas) must satisfy one of the following requirements:
    (i) The emission reduction tests required by Sec. 93.119; or
    (ii) The State shall submit to EPA an implementation plan revision 
that contains motor vehicle emissions budget(s) and an attainment 
demonstration, and the budget test required by Sec. 93.118 must be 
satisfied using the submitted motor vehicle emissions budget(s) (as 
described in paragraph (d)(2) of this section).
    (e) PM10 nonattainment and maintenance areas. In addition 
to the criteria listed in Table 1 in paragraph (b) of this section that 
are required to be satisfied at all times, in PM10 
nonattainment and maintenance areas conformity determinations must 
include a demonstration that the hot spot, budget and/or emission 
reduction tests are satisfied as described in the following:
    (1) FHWA/FTA projects in PM10 nonattainment or 
maintenance areas must satisfy the hot spot test required by 
Sec. 93.116(a).
    (2) In PM10 nonattainment and maintenance areas the 
budget test must be satisfied as required by Sec. 93.118 for conformity 
determinations made:
    (i) 45 days after a control strategy implementation plan revision or 
maintenance plan has been submitted to EPA, unless EPA has declared the 
motor vehicle emissions budget inadequate for transportation conformity 
purposes; or
    (ii) After EPA has declared that the motor vehicle emissions budget 
in a submitted control strategy implementation plan revision or 
maintenance plan is adequate for transportation conformity purposes.

[[Page 546]]

    (3) In PM10 nonattainment areas the emission reduction 
tests must be satisfied as required by Sec. 93.119 for conformity 
determinations made:
    (i) During the first 45 days after a control strategy implementation 
plan revision or maintenance plan has been submitted to EPA, unless EPA 
has declared a motor vehicle emissions budget adequate for 
transportation conformity purposes;
    (ii) If EPA has declared the motor vehicle emissions budget in a 
submitted control strategy implementation plan revision or maintenance 
plan inadequate for transportation conformity purposes, and there is no 
previously established motor vehicle emissions budget in the approved 
implementation plan or a previously submitted control strategy 
implementation plan revision or maintenance plan; or
    (iii) If the submitted implementation plan revision is a 
demonstration of impracticability under CAA section 189(a)(1)(B)(ii) and 
does not demonstrate attainment.
    (f) NO2 nonattainment and maintenance areas. In addition 
to the criteria listed in Table 1 in paragraph (b) of this section that 
are required to be satisfied at all times, in NO2 
nonattainment and maintenance areas conformity determinations must 
include a demonstration that the budget and/or emission reduction tests 
are satisfied as described in the following:
    (1) In NO2 nonattainment and maintenance areas the budget 
test must be satisfied as required by Sec. 93.118 for conformity 
determinations made:
    (i) 45 days after a control strategy implementation plan revision or 
maintenance plan has been submitted to EPA, unless EPA has declared the 
motor vehicle emissions budget inadequate for transportation conformity 
purposes; or
    (ii) After EPA has declared that the motor vehicle emissions budget 
in a submitted control strategy implementation plan revision or 
maintenance plan is adequate for transportation conformity purposes.
    (2) In NO2 nonattainment areas the emission reduction 
tests must be satisfied as required by Sec. 93.119 for conformity 
determinations made:
    (i) During the first 45 days after a control strategy implementation 
plan revision or maintenance plan has been submitted to EPA, unless EPA 
has declared a motor vehicle emissions budget adequate for 
transportation conformity purposes; or
    (ii) If EPA has declared the motor vehicle emissions budget in a 
submitted control strategy implementation plan revision or maintenance 
plan inadequate for transportation conformity purposes, and there is no 
previously established motor vehicle emissions budget in the approved 
implementation plan or a previously submitted control strategy 
implementation plan revision or maintenance plan.
    (g) Isolated rural nonattainment and maintenance areas. This 
paragraph applies to any nonattainment or maintenance area (or portion 
thereof) which does not have a metropolitan transportation plan or TIP 
and whose projects are not part of the emissions analysis of any MPO's 
metropolitan transportation plan or TIP. This paragraph does not apply 
to ``donut'' areas which are outside the metropolitan planning boundary 
and inside the nonattainment/maintenance area boundary.
    (1) FHWA/FTA projects in all isolated rural nonattainment and 
maintenance areas must satisfy the requirements of Secs. 93.110, 93.111, 
93.112, 93.113(d), 93.116, and 93.117. Until EPA approves the control 
strategy implementation plan or maintenance plan for a rural CO 
nonattainment or maintenance area, FHWA/FTA projects must also satisfy 
the requirements of Sec. 93.116(b) (``Localized CO and PM10 
violations (hot spots)'').
    (2) Isolated rural nonattainment and maintenance areas are subject 
to the budget and/or emission reduction tests as described in paragraphs 
(c) through (f) of this section, with the following modifications:
    (i) When the requirements of Secs. 93.118 and 93.119 apply to 
isolated rural nonattainment and maintenance areas, references to 
``transportation plan'' or ``TIP'' should be taken to mean those 
projects in the statewide transportation plan or statewide TIP which are 
in the rural nonattainment or maintenance area.

[[Page 547]]

    (ii) In isolated rural nonattainment and maintenance areas that are 
subject to Sec. 93.118, FHWA/FTA projects must be consistent with motor 
vehicle emissions budget(s) for the years in the timeframe of the 
attainment demonstration or maintenance plan. For years after the 
attainment year (if a maintenance plan has not been submitted) or after 
the last year of the maintenance plan, FHWA/FTA projects must satisfy 
one of the following requirements:
    (A) Sec. 93.118;
    (B) Sec. 93.119 (including regional emissions analysis for 
NOX in all ozone nonattainment and maintenance areas, 
notwithstanding Sec. 93.119(d)(2)); or
    (C) As demonstrated by the air quality dispersion model or other air 
quality modeling technique used in the attainment demonstration or 
maintenance plan, the FHWA/FTA project, in combination with all other 
regionally significant projects expected in the area in the timeframe of 
the statewide transportation plan, must not cause or contribute to any 
new violation of any standard in any areas; increase the frequency or 
severity of any existing violation of any standard in any area; or delay 
timely attainment of any standard or any required interim emission 
reductions or other milestones in any area. Control measures assumed in 
the analysis must be enforceable.
    (iii) The choice of requirements in paragraph (g)(2)(ii) of this 
section and the methodology used to meet the requirements of paragraph 
(g)(2)(ii)(C) of this section must be determined through the interagency 
consultation process required in Sec. 93.105(c)(1)(vii) through which 
the relevant recipients of title 23 U.S.C. or Federal Transit Laws 
funds, the local air quality agency, the State air quality agency, and 
the State department of transportation should reach consensus about the 
option and methodology selected. EPA and DOT must be consulted through 
this process as well. In the event of unresolved disputes, conflicts may 
be escalated to the Governor consistent with the procedure in 
Sec. 93.105(d), which applies for any State air agency comments on a 
conformity determination.



Sec. 93.110  Criteria and procedures: Latest planning assumptions.

    (a) The conformity determination, with respect to all other 
applicable criteria in Secs. 93.111 through 93.119, must be based upon 
the most recent planning assumptions in force at the time of the 
conformity determination. The conformity determination must satisfy the 
requirements of paragraphs (b) through (f) of this section.
    (b) Assumptions must be derived from the estimates of current and 
future population, employment, travel, and congestion most recently 
developed by the MPO or other agency authorized to make such estimates 
and approved by the MPO. The conformity determination must also be based 
on the latest assumptions about current and future background 
concentrations.
    (c) The conformity determination for each transportation plan and 
TIP must discuss how transit operating policies (including fares and 
service levels) and assumed transit ridership have changed since the 
previous conformity determination.
    (d) The conformity determination must include reasonable assumptions 
about transit service and increases in transit fares and road and bridge 
tolls over time.
    (e) The conformity determination must use the latest existing 
information regarding the effectiveness of the TCMs and other 
implementation plan measures which have already been implemented.
    (f) Key assumptions shall be specified and included in the draft 
documents and supporting materials used for the interagency and public 
consultation required by Sec. 93.105.



Sec. 93.111  Criteria and procedures: Latest emissions model.

    (a) The conformity determination must be based on the latest 
emission estimation model available. This criterion is satisfied if the 
most current version of the motor vehicle emissions model specified by 
EPA for use in the preparation or revision of implementation plans in 
that State or area is used for the conformity analysis. Where EMFAC is 
the motor vehicle emissions model used in preparing or revising the 
applicable implementation plan, new

[[Page 548]]

versions must be approved by EPA before they are used in the conformity 
analysis.
    (b) EPA will consult with DOT to establish a grace period following 
the specification of any new model.
    (1) The grace period will be no less than three months and no more 
than 24 months after notice of availability is published in the Federal 
Register.
    (2) The length of the grace period will depend on the degree of 
change in the model and the scope of re-planning likely to be necessary 
by MPOs in order to assure conformity. If the grace period will be 
longer than three months, EPA will announce the appropriate grace period 
in the Federal Register.
    (c) Transportation plan and TIP conformity analyses for which the 
emissions analysis was begun during the grace period or before the 
Federal Register notice of availability of the latest emission model may 
continue to use the previous version of the model. Conformity 
determinations for projects may also be based on the previous model if 
the analysis was begun during the grace period or before the Federal 
Register notice of availability, and if the final environmental document 
for the project is issued no more than three years after the issuance of 
the draft environmental document.



Sec. 93.112  Criteria and procedures: Consultation.

    Conformity must be determined according to the consultation 
procedures in this subpart and in the applicable implementation plan, 
and according to the public involvement procedures established in 
compliance with 23 CFR part 450. Until the implementation plan revision 
required by Sec. 51.390 of this chapter is fully approved by EPA, the 
conformity determination must be made according to Sec. 93.105 (a)(2) 
and (e) and the requirements of 23 CFR part 450.



Sec. 93.113  Criteria and procedures: Timely implementation of TCMs.

    (a) The transportation plan, TIP, or any FHWA/FTA project which is 
not from a conforming plan and TIP must provide for the timely 
implementation of TCMs from the applicable implementation plan.
    (b) For transportation plans, this criterion is satisfied if the 
following two conditions are met:
    (1) The transportation plan, in describing the envisioned future 
transportation system, provides for the timely completion or 
implementation of all TCMs in the applicable implementation plan which 
are eligible for funding under title 23 U.S.C. or the Federal Transit 
Laws, consistent with schedules included in the applicable 
implementation plan.
    (2) Nothing in the transportation plan interferes with the 
implementation of any TCM in the applicable implementation plan.
    (c) For TIPs, this criterion is satisfied if the following 
conditions are met:
    (1) An examination of the specific steps and funding source(s) 
needed to fully implement each TCM indicates that TCMs which are 
eligible for funding under title 23 U.S.C. or the Federal Transit Laws 
are on or ahead of the schedule established in the applicable 
implementation plan, or, if such TCMs are behind the schedule 
established in the applicable implementation plan, the MPO and DOT have 
determined that past obstacles to implementation of the TCMs have been 
identified and have been or are being overcome, and that all State and 
local agencies with influence over approvals or funding for TCMs are 
giving maximum priority to approval or funding of TCMs over other 
projects within their control, including projects in locations outside 
the nonattainment or maintenance area.
    (2) If TCMs in the applicable implementation plan have previously 
been programmed for Federal funding but the funds have not been 
obligated and the TCMs are behind the schedule in the implementation 
plan, then the TIP cannot be found to conform if the funds intended for 
those TCMs are reallocated to projects in the TIP other than TCMs, or if 
there are no other TCMs in the TIP, if the funds are reallocated to 
projects in the TIP other than projects which are eligible for Federal 
funding intended for air quality improvement

[[Page 549]]

projects, e.g., the Congestion Mitigation and Air Quality Improvement 
Program.
    (3) Nothing in the TIP may interfere with the implementation of any 
TCM in the applicable implementation plan.
    (d) For FHWA/FTA projects which are not from a conforming 
transportation plan and TIP, this criterion is satisfied if the project 
does not interfere with the implementation of any TCM in the applicable 
implementation plan.



Sec. 93.114  Criteria and procedures: Currently conforming transportation plan and TIP.

    There must be a currently conforming transportation plan and 
currently conforming TIP at the time of project approval.
    (a) Only one conforming transportation plan or TIP may exist in an 
area at any time; conformity determinations of a previous transportation 
plan or TIP expire once the current plan or TIP is found to conform by 
DOT. The conformity determination on a transportation plan or TIP will 
also lapse if conformity is not determined according to the frequency 
requirements specified in Sec. 93.104.
    (b) This criterion is not required to be satisfied at the time of 
project approval for a TCM specifically included in the applicable 
implementation plan, provided that all other relevant criteria of this 
subpart are satisfied.



Sec. 93.115  Criteria and procedures: Projects from a plan and TIP.

    (a) The project must come from a conforming plan and program. If 
this criterion is not satisfied, the project must satisfy all criteria 
in Table 1 of Sec. 93.109(b) for a project not from a conforming 
transportation plan and TIP. A project is considered to be from a 
conforming transportation plan if it meets the requirements of paragraph 
(b) of this section and from a conforming program if it meets the 
requirements of paragraph (c) of this section. Special provisions for 
TCMs in an applicable implementation plan are provided in paragraph (d) 
of this section.
    (b) A project is considered to be from a conforming transportation 
plan if one of the following conditions applies:
    (1) For projects which are required to be identified in the 
transportation plan in order to satisfy Sec. 93.106 (``Content of 
transportation plans''), the project is specifically included in the 
conforming transportation plan and the project's design concept and 
scope have not changed significantly from those which were described in 
the transportation plan, or in a manner which would significantly impact 
use of the facility; or
    (2) For projects which are not required to be specifically 
identified in the transportation plan, the project is identified in the 
conforming transportation plan, or is consistent with the policies and 
purpose of the transportation plan and will not interfere with other 
projects specifically included in the transportation plan.
    (c) A project is considered to be from a conforming program if the 
following conditions are met:
    (1) The project is included in the conforming TIP and the design 
concept and scope of the project were adequate at the time of the TIP 
conformity determination to determine its contribution to the TIP's 
regional emissions, and the project design concept and scope have not 
changed significantly from those which were described in the TIP; and
    (2) If the TIP describes a project design concept and scope which 
includes project-level emissions mitigation or control measures, written 
commitments to implement such measures must be obtained from the project 
sponsor and/or operator as required by Sec. 93.125(a) in order for the 
project to be considered from a conforming program. Any change in these 
mitigation or control measures that would significantly reduce their 
effectiveness constitutes a change in the design concept and scope of 
the project.
    (d) TCMs. This criterion is not required to be satisfied for TCMs 
specifically included in an applicable implementation plan.

[[Page 550]]



Sec. 93.116  Criteria and procedures: Localized CO and PM10 violations (hot spots).

    (a) This paragraph applies at all times. The FHWA/FTA project must 
not cause or contribute to any new localized CO or PM10 
violations or increase the frequency or severity of any existing CO or 
PM10 violations in CO and PM10 nonattainment and 
maintenance areas. This criterion is satisfied if it is demonstrated 
that no new local violations will be created and the severity or number 
of existing violations will not be increased as a result of the project. 
The demonstration must be performed according to the consultation 
requirements of Sec. 93.105(c)(1)(i) and the methodology requirements of 
Sec. 93.123.
    (b) This paragraph applies for CO nonattainment areas as described 
in Sec. 93.109(d)(1). Each FHWA/FTA project must eliminate or reduce the 
severity and number of localized CO violations in the area substantially 
affected by the project (in CO nonattainment areas). This criterion is 
satisfied with respect to existing localized CO violations if it is 
demonstrated that existing localized CO violations will be eliminated or 
reduced in severity and number as a result of the project. The 
demonstration must be performed according to the consultation 
requirements of Sec. 93.105(c)(1)(i) and the methodology requirements of 
Sec. 93.123.



Sec. 93.117  Criteria and procedures: Compliance with PM10 control measures.

    The FHWA/FTA project must comply with PM10 control 
measures in the applicable implementation plan. This criterion is 
satisfied if the project-level conformity determination contains a 
written commitment from the project sponsor to include in the final 
plans, specifications, and estimates for the project those control 
measures (for the purpose of limiting PM10 emissions from the 
construction activities and/or normal use and operation associated with 
the project) that are contained in the applicable implementation plan.



Sec. 93.118  Criteria and procedures: Motor vehicle emissions budget.

    (a) The transportation plan, TIP, and project not from a conforming 
transportation plan and TIP must be consistent with the motor vehicle 
emissions budget(s) in the applicable implementation plan (or 
implementation plan submission). This criterion applies as described in 
Sec. 93.109 (c) through (g). This criterion is satisfied if it is 
demonstrated that emissions of the pollutants or pollutant precursors 
described in paragraph (c) of this section are less than or equal to the 
motor vehicle emissions budget(s) established in the applicable 
implementation plan or implementation plan submission.
    (b) Consistency with the motor vehicle emissions budget(s) must be 
demonstrated for each year for which the applicable (and/or submitted) 
implementation plan specifically establishes motor vehicle emissions 
budget(s), for the last year of the transportation plan's forecast 
period, and for any intermediate years as necessary so that the years 
for which consistency is demonstrated are no more than ten years apart, 
as follows:
    (1) Until a maintenance plan is submitted:
    (i) Emissions in each year (such as milestone years and the 
attainment year) for which the control strategy implementation plan 
revision establishes motor vehicle emissions budget(s) must be less than 
or equal to that year's motor vehicle emissions budget(s); and
    (ii) Emissions in years for which no motor vehicle emissions 
budget(s) are specifically established must be less than or equal to the 
motor vehicle emissions budget(s) established for the most recent prior 
year. For example, emissions in years after the attainment year for 
which the implementation plan does not establish a budget must be less 
than or equal to the motor vehicle emissions budget(s) for the 
attainment year.
    (2) When a maintenance plan has been submitted:
    (i) Emissions must be less than or equal to the motor vehicle 
emissions budget(s) established for the last year of the maintenance 
plan, and for any other years for which the maintenance plan establishes 
motor vehicle emissions budgets. If the maintenance plan does not 
establish motor vehicle emissions budgets for any years other than

[[Page 551]]

the last year of the maintenance plan, the demonstration of consistency 
with the motor vehicle emissions budget(s) must be accompanied by a 
qualitative finding that there are no factors which would cause or 
contribute to a new violation or exacerbate an existing violation in the 
years before the last year of the maintenance plan. The interagency 
consultation process required by Sec. 93.105 shall determine what must 
be considered in order to make such a finding;
    (ii) For years after the last year of the maintenance plan, 
emissions must be less than or equal to the maintenance plan's motor 
vehicle emissions budget(s) for the last year of the maintenance plan; 
and
    (iii) If an approved control strategy implementation plan has 
established motor vehicle emissions budgets for years in the timeframe 
of the transportation plan, emissions in these years must be less than 
or equal to the control strategy implementation plan's motor vehicle 
emissions budget(s) for these years.
    (c) Consistency with the motor vehicle emissions budget(s) must be 
demonstrated for each pollutant or pollutant precursor in Sec. 93.102(b) 
for which the area is in nonattainment or maintenance and for which the 
applicable implementation plan (or implementation plan submission) 
establishes a motor vehicle emissions budget.
    (d) Consistency with the motor vehicle emissions budget(s) must be 
demonstrated by including emissions from the entire transportation 
system, including all regionally significant projects contained in the 
transportation plan and all other regionally significant highway and 
transit projects expected in the nonattainment or maintenance area in 
the timeframe of the transportation plan.
    (1) Consistency with the motor vehicle emissions budget(s) must be 
demonstrated with a regional emissions analysis that meets the 
requirements of Secs. 93.122 and 93.105(c)(1)(i).
    (2) The regional emissions analysis may be performed for any years 
in the timeframe of the transportation plan provided they are not more 
than ten years apart and provided the analysis is performed for the 
attainment year (if it is in the timeframe of the transportation plan) 
and the last year of the plan's forecast period. Emissions in years for 
which consistency with motor vehicle emissions budgets must be 
demonstrated, as required in paragraph (b) of this section, may be 
determined by interpolating between the years for which the regional 
emissions analysis is performed.
    (e) Motor vehicle emissions budgets in submitted control strategy 
implementation plan revisions and submitted maintenance plans. (1) 
Consistency with the motor vehicle emissions budgets in submitted 
control strategy implementation plan revisions or maintenance plans must 
be demonstrated if EPA has declared the motor vehicle emissions 
budget(s) adequate for transportation conformity purposes, or beginning 
45 days after the control strategy implementation plan revision or 
maintenance plan has been submitted (unless EPA has declared the motor 
vehicle emissions budget(s) inadequate for transportation conformity 
purposes). However, submitted implementation plans do not supersede the 
motor vehicle emissions budgets in approved implementation plans for the 
period of years addressed by the approved implementation plan.
    (2) If EPA has declared an implementation plan submission's motor 
vehicle emissions budget(s) inadequate for transportation conformity 
purposes, the inadequate budget(s) shall not be used to satisfy the 
requirements of this section. Consistency with the previously 
established motor vehicle emissions budget(s) must be demonstrated. If 
there are no previous approved implementation plans or implementation 
plan submissions with motor vehicle emissions budgets, the emission 
reduction tests required by Sec. 93.119 must be satisfied.
    (3) If EPA declares an implementation plan submission's motor 
vehicle emissions budget(s) inadequate for transportation conformity 
purposes more than 45 days after its submission to EPA, and conformity 
of a transportation plan or TIP has already been determined by DOT using 
the budget(s), the conformity determination will remain valid. Projects 
included in that transportation plan or TIP could still

[[Page 552]]

satisfy Secs. 93.114 and 93.115, which require a currently conforming 
transportation plan and TIP to be in place at the time of a project's 
conformity determination and that projects come from a conforming 
transportation plan and TIP.
    (4) EPA will not find a motor vehicle emissions budget in a 
submitted control strategy implementation plan revision or maintenance 
plan to be adequate for transportation conformity purposes unless the 
following minimum criteria are satisfied:
    (i) The submitted control strategy implementation plan revision or 
maintenance plan was endorsed by the Governor (or his or her designee) 
and was subject to a State public hearing;
    (ii) Before the control strategy implementation plan or maintenance 
plan was submitted to EPA, consultation among federal, State, and local 
agencies occurred; full implementation plan documentation was provided 
to EPA; and EPA's stated concerns, if any, were addressed;
    (iii) The motor vehicle emissions budget(s) is clearly identified 
and precisely quantified;
    (iv) The motor vehicle emissions budget(s), when considered together 
with all other emissions sources, is consistent with applicable 
requirements for reasonable further progress, attainment, or maintenance 
(whichever is relevant to the given implementation plan submission);
    (v) The motor vehicle emissions budget(s) is consistent with and 
clearly related to the emissions inventory and the control measures in 
the submitted control strategy implementation plan revision or 
maintenance plan; and
    (vi) Revisions to previously submitted control strategy 
implementation plans or maintenance plans explain and document any 
changes to previously submitted budgets and control measures; impacts on 
point and area source emissions; any changes to established safety 
margins (see Sec. 93.101 for definition); and reasons for the changes 
(including the basis for any changes related to emission factors or 
estimates of vehicle miles traveled).
    (5) Before determining the adequacy of a submitted motor vehicle 
emissions budget, EPA will review the State's compilation of public 
comments and response to comments that are required to be submitted with 
any implementation plan. EPA will document its consideration of such 
comments and responses in a letter to the State indicating the adequacy 
of the submitted motor vehicle emissions budget.
    (6) When the motor vehicle emissions budget(s) used to satisfy the 
requirements of this section are established by an implementation plan 
submittal that has not yet been approved or disapproved by EPA, the MPO 
and DOT's conformity determinations will be deemed to be a statement 
that the MPO and DOT are not aware of any information that would 
indicate that emissions consistent with the motor vehicle emissions 
budget will cause or contribute to any new violation of any standard; 
increase the frequency or severity of any existing violation of any 
standard; or delay timely attainment of any standard or any required 
interim emission reductions or other milestones.



Sec. 93.119  Criteria and procedures: Emission reductions in areas without motor vehicle emissions budgets.

    (a) The transportation plan, TIP, and project not from a conforming 
transportation plan and TIP must contribute to emissions reductions. 
This criterion applies as described in Sec. 93.109(c) through (g). It 
applies to the net effect of the action (transportation plan, TIP, or 
project not from a conforming transportation plan and TIP) on motor 
vehicle emissions from the entire transportation system.
    (b) This criterion may be met in moderate and above ozone 
nonattainment areas that are subject to the reasonable further progress 
requirements of CAA section 182(b)(1) and in moderate with design value 
greater than 12.7 ppm and serious CO nonattainment areas if a regional 
emissions analysis that satisfies the requirements of Sec. 93.122 and 
paragraphs (e) through (h) of this section demonstrates that for each 
analysis year and for each of the pollutants described in paragraph (d) 
of this section:
    (1) The emissions predicted in the ``Action'' scenario are less than 
the

[[Page 553]]

emissions predicted in the ``Baseline'' scenario, and this can be 
reasonably expected to be true in the periods between the analysis 
years; and
    (2) The emissions predicted in the ``Action'' scenario are lower 
than 1990 emissions by any nonzero amount.
    (c) This criterion may be met in PM10 and NO2 
nonattainment areas; marginal and below ozone nonattainment areas and 
other ozone nonattainment areas that are not subject to the reasonable 
further progress requirements of CAA section 182(b)(1); and moderate 
with design value less than 12.7 ppm and below CO nonattainment areas if 
a regional emissions analysis that satisfies the requirements of 
Sec. 93.122 and paragraphs (e) through (h) of this section demonstrates 
that for each analysis year and for each of the pollutants described in 
paragraph (d) of this section, one of the following requirements is met:
    (1) The emissions predicted in the ``Action'' scenario are less than 
the emissions predicted in the ``Baseline'' scenario, and this can be 
reasonably expected to be true in the periods between the analysis 
years; or
    (2) The emissions predicted in the ``Action'' scenario are not 
greater than baseline emissions. Baseline emissions are those estimated 
to have occurred during calendar year 1990, unless the conformity 
implementation plan revision required by Sec. 51.390 of this chapter 
defines the baseline emissions for a PM10 area to be those 
occurring in a different calendar year for which a baseline emissions 
inventory was developed for the purpose of developing a control strategy 
implementation plan.
    (d) Pollutants. The regional emissions analysis must be performed 
for the following pollutants:
    (1) VOC in ozone areas;
    (2) NOX in ozone areas, unless the EPA Administrator 
determines that additional reductions of NOX would not 
contribute to attainment;
    (3) CO in CO areas;
    (4) PM10 in PM10 areas;
    (5) Transportation-related precursors of PM10 in 
PM10 nonattainment and maintenance areas if the EPA Regional 
Administrator or the director of the State air agency has made a finding 
that such precursor emissions from within the area are a significant 
contributor to the PM10 nonattainment problem and has so 
notified the MPO and DOT; and
    (6) NOX in NO2 areas.
    (e) Analysis years. The regional emissions analysis must be 
performed for analysis years that are no more than ten years apart. The 
first analysis year must be no more than five years beyond the year in 
which the conformity determination is being made. The last year of 
transportation plan's forecast period must also be an analysis year.
    (f) ``Baseline'' scenario. The regional emissions analysis required 
by paragraphs (b) and (c) of this section must estimate the emissions 
that would result from the ``Baseline'' scenario in each analysis year. 
The ``Baseline'' scenario must be defined for each of the analysis 
years. The ``Baseline'' scenario is the future transportation system 
that will result from current programs, including the following (except 
that exempt projects listed in Sec. 93.126 and projects exempt from 
regional emissions analysis as listed in Sec. 93.127 need not be 
explicitly considered):
    (1) All in-place regionally significant highway and transit 
facilities, services and activities;
    (2) All ongoing travel demand management or transportation system 
management activities; and
    (3) Completion of all regionally significant projects, regardless of 
funding source, which are currently under construction or are undergoing 
right-of-way acquisition (except for hardship acquisition and protective 
buying); come from the first year of the previously conforming 
transportation plan and/or TIP; or have completed the NEPA process.
    (g) ``Action'' scenario. The regional emissions analysis required by 
paragraphs (b) and (c) of this section must estimate the emissions that 
would result from the ``Action'' scenario in each analysis year. The 
``Action'' scenario must be defined for each of the analysis years. The 
``Action'' scenario is the transportation system that would result from 
the implementation of the proposed action (transportation plan, TIP, or 
project not from a conforming transportation plan and TIP)

[[Page 554]]

and all other expected regionally significant projects in the 
nonattainment area. The ``Action'' scenario must include the following 
(except that exempt projects listed in Sec. 93.126 and projects exempt 
from regional emissions analysis as listed in Sec. 93.127 need not be 
explicitly considered):
    (1) All facilities, services, and activities in the ``Baseline'' 
scenario;
    (2) Completion of all TCMs and regionally significant projects 
(including facilities, services, and activities) specifically identified 
in the proposed transportation plan which will be operational or in 
effect in the analysis year, except that regulatory TCMs may not be 
assumed to begin at a future time unless the regulation is already 
adopted by the enforcing jurisdiction or the TCM is identified in the 
applicable implementation plan;
    (3) All travel demand management programs and transportation system 
management activities known to the MPO, but not included in the 
applicable implementation plan or utilizing any Federal funding or 
approval, which have been fully adopted and/or funded by the enforcing 
jurisdiction or sponsoring agency since the last conformity 
determination;
    (4) The incremental effects of any travel demand management programs 
and transportation system management activities known to the MPO, but 
not included in the applicable implementation plan or utilizing any 
Federal funding or approval, which were adopted and/or funded prior to 
the date of the last conformity determination, but which have been 
modified since then to be more stringent or effective;
    (5) Completion of all expected regionally significant highway and 
transit projects which are not from a conforming transportation plan and 
TIP; and
    (6) Completion of all expected regionally significant non-FHWA/FTA 
highway and transit projects that have clear funding sources and 
commitments leading toward their implementation and completion by the 
analysis year.
    (h) Projects not from a conforming transportation plan and TIP. For 
the regional emissions analysis required by paragraphs (b) and (c) of 
this section, if the project which is not from a conforming 
transportation plan and TIP is a modification of a project currently in 
the plan or TIP, the 'Baseline' scenario must include the project with 
its original design concept and scope, and the 'Action' scenario must 
include the project with its new design concept and scope.



Sec. 93.120  Consequences of control strategy implementation plan failures.

    (a) Disapprovals. (1) If EPA disapproves any submitted control 
strategy implementation plan revision (with or without a protective 
finding), the conformity status of the transportation plan and TIP shall 
lapse on the date that highway sanctions as a result of the disapproval 
are imposed on the nonattainment area under section 179(b)(1) of the 
CAA. No new transportation plan, TIP, or project may be found to conform 
until another control strategy implementation plan revision fulfilling 
the same CAA requirements is submitted and conformity to this submission 
is determined.
    (2) If EPA disapproves a submitted control strategy implementation 
plan revision without making a protective finding, then beginning 120 
days after such disapproval, only projects in the first three years of 
the currently conforming transportation plan and TIP may be found to 
conform. This means that beginning 120 days after disapproval without a 
protective finding, no transportation plan, TIP, or project not in the 
first three years of the currently conforming plan and TIP may be found 
to conform until another control strategy implementation plan revision 
fulfilling the same CAA requirements is submitted and conformity to this 
submission is determined. During the first 120 days following EPA's 
disapproval without a protective finding, transportation plan, TIP, and 
project conformity determinations shall be made using the motor vehicle 
emissions budget(s) in the disapproved control strategy implementation 
plan, unless another control strategy implementation plan revision has 
been submitted and its motor vehicle emissions budget(s) applies for 
transportation conformity purposes, pursuant to Sec. 93.109.

[[Page 555]]

    (3) In disapproving a control strategy implementation plan revision, 
EPA would give a protective finding where a submitted plan contains 
adopted control measures or written commitments to adopt enforceable 
control measures that fully satisfy the emissions reductions 
requirements relevant to the statutory provision for which the 
implementation plan revision was submitted, such as reasonable further 
progress or attainment.
    (b) Failure to submit and incompleteness. In areas where EPA 
notifies the State, MPO, and DOT of the State's failure to submit a 
control strategy implementation plan or submission of an incomplete 
control strategy implementation plan revision (either of which initiates 
the sanction process under CAA sections 179 or 110(m)), the conformity 
status of the transportation plan and TIP shall lapse on the date that 
highway sanctions are imposed on the nonattainment area for such failure 
under section 179(b)(1) of the CAA, unless the failure has been remedied 
and acknowledged by a letter from the EPA Regional Administrator.
    (c) Federal implementation plans. If EPA promulgates a Federal 
implementation plan that contains motor vehicle emissions budget(s) as a 
result of a State failure, the conformity lapse imposed by this section 
because of that State failure is removed.



Sec. 93.121  Requirements for adoption or approval of projects by other recipients of funds designated under title 23 U.S.C. or the Federal Transit Laws.

    (a) Except as provided in paragraph (b) of this section, no 
recipient of Federal funds designated under title 23 U.S.C. or the 
Federal Transit Laws shall adopt or approve a regionally significant 
highway or transit project, regardless of funding source, unless the 
recipient finds that the requirements of one of the following are met:
    (1) The project was included in the first three years of the most 
recently conforming transportation plan and TIP (or the conformity 
determination's regional emissions analyses), even if conformity status 
is currently lapsed; and the project's design concept and scope has not 
changed significantly from those analyses; or
    (2) There is a currently conforming transportation plan and TIP, and 
a new regional emissions analysis including the project and the 
currently conforming transportation plan and TIP demonstrates that the 
transportation plan and TIP would still conform if the project were 
implemented (consistent with the requirements of Secs. 93.118 and/or 
93.119 for a project not from a conforming transportation plan and TIP).
    (b) In isolated rural nonattainment and maintenance areas subject to 
Sec. 93.109(g), no recipient of Federal funds designated under title 23 
U.S.C. or the Federal Transit Laws shall adopt or approve a regionally 
significant highway or transit project, regardless of funding source, 
unless the recipient finds that the requirements of one of the following 
are met:
    (1) The project was included in the regional emissions analysis 
supporting the most recent conformity determination for the portion of 
the statewide transportation plan and TIP which are in the nonattainment 
or maintenance area, and the project's design concept and scope has not 
changed significantly; or
    (2) A new regional emissions analysis including the project and all 
other regionally significant projects expected in the nonattainment or 
maintenance area demonstrates that those projects in the statewide 
transportation plan and statewide TIP which are in the nonattainment or 
maintenance area would still conform if the project were implemented 
(consistent with the requirements of Secs. 93.118 and/or 93.119 for 
projects not from a conforming transportation plan and TIP).



Sec. 93.122  Procedures for determining regional transportation-related emissions.

    (a) General requirements. (1) The regional emissions analysis 
required by Secs. 93.118 and 93.119 for the transportation plan, TIP, or 
project not from a conforming plan and TIP must include all regionally 
significant projects expected in the nonattainment or maintenance area. 
The analysis shall include FHWA/FTA projects proposed in the 
transportation plan and TIP and all other regionally significant 
projects

[[Page 556]]

which are disclosed to the MPO as required by Sec. 93.105. Projects 
which are not regionally significant are not required to be explicitly 
modeled, but vehicle miles traveled (VMT) from such projects must be 
estimated in accordance with reasonable professional practice. The 
effects of TCMs and similar projects that are not regionally significant 
may also be estimated in accordance with reasonable professional 
practice.
    (2) The emissions analysis may not include for emissions reduction 
credit any TCMs or other measures in the applicable implementation plan 
which have been delayed beyond the scheduled date(s) until such time as 
their implementation has been assured. If the measure has been partially 
implemented and it can be demonstrated that it is providing quantifiable 
emission reduction benefits, the emissions analysis may include that 
emissions reduction credit.
    (3) Emissions reduction credit from projects, programs, or 
activities which require a regulatory action in order to be implemented 
may not be included in the emissions analysis unless:
    (i) The regulatory action is already adopted by the enforcing 
jurisdiction;
    (ii) The project, program, or activity is included in the applicable 
implementation plan;
    (iii) The control strategy implementation plan submission or 
maintenance plan submission that establishes the motor vehicle emissions 
budget(s) for the purposes of Sec. 93.118 contains a written commitment 
to the project, program, or activity by the agency with authority to 
implement it; or
    (iv) EPA has approved an opt-in to a Federally enforced program, EPA 
has promulgated the program (if the control program is a Federal 
responsibility, such as vehicle tailpipe standards), or the Clean Air 
Act requires the program without need for individual State action and 
without any discretionary authority for EPA to set its stringency, delay 
its effective date, or not implement the program.
    (4) Emissions reduction credit from control measures that are not 
included in the transportation plan and TIP and that do not require a 
regulatory action in order to be implemented may not be included in the 
emissions analysis unless the conformity determination includes written 
commitments to implementation from the appropriate entities.
    (i) Persons or entities voluntarily committing to control measures 
must comply with the obligations of such commitments.
    (ii) The conformity implementation plan revision required in 
Sec. 51.390 of this chapter must provide that written commitments to 
control measures that are not included in the transportation plan and 
TIP must be obtained prior to a conformity determination and that such 
commitments must be fulfilled.
    (5) A regional emissions analysis for the purpose of satisfying the 
requirements of Sec. 93.119 must make the same assumptions in both the 
``Baseline'' and ``Action'' scenarios regarding control measures that 
are external to the transportation system itself, such as vehicle 
tailpipe or evaporative emission standards, limits on gasoline 
volatility, vehicle inspection and maintenance programs, and oxygenated 
or reformulated gasoline or diesel fuel.
    (6) The ambient temperatures used for the regional emissions 
analysis shall be consistent with those used to establish the emissions 
budget in the applicable implementation plan. All other factors, for 
example the fraction of travel in a hot stabilized engine mode, must be 
consistent with the applicable implementation plan, unless modified 
after interagency consultation according to Sec. 93.105(c)(1)(i) to 
incorporate additional or more geographically specific information or 
represent a logically estimated trend in such factors beyond the period 
considered in the applicable implementation plan.
    (7) Reasonable methods shall be used to estimate nonattainment or 
maintenance area VMT on off-network roadways within the urban 
transportation planning area, and on roadways outside the urban 
transportation planning area.
    (b) Regional emissions analysis in serious, severe, and extreme 
ozone nonattainment areas and serious CO nonattainment areas must meet 
the requirements of paragraphs (b) (1)

[[Page 557]]

through (3) of this section if their metropolitan planning area contains 
an urbanized area population over 200,000.
    (1) By January 1, 1997, estimates of regional transportation-related 
emissions used to support conformity determinations must be made at a 
minimum using network-based travel models according to procedures and 
methods that are available and in practice and supported by current and 
available documentation. These procedures, methods, and practices are 
available from DOT and will be updated periodically. Agencies must 
discuss these modeling procedures and practices through the interagency 
consultation process, as required by Sec. 93.105(c)(1)(i). Network-based 
travel models must at a minimum satisfy the following requirements:
    (i) Network-based travel models must be validated against observed 
counts (peak and off-peak, if possible) for a base year that is not more 
than 10 years prior to the date of the conformity determination. Model 
forecasts must be analyzed for reasonableness and compared to historical 
trends and other factors, and the results must be documented;
    (ii) Land use, population, employment, and other network-based 
travel model assumptions must be documented and based on the best 
available information;
    (iii) Scenarios of land development and use must be consistent with 
the future transportation system alternatives for which emissions are 
being estimated. The distribution of employment and residences for 
different transportation options must be reasonable;
    (iv) A capacity-sensitive assignment methodology must be used, and 
emissions estimates must be based on a methodology which differentiates 
between peak and off-peak link volumes and speeds and uses speeds based 
on final assigned volumes;
    (v) Zone-to-zone travel impedances used to distribute trips between 
origin and destination pairs must be in reasonable agreement with the 
travel times that are estimated from final assigned traffic volumes. 
Where use of transit currently is anticipated to be a significant factor 
in satisfying transportation demand, these times should also be used for 
modeling mode splits; and
    (vi) Network-based travel models must be reasonably sensitive to 
changes in the time(s), cost(s), and other factors affecting travel 
choices.
    (2) Reasonable methods in accordance with good practice must be used 
to estimate traffic speeds and delays in a manner that is sensitive to 
the estimated volume of travel on each roadway segment represented in 
the network-based travel model.
    (3) Highway Performance Monitoring System (HPMS) estimates of 
vehicle miles traveled (VMT) shall be considered the primary measure of 
VMT within the portion of the nonattainment or maintenance area and for 
the functional classes of roadways included in HPMS, for urban areas 
which are sampled on a separate urban area basis. For areas with 
network-based travel models, a factor (or factors) may be developed to 
reconcile and calibrate the network-based travel model estimates of VMT 
in the base year of its validation to the HPMS estimates for the same 
period. These factors may then be applied to model estimates of future 
VMT. In this factoring process, consideration will be given to 
differences between HPMS and network-based travel models, such as 
differences in the facility coverage of the HPMS and the modeled network 
description. Locally developed count- based programs and other 
departures from these procedures are permitted subject to the 
interagency consultation procedures of Sec. 93.105(c)(1)(i).
    (c) In all areas not otherwise subject to paragraph (b) of this 
section, regional emissions analyses must use those procedures described 
in paragraph (b) of this section if the use of those procedures has been 
the previous practice of the MPO. Otherwise, areas not subject to 
paragraph (b) of this section may estimate regional emissions using any 
appropriate methods that account for VMT growth by, for example, 
extrapolating historical VMT or projecting future VMT by considering 
growth in population and historical growth trends for VMT per person.

[[Page 558]]

These methods must also consider future economic activity, transit 
alternatives, and transportation system policies.
    (d) PM10 from construction-related fugitive dust. (1) For 
areas in which the implementation plan does not identify construction-
related fugitive PM10 as a contributor to the nonattainment 
problem, the fugitive PM10 emissions associated with highway 
and transit project construction are not required to be considered in 
the regional emissions analysis.
    (2) In PM10 nonattainment and maintenance areas with 
implementation plans which identify construction-related fugitive 
PM10 as a contributor to the nonattainment problem, the 
regional PM10 emissions analysis shall consider construction-
related fugitive PM10 and shall account for the level of 
construction activity, the fugitive PM10 control measures in 
the applicable implementation plan, and the dust-producing capacity of 
the proposed activities.
    (e) Reliance on previous regional emissions analysis. (1) The TIP 
may be demonstrated to satisfy the requirements of Secs. 93.118 (``Motor 
vehicle emissions budget'') or 93.119 (``Emission reductions in areas 
without motor vehicle emissions budgets'') without new regional 
emissions analysis if the regional emissions analysis already performed 
for the plan also applies to the TIP. This requires a demonstration 
that:
    (i) The TIP contains all projects which must be started in the TIP's 
timeframe in order to achieve the highway and transit system envisioned 
by the transportation plan;
    (ii) All TIP projects which are regionally significant are included 
in the transportation plan with design concept and scope adequate to 
determine their contribution to the transportation plan's regional 
emissions at the time of the transportation plan's conformity 
determination; and
    (iii) The design concept and scope of each regionally significant 
project in the TIP is not significantly different from that described in 
the transportation plan.
    (2) A project which is not from a conforming transportation plan and 
a conforming TIP may be demonstrated to satisfy the requirements of 
Sec. 93.118 or Sec. 93.119 without additional regional emissions 
analysis if allocating funds to the project will not delay the 
implementation of projects in the transportation plan or TIP which are 
necessary to achieve the highway and transit system envisioned by the 
transportation plan, and if the project is either:
    (i) Not regionally significant; or
    (ii) Included in the conforming transportation plan (even if it is 
not specifically included in the latest conforming TIP) with design 
concept and scope adequate to determine its contribution to the 
transportation plan's regional emissions at the time of the 
transportation plan's conformity determination, and the design concept 
and scope of the project is not significantly different from that 
described in the transportation plan.



Sec. 93.123  Procedures for determining localized CO and PM10 concentrations (hot-spot analysis).

    (a) CO hot-spot analysis. (1) The demonstrations required by 
Sec. 93.116 (``Localized CO and PM10 violations'') must be 
based on quantitative analysis using the applicable air quality models, 
data bases, and other requirements specified in 40 CFR part 51, Appendix 
W (Guideline on Air Quality Models). These procedures shall be used in 
the following cases, unless different procedures developed through the 
interagency consultation process required in Sec. 93.105 and approved by 
the EPA Regional Administrator are used:
    (i) For projects in or affecting locations, areas, or categories of 
sites which are identified in the applicable implementation plan as 
sites of violation or possible violation;
    (ii) For projects affecting intersections that are at Level-of-
Service D, E, or F, or those that will change to Level-of-Service D, E, 
or F because of increased traffic volumes related to the project;
    (iii) For any project affecting one or more of the top three 
intersections in the nonattainment or maintenance area with highest 
traffic volumes, as identified in the applicable implementation plan; 
and

[[Page 559]]

    (iv) For any project affecting one or more of the top three 
intersections in the nonattainment or maintenance area with the worst 
level of service, as identified in the applicable implementation plan.
    (2) In cases other than those described in paragraph (a)(1) of this 
section, the demonstrations required by Sec. 93.116 may be based on 
either:
    (i) Quantitative methods that represent reasonable and common 
professional practice; or
    (ii) A qualitative consideration of local factors, if this can 
provide a clear demonstration that the requirements of Sec. 93.116 are 
met.
    (b) PM10 hot-spot analysis. (1) The hot-spot 
demonstration required by Sec. 93.116 must be based on quantitative 
analysis methods for the following types of projects:
    (i) Projects which are located at sites at which violations have 
been verified by monitoring;
    (ii) Projects which are located at sites which have vehicle and 
roadway emission and dispersion characteristics that are essentially 
identical to those of sites with verified violations (including sites 
near one at which a violation has been monitored); and
    (iii) New or expanded bus and rail terminals and transfer points 
which increase the number of diesel vehicles congregating at a single 
location.
    (2) Where quantitative analysis methods are not required, the 
demonstration required by Sec. 93.116 may be based on a qualitative 
consideration of local factors.
    (3) The identification of the sites described in paragraph (b)(1) 
(i) and (ii) of this section, and other cases where quantitative methods 
are appropriate, shall be determined through the interagency 
consultation process required in Sec. 93.105. DOT may choose to make a 
categorical conformity determination on bus and rail terminals or 
transfer points based on appropriate modeling of various terminal sizes, 
configurations, and activity levels.
    (4) The requirements for quantitative analysis contained in this 
paragraph (b) will not take effect until EPA releases modeling guidance 
on this subject and announces in the Federal Register that these 
requirements are in effect.
    (c) General requirements. (1) Estimated pollutant concentrations 
must be based on the total emissions burden which may result from the 
implementation of the project, summed together with future background 
concentrations. The total concentration must be estimated and analyzed 
at appropriate receptor locations in the area substantially affected by 
the project.
    (2) Hot-spot analyses must include the entire project, and may be 
performed only after the major design features which will significantly 
impact concentrations have been identified. The future background 
concentration should be estimated by multiplying current background by 
the ratio of future to current traffic and the ratio of future to 
current emission factors.
    (3) Hot-spot analysis assumptions must be consistent with those in 
the regional emissions analysis for those inputs which are required for 
both analyses.
    (4) PM10 or CO mitigation or control measures shall be 
assumed in the hot-spot analysis only where there are written 
commitments from the project sponsor and/or operator to implement such 
measures, as required by Sec. 93.125(a).
    (5) CO and PM10 hot-spot analyses are not required to 
consider construction-related activities which cause temporary increases 
in emissions. Each site which is affected by construction-related 
activities shall be considered separately, using established 
``Guideline'' methods. Temporary increases are defined as those which 
occur only during the construction phase and last five years or less at 
any individual site.



Sec. 93.124  Using the motor vehicle emissions budget in the applicable implementation plan (or implementation plan submission).

    (a) In interpreting an applicable implementation plan (or 
implementation plan submission) with respect to its motor vehicle 
emissions budget(s), the MPO and DOT may not infer additions to the 
budget(s) that are not explicitly intended by the implementation plan 
(or submission). Unless the implementation plan explicitly quantifies 
the

[[Page 560]]

amount by which motor vehicle emissions could be higher while still 
allowing a demonstration of compliance with the milestone, attainment, 
or maintenance requirement and explicitly states an intent that some or 
all of this additional amount should be available to the MPO and DOT in 
the emissions budget for conformity purposes, the MPO may not interpret 
the budget to be higher than the implementation plan's estimate of 
future emissions. This applies in particular to applicable 
implementation plans (or submissions) which demonstrate that after 
implementation of control measures in the implementation plan:
    (1) Emissions from all sources will be less than the total emissions 
that would be consistent with a required demonstration of an emissions 
reduction milestone;
    (2) Emissions from all sources will result in achieving attainment 
prior to the attainment deadline and/or ambient concentrations in the 
attainment deadline year will be lower than needed to demonstrate 
attainment; or
    (3) Emissions will be lower than needed to provide for continued 
maintenance.
    (b) If an applicable implementation plan submitted before November 
24, 1993, demonstrates that emissions from all sources will be less than 
the total emissions that would be consistent with attainment and 
quantifies that ``safety margin,'' the State may submit an 
implementation plan revision which assigns some or all of this safety 
margin to highway and transit mobile sources for the purposes of 
conformity. Such an implementation plan revision, once it is endorsed by 
the Governor and has been subject to a public hearing, may be used for 
the purposes of transportation conformity before it is approved by EPA.
    (c) A conformity demonstration shall not trade emissions among 
budgets which the applicable implementation plan (or implementation plan 
submission) allocates for different pollutants or precursors, or among 
budgets allocated to motor vehicles and other sources, unless the 
implementation plan establishes appropriate mechanisms for such trades.
    (d) If the applicable implementation plan (or implementation plan 
submission) estimates future emissions by geographic subarea of the 
nonattainment area, the MPO and DOT are not required to consider this to 
establish subarea budgets, unless the applicable implementation plan (or 
implementation plan submission) explicitly indicates an intent to create 
such subarea budgets for the purposes of conformity.
    (e) If a nonattainment area includes more than one MPO, the 
implementation plan may establish motor vehicle emissions budgets for 
each MPO, or else the MPOs must collectively make a conformity 
determination for the entire nonattainment area.



Sec. 93.125  Enforceability of design concept and scope and project-level mitigation and control measures.

    (a) Prior to determining that a transportation project is in 
conformity, the MPO, other recipient of funds designated under title 23 
U.S.C. or the Federal Transit Laws, FHWA, or FTA must obtain from the 
project sponsor and/or operator written commitments to implement in the 
construction of the project and operation of the resulting facility or 
service any project-level mitigation or control measures which are 
identified as conditions for NEPA process completion with respect to 
local PM10 or CO impacts. Before a conformity determination 
is made, written commitments must also be obtained for project-level 
mitigation or control measures which are conditions for making 
conformity determinations for a transportation plan or TIP and are 
included in the project design concept and scope which is used in the 
regional emissions analysis required by Secs. 93.118 (``Motor vehicle 
emissions budget'') and 93.119 (``Emission reductions in areas without 
motor vehicle emissions budgets'') or used in the project-level hot-spot 
analysis required by Sec. 93.116.
    (b) Project sponsors voluntarily committing to mitigation measures 
to facilitate positive conformity determinations must comply with the 
obligations of such commitments.
    (c) The implementation plan revision required in Sec. 51.390 of this 
chapter shall provide that written commitments to mitigation measures 
must be obtained

[[Page 561]]

prior to a positive conformity determination, and that project sponsors 
must comply with such commitments.
    (d) If the MPO or project sponsor believes the mitigation or control 
measure is no longer necessary for conformity, the project sponsor or 
operator may be relieved of its obligation to implement the mitigation 
or control measure if it can demonstrate that the applicable hot-spot 
requirements of Sec. 93.116, emission budget requirements of 
Sec. 93.118, and emission reduction requirements of Sec. 93.119 are 
satisfied without the mitigation or control measure, and so notifies the 
agencies involved in the interagency consultation process required under 
Sec. 93.105. The MPO and DOT must find that the transportation plan and 
TIP still satisfy the applicable requirements of Secs. 93.118 and/or 
93.119 and that the project still satisfies the requirements of 
Sec. 93.116, and therefore that the conformity determinations for the 
transportation plan, TIP, and project are still valid. This finding is 
subject to the applicable public consultation requirements in 
Sec. 93.105(e) for conformity determinations for projects.



Sec. 93.126  Exempt projects.

    Notwithstanding the other requirements of this subpart, highway and 
transit projects of the types listed in Table 2 of this section are 
exempt from the requirement to determine conformity. Such projects may 
proceed toward implementation even in the absence of a conforming 
transportation plan and TIP. A particular action of the type listed in 
Table 2 of this section is not exempt if the MPO in consultation with 
other agencies (see Sec. 93.105(c)(1)(iii)), the EPA, and the FHWA (in 
the case of a highway project) or the FTA (in the case of a transit 
project) concur that it has potentially adverse emissions impacts for 
any reason. States and MPOs must ensure that exempt projects do not 
interfere with TCM implementation. Table 2 follows:

                        Table 2--Exempt Projects

                                 Safety

Railroad/highway crossing.
Hazard elimination program.
Safer non-Federal-aid system roads.
Shoulder improvements.
Increasing sight distance.
Safety improvement program.
Traffic control devices and operating assistance other than 
signalization projects.
Railroad/highway crossing warning devices.
Guardrails, median barriers, crash cushions.
Pavement resurfacing and/or rehabilitation.
Pavement marking demonstration.
Emergency relief (23 U.S.C. 125).
Fencing.
Skid treatments.
Safety roadside rest areas.
Adding medians.
Truck climbing lanes outside the urbanized area.
Lighting improvements.
Widening narrow pavements or reconstructing bridges (no additional 
travel lanes).
Emergency truck pullovers.

                              Mass Transit

Operating assistance to transit agencies.
Purchase of support vehicles.
Rehabilitation of transit vehicles \1\.
Purchase of office, shop, and operating equipment for existing 
facilities.
Purchase of operating equipment for vehicles (e.g., radios, fareboxes, 
lifts, etc.).
Construction or renovation of power, signal, and communications systems.
Construction of small passenger shelters and information kiosks.
Reconstruction or renovation of transit buildings and structures (e.g., 
rail or bus buildings, storage and maintenance facilities, stations, 
terminals, and ancillary structures).
Rehabilitation or reconstruction of track structures, track, and 
trackbed in existing rights-of-way.
Purchase of new buses and rail cars to replace existing vehicles or for 
minor expansions of the fleet \1\.
Construction of new bus or rail storage/maintenance facilities 
categorically excluded in 23 CFR part 771.

                               Air Quality

Continuation of ride-sharing and van-pooling promotion activities at 
current levels.
Bicycle and pedestrian facilities.

                                  Other

Specific activities which do not involve or lead directly to 
construction, such as:
    Planning and technical studies.
    Grants for training and research programs.
    Planning activities conducted pursuant to titles 23 and 49 U.S.C.
    Federal-aid systems revisions.
Engineering to assess social, economic, and environmental effects of the 
proposed action or alternatives to that action.
Noise attenuation.

[[Page 562]]

Emergency or hardship advance land acquisitions (23 CFR 712.204(d)).
Acquisition of scenic easements.
Plantings, landscaping, etc.
Sign removal.
Directional and informational signs.
Transportation enhancement activities (except rehabilitation and 
operation of historic transportation buildings, structures, or 
facilities).
Repair of damage caused by natural disasters, civil unrest, or terrorist 
acts, except projects involving substantial functional, locational or 
capacity changes.
    Note:  \1\In PM10 nonattainment or maintenance areas, 
such projects are exempt only if they are in compliance with control 
measures in the applicable implementation plan.



Sec. 93.127  Projects exempt from regional emissions analyses.

    Notwithstanding the other requirements of this subpart, highway and 
transit projects of the types listed in Table 3 of this section are 
exempt from regional emissions analysis requirements. The local effects 
of these projects with respect to CO or PM10 concentrations 
must be considered to determine if a hot-spot analysis is required prior 
to making a project-level conformity determination. These projects may 
then proceed to the project development process even in the absence of a 
conforming transportation plan and TIP. A particular action of the type 
listed in Table 3 of this section is not exempt from regional emissions 
analysis if the MPO in consultation with other agencies (see 
Sec. 93.105(c)(1)(iii)), the EPA, and the FHWA (in the case of a highway 
project) or the FTA (in the case of a transit project) concur that it 
has potential regional impacts for any reason. Table 3 follows:

        Table 3--Projects Exempt From Regional Emissions Analyses

Intersection channelization projects.
Intersection signalization projects at individual intersections.
Interchange reconfiguration projects.
Changes in vertical and horizontal alignment.
Truck size and weight inspection stations.
Bus terminals and transfer points.



Sec. 93.128  Traffic signal synchronization projects.

    Traffic signal synchronization projects may be approved, funded, and 
implemented without satisfying the requirements of this subpart. 
However, all subsequent regional emissions analyses required by 
Secs. 93.118 and 93.119 for transportation plans, TIPs, or projects not 
from a conforming plan and TIP must include such regionally significant 
traffic signal synchronization projects.



Sec. 93.129  Special exemptions from conformity requirements for pilot program areas.

    EPA and DOT may exempt no more than six areas for no more than three 
years from certain requirements of this subpart if these areas are 
selected to participate in a conformity pilot program and have developed 
alternative requirements that have been approved by EPA as an 
implementation plan revision in accordance with Sec. 51.390 of this 
chapter. For the duration of the pilot program, areas selected to 
participate in the pilot program must comply with the conformity 
requirements of the pilot area's implementation plan revision for 
Sec. 51.390 of this chapter and all other requirements in 40 CFR parts 
51 and 93 that are not covered by the pilot area's implementation plan 
revision for Sec. 51.390 of this chapter. The alternative conformity 
requirements in conjunction with any applicable state and/or federal 
conformity requirements must be proposed to fulfill all of the 
requirements of and achieve results equivalent to or better than section 
176(c) of the Clean Air Act. After the three-year duration of the pilot 
program has expired, areas will again be subject to all of the 
requirements of this subpart and 40 CFR part 51, subpart T, and/or to 
the requirements of any implementation plan revision that was previously 
approved by EPA in accordance with Sec. 51.390 of this chapter.

[64 FR 13483, Mar. 18, 1999]



Subpart B--Determining Conformity of General Federal Actions to State or 
                      Federal Implementation Plans

    Source: 58 FR 63253, Nov. 30, 1993, unless otherwise noted.

[[Page 563]]



Sec. 93.150  Prohibition.

    (a) No department, agency or instrumentality of the Federal 
Government shall engage in, support in any way or provide financial 
assistance for, license or permit, or approve any activity which does 
not conform to an applicable implementation plan.
    (b) A Federal agency must make a determination that a Federal action 
conforms to the applicable implementation plan in accordance with the 
requirements of this subpart before the action is taken.
    (c) Paragraph (b) of this section does not include Federal actions 
where:
    (1) A National Environmental Policy Act (NEPA) analysis was 
completed as evidenced by a final environmental assessment (EA), 
environmental impact statement (EIS), or finding of no significant 
impact (FONSI) that was prepared prior to January 31, 1994; or
    (2)(i) Prior to January 31, 1994, an environmental analysis was 
commenced or a contract was awarded to develop the specific 
environmental analysis;
    (ii) Sufficient environmental analysis is completed by March 15, 
1994 so that the Federal agency may determine that the Federal action is 
in conformity with the specific requirements and the purposes of the 
applicable SIP pursuant to the agency's affirmative obligation under 
section 176(c) of the Clean Air Act (Act); and
    (iii) A written determination of conformity under section 176(c) of 
the Act has been made by the Federal agency responsible for the Federal 
action by March 15, 1994.
    (d) Notwithstanding any provision of this subpart, a determination 
that an action is in conformance with the applicable implementation plan 
does not exempt the action from any other requirements of the applicable 
implementation plan, the National Environmental Policy Act (NEPA), or 
the Clean Air Act (Act).

[58 FR 63253, Nov. 30, 1993; 58 FR 67442, Dec. 21, 1993]



Sec. 93.151  State implementation plan (SIP) revision.

    The Federal conformity rules under this subpart, in addition to any 
existing applicable State requirements, establish the conformity 
criteria and procedures necessary to meet the Act requirements until 
such time as the required conformity SIP revision is approved by EPA. A 
State's conformity provisions must contain criteria and procedures that 
are no less stringent than the requirements described in this subpart. A 
State may establish more stringent conformity criteria and procedures 
only if they apply equally to nonfederal as well as Federal entities. 
Following EPA approval of the State conformity provisions (or a portion 
thereof) in a revision to the applicable SIP, the approved (or approved 
portion of the) State criteria and procedures would govern conformity 
determinations and the Federal conformity regulations contained in this 
part would apply only for the portion, if any, of the State's conformity 
provisions that is not approved by EPA. In addition, any previously 
applicable SIP requirements relating to conformity remain enforceable 
until the State revises its SIP to specifically remove them from the SIP 
and that revision is approved by EPA.



Sec. 93.152  Definitions.

    Terms used but not defined in this part shall have the meaning given 
them by the Act and EPA's regulations (40 CFR chapter I), in that order 
of priority.
    Affected Federal land manager means the Federal agency or the 
Federal official charged with direct responsibility for management of an 
area designated as Class I under the Act (42 U.S.C. 7472) that is 
located within 100 km of the proposed Federal action.
    Applicable implementation plan or applicable SIP means the portion 
(or portions) of the SIP or most recent revision thereof, which has been 
approved under section 110 of the Act, or promulgated under section 
110(c) of the Act (Federal implementation plan), or promulgated or 
approved pursuant to regulations promulgated under section 301(d) of the 
Act and which implements the relevant requirements of the Act.
    Areawide air quality modeling analysis means an assessment on a 
scale that includes the entire nonattainment or maintenance area which 
uses an air

[[Page 564]]

quality dispersion model to determine the effects of emissions on air 
quality.
    Cause or contribute to a new violation means a Federal action that:
    (1) Causes a new violation of a national ambient air quality 
standard (NAAQS) at a location in a nonattainment or maintenance area 
which would otherwise not be in violation of the standard during the 
future period in question if the Federal action were not taken; or
    (2) Contributes, in conjunction with other reasonably foreseeable 
actions, to a new violation of a NAAQS at a location in a nonattainment 
or maintenance area in a manner that would increase the frequency or 
severity of the new violation.
    Caused by, as used in the terms ``direct emissions'' and ``indirect 
emissions,'' means emissions that would not otherwise occur in the 
absence of the Federal action.
    Criteria pollutant or standard means any pollutant for which there 
is established a NAAQS at 40 CFR part 50.
    Direct emissions means those emissions of a criteria pollutant or 
its precursors that are caused or initiated by the Federal action and 
occur at the same time and place as the action.
    Emergency means a situation where extremely quick action on the part 
of the Federal agencies involved is needed and where the timing of such 
Federal activities makes it impractical to meet the requirements of this 
subpart, such as natural disasters like hurricanes or earthquakes, civil 
disturbances such as terrorist acts and military mobilizations.
    Emissions budgets are those portions of the applicable SIP's 
projected emission inventories that describe the levels of emissions 
(mobile, stationary, area, etc.) that provide for meeting reasonable 
further progress milestones, attainment, and/or maintenance for any 
criteria pollutant or its precursors.
    Emissions offsets, for purposes of Sec. 93.158, are emissions 
reductions which are quantifiable, consistent with the applicable SIP 
attainment and reasonable further progress demonstrations, surplus to 
reductions required by, and credited to, other applicable SIP 
provisions, enforceable at both the State and Federal levels, and 
permanent within the timeframe specified by the program.
    Emissions that a Federal agency has a continuing program 
responsibility for means emissions that are specifically caused by an 
agency carrying out its authorities, and does not include emissions that 
occur due to subsequent activities, unless such activities are required 
by the Federal agency. When an agency, in performing its normal program 
responsibilities, takes actions itself or imposes conditions that result 
in air pollutant emissions by a non-Federal entity taking subsequent 
actions, such emissions are covered by the meaning of a continuing 
program responsibility.
    EPA means the Environmental Protection Agency.
    Federal action means any activity engaged in by a department, 
agency, or instrumentality of the Federal government, or any activity 
that a department, agency or instrumentality of the Federal government 
supports in any way, provides financial assistance for, licenses, 
permits, or approves, other than activities related to transportation 
plans, programs, and projects developed, funded, or approved under title 
23 U.S.C. or the Federal Transit Act (49 U.S.C. 1601 et seq.). Where the 
Federal action is a permit, license, or other approval for some aspect 
of a non-Federal undertaking, the relevant activity is the part, 
portion, or phase of the non-Federal undertaking that requires the 
Federal permit, license, or approval.
    Federal agency means, for purposes of this subpart, a Federal 
department, agency, or instrumentality of the Federal government.
    Increase the frequency or severity of any existing violation of any 
standard in any area means to cause a nonattainment area to exceed a 
standard more often or to cause a violation at a greater concentration 
than previously existed and/or would otherwise exist during the future 
period in question, if the project were not implemented.
    Indirect emissions means those emissions of a criteria pollutant or 
its precursors that:
    (1) Are caused by the Federal action, but may occur later in time 
and/or may be further removed in distance from

[[Page 565]]

the action itself but are still reasonably foreseeable; and
    (2) The Federal agency can practicably control and will maintain 
control over due to a continuing program responsibility of the Federal 
agency.
    Local air quality modeling analysis means an assessment of localized 
impacts on a scale smaller than the entire nonattainment or maintenance 
area, including, for example, congested roadway intersections and 
highways or transit terminals, which uses an air quality dispersion 
model to determine the effects of emissions on air quality.
    Maintenance area means an area with a maintenance plan approved 
under section 175A of the Act.
    Maintenance plan means a revision to the applicable SIP, meeting the 
requirements of section 175A of the Act.
    Metropolitan Planning Organization (MPO) is that organization 
designated as being responsible, together with the State, for conducting 
the continuing, cooperative, and comprehensive planning process under 23 
U.S.C. 134 and 49 U.S.C. 1607.
    Milestone has the meaning given in sections 182(g)(1) and 189(c)(1) 
of the Act.
    National ambient air quality standards (NAAQS) are those standards 
established pursuant to section 109 of the Act and include standards for 
carbon monoxide (CO), lead (Pb), nitrogen dioxide (NO2), 
ozone, particulate matter (PM-10), and sulfur dioxide (SO2).
    NEPA is the National Environmental Policy Act of 1969, as amended 
(42 U.S.C. 4321 et seq.).
    Nonattainment area means an area designated as nonattainment under 
section 107 of the Act and described in 40 CFR part 81.
    Precursors of a criteria pollutant are:
    (1) For ozone, nitrogen oxides (NOx), unless an area is exempted 
from NOx requirements under section 182(f) of the Act, and volatile 
organic compounds (VOC); and
    (2) For PM-10, those pollutants described in the PM-10 nonattainment 
area applicable SIP as significant contributors to the PM-10 levels.
    Reasonably foreseeable emissions are projected future indirect 
emissions that are identified at the time the conformity determination 
is made; the location of such emissions is known and the emissions are 
quantifiable, as described and documented by the Federal agency based on 
its own information and after reviewing any information presented to the 
Federal agency.
    Regional water and/or wastewater projects include construction, 
operation, and maintenance of water or wastewater conveyances, water or 
wastewater treatment facilities, and water storage reservoirs which 
affect a large portion of a nonattainment or maintenance area.
    Regionally significant action means a Federal action for which the 
direct and indirect emissions of any pollutant represent 10 percent or 
more of a nonattainment or maintenance area's emission inventory for 
that pollutant.
    Total of direct and indirect emissions means the sum of direct and 
indirect emissions increases and decreases caused by the Federal action; 
i.e., the ``net'' emissions considering all direct and indirect 
emissions. The portion of emissions which are exempt or presumed to 
conform under Sec. 93.153 (c), (d), (e), or (f) are not included in the 
``total of direct and indirect emissions.'' The ``total of direct and 
indirect emissions'' includes emissions of criteria pollutants and 
emissions of precursors of criteria pollutants.



Sec. 93.153  Applicability.

    (a) Conformity determinations for Federal actions related to 
transportation plans, programs, and projects developed, funded, or 
approved under title 23 U.S.C. or the Federal Transit Act (49 U.S.C. 
1601 et seq.) must meet the procedures and criteria of 40 CFR part 51, 
subpart T, in lieu of the procedures set forth in this subpart.
    (b) For Federal actions not covered by paragraph (a) of this 
section, a conformity determination is required for each pollutant where 
the total of direct and indirect emissions in a nonattainment or 
maintenance area caused by a Federal action would equal or exceed any of 
the rates in paragraphs (b)(1) or (2) of this section.
    (1) For purposes of paragraph (b) of this section, the following 
rates apply in nonattainment areas (NAA's):

[[Page 566]]



------------------------------------------------------------------------
                                                                  Tons/
                                                                   year
------------------------------------------------------------------------
Ozone (VOC's or NOX):
  Serious NAA's................................................       50
  Severe NAA's.................................................       25
  Extreme NAA's................................................       10
  Other ozone NAA's outside an ozone transport region..........      100
  Marginal and moderate NAA's inside an ozone transport region:
  VOC..........................................................       50
  NOX..........................................................      100
Carbon monoxide:
  All NAA's....................................................      100
SO2 or NO2
  All NAA's....................................................      100
PM-10:
  Moderate NAA's...............................................      100
  Serious NAA's................................................       70
Pb:
  All NAA's....................................................       25
------------------------------------------------------------------------

    (2) For purposes of paragraph (b) of this section, the following 
rates apply in maintenance areas:

------------------------------------------------------------------------
                                                                  Tons/
                                                                   year
------------------------------------------------------------------------
Ozone (NOX), SO2 or NO2
  All Maintenance Areas........................................      100
Ozone (VOC's):
  Maintenance areas inside an ozone transport region...........       50
  Maintenance areas outside an ozone transport region..........      100
Carbon monoxide:
  All Maintenance Areas........................................      100
PM-10:
  All Maintenance Areas........................................      100
Pb:
  All Maintenance Areas........................................       25
------------------------------------------------------------------------

    (c) The requirements of this subpart shall not apply to the 
following Federal actions:
    (1) Actions where the total of direct and indirect emissions are 
below the emissions levels specified in paragraph (b) of this section.
    (2) Actions which would result in no emissions increase or an 
increase in emissions that is clearly de minimis:
    (i) Judicial and legislative proceedings.
    (ii) Continuing and recurring activities such as permit renewals 
where activities conducted will be similar in scope and operation to 
activities currently being conducted.
    (iii) Rulemaking and policy development and issuance.
    (iv) Routine maintenance and repair activities, including repair and 
maintenance of administrative sites, roads, trails, and facilities.
    (v) Civil and criminal enforcement activities, such as 
investigations, audits, inspections, examinations, prosecutions, and the 
training of law enforcement personnel.
    (vi) Administrative actions such as personnel actions, 
organizational changes, debt management or collection, cash management, 
internal agency audits, program budget proposals, and matters relating 
to the administration and collection of taxes, duties and fees.
    (vii) The routine, recurring transportation of materiel and 
personnel.
    (viii) Routine movement of mobile assets, such as ships and 
aircraft, in home port reassignments and stations (when no new support 
facilities or personnel are required) to perform as operational groups 
and/or for repair or overhaul.
    (ix) Maintenance dredging and debris disposal where no new depths 
are required, applicable permits are secured, and disposal will be at an 
approved disposal site.
    (x) Actions, such as the following, with respect to existing 
structures, properties, facilities and lands where future activities 
conducted will be similar in scope and operation to activities currently 
being conducted at the existing structures, properties, facilities, and 
lands; for example, relocation of personnel, disposition of federally-
owned existing structures, properties, facilities, and lands, rent 
subsidies, operation and maintenance cost subsidies, the exercise of 
receivership or conservatorship authority, assistance in purchasing 
structures, and the production of coins and currency.
    (xi) The granting of leases, licenses such as for exports and trade, 
permits, and easements where activities conducted will be similar in 
scope and operation to activities currently being conducted.
    (xii) Planning, studies, and provision of technical assistance.
    (xiii) Routine operation of facilities, mobile assets and equipment.
    (xiv) Transfers of ownership, interests, and titles in land, 
facilities, and real and personal properties, regardless of the form or 
method of the transfer.

[[Page 567]]

    (xv) The designation of empowerment zones, enterprise communities, 
or viticultural areas.
    (xvi) Actions by any of the Federal banking agencies or the Federal 
Reserve Banks, including actions regarding charters, applications, 
notices, licenses, the supervision or examination of depository 
institutions or depository institution holding companies, access to the 
discount window, or the provision of financial services to banking 
organizations or to any department, agency or instrumentality of the 
United States.
    (xvii) Actions by the Board of Governors of the Federal Reserve 
System or any Federal Reserve Bank necessary to effect monetary or 
exchange rate policy.
    (xviii) Actions that implement a foreign affairs function of the 
United States.
    (xix) Actions (or portions thereof) associated with transfers of 
land, facilities, title, and real properties through an enforceable 
contract or lease agreement where the delivery of the deed is required 
to occur promptly after a specific, reasonable condition is met, such as 
promptly after the land is certified as meeting the requirements of 
CERCLA, and where the Federal agency does not retain continuing 
authority to control emissions associated with the lands, facilities, 
title, or real properties.
    (xx) Transfers of real property, including land, facilities, and 
related personal property from a Federal entity to another Federal 
entity and assignments of real property, including land, facilities, and 
related personal property from a Federal entity to another Federal 
entity for subsequent deeding to eligible applicants.
    (xxi) Actions by the Department of the Treasury to effect fiscal 
policy and to exercise the borrowing authority of the United States.
    (3) Actions where the emissions are not reasonably foreseeable, such 
as the following:
    (i) Initial Outer Continental Shelf lease sales which are made on a 
broad scale and are followed by exploration and development plans on a 
project level.
    (ii) Electric power marketing activities that involve the 
acquisition, sale and transmission of electric energy.
    (4) Actions which implement a decision to conduct or carry out a 
conforming program such as prescribed burning actions which are 
consistent with a conforming land management plan.
    (d) Notwithstanding the other requirements of this subpart, a 
conformity determination is not required for the following Federal 
actions (or portion thereof):
    (1) The portion of an action that includes major new or modified 
stationary sources that require a permit under the new source review 
(NSR) program (section 173 of the Act) or the prevention of significant 
deterioration program (title I, part C of the Act).
    (2) Actions in response to emergencies or natural disasters such as 
hurricanes, earthquakes, etc., which are commenced on the order of hours 
or days after the emergency or disaster and, if applicable, which meet 
the requirements of paragraph (e) of this section.
    (3) Research, investigations, studies, demonstrations, or training 
(other than those exempted under paragraph (c)(2) of this section), 
where no environmental detriment is incurred and/or, the particular 
action furthers air quality research, as determined by the State agency 
primarily responsible for the applicable SIP;
    (4) Alteration and additions of existing structures as specifically 
required by new or existing applicable environmental legislation or 
environmental regulations (e.g., hush houses for aircraft engines and 
scrubbers for air emissions).
    (5) Direct emissions from remedial and removal actions carried out 
under the Comprehensive Environmental Response, Compensation and 
Liability Act and associated regulations to the extent such emissions 
either comply with the substantive requirements of the PSD/NSR 
permitting program or are exempted from other environmental regulation 
under the provisions of CERCLA and applicable regulations issued under 
CERCLA.
    (e) Federal actions which are part of a continuing response to an 
emergency

[[Page 568]]

or disaster under paragraph (d)(2) of this section and which are to be 
taken more than 6 months after the commencement of the response to the 
emergency or disaster under paragraph (d)(2) of this section are exempt 
from the requirements of this subpart only if:
    (1) The Federal agency taking the actions makes a written 
determination that, for a specified period not to exceed an additional 6 
months, it is impractical to prepare the conformity analyses which would 
otherwise be required and the actions cannot be delayed due to 
overriding concerns for public health and welfare, national security 
interests and foreign policy commitments; or
    (2) For actions which are to be taken after those actions covered by 
paragraph (e)(1) of this section, the Federal agency makes a new 
determination as provided in paragraph (e)(1) of this section.
    (f) Notwithstanding other requirements of this subpart, actions 
specified by individual Federal agencies that have met the criteria set 
forth in either paragraph (g)(1) or (g)(2) of this section and the 
procedures set forth in paragraph (h) of this section are presumed to 
conform, except as provided in paragraph (j) of this section.
    (g) The Federal agency must meet the criteria for establishing 
activities that are presumed to conform by fulfilling the requirements 
set forth in either paragraph (g)(1) or (g)(2) of this section:
    (1) The Federal agency must clearly demonstrate using methods 
consistent with this subpart that the total of direct and indirect 
emissions from the type of activities which would be presumed to conform 
would not:
    (i) Cause or contribute to any new violation of any standard in any 
area;
    (ii) Interfere with provisions in the applicable SIP for maintenance 
of any standard;
    (iii) Increase the frequency or severity of any existing violation 
of any standard in any area; or
    (iv) Delay timely attainment of any standard or any required interim 
emission reductions or other milestones in any area including, where 
applicable, emission levels specified in the applicable SIP for purposes 
of:
    (A) A demonstration of reasonable further progress;
    (B) A demonstration of attainment; or
    (C) A maintenance plan; or
    (2) The Federal agency must provide documentation that the total of 
direct and indirect emissions from such future actions would be below 
the emission rates for a conformity determination that are established 
in paragraph (b) of this section, based, for example, on similar actions 
taken over recent years.
    (h) In addition to meeting the criteria for establishing exemptions 
set forth in paragraphs (g)(1) or (g)(2) of this section, the following 
procedures must also be complied with to presume that activities will 
conform:
    (1) The Federal agency must identify through publication in the 
Federal Register its list of proposed activities that are presumed to 
conform and the basis for the presumptions;
    (2) The Federal agency must notify the appropriate EPA Regional 
Office(s), State and local air quality agencies and, where applicable, 
the agency designated under section 174 of the Act and the MPO and 
provide at least 30 days for the public to comment on the list of 
proposed activities presumed to conform;
    (3) The Federal agency must document its response to all the 
comments received and make the comments, response, and final list of 
activities available to the public upon request; and
    (4) The Federal agency must publish the final list of such 
activities in the Federal Register.
    (i) Notwithstanding the other requirements of this subpart, when the 
total of direct and indirect emissions of any pollutant from a Federal 
action does not equal or exceed the rates specified in paragraph (b) of 
this section, but represents 10 percent or more of a nonattainment or 
maintenance area's total emissions of that pollutant, the action is 
defined as a regionally significant action and the requirements of 
Sec. 93.150 and Secs. 93.155 through 93.160 shall apply for the Federal 
action.

[[Page 569]]

    (j) Where an action otherwise presumed to conform under paragraph 
(f) of this section is a regionally significant action or does not in 
fact meet one of the criteria in paragraph (g)(1) of this section, that 
action shall not be presumed to conform and the requirements of 
Sec. 93.150 and Secs. 93.155 through 93.160 shall apply for the Federal 
action.
    (k) The provisions of this subpart shall apply in all nonattainment 
and maintenance areas.



Sec. 93.154  Conformity analysis.

    Any Federal department, agency, or instrumentality of the Federal 
government taking an action subject to this subpart must make its own 
conformity determination consistent with the requirements of this 
subpart. In making its conformity determination, a Federal agency must 
consider comments from any interested parties. Where multiple Federal 
agencies have jurisdiction for various aspects of a project, a Federal 
agency may choose to adopt the analysis of another Federal agency or 
develop its own analysis in order to make its conformity determination.



Sec. 93.155  Reporting requirements.

    (a) A Federal agency making a conformity determination under 
Sec. 93.158 must provide to the appropriate EPA Regional Office(s), 
State and local air quality agencies and, where applicable, affected 
Federal land managers, the agency designated under section 174 of the 
Act and the MPO a 30 day notice which describes the proposed action and 
the Federal agency's draft conformity determination on the action.
    (b) A Federal agency must notify the appropriate EPA Regional 
Office(s), State and local air quality agencies and, where applicable, 
affected Federal land managers, the agency designated under section 174 
of the Clean Air Act and the MPO within 30 days after making a final 
conformity determination under Sec. 93.158.



Sec. 93.156  Public participation.

    (a) Upon request by any person regarding a specific Federal action, 
a Federal agency must make available for review its draft conformity 
determination under Sec. 93.158 with supporting materials which describe 
the analytical methods and conclusions relied upon in making the 
applicability analysis and draft conformity determination.
    (b) A Federal agency must make public its draft conformity 
determination under Sec. 93.158 by placing a notice by prominent 
advertisement in a daily newspaper of general circulation in the area 
affected by the action and by providing 30 days for written public 
comment prior to taking any formal action on the draft determination. 
This comment period may be concurrent with any other public involvement, 
such as occurs in the NEPA process.
    (c) A Federal agency must document its response to all the comments 
received on its draft conformity determination under Sec. 93.158 and 
make the comments and responses available, upon request by any person 
regarding a specific Federal action, within 30 days of the final 
conformity determination.
    (d) A Federal agency must make public its final conformity 
determination under Sec. 93.158 for a Federal action by placing a notice 
by prominent advertisement in a daily newspaper of general circulation 
in the area affected by the action within 30 days of the final 
conformity determination.



Sec. 93.157  Frequency of conformity determinations.

    (a) The conformity status of a Federal action automatically lapses 5 
years from the date a final conformity determination is reported under 
Sec. 93.155, unless the Federal action has been completed or a 
continuous program has been commenced to implement that Federal action 
within a reasonable time.
    (b) Ongoing Federal activities at a given site showing continuous 
progress are not new actions and do not require periodic 
redeterminations so long as such activities are within the scope of the 
final conformity determination reported under Sec. 93.155.
    (c) If, after the conformity determination is made, the Federal 
action is changed so that there is an increase in the total of direct 
and indirect emissions, above the levels in Sec. 93.153(b), a new 
conformity determination is required.

[[Page 570]]



Sec. 93.158  Criteria for determining conformity of general Federal actions.

    (a) An action required under Sec. 93.153 to have a conformity 
determination for a specific pollutant, will be determined to conform to 
the applicable SIP if, for each pollutant that exceeds the rates in 
Sec. 93.153(b), or otherwise requires a conformity determination due to 
the total of direct and indirect emissions from the action, the action 
meets the requirements of paragraph (c) of this section, and meets any 
of the following requirements:
    (1) For any criteria pollutant, the total of direct and indirect 
emissions from the action are specifically identified and accounted for 
in the applicable SIP's attainment or maintenance demonstration;
    (2) For ozone or nitrogen dioxide, the total of direct and indirect 
emissions from the action are fully offset within the same nonattainment 
or maintenance area through a revision to the applicable SIP or a 
similarly enforceable measure that effects emission reductions so that 
there is no net increase in emissions of that pollutant;
    (3) For any criteria pollutant, except ozone and nitrogen dioxide, 
the total of direct and indirect emissions from the action meet the 
requirements:
    (i) Specified in paragraph (b) of this section, based on areawide 
air quality modeling analysis and local air quality modeling analysis; 
or
    (ii) Meet the requirements of paragraph (a)(5) of this section and, 
for local air quality modeling analysis, the requirement of paragraph 
(b) of this section;
    (4) For CO or PM-10--
    (i) Where the State agency primarily responsible for the applicable 
SIP determines that an areawide air quality modeling analysis is not 
needed, the total of direct and indirect emissions from the action meet 
the requirements specified in paragraph (b) of this section, based on 
local air quality modeling analysis; or
    (ii) Where the State agency primarily responsible for the applicable 
SIP determines that an areawide air quality modeling analysis is 
appropriate and that a local air quality modeling analysis is not 
needed, the total of direct and indirect emissions from the action meet 
the requirements specified in paragraph (b) of this section, based on 
areawide modeling, or meet the requirements of paragraph (a)(5) of this 
section; or
    (5) For ozone or nitrogen dioxide, and for purposes of paragraphs 
(a)(3)(11) and (a)(4)(ii) of this section, each portion of the action or 
the action as a whole meets any of the following requirements:
    (i) Where EPA has approved a revision to an area's attainment or 
maintenance demonstration after 1990 and the State makes a determination 
as provided in paragraph (a)(5)(i)(A) of this section or where the State 
makes a commitment as provided in paragraph (a)(5)(i)(B) of this 
section:
    (A) The total of direct and indirect emissions from the action (or 
portion thereof) is determined and documented by the State agency 
primarily responsible for the applicable SIP to result in a level of 
emissions which, together with all other emissions in the nonattainment 
(or maintenance) area, would not exceed the emissions budgets specified 
in the applicable SIP;
    (B) The total of direct and indirect emissions from the action (or 
portion thereof) is determined by the State agency responsible for the 
applicable SIP to result in a level of emissions which, together with 
all other emissions in the nonattainment (or maintenance) area, would 
exceed an emissions budget specified in the applicable SIP and the State 
Governor or the Governor's designee for SIP actions makes a written 
commitment to EPA which includes the following:
    (1) A specific schedule for adoption and submittal of a revision to 
the SIP which would achieve the needed emission reductions prior to the 
time emissions from the Federal action would occur;
    (2) Identification of specific measures for incorporation into the 
SIP which would result in a level of emissions which, together with all 
other emissions in the nonattainment or maintenance area, would not 
exceed any emissions budget specified in the applicable SIP;
    (3) A demonstration that all existing applicable SIP requirements 
are being

[[Page 571]]

implemented in the area for the pollutants affected by the Federal 
action, and that local authority to implement additional requirements 
has been fully pursued;
    (4) A determination that the responsible Federal agencies have 
required all reasonable mitigation measures associated with their 
action; and
    (5) Written documentation including all air quality analyses 
supporting the conformity determination;
    (C) Where a Federal agency made a conformity determination based on 
a State commitment under paragraph (a)(5)(i)(B) of this section, such a 
State commitment is automatically deemed a call for a SIP revision by 
EPA under section 110(k)(5) of the Act, effective on the date of the 
Federal conformity determination and requiring response within 18 months 
or any shorter time within which the State commits to revise the 
applicable SIP;
    (ii) The action (or portion thereof), as determined by the MPO, is 
specifically included in a current transportation plan and 
transportation improvement program which have been found to conform to 
the applicable SIP under 40 CFR part 51, subpart T, or 40 CFR part 93, 
subpart A;
    (iii) The action (or portion thereof) fully offsets its emissions 
within the same nonattainment or maintenance area through a revision to 
the applicable SIP or an equally enforceable measure that effects 
emission reductions equal to or greater than the total of direct and 
indirect emissions from the action so that there is no net increase in 
emissions of that pollutant;
    (iv) Where EPA has not approved a revision to the relevant SIP 
attainment or maintenance demonstration since 1990, the total of direct 
and indirect emissions from the action for the future years (described 
in Sec. 93.159(d) do not increase emissions with respect to the baseline 
emissions:
    (A) The baseline emissions reflect the historical activity levels 
that occurred in the geographic area affected by the proposed Federal 
action during:
    (1) Calendar year 1990;
    (2) The calendar year that is the basis for the classification (or, 
where the classification is based on multiple years, the most 
representative year), if a classification is promulgated in 40 CFR part 
81; or
    (3) The year of the baseline inventory in the PM-10 applicable SIP;
    (B) The baseline emissions are the total of direct and indirect 
emissions calculated for the future years (described in Sec. 93.159(d)) 
using the historic activity levels (described in paragraph (a)(5)(iv)(A) 
of this section) and appropriate emission factors for the future years; 
or
    (v) Where the action involves regional water and/or wastewater 
projects, such projects are sized to meet only the needs of population 
projections that are in the applicable SIP.
    (b) The areawide and/or local air quality modeling analyses must:
    (1) Meet the requirements in Sec. 93.159; and
    (2) Show that the action does not:
    (i) Cause or contribute to any new violation of any standard in any 
area; or
    (ii) Increase the frequency or severity of any existing violation of 
any standard in any area.
    (c) Notwithstanding any other requirements of this section, an 
action subject to this subpart may not be determined to conform to the 
applicable SIP unless the total of direct and indirect emissions from 
the action is in compliance or consistent with all relevant requirements 
and milestones contained in the applicable SIP, such as elements 
identified as part of the reasonable further progress schedules, 
assumptions specified in the attainment or maintenance demonstration, 
prohibitions, numerical emission limits, and work practice requirements.
    (d) Any analyses required under this section must be completed, and 
any mitigation requirements necessary for a finding of conformity must 
be identified before the determination of conformity is made.



Sec. 93.159  Procedures for conformity determinations of general Federal actions.

    (a) The analyses required under this subpart must be based on the 
latest planning assumptions.

[[Page 572]]

    (1) All planning assumptions must be derived from the estimates of 
population, employment, travel, and congestion most recently approved by 
the MPO, or other agency authorized to make such estimates, where 
available.
    (2) Any revisions to these estimates used as part of the conformity 
determination, including projected shifts in geographic location or 
level of population, employment, travel, and congestion, must be 
approved by the MPO or other agency authorized to make such estimates 
for the urban area.
    (b) The analyses required under this subpart must be based on the 
latest and most accurate emission estimation techniques available as 
described below, unless such techniques are inappropriate. If such 
techniques are inappropriate and written approval of the EPA Regional 
Administrator is obtained for any modification or substitution, they may 
be modified or another technique substituted on a case-by-case basis or, 
where appropriate, on a generic basis for a specific Federal agency 
program.
    (1) For motor vehicle emissions, the most current version of the 
motor vehicle emissions model specified by EPA and available for use in 
the preparation or revision of SIPs in that State must be used for the 
conformity analysis as specified in paragraphs (b)(1)(i) and (ii) of 
this section:
    (i) The EPA must publish in the Federal Register a notice of 
availability of any new motor vehicle emissions model; and
    (ii) A grace period of 3 months shall apply during which the motor 
vehicle emissions model previously specified by EPA as the most current 
version may be used. Conformity analyses for which the analysis was 
begun during the grace period or no more than 3 years before the Federal 
Register notice of availability of the latest emission model may 
continue to use the previous version of the model specified by EPA.
    (2) For non-motor vehicle sources, including stationary and area 
source emissions, the latest emission factors specified by EPA in the 
``Compilation of Air Pollutant Emission Factors (AP-42)'' \1\ must be 
used for the conformity analysis unless more accurate emission data are 
available, such as actual stack test data from stationary sources which 
are part of the conformity analysis.
---------------------------------------------------------------------------

    \1\ Copies may be obtained from the Technical Support Division of 
OAQPS, EPA, MD-14, Research Triangle Park, NC 27711.
---------------------------------------------------------------------------

    (c) The air quality modeling analyses required under this subpart 
must be based on the applicable air quality models, data bases, and 
other requirements specified in the most recent version of the 
``Guideline on Air Quality Models (Revised)'' (1986), including 
supplements (EPA publication no. 450/2-78-027R) \2\, unless:
---------------------------------------------------------------------------

    \2\ See footnote 1 at Sec. 93.159(b)(2).
---------------------------------------------------------------------------

    (1) The guideline techniques are inappropriate, in which case the 
model may be modified or another model substituted on a case-by-case 
basis or, where appropriate, on a generic basis for a specific Federal 
agency program; and
    (2) Written approval of the EPA Regional Administrator is obtained 
for any modification or substitution.
    (d) The analyses required under this subpart, except 
Sec. 93.158(a)(1), must be based on the total of direct and indirect 
emissions from the action and must reflect emission scenarios that are 
expected to occur under each of the following cases:
    (1) The Act mandated attainment year or, if applicable, the farthest 
year for which emissions are projected in the maintenance plan;
    (2) The year during which the total of direct and indirect emissions 
from the action is expected to be the greatest on an annual basis; and
    (3) Any year for which the applicable SIP specifies an emissions 
budget.



Sec. 93.160  Mitigation of air quality impacts.

    (a) Any measures that are intended to mitigate air quality impacts 
must be identified and the process for implementation and enforcement of 
such measures must be described, including an implementation schedule 
containing explicit timelines for implementation.

[[Page 573]]

    (b) Prior to determining that a Federal action is in conformity, the 
Federal agency making the conformity determination must obtain written 
commitments from the appropriate persons or agencies to implement any 
mitigation measures which are identified as conditions for making 
conformity determinations.
    (c) Persons or agencies voluntarily committing to mitigation 
measures to facilitate positive conformity determinations must comply 
with the obligations of such commitments.
    (d) In instances where the Federal agency is licensing, permitting 
or otherwise approving the action of another governmental or private 
entity, approval by the Federal agency must be conditioned on the other 
entity meeting the mitigation measures set forth in the conformity 
determination.
    (e) When necessary because of changed circumstances, mitigation 
measures may be modified so long as the new mitigation measures continue 
to support the conformity determination. Any proposed change in the 
mitigation measures is subject to the reporting requirements of 
Sec. 93.156 and the public participation requirements of Sec. 93.157.
    (f) The implementation plan revision required in Sec. 93.151 shall 
provide that written commitments to mitigation measures must be obtained 
prior to a positive conformity determination and that such commitments 
must be fulfilled.
    (g) After a State revises its SIP to adopt its general conformity 
rules and EPA approves that SIP revision, any agreements, including 
mitigation measures, necessary for a conformity determination will be 
both State and federally enforceable. Enforceability through the 
applicable SIP will apply to all persons who agree to mitigate direct 
and indirect emissions associated with a Federal action for a conformity 
determination.



PART 94 [RESERVED]






PART 95-MANDATORY PATENT LICENSES--Table of Contents




Sec.
95.1  Definitions.
95.2  Petition for mandatory license.
95.3  Findings prior to application to Attorney General.
95.4  Limitations on mandatory licenses.

    Authority: 42 U.S.C. 7609; Sec. 104, Pub. L. 103-182, 107 Stat. 
2057, 2064.

    Source: 59 FR 67638, Dec. 30, 1994, unless otherwise noted.



Sec. 95.1  Definitions.

    (a) As used in this part, all terms not defined in this section 
shall have the meaning given them by the Act.
    (b) Act means the Clean Air Act, as amended (42 U.S.C. Secs. 7401-
7671).
    (c) Agency means the Environmental Protection Agency.
    (d) Administrator means the Administrator of the Environmental 
Protection Agency.



Sec. 95.2  Petition for mandatory license.

    (a) Any party required to comply with sections 111, 112 or 202 of 
the Act (42 U.S.C. 7411, 7412 or 7521) may petition to the Administrator 
for a mandatory patent license pursuant to section 308 of the Act (42 
U.S.C. 7608), under a patent that the petitioner maintains is necessary 
to enable the petitioner to comply with Sections 111, 112 or 202 of the 
Act.
    (b)(1) Each petition shall be signed by the petitioner and shall 
state the petitioner's name and address. If the petitioner is a 
corporation, the petition shall be signed by an authorized officer of 
the corporation, and the petition shall indicate the state of 
incorporation. Where the petitioner elects to be represented by counsel, 
a signed notice to that effect shall be included with the petition at 
the time of filing.
    (2) Each petition shall include a copy of the patent under which a 
mandatory patent license is sought. The petition shall identify all 
current owners of the patent and shall include a copy of all assignment 
documents relevant to the patent that are available from the United 
States Patent and Trademark Office.
    (3) Each petition must identify any person whose interest the 
petitioner believes may be affected by the grant of the license to which 
the petition is directed.
    (4) Each petition must contain a concise statement of all of the 
essential

[[Page 574]]

facts upon which it is based. No particular form of statement is 
required. Each petition shall be verified by the petitioner or by the 
person having the best knowledge of such facts. In the case of facts 
stated on information and belief, the source of such information and 
grounds of belief shall be given. The statement of facts shall include 
the following:
    (i) An identification of the provisions of the Act and/or 
regulations thereunder that the petitioner maintains petitioner will be 
able to comply with if the petitioner is granted the patent license that 
is the subject of the petition;
    (ii) An identification of the nature and purpose of the petitioner's 
intended use of the patent license;
    (iii) An explanation of the relationship between the patented 
technology and the activities to which petitioner proposes to apply the 
patented technology, including an estimate of the effect on such 
activities stemming from the grant or denial of the patent license;
    (iv) A summary of facts demonstrating that the patent under which a 
mandatory patent license is sought is being used or is intended for 
public or commercial use;
    (v) An explanation of why a mandatory patent license is necessary 
for the petitioner to comply with the requirements of sections 111, 112 
or 202 of the Act, and why the patented technology is not otherwise 
available;
    (vi) An explanation of why there are no other reasonable 
alternatives for accomplishing compliance with sections 111, 112 or 202 
of the Act;
    (vii) An explanation of why the unavailability of a mandatory patent 
license may result in a substantial lessening of competition or a 
tendency to create a monopoly in any line of commerce in any section of 
the United States;
    (viii) A summary of efforts made by the petitioner to obtain a 
patent license from the owner of the patent, including the terms and 
conditions of any patent license proposed by petitioner to the patent 
owner; and
    (ix) The terms, if any, on which the owner of the patent has 
proposed to grant the petitioner a patent license.
    (5) Each petition shall include a proposed patent license that 
states all of the terms and conditions that the petitioner proposes for 
the patent license.
    (6) Petitions shall be addressed to the Assistant Administrator for 
Air and Radiation, Mail Code 6101, U.S. Environmental Protection Agency, 
Washington, DC 20460.
    (c) Petitions that do not include all of the information required in 
paragraph (b) of this section shall be returned to the petitioner. The 
petitioner may supplement the petition and resubmit the petition.
    (d) If the Administrator, or the Administrator's designee, finds 
that the criteria in Sec. 95.3 are not met, or otherwise decides to deny 
the petition, a denial of the petition shall be sent to the petitioner, 
along with an explanation of the reasons for the denial.
    (e) If the Administrator, or the Administrator's designee, finds 
that the criteria in Sec. 95.3 are met and decides to apply to the 
Attorney General for a patent license under section 308 of the Act, 
notice of such application shall be given to the petitioner, along with 
a copy of the application sent to the Attorney General.



Sec. 95.3  Findings prior to application to Attorney General.

    The Administrator, or the Administrator's designee, may apply to the 
Attorney General for a mandatory patent license pursuant to section 308 
of the Act (42 U.S.C. 7608) either in response to a petition under 
Sec. 95.2 or on the Administrator's or designee's own initiative, only 
after expressly finding that each one of the following mandatory 
criteria is met:
    (a) The application is for a patent license covering no more than 
one patent;
    (b) The party to whom the proposed patent license is to be granted 
has presented the Administrator or designee with evidence that such 
party has made reasonable efforts to obtain a patent license from the 
patent owner with terms similar to the license terms to be proposed in 
the application to the Attorney General;
    (c) The patent under which a patent license is sought in the 
application to the Attorney General is being used or

[[Page 575]]

is intended for public or commercial use;
    (d) The mandatory patent license is necessary for a party to comply 
with the requirements of sections 111, 112 or 202 of the Act (42 U.S.C. 
7411, 7412 or 7521);
    (e) The patented technology is not otherwise reasonably available, 
and there are no other reasonable alternatives for accomplishing 
compliance with sections 111, 112 or 202 of the Act (42 U.S.C. 7411, 
7412 or 7521); and
    (f) The unavailability of a mandatory patent license may result in a 
substantial lessening of competition or a tendency to create a monopoly 
in any line of commerce in any section of the United States.



Sec. 95.4  Limitations on mandatory licenses

    (a) If the Administrator, or the Administrator's designee, decides 
to apply to the Attorney General for a mandatory patent license in 
accordance with Sec. 95.3, the application shall include a proposed 
patent license with the following limitations:
    (1) The scope and duration of the patent license shall be limited to 
that necessary to permit the proposed licensee to comply with the 
requirements the Act;
    (2) The patent license shall be nonexclusive;
    (3) The patent license shall be non-assignable, except with that 
part of the enterprise or goodwill that enjoys the license;
    (4) The patent license shall be for use of the licensed technology 
in the United States only;
    (5) The patent license shall extend only to those uses necessary to 
enable the licensee to comply with sections 111, 112 or 202 of the Act 
(42 U.S.C. 7411, 7412 or 7521);
    (6) The patent license shall provide for termination, subject to 
adequate protections of the legitimate interests of the licensed party, 
when the circumstances that made the compulsory patent license necessary 
cease to exist and are unlikely to recur; and
    (7) The patent license shall provide for adequate remuneration that 
takes into account the economic value of the license.
    (b) The Administrator, or the Administrator's designee, may decide 
as appropriate to include additional conditions, terms or limitations on 
the scope of the patent license for which application is made to the 
Attorney General.



PART 96--NOX Budget Trading Program for State Implementation Plans--Table of Contents




   Subpart A--NOX Budget Trading Program General Provisions

Sec.
96.1  Purpose.
96.2  Definitions.
96.3  Measurements, abbreviations, and acronyms.
96.4  Applicability.
96.5  Retired unit exemption.
96.6  Standard requirements.
96.7  Computation of time.

 Subpart B--Authorized Account Representative for NOX Budget 
                                 Sources

96.10  Authorization and responsibilities of the NOX 
          authorized account representative.
96.11  Alternate NOX authorized account representative.
96.12  Changing the NOX authorized account representative and 
          the alternate NOX authorized account 
          representative; changes in the owners and operators.
96.13  Account certificate of representation.
96.14  Objections concerning the NOX authorized account 
          representative.

                           Subpart C--Permits

96.20  General NOX Budget trading program permit 
          requirements.
96.21  Submission of NOX Budget permit applications.
96.22  Information requirements for NOX Budget permit 
          applications.
96.23  NOX Budget permit contents.
96.24  Effective date of initial NOX Budget permit.
96.25  NOX Budget permit revisions.

                   Subpart D--Compliance Certification

96.30  Compliance certification report.
96.31  Permitting authority's and Administrator's action on compliance 
          certifications.

             Subpart E--NOX Allowance Allocations

96.40  State trading program budget.
96.41  Timing requirements for NOX allowance allocations.

[[Page 576]]

96.42  NOX allowance allocations.

           Subpart F--NOX Allowance Tracking System

96.50  NOX Allowance Tracking System accounts.
96.51  Establishment of accounts.
96.52  NOX Allowance Tracking System responsibilities of 
          NOX authorized account representative.
96.53  Recordation of NOX allowance allocations.
96.54  Compliance.
96.55  Banking.
96.56  Account error.
96.57  Closing of general accounts.

              Subpart G--NOX Allowance Transfers

96.60  Submission of NOX allowance transfers.
96.61  EPA recordation.
96.62  Notification.

                   Subpart H--Monitoring and Reporting

96.70  General requirements.
96.71  Initial certification and recertification procedures.
96.72  Out of control periods.
96.73  Notifications.
96.74  Recordkeeping and reporting.
96.75  Petitions.
96.76  Additional requirements to provide heat input data for 
          allocations purposes.

                   Subpart I--Individual Unit Opt-ins

96.80  Applicability.
96.81  General.
96.82  NOX authorized account representative.
96.83  Applying for NOX Budget opt-in permit.
96.84  Opt-in process.
96.85  NOX Budget opt-in permit contents.
96.86  Withdrawal from NOX Budget Trading Program.
96.87  Change in regulatory status.
96.88  NOX allowance allocations to opt-in units.

Subpart J--Mobile and Area Sources [Reserved]

    Authority: 42 U.S.C. 7401, 7403, 7410, and 7601.

    Source: 63 FR 57514, Oct. 27, 1998, unless otherwise noted.



   Subpart A--NOX Budget Trading Program General Provisions



Sec. 96.1  Purpose.

    This part establishes general provisions and the applicability, 
permitting, allowance, excess emissions, monitoring, and opt-in 
provisions for the NOX Budget Trading Program for State 
implementation plans as a means of mitigating the interstate transport 
of ozone and nitrogen oxides, an ozone precursor. The owner or operator 
of a unit, or any other person, shall comply with requirements of this 
part as a matter of federal law only to the extent a State that has 
jurisdiction over the unit incorporates by reference provisions of this 
part, or otherwise adopts such requirements of this part, and requires 
compliance, the State submits to the Administrator a State 
implementation plan including such adoption and such compliance 
requirement, and the Administrator approves the portion of the State 
implementation plan including such adoption and such compliance 
requirement. To the extent a State adopts requirements of this part, 
including at a minimum the requirements of subpart A (except for 
Sec. 96.4(b)), subparts B through D, subpart F (except for 
Sec. 96.55(c)), and subparts G and H of this part, the State authorizes 
the Administrator to assist the State in implementing the NOX 
Budget Trading Program by carrying out the functions set forth for the 
Administrator in such requirements.



Sec. 96.2  Definitions.

    The terms used in this part shall have the meanings set forth in 
this section as follows:
    Account certificate of representation means the completed and signed 
submission required by subpart B of this part for certifying the 
designation of a NOX authorized account representative for a 
NOX Budget source or a group of identified NOX 
Budget sources who is authorized to represent the owners and operators 
of such source or sources and of the NOX Budget units at such 
source or sources with regard to matters under the NOX Budget 
Trading Program.

[[Page 577]]

    Account number means the identification number given by the 
Administrator to each NOX Allowance Tracking System account.
    Acid Rain emissions limitation means, as defined in Sec. 72.2 of 
this chapter, a limitation on emissions of sulfur dioxide or nitrogen 
oxides under the Acid Rain Program under title IV of the CAA.
    Administrator means the Administrator of the United States 
Environmental Protection Agency or the Administrator's duly authorized 
representative.
    Allocate or allocation means the determination by the permitting 
authority or the Administrator of the number of NOX 
allowances to be initially credited to a NOX Budget unit or 
an allocation set-aside.
    Automated data acquisition and handling system or DAHS means that 
component of the CEMS, or other emissions monitoring system approved for 
use under subpart H of this part, designed to interpret and convert 
individual output signals from pollutant concentration monitors, flow 
monitors, diluent gas monitors, and other component parts of the 
monitoring system to produce a continuous record of the measured 
parameters in the measurement units required by subpart H of this part.
    Boiler means an enclosed fossil or other fuel-fired combustion 
device used to produce heat and to transfer heat to recirculating water, 
steam, or other medium.
    CAA means the CAA, 42 U.S.C. 7401, et seq., as amended by Pub. L. 
No. 101-549 (November 15, 1990).
    Combined cycle system means a system comprised of one or more 
combustion turbines, heat recovery steam generators, and steam turbines 
configured to improve overall efficiency of electricity generation or 
steam production.
    Combustion turbine means an enclosed fossil or other fuel-fired 
device that is comprised of a compressor, a combustor, and a turbine, 
and in which the flue gas resulting from the combustion of fuel in the 
combustor passes through the turbine, rotating the turbine.
    Commence commercial operation means, with regard to a unit that 
serves a generator, to have begun to produce steam, gas, or other heated 
medium used to generate electricity for sale or use, including test 
generation. Except as provided in Sec. 96.5, for a unit that is a 
NOX Budget unit under Sec. 96.4 on the date the unit 
commences commercial operation, such date shall remain the unit's date 
of commencement of commercial operation even if the unit is subsequently 
modified, reconstructed, or repowered. Except as provided in Sec. 96.5 
or subpart I of this part, for a unit that is not a NOX 
Budget unit under Sec. 96.4 on the date the unit commences commercial 
operation, the date the unit becomes a NOX Budget unit under 
Sec. 96.4 shall be the unit's date of commencement of commercial 
operation.
    Commence operation means to have begun any mechanical, chemical, or 
electronic process, including, with regard to a unit, start-up of a 
unit's combustion chamber. Except as provided in Sec. 96.5, for a unit 
that is a NOX Budget unit under Sec. 96.4 on the date of 
commencement of operation, such date shall remain the unit's date of 
commencement of operation even if the unit is subsequently modified, 
reconstructed, or repowered. Except as provided in Sec. 96.5 or subpart 
I of this part, for a unit that is not a NOX Budget unit 
under Sec. 96.4 on the date of commencement of operation, the date the 
unit becomes a NOX Budget unit under Sec. 96.4 shall be the 
unit's date of commencement of operation.
    Common stack means a single flue through which emissions from two or 
more units are exhausted.
    Compliance account means a NOX Allowance Tracking System 
account, established by the Administrator for a NOX Budget 
unit under subpart F of this part, in which the NOX allowance 
allocations for the unit are initially recorded and in which are held 
NOX allowances available for use by the unit for a control 
period for the purpose of meeting the unit's NOX Budget 
emissions limitation.
    Compliance certification means a submission to the permitting 
authority or the Administrator, as appropriate, that is required under 
subpart D of this part to report a NOX Budget source's or a 
NOX Budget unit's compliance or noncompliance with this part 
and that is signed by the NOX authorized account

[[Page 578]]

representative in accordance with subpart B of this part.
    Continuous emission monitoring system or CEMS means the equipment 
required under subpart H of this part to sample, analyze, measure, and 
provide, by readings taken at least once every 15 minutes of the 
measured parameters, a permanent record of nitrogen oxides emissions, 
expressed in tons per hour for nitrogen oxides. The following systems 
are component parts included, consistent with part 75 of this chapter, 
in a continuous emission monitoring system:
    (1) Flow monitor;
    (2) Nitrogen oxides pollutant concentration monitors;
    (3) Diluent gas monitor (oxygen or carbon dioxide) when such 
monitoring is required by subpart H of this part;
    (4) A continuous moisture monitor when such monitoring is required 
by subpart H of this part; and
    (5) An automated data acquisition and handling system.
    Control period means the period beginning May 1 of a year and ending 
on September 30 of the same year, inclusive.
    Emissions means air pollutants exhausted from a unit or source into 
the atmosphere, as measured, recorded, and reported to the Administrator 
by the NOX authorized account representative and as 
determined by the Administrator in accordance with subpart H of this 
part.
    Energy Information Administration means the Energy Information 
Administration of the United States Department of Energy.
    Excess emissions means any tonnage of nitrogen oxides emitted by a 
NOX Budget unit during a control period that exceeds the 
NOX Budget emissions limitation for the unit.
    Fossil fuel means natural gas, petroleum, coal, or any form of 
solid, liquid, or gaseous fuel derived from such material.
    Fossil fuel-fired means, with regard to a unit:
    (1) The combustion of fossil fuel, alone or in combination with any 
other fuel, where fossil fuel actually combusted comprises more than 50 
percent of the annual heat input on a Btu basis during any year starting 
in 1995 or, if a unit had no heat input starting in 1995, during the 
last year of operation of the unit prior to 1995; or
    (2) The combustion of fossil fuel, alone or in combination with any 
other fuel, where fossil fuel is projected to comprise more than 50 
percent of the annual heat input on a Btu basis during any year; 
provided that the unit shall be ``fossil fuel-fired'' as of the date, 
during such year, on which the unit begins combusting fossil fuel.
    General account means a NOX Allowance Tracking System 
account, established under subpart F of this part, that is not a 
compliance account or an overdraft account.
    Generator means a device that produces electricity.
    Heat input means the product (in mmBtu/time) of the gross calorific 
value of the fuel (in Btu/lb) and the fuel feed rate into a combustion 
device (in mass of fuel/time), as measured, recorded, and reported to 
the Administrator by the NOX authorized account 
representative and as determined by the Administrator in accordance with 
subpart H of this part, and does not include the heat derived from 
preheated combustion air, recirculated flue gases, or exhaust from other 
sources.
    Life-of-the-unit, firm power contractual arrangement means a unit 
participation power sales agreement under which a utility or industrial 
customer reserves, or is entitled to receive, a specified amount or 
percentage of nameplate capacity and associated energy from any 
specified unit and pays its proportional amount of such unit's total 
costs, pursuant to a contract:
    (1) For the life of the unit;
    (2) For a cumulative term of no less than 30 years, including 
contracts that permit an election for early termination; or
    (3) For a period equal to or greater than 25 years or 70 percent of 
the economic useful life of the unit determined as of the time the unit 
is built, with option rights to purchase or release some portion of the 
nameplate capacity and associated energy generated by the unit at the 
end of the period.
    Maximum design heat input means the ability of a unit to combust a 
stated maximum amount of fuel per hour on a

[[Page 579]]

steady state basis, as determined by the physical design and physical 
characteristics of the unit.
    Maximum potential hourly heat input means an hourly heat input used 
for reporting purposes when a unit lacks certified monitors to report 
heat input. If the unit intends to use appendix D of part 75 of this 
chapter to report heat input, this value should be calculated, in 
accordance with part 75 of this chapter, using the maximum fuel flow 
rate and the maximum gross calorific value. If the unit intends to use a 
flow monitor and a diluent gas monitor, this value should be reported, 
in accordance with part 75 of this chapter, using the maximum potential 
flowrate and either the maximum carbon dioxide concentration (in percent 
CO2) or the minimum oxygen concentration (in percent 
O2).
    Maximum potential NOX emission rate means the emission 
rate of nitrogen oxides (in lb/mmBtu) calculated in accordance with 
section 3 of appendix F of part 75 of this chapter, using the maximum 
potential nitrogen oxides concentration as defined in section 2 of 
appendix A of part 75 of this chapter, and either the maximum oxygen 
concentration (in percent O2) or the minimum carbon dioxide 
concentration (in percent CO2), under all operating 
conditions of the unit except for unit start up, shutdown, and upsets.
    Maximum rated hourly heat input means a unit-specific maximum hourly 
heat input (mmBtu) which is the higher of the manufacturer's maximum 
rated hourly heat input or the highest observed hourly heat input.
    Monitoring system means any monitoring system that meets the 
requirements of subpart H of this part, including a continuous emissions 
monitoring system, an excepted monitoring system, or an alternative 
monitoring system.
    Most stringent State or Federal NOX emissions limitation 
means, with regard to a NOX Budget opt-in source, the lowest 
NOX emissions limitation (in terms of lb/mmBtu) that is 
applicable to the unit under State or Federal law, regardless of the 
averaging period to which the emissions limitation applies.
    Nameplate capacity means the maximum electrical generating output 
(in MWe) that a generator can sustain over a specified period of time 
when not restricted by seasonal or other deratings as measured in 
accordance with the United States Department of Energy standards.
    Non-title V permit means a federally enforceable permit administered 
by the permitting authority pursuant to the CAA and regulatory authority 
under the CAA, other than title V of the CAA and part 70 or 71 of this 
chapter.
    NOX allowance means an authorization by the permitting 
authority or the Administrator under the NOX Budget Trading 
Program to emit up to one ton of nitrogen oxides during the control 
period of the specified year or of any year thereafter.
    NOX allowance deduction or deduct NOX 
allowances means the permanent withdrawal of NOX allowances 
by the Administrator from a NOX Allowance Tracking System 
compliance account or overdraft account to account for the number of 
tons of NOX emissions from a NOX Budget unit for a 
control period, determined in accordance with subpart H of this part, or 
for any other allowance surrender obligation under this part.
    NOX allowances held or hold NOX allowances 
means the NOX allowances recorded by the Administrator, or 
submitted to the Administrator for recordation, in accordance with 
subparts F and G of this part, in a NOX Allowance Tracking 
System account.
    NOX Allowance Tracking System means the system by which 
the Administrator records allocations, deductions, and transfers of 
NOX allowances under the NOX Budget Trading 
Program.
    NOX Allowance Tracking System account means an account in 
the NOX Allowance Tracking System established by the 
Administrator for purposes of recording the allocation, holding, 
transferring, or deducting of NOX allowances.
    NOX allowance transfer deadline means midnight of 
November 30 or, if November 30 is not a business day, midnight of the 
first business day thereafter and is the deadline by which 
NOX allowances may be submitted for recordation in a 
NOX Budget unit's compliance account, or the overdraft 
account of the source where the unit is located, in

[[Page 580]]

order to meet the unit's NOX Budget emissions limitation for 
the control period immediately preceding such deadline.
    NOX authorized account representative means, for a 
NOX Budget source or NOX Budget unit at the 
source, the natural person who is authorized by the owners and operators 
of the source and all NOX Budget units at the source, in 
accordance with subpart B of this part, to represent and legally bind 
each owner and operator in matters pertaining to the NOX 
Budget Trading Program or, for a general account, the natural person who 
is authorized, in accordance with subpart F of this part, to transfer or 
otherwise dispose of NOX allowances held in the general 
account.
    NOX Budget emissions limitation means, for a 
NOX Budget unit, the tonnage equivalent of the NOX 
allowances available for compliance deduction for the unit and for a 
control period under Sec. 96.54(a) and (b), adjusted by any deductions 
of such NOX allowances to account for actual utilization 
under Sec. 96.42(e) for the control period or to account for excess 
emissions for a prior control period under Sec. 96.54(d) or to account 
for withdrawal from the NOX Budget Program, or for a change 
in regulatory status, for a NOX Budget opt-in source under 
Sec. 96.86 or Sec. 96.87.
    NOX Budget opt-in permit means a NOX Budget 
permit covering a NOX Budget opt-in source.
    NOX Budget opt-in source means a unit that has been 
elected to become a NOX Budget unit under the NOX 
Budget Trading Program and whose NOX Budget opt-in permit has 
been issued and is in effect under subpart I of this part.
    NOX Budget permit means the legally binding and federally 
enforceable written document, or portion of such document, issued by the 
permitting authority under this part, including any permit revisions, 
specifying the NOX Budget Trading Program requirements 
applicable to a NOX Budget source, to each NOX 
Budget unit at the NOX Budget source, and to the owners and 
operators and the NOX authorized account representative of 
the NOX Budget source and each NOX Budget unit.
    NOX Budget source means a source that includes one or 
more NOX Budget units.
    NOX Budget Trading Program means a multi-state nitrogen 
oxides air pollution control and emission reduction program established 
in accordance with this part and pursuant to Sec. 51.121 of this 
chapter, as a means of mitigating the interstate transport of ozone and 
nitrogen oxides, an ozone precursor.
    NOX Budget unit means a unit that is subject to the 
NOX Budget Trading Program emissions limitation under 
Sec. 96.4 or Sec. 96.80.
    Operating means, with regard to a unit under Secs. 96.22(d)(2) and 
96.80, having documented heat input for more than 876 hours in the 6 
months immediately preceding the submission of an application for an 
initial NOX Budget permit under Sec. 96.83(a).
    Operator means any person who operates, controls, or supervises a 
NOX Budget unit, a NOX Budget source, or unit for 
which an application for a NOX Budget opt-in permit under 
Sec. 96.83 is submitted and not denied or withdrawn and shall include, 
but not be limited to, any holding company, utility system, or plant 
manager of such a unit or source.
    Opt-in means to be elected to become a NOX Budget unit 
under the NOX Budget Trading Program through a final, 
effective NOX Budget opt-in permit under subpart I of this 
part.
    Overdraft account means the NOX Allowance Tracking System 
account, established by the Administrator under subpart F of this part, 
for each NOX Budget source where there are two or more 
NOX Budget units.
    Owner means any of the following persons:
    (1) Any holder of any portion of the legal or equitable title in a 
NOX Budget unit or in a unit for which an application for a 
NOX Budget opt-in permit under Sec. 96.83 is submitted and 
not denied or withdrawn; or
    (2) Any holder of a leasehold interest in a NOX Budget 
unit or in a unit for which an application for a NOX Budget 
opt-in permit under Sec. 96.83 is submitted and not denied or withdrawn; 
or
    (3) Any purchaser of power from a NOX Budget unit or from 
a unit for which an application for a NOX Budget opt-in 
permit under Sec. 96.83 is submitted and not denied or withdrawn under a

[[Page 581]]

life-of-the-unit, firm power contractual arrangement. However, unless 
expressly provided for in a leasehold agreement, owner shall not include 
a passive lessor, or a person who has an equitable interest through such 
lessor, whose rental payments are not based, either directly or 
indirectly, upon the revenues or income from the NOX Budget 
unit or the unit for which an application for a NOX Budget 
opt-in permit under Sec. 96.83 is submitted and not denied or withdrawn; 
or
    (4) With respect to any general account, any person who has an 
ownership interest with respect to the NOX allowances held in 
the general account and who is subject to the binding agreement for the 
NOX authorized account representative to represent that 
person's ownership interest with respect to NOX allowances.
    Permitting authority means the State air pollution control agency, 
local agency, other State agency, or other agency authorized by the 
Administrator to issue or revise permits to meet the requirements of the 
NOX Budget Trading Program in accordance with subpart C of 
this part.
    Receive or receipt of means, when referring to the permitting 
authority or the Administrator, to come into possession of a document, 
information, or correspondence (whether sent in writing or by authorized 
electronic transmission), as indicated in an official correspondence 
log, or by a notation made on the document, information, or 
correspondence, by the permitting authority or the Administrator in the 
regular course of business.
    Recordation, record, or recorded means, with regard to 
NOX allowances, the movement of NOX allowances by 
the Administrator from one NOX Allowance Tracking System 
account to another, for purposes of allocation, transfer, or deduction.
    Reference method means any direct test method of sampling and 
analyzing for an air pollutant as specified in appendix A of part 60 of 
this chapter.
    Serial number means, when referring to NOX allowances, 
the unique identification number assigned to each NOX 
allowance by the Administrator, under Sec. 96.53(c).
    Source means any governmental, institutional, commercial, or 
industrial structure, installation, plant, building, or facility that 
emits or has the potential to emit any regulated air pollutant under the 
CAA. For purposes of section 502(c) of the CAA, a ``source,'' including 
a ``source'' with multiple units, shall be considered a single 
``facility.''
    State means one of the 48 contiguous States and the District of 
Columbia specified in Sec. 51.121 of this chapter, or any non-federal 
authority in or including such States or the District of Columbia 
(including local agencies, and Statewide agencies) or any eligible 
Indian tribe in an area of such State or the District of Columbia, that 
adopts a NOX Budget Trading Program pursuant to Sec. 51.121 
of this chapter. To the extent a State incorporates by reference the 
provisions of this part, the term ``State'' shall mean the incorporating 
State. The term ``State'' shall have its conventional meaning where such 
meaning is clear from the context.
    State trading program budget means the total number of 
NOX tons apportioned to all NOX Budget units in a 
given State, in accordance with the NOX Budget Trading 
Program, for use in a given control period.
    Submit or serve means to send or transmit a document, information, 
or correspondence to the person specified in accordance with the 
applicable regulation:
    (1) In person;
    (2) By United States Postal Service; or
    (3) By other means of dispatch or transmission and delivery. 
Compliance with any ``submission,'' ``service,'' or ``mailing'' deadline 
shall be determined by the date of dispatch, transmission, or mailing 
and not the date of receipt.
    Title V operating permit means a permit issued under title V of the 
CAA and part 70 or part 71 of this chapter.
    Title V operating permit regulations means the regulations that the 
Administrator has approved or issued as meeting the requirements of 
title V of the CAA and part 70 or 71 of this chapter.
    Ton or tonnage means any ``short ton'' (i.e., 2,000 pounds). For the 
purpose of determining compliance with the NOX Budget 
emissions limitation,

[[Page 582]]

total tons for a control period shall be calculated as the sum of all 
recorded hourly emissions (or the tonnage equivalent of the recorded 
hourly emissions rates) in accordance with subpart H of this part, with 
any remaining fraction of a ton equal to or greater than 0.50 ton deemed 
to equal one ton and any fraction of a ton less than 0.50 ton deemed to 
equal zero tons.
    Unit means a fossil fuel-fired stationary boiler, combustion 
turbine, or combined cycle system.
    Unit load means the total (i.e., gross) output of a unit in any 
control period (or other specified time period) produced by combusting a 
given heat input of fuel, expressed in terms of:
    (1) The total electrical generation (MWe) produced by the unit, 
including generation for use within the plant; or
    (2) In the case of a unit that uses heat input for purposes other 
than electrical generation, the total steam pressure (psia) produced by 
the unit, including steam for use by the unit.
    Unit operating day means a calendar day in which a unit combusts any 
fuel.
    Unit operating hour or hour of unit operation means any hour (or 
fraction of an hour) during which a unit combusts any fuel.
    Utilization means the heat input (expressed in mmBtu/time) for a 
unit. The unit's total heat input for the control period in each year 
will be determined in accordance with part 75 of this chapter if the 
NOX Budget unit was otherwise subject to the requirements of 
part 75 of this chapter for the year, or will be based on the best 
available data reported to the Administrator for the unit if the unit 
was not otherwise subject to the requirements of part 75 of this chapter 
for the year.



Sec. 96.3  Measurements, abbreviations, and acronyms.

    Measurements, abbreviations, and acronyms used in this part are 
defined as follows:

Btu--British thermal unit.
hr--hour.
Kwh--kilowatt hour.
lb--pounds.
mmBtu--million Btu.
MWe--megawatt electrical.
ton--2000 pounds.
CO2--carbon dioxide.
NOX--nitrogen oxides.
O2--oxygen.



Sec. 96.4  Applicability.

    (a) The following units in a State shall be NOX Budget 
units, and any source that includes one or more such units shall be a 
NOX Budget source, subject to the requirements of this part:
    (1) Any unit that, any time on or after January 1, 1995, serves a 
generator with a nameplate capacity greater than 25 MWe and sells any 
amount of electricity; or
    (2) Any unit that is not a unit under paragraph (a) of this section 
and that has a maximum design heat input greater than 250 mmBtu/hr.
    (b) Notwithstanding paragraph (a) of this section, a unit under 
paragraph (a) of this section shall be subject only to the requirements 
of this paragraph (b) if the unit has a federally enforceable permit 
that meets the requirements of paragraph (b)(1) of this section and 
restricts the unit to burning only natural gas or fuel oil during a 
control period in 2003 or later and each control period thereafter and 
restricts the unit's operating hours during each such control period to 
the number of hours (determined in accordance with paragraph (b)(1)(ii) 
and (iii) of this section) that limits the unit's potential 
NOX mass emissions for the control period to 25 tons or less. 
Notwithstanding paragraph (a) of this section, starting with the 
effective date of such federally enforceable permit, the unit shall not 
be a NOX Budget unit.
    (1) For each control period under paragraph (b) of this section, the 
federally enforceable permit must:
    (i) Restrict the unit to burning only natural gas or fuel oil.
    (ii) Restrict the unit's operating hours to the number calculated by 
dividing 25 tons of potential NOX mass emissions by the 
unit's maximum potential hourly NOX mass emissions.
    (iii) Require that the unit's potential NOX mass 
emissions shall be calculated as follows:
    (A) Select the default NOX emission rate in Table 2 of 
Sec. 75.19 of this chapter that would otherwise be applicable assuming 
that the unit burns only the type of fuel (i.e., only natural gas or

[[Page 583]]

only fuel oil) that has the highest default NOX emission 
factor of any type of fuel that the unit is allowed to burn under the 
fuel use restriction in paragraph (b)(1)(i) of this section; and
    (B) Multiply the default NOX emission rate under 
paragraph (b)(1)(iii)(A) of this section by the unit's maximum rated 
hourly heat input. The owner or operator of the unit may petition the 
permitting authority to use a lower value for the unit's maximum rated 
hourly heat input than the value as defined under Sec. 96.2. The 
permitting authority may approve such lower value if the owner or 
operator demonstrates that the maximum hourly heat input specified by 
the manufacturer or the highest observed hourly heat input, or both, are 
not representative, and that such lower value is representative, of the 
unit's current capabilities because modifications have been made to the 
unit, limiting its capacity permanently.
    (iv) Require that the owner or operator of the unit shall retain at 
the source that includes the unit, for 5 years, records demonstrating 
that the operating hours restriction, the fuel use restriction, and the 
other requirements of the permit related to these restrictions were met.
    (v) Require that the owner or operator of the unit shall report the 
unit's hours of operation (treating any partial hour of operation as a 
whole hour of operation) during each control period to the permitting 
authority by November 1 of each year for which the unit is subject to 
the federally enforceable permit.
    (2) The permitting authority that issues the federally enforceable 
permit with the fuel use restriction under paragraph (b)(1)(i) and the 
operating hours restriction under paragraphs (b)(1)(ii) and (iii) of 
this section will notify the Administrator in writing of each unit under 
paragraph (a) of this section whose federally enforceable permit issued 
by the permitting authority includes such restrictions. The permitting 
authority will also notify the Administrator in writing of each unit 
under paragraph (a) of this section whose federally enforceable permit 
issued by the permitting authority is revised to remove any such 
restriction, whose federally enforceable permit issued by the permitting 
authority includes any such restriction that is no longer applicable, or 
which does not comply with any such restriction.
    (3) If, for any control period under paragraph (b) of this section, 
the fuel use restriction under paragraph (b)(1)(i) of this section or 
the operating hours restriction under paragraphs (b)(1)(ii) and (iii) of 
this section is removed from the unit's federally enforceable permit or 
otherwise becomes no longer applicable or if, for any such control 
period, the unit does not comply with the fuel use restriction under 
paragraph (b)(1)(i) of this section or the operating hours restriction 
under paragraphs (b)(1)(ii) and (iii) of this section, the unit shall be 
a NOX Budget unit, subject to the requirements of this part. 
Such unit shall be treated as commencing operation and, for a unit under 
paragraph (a)(1) of this section, commencing commercial operation on 
September 30 of the control period for which the fuel use restriction or 
the operating hours restriction is no longer applicable or during which 
the unit does not comply with the fuel use restriction or the operating 
hours restriction.



Sec. 96.5  Retired unit exemption.

    (a) This section applies to any NOX Budget unit, other 
than a NOX Budget opt-in source, that is permanently retired.
    (b)(1) Any NOX Budget unit, other than a NOX 
Budget opt-in source, that is permanently retired shall be exempt from 
the NOX Budget Trading Program, except for the provisions of 
this section, Secs. 96.2, 96.3, 96.4, 96.7 and subparts E, F, and G of 
this part.
    (2) The exemption under paragraph (b)(1) of this section shall 
become effective the day on which the unit is permanently retired. 
Within 30 days of permanent retirement, the NOX authorized 
account representative (authorized in accordance with subpart B of this 
part) shall submit a statement to the permitting authority otherwise 
responsible for administering any NOX Budget permit for the 
unit. A copy of the statement shall be submitted to the Administrator. 
The statement shall state (in a format prescribed by the permitting 
authority) that the unit is

[[Page 584]]

permanently retired and will comply with the requirements of paragraph 
(c) of this section.
    (3) After receipt of the notice under paragraph (b)(2) of this 
section, the permitting authority will amend any permit covering the 
source at which the unit is located to add the provisions and 
requirements of the exemption under paragraphs (b)(1) and (c) of this 
section.
    (c) Special provisions. (1) A unit exempt under this section shall 
not emit any nitrogen oxides, starting on the date that the exemption 
takes effect. The owners and operators of the unit will be allocated 
allowances in accordance with subpart E of this part.
    (2)(i) A unit exempt under this section and located at a source that 
is required, or but for this exemption would be required, to have a 
title V operating permit shall not resume operation unless the 
NOX authorized account representative of the source submits a 
complete NOX Budget permit application under Sec. 96.22 for 
the unit not less than 18 months (or such lesser time provided under the 
permitting authority's title V operating permits regulations for final 
action on a permit application) prior to the later of May 1, 2003 or the 
date on which the unit is to first resume operation.
    (ii) A unit exempt under this section and located at a source that 
is required, or but for this exemption would be required, to have a non-
title V permit shall not resume operation unless the NOX 
authorized account representative of the source submits a complete 
NOX Budget permit application under Sec. 96.22 for the unit 
not less than 18 months (or such lesser time provided under the 
permitting authority's non-title V permits regulations for final action 
on a permit application) prior to the later of May 1, 2003 or the date 
on which the unit is to first resume operation.
    (3) The owners and operators and, to the extent applicable, the 
NOX authorized account representative of a unit exempt under 
this section shall comply with the requirements of the NOX 
Budget Trading Program concerning all periods for which the exemption is 
not in effect, even if such requirements arise, or must be complied 
with, after the exemption takes effect.
    (4) A unit that is exempt under this section is not eligible to be a 
NOX Budget opt-in source under subpart I of this part.
    (5) For a period of 5 years from the date the records are created, 
the owners and operators of a unit exempt under this section shall 
retain at the source that includes the unit, records demonstrating that 
the unit is permanently retired. The 5-year period for keeping records 
may be extended for cause, at any time prior to the end of the period, 
in writing by the permitting authority or the Administrator. The owners 
and operators bear the burden of proof that the unit is permanently 
retired.
    (6) Loss of exemption. (i) On the earlier of the following dates, a 
unit exempt under paragraph (b) of this section shall lose its 
exemption:
    (A) The date on which the NOX authorized account 
representative submits a NOX Budget permit application under 
paragraph (c)(2) of this section; or
    (B) The date on which the NOX authorized account 
representative is required under paragraph (c)(2) of this section to 
submit a NOX Budget permit application.
    (ii) For the purpose of applying monitoring requirements under 
subpart H of this part, a unit that loses its exemption under this 
section shall be treated as a unit that commences operation or 
commercial operation on the first date on which the unit resumes 
operation.



Sec. 96.6  Standard requirements.

    (a) Permit Requirements. (1) The NOX authorized account 
representative of each NOX Budget source required to have a 
federally enforceable permit and each NOX Budget unit 
required to have a federally enforceable permit at the source shall:
    (i) Submit to the permitting authority a complete NOX 
Budget permit application under Sec. 96.22 in accordance with the 
deadlines specified in Sec. 96.21(b) and (c);
    (ii) Submit in a timely manner any supplemental information that the 
permitting authority determines is necessary in order to review a 
NOX Budget

[[Page 585]]

permit application and issue or deny a NOX Budget permit.
    (2) The owners and operators of each NOX Budget source 
required to have a federally enforceable permit and each NOX 
Budget unit required to have a federally enforceable permit at the 
source shall have a NOX Budget permit issued by the 
permitting authority and operate the unit in compliance with such 
NOX Budget permit.
    (3) The owners and operators of a NOX Budget source that 
is not otherwise required to have a federally enforceable permit are not 
required to submit a NOX Budget permit application, and to 
have a NOX Budget permit, under subpart C of this part for 
such NOX Budget source.
    (b) Monitoring requirements. (1) The owners and operators and, to 
the extent applicable, the NOX authorized account 
representative of each NOX Budget source and each 
NOX Budget unit at the source shall comply with the 
monitoring requirements of subpart H of this part.
    (2) The emissions measurements recorded and reported in accordance 
with subpart H of this part shall be used to determine compliance by the 
unit with the NOX Budget emissions limitation under paragraph 
(c) of this section.
    (c) Nitrogen oxides requirements. (1) The owners and operators of 
each NOX Budget source and each NOX Budget unit at 
the source shall hold NOX allowances available for compliance 
deductions under Sec. 96.54, as of the NOX allowance transfer 
deadline, in the unit's compliance account and the source's overdraft 
account in an amount not less than the total NOX emissions 
for the control period from the unit, as determined in accordance with 
subpart H of this part, plus any amount necessary to account for actual 
utilization under Sec. 96.42(e) for the control period.
    (2) Each ton of nitrogen oxides emitted in excess of the 
NOX Budget emissions limitation shall constitute a separate 
violation of this part, the CAA, and applicable State law.
    (3) A NOX Budget unit shall be subject to the 
requirements under paragraph (c)(1) of this section starting on the 
later of May 1, 2003 or the date on which the unit commences operation.
    (4) NOX allowances shall be held in, deducted from, or 
transferred among NOX Allowance Tracking System accounts in 
accordance with subparts E, F, G, and I of this part.
    (5) A NOX allowance shall not be deducted, in order to 
comply with the requirements under paragraph (c)(1) of this section, for 
a control period in a year prior to the year for which the 
NOX allowance was allocated.
    (6) A NOX allowance allocated by the permitting authority 
or the Administrator under the NOX Budget Trading Program is 
a limited authorization to emit one ton of nitrogen oxides in accordance 
with the NOX Budget Trading Program. No provision of the 
NOX Budget Trading Program, the NOX Budget permit 
application, the NOX Budget permit, or an exemption under 
Sec. 96.5 and no provision of law shall be construed to limit the 
authority of the United States or the State to terminate or limit such 
authorization.
    (7) A NOX allowance allocated by the permitting authority 
or the Administrator under the NOX Budget Trading Program 
does not constitute a property right.
    (8) Upon recordation by the Administrator under subpart F, G, or I 
of this part, every allocation, transfer, or deduction of a 
NOX allowance to or from a NOX Budget unit's 
compliance account or the overdraft account of the source where the unit 
is located is deemed to amend automatically, and become a part of, any 
NOX Budget permit of the NOX Budget unit by 
operation of law without any further review.
    (d) Excess emissions requirements. (1) The owners and operators of a 
NOX Budget unit that has excess emissions in any control 
period shall:
    (i) Surrender the NOX allowances required for deduction 
under Sec. 96.54(d)(1); and
    (ii) Pay any fine, penalty, or assessment or comply with any other 
remedy imposed under Sec. 96.54(d)(3).
    (e) Recordkeeping and Reporting requirements. (1) Unless otherwise 
provided, the owners and operators of the NOX Budget source 
and each NOX Budget unit at the source shall keep on site at 
the source each of the following documents for a period of 5 years from 
the

[[Page 586]]

date the document is created. This period may be extended for cause, at 
any time prior to the end of 5 years, in writing by the permitting 
authority or the Administrator.
    (i) The account certificate of representation for the NOX 
authorized account representative for the source and each NOX 
Budget unit at the source and all documents that demonstrate the truth 
of the statements in the account certificate of representation, in 
accordance with Sec. 96.13; provided that the certificate and documents 
shall be retained on site at the source beyond such 5-year period until 
such documents are superseded because of the submission of a new account 
certificate of representation changing the NOX authorized 
account representative.
    (ii) All emissions monitoring information, in accordance with 
subpart H of this part; provided that to the extent that subpart H of 
this part provides for a 3-year period for recordkeeping, the 3-year 
period shall apply.
    (iii) Copies of all reports, compliance certifications, and other 
submissions and all records made or required under the NOX 
Budget Trading Program.
    (iv) Copies of all documents used to complete a NOX 
Budget permit application and any other submission under the 
NOX Budget Trading Program or to demonstrate compliance with 
the requirements of the NOX Budget Trading Program.
    (2) The NOX authorized account representative of a 
NOX Budget source and each NOX Budget unit at the 
source shall submit the reports and compliance certifications required 
under the NOX Budget Trading Program, including those under 
subparts D, H, or I of this part.
    (f) Liability. (1) Any person who knowingly violates any requirement 
or prohibition of the NOX Budget Trading Program, a 
NOX Budget permit, or an exemption under Sec. 96.5 shall be 
subject to enforcement pursuant to applicable State or Federal law.
    (2) Any person who knowingly makes a false material statement in any 
record, submission, or report under the NOX Budget Trading 
Program shall be subject to criminal enforcement pursuant to the 
applicable State or Federal law.
    (3) No permit revision shall excuse any violation of the 
requirements of the NOX Budget Trading Program that occurs 
prior to the date that the revision takes effect.
    (4) Each NOX Budget source and each NOX Budget 
unit shall meet the requirements of the NOX Budget Trading 
Program.
    (5) Any provision of the NOX Budget Trading Program that 
applies to a NOX Budget source (including a provision 
applicable to the NOX authorized account representative of a 
NOX Budget source) shall also apply to the owners and 
operators of such source and of the NOX Budget units at the 
source.
    (6) Any provision of the NOX Budget Trading Program that 
applies to a NOX Budget unit (including a provision 
applicable to the NOX authorized account representative of a 
NOX budget unit) shall also apply to the owners and operators 
of such unit. Except with regard to the requirements applicable to units 
with a common stack under subpart H of this part, the owners and 
operators and the NOX authorized account representative of 
one NOX Budget unit shall not be liable for any violation by 
any other NOX Budget unit of which they are not owners or 
operators or the NOX authorized account representative and 
that is located at a source of which they are not owners or operators or 
the NOX authorized account representative.
    (g) Effect on other authorities. No provision of the NOX 
Budget Trading Program, a NOX Budget permit application, a 
NOX Budget permit, or an exemption under Sec. 96.5 shall be 
construed as exempting or excluding the owners and operators and, to the 
extent applicable, the NOX authorized account representative 
of a NOX Budget source or NOX Budget unit from 
compliance with any other provision of the applicable, approved State 
implementation plan, a federally enforceable permit, or the CAA.



Sec. 96.7  Computation of time.

    (a) Unless otherwise stated, any time period scheduled, under the 
NOX Budget Trading Program, to begin on the occurrence of an 
act or event shall begin on the day the act or event occurs.

[[Page 587]]

    (b) Unless otherwise stated, any time period scheduled, under the 
NOX Budget Trading Program, to begin before the occurrence of 
an act or event shall be computed so that the period ends the day before 
the act or event occurs.
    (c) Unless otherwise stated, if the final day of any time period, 
under the NOX Budget Trading Program, falls on a weekend or a 
State or Federal holiday, the time period shall be extended to the next 
business day.



    Subpart B--NOX Authorized Account Representative for 
                      NOX Budget Sources



Sec. 96.10  Authorization and responsibilities of the NOX authorized account representative.

    (a) Except as provided under Sec. 96.11, each NOX Budget 
source, including all NOX Budget units at the source, shall 
have one and only one NOX authorized account representative, 
with regard to all matters under the NOX Budget Trading 
Program concerning the source or any NOX Budget unit at the 
source.
    (b) The NOX authorized account representative of the 
NOX Budget source shall be selected by an agreement binding 
on the owners and operators of the source and all NOX Budget 
units at the source.
    (c) Upon receipt by the Administrator of a complete account 
certificate of representation under Sec. 96.13, the NOX 
authorized account representative of the source shall represent and, by 
his or her representations, actions, inactions, or submissions, legally 
bind each owner and operator of the NOX Budget source 
represented and each NOX Budget unit at the source in all 
matters pertaining to the NOX Budget Trading Program, not 
withstanding any agreement between the NOX authorized account 
representative and such owners and operators. The owners and operators 
shall be bound by any decision or order issued to the NOX 
authorized account representative by the permitting authority, the 
Administrator, or a court regarding the source or unit.
    (d) No NOX Budget permit shall be issued, and no 
NOX Allowance Tracking System account shall be established 
for a NOX Budget unit at a source, until the Administrator 
has received a complete account certificate of representation under 
Sec. 96.13 for a NOX authorized account representative of the 
source and the NOX Budget units at the source.
    (e)(1) Each submission under the NOX Budget Trading 
Program shall be submitted, signed, and certified by the NOX 
authorized account representative for each NOX Budget source 
on behalf of which the submission is made. Each such submission shall 
include the following certification statement by the NOX 
authorized account representative: ``I am authorized to make this 
submission on behalf of the owners and operators of the NOX 
Budget sources or NOX Budget units for which the submission 
is made. I certify under penalty of law that I have personally examined, 
and am familiar with, the statements and information submitted in this 
document and all its attachments. Based on my inquiry of those 
individuals with primary responsibility for obtaining the information, I 
certify that the statements and information are to the best of my 
knowledge and belief true, accurate, and complete. I am aware that there 
are significant penalties for submitting false statements and 
information or omitting required statements and information, including 
the possibility of fine or imprisonment.''
    (2) The permitting authority and the Administrator will accept or 
act on a submission made on behalf of owner or operators of a 
NOX Budget source or a NOX Budget unit only if the 
submission has been made, signed, and certified in accordance with 
paragraph (e)(1) of this section.



Sec. 96.11  Alternate NOX authorized account representative.

    (a) An account certificate of representation may designate one and 
only one alternate NOX authorized account representative who 
may act on behalf of the NOX authorized account 
representative. The agreement by which the alternate NOX 
authorized account representative is selected shall include a procedure 
for authorizing the alternate NOX authorized account 
representative to act in lieu of the NOX authorized account 
representative.

[[Page 588]]

    (b) Upon receipt by the Administrator of a complete account 
certificate of representation under Sec. 96.13, any representation, 
action, inaction, or submission by the alternate NOX 
authorized account representative shall be deemed to be a 
representation, action, inaction, or submission by the NOX 
authorized account representative.
    (c) Except in this section and Secs. 96.10(a), 96.12, 96.13, and 
96.51, whenever the term ``NOX authorized account 
representative'' is used in this part, the term shall be construed to 
include the alternate NOX authorized account representative.



Sec. 96.12  Changing the NOX authorized account representative and the alternate NOX authorized account representative; changes in the 
          owners and operators.

    (a) Changing the NOX authorized account representative. 
The NOX authorized account representative may be changed at 
any time upon receipt by the Administrator of a superseding complete 
account certificate of representation under Sec. 96.13. Notwithstanding 
any such change, all representations, actions, inactions, and 
submissions by the previous NOX authorized account 
representative prior to the time and date when the Administrator 
receives the superseding account certificate of representation shall be 
binding on the new NOX authorized account representative and 
the owners and operators of the NOX Budget source and the 
NOX Budget units at the source.
    (b) Changing the alternate NOX authorized account 
representative. The alternate NOX authorized account 
representative may be changed at any time upon receipt by the 
Administrator of a superseding complete account certificate of 
representation under Sec. 96.13. Notwithstanding any such change, all 
representations, actions, inactions, and submissions by the previous 
alternate NOX authorized account representative prior to the 
time and date when the Administrator receives the superseding account 
certificate of representation shall be binding on the new alternate 
NOX authorized account representative and the owners and 
operators of the NOX Budget source and the NOX 
Budget units at the source.
    (c) Changes in the owners and operators. (1) In the event a new 
owner or operator of a NOX Budget source or a NOX 
Budget unit is not included in the list of owners and operators 
submitted in the account certificate of representation, such new owner 
or operator shall be deemed to be subject to and bound by the account 
certificate of representation, the representations, actions, inactions, 
and submissions of the NOX authorized account representative 
and any alternate NOX authorized account representative of 
the source or unit, and the decisions, orders, actions, and inactions of 
the permitting authority or the Administrator, as if the new owner or 
operator were included in such list.
    (2) Within 30 days following any change in the owners and operators 
of a NOX Budget source or a NOX Budget unit, 
including the addition of a new owner or operator, the NOX 
authorized account representative or alternate NOX authorized 
account representative shall submit a revision to the account 
certificate of representation amending the list of owners and operators 
to include the change.



Sec. 96.13  Account certificate of representation.

    (a) A complete account certificate of representation for a 
NOX authorized account representative or an alternate 
NOX authorized account representative shall include the 
following elements in a format prescribed by the Administrator:
    (1) Identification of the NOX Budget source and each 
NOX Budget unit at the source for which the account 
certificate of representation is submitted.
    (2) The name, address, e-mail address (if any), telephone number, 
and facsimile transmission number (if any) of the NOX 
authorized account representative and any alternate NOX 
authorized account representative.
    (3) A list of the owners and operators of the NOX Budget 
source and of each NOX Budget unit at the source.
    (4) The following certification statement by the NOX 
authorized account representative and any alternate NOX 
authorized account representative: ``I certify that I was selected as 
the NOX authorized account representative or

[[Page 589]]

alternate NOX authorized account representative, as 
applicable, by an agreement binding on the owners and operators of the 
NOX Budget source and each NOX Budget unit at the 
source. I certify that I have all the necessary authority to carry out 
my duties and responsibilities under the NOX Budget Trading 
Program on behalf of the owners and operators of the NOX 
Budget source and of each NOX Budget unit at the source and 
that each such owner and operator shall be fully bound by my 
representations, actions, inactions, or submissions and by any decision 
or order issued to me by the permitting authority, the Administrator, or 
a court regarding the source or unit.''
    (5) The signature of the NOX authorized account 
representative and any alternate NOX authorized account 
representative and the dates signed.
    (b) Unless otherwise required by the permitting authority or the 
Administrator, documents of agreement referred to in the account 
certificate of representation shall not be submitted to the permitting 
authority or the Administrator. Neither the permitting authority nor the 
Administrator shall be under any obligation to review or evaluate the 
sufficiency of such documents, if submitted.



Sec. 96.14  Objections concerning the NOX authorized account representative.

    (a) Once a complete account certificate of representation under 
Sec. 96.13 has been submitted and received, the permitting authority and 
the Administrator will rely on the account certificate of representation 
unless and until a superseding complete account certificate of 
representation under Sec. 96.13 is received by the Administrator.
    (b) Except as provided in Sec. 96.12(a) or (b), no objection or 
other communication submitted to the permitting authority or the 
Administrator concerning the authorization, or any representation, 
action, inaction, or submission of the NOX authorized account 
representative shall affect any representation, action, inaction, or 
submission of the NOX authorized account representative or 
the finality of any decision or order by the permitting authority or the 
Administrator under the NOX Budget Trading Program.
    (c) Neither the permitting authority nor the Administrator will 
adjudicate any private legal dispute concerning the authorization or any 
representation, action, inaction, or submission of any NOX 
authorized account representative, including private legal disputes 
concerning the proceeds of NOX allowance transfers.



                           Subpart C--Permits



Sec. 96.20  General NOX Budget trading program permit requirements.

    (a) For each NOX Budget source required to have a 
federally enforceable permit, such permit shall include a NOX 
Budget permit administered by the permitting authority.
    (1) For NOX Budget sources required to have a title V 
operating permit, the NOX Budget portion of the title V 
permit shall be administered in accordance with the permitting 
authority's title V operating permits regulations promulgated under part 
70 or 71 of this chapter, except as provided otherwise by this subpart 
or subpart I of this part. The applicable provisions of such title V 
operating permits regulations shall include, but are not limited to, 
those provisions addressing operating permit applications, operating 
permit application shield, operating permit duration, operating permit 
shield, operating permit issuance, operating permit revision and 
reopening, public participation, State review, and review by the 
Administrator.
    (2) For NOX Budget sources required to have a non-title V 
permit, the NOX Budget portion of the non-title V permit 
shall be administered in accordance with the permitting authority's 
regulations promulgated to administer non-title V permits, except as 
provided otherwise by this subpart or subpart I of this part. The 
applicable provisions of such non-title V permits regulations may 
include, but are not limited to, provisions addressing permit 
applications, permit application shield, permit duration, permit shield, 
permit issuance, permit revision and reopening, public participation, 
State review, and review by the Administrator.

[[Page 590]]

    (b) Each NOX Budget permit (including a draft or proposed 
NOX Budget permit, if applicable) shall contain all 
applicable NOX Budget Trading Program requirements and shall 
be a complete and segregable portion of the permit under paragraph (a) 
of this section.



Sec. 96.21  Submission of NOX Budget permit applications.

    (a) Duty to apply. The NOX authorized account 
representative of any NOX Budget source required to have a 
federally enforceable permit shall submit to the permitting authority a 
complete NOX Budget permit application under Sec. 96.22 by 
the applicable deadline in paragraph (b) of this section.
    (b)(1) For NOX Budget sources required to have a title V 
operating permit:
    (i) For any source, with one or more NOX Budget units 
under Sec. 96.4 that commence operation before January 1, 2000, the 
NOX authorized account representative shall submit a complete 
NOX Budget permit application under Sec. 96.22 covering such 
NOX Budget units to the permitting authority at least 18 
months (or such lesser time provided under the permitting authority's 
title V operating permits regulations for final action on a permit 
application) before May 1, 2003.
    (ii) For any source, with any NOX Budget unit under 
Sec. 96.4 that commences operation on or after January 1, 2000, the 
NOX authorized account representative shall submit a complete 
NOX Budget permit application under Sec. 96.22 covering such 
NOX Budget unit to the permitting authority at least 18 
months (or such lesser time provided under the permitting authority's 
title V operating permits regulations for final action on a permit 
application) before the later of May 1, 2003 or the date on which the 
NOX Budget unit commences operation.
    (2) For NOX Budget sources required to have a non-title V 
permit:
    (i) For any source, with one or more NOX Budget units 
under Sec. 96.4 that commence operation before January 1, 2000, the 
NOX authorized account representative shall submit a complete 
NOX Budget permit application under Sec. 96.22 covering such 
NOX Budget units to the permitting authority at least 18 
months (or such lesser time provided under the permitting authority's 
non-title V permits regulations for final action on a permit 
application) before May 1, 2003.
    (ii) For any source, with any NOX Budget unit under 
Sec. 96.4 that commences operation on or after January 1, 2000, the 
NOX authorized account representative shall submit a complete 
NOX Budget permit application under Sec. 96.22 covering such 
NOX Budget unit to the permitting authority at least 18 
months (or such lesser time provided under the permitting authority's 
non-title V permits regulations for final action on a permit 
application) before the later of May 1, 2003 or the date on which the 
NOX Budget unit commences operation.
    (c) Duty to reapply. (1) For a NOX Budget source required 
to have a title V operating permit, the NOX authorized 
account representative shall submit a complete NOX Budget 
permit application under Sec. 96.22 for the NOX Budget source 
covering the NOX Budget units at the source in accordance 
with the permitting authority's title V operating permits regulations 
addressing operating permit renewal.
    (2) For a NOX Budget source required to have a non-title 
V permit, the NOX authorized account representative shall 
submit a complete NOX Budget permit application under 
Sec. 96.22 for the NOX Budget source covering the 
NOX Budget units at the source in accordance with the 
permitting authority's non-title V permits regulations addressing permit 
renewal.



Sec. 96.22  Information requirements for NOX Budget permit applications.

    A complete NOX Budget permit application shall include 
the following elements concerning the NOX Budget source for 
which the application is submitted, in a format prescribed by the 
permitting authority:
    (a) Identification of the NOX Budget source, including 
plant name and the ORIS (Office of Regulatory Information Systems) or 
facility code assigned to the source by the Energy Information 
Administration, if applicable;
    (b) Identification of each NOX Budget unit at the 
NOX Budget source and

[[Page 591]]

whether it is a NOX Budget unit under Sec. 96.4 or under 
subpart I of this part;
    (c) The standard requirements under Sec. 96.6; and
    (d) For each NOX Budget opt-in unit at the NOX 
Budget source, the following certification statements by the 
NOX authorized account representative:
    (1) ``I certify that each unit for which this permit application is 
submitted under subpart I of this part is not a NOX Budget 
unit under 40 CFR 96.4 and is not covered by a retired unit exemption 
under 40 CFR 96.5 that is in effect.''
    (2) If the application is for an initial NOX Budget opt-
in permit, ``I certify that each unit for which this permit application 
is submitted under subpart I is currently operating, as that term is 
defined under 40 CFR 96.2.''



Sec. 96.23  NOX Budget permit contents.

    (a) Each NOX Budget permit (including any draft or 
proposed NOX Budget permit, if applicable) will contain, in a 
format prescribed by the permitting authority, all elements required for 
a complete NOX Budget permit application under Sec. 96.22 as 
approved or adjusted by the permitting authority.
    (b) Each NOX Budget permit is deemed to incorporate 
automatically the definitions of terms under Sec. 96.2 and, upon 
recordation by the Administrator under subparts F, G, or I of this part, 
every allocation, transfer, or deduction of a NOX allowance 
to or from the compliance accounts of the NOX Budget units 
covered by the permit or the overdraft account of the NOX 
Budget source covered by the permit.



Sec. 96.24  Effective date of initial NOX Budget permit.

    The initial NOX Budget permit covering a NOX 
Budget unit for which a complete NOX Budget permit 
application is timely submitted under Sec. 96.21(b) shall become 
effective by the later of:
    (a) May 1, 2003;
    (b) May 1 of the year in which the NOX Budget unit 
commences operation, if the unit commences operation on or before May 1 
of that year;
    (c) The date on which the NOX Budget unit commences 
operation, if the unit commences operation during a control period; or
    (d) May 1 of the year following the year in which the NOX 
Budget unit commences operation, if the unit commences operation on or 
after October 1 of the year.



Sec. 96.25  NOX Budget permit revisions.

    (a) For a NOX Budget source with a title V operating 
permit, except as provided in Sec. 96.23(b), the permitting authority 
will revise the NOX Budget permit, as necessary, in 
accordance with the permitting authority's title V operating permits 
regulations addressing permit revisions.
    (b) For a NOX Budget source with a non-title V permit, 
except as provided in Sec. 96.23(b), the permitting authority will 
revise the NOX Budget permit, as necessary, in accordance 
with the permitting authority's non-title V permits regulations 
addressing permit revisions.



                   Subpart D--Compliance Certification



Sec. 96.30  Compliance certification report.

    (a) Applicability and deadline. For each control period in which one 
or more NOX Budget units at a source are subject to the 
NOX Budget emissions limitation, the NOX 
authorized account representative of the source shall submit to the 
permitting authority and the Administrator by November 30 of that year, 
a compliance certification report for each source covering all such 
units.
    (b) Contents of report. The NOX authorized account 
representative shall include in the compliance certification report 
under paragraph (a) of this section the following elements, in a format 
prescribed by the Administrator, concerning each unit at the source and 
subject to the NOX Budget emissions limitation for the 
control period covered by the report:
    (1) Identification of each NOX Budget unit;
    (2) At the NOX authorized account representative's 
option, the serial numbers of the NOX allowances that are to 
be deducted from each unit's compliance account under Sec. 96.54 for the 
control period;

[[Page 592]]

    (3) At the NOX authorized account representative's 
option, for units sharing a common stack and having NOX 
emissions that are not monitored separately or apportioned in accordance 
with subpart H of this part, the percentage of allowances that is to be 
deducted from each unit's compliance account under Sec. 96.54(e); and
    (4) The compliance certification under paragraph (c) of this 
section.
    (c) Compliance certification. In the compliance certification report 
under paragraph (a) of this section, the NOX authorized 
account representative shall certify, based on reasonable inquiry of 
those persons with primary responsibility for operating the source and 
the NOX Budget units at the source in compliance with the 
NOX Budget Trading Program, whether each NOX 
Budget unit for which the compliance certification is submitted was 
operated during the calendar year covered by the report in compliance 
with the requirements of the NOX Budget Trading Program 
applicable to the unit, including:
    (1) Whether the unit was operated in compliance with the 
NOX Budget emissions limitation;
    (2) Whether the monitoring plan that governs the unit has been 
maintained to reflect the actual operation and monitoring of the unit, 
and contains all information necessary to attribute NOX 
emissions to the unit, in accordance with subpart H of this part;
    (3) Whether all the NOX emissions from the unit, or a 
group of units (including the unit) using a common stack, were monitored 
or accounted for through the missing data procedures and reported in the 
quarterly monitoring reports, including whether conditional data were 
reported in the quarterly reports in accordance with subpart H of this 
part. If conditional data were reported, the owner or operator shall 
indicate whether the status of all conditional data has been resolved 
and all necessary quarterly report resubmissions has been made;
    (4) Whether the facts that form the basis for certification under 
subpart H of this part of each monitor at the unit or a group of units 
(including the unit) using a common stack, or for using an excepted 
monitoring method or alternative monitoring method approved under 
subpart H of this part, if any, has changed; and
    (5) If a change is required to be reported under paragraph (c)(4) of 
this section, specify the nature of the change, the reason for the 
change, when the change occurred, and how the unit's compliance status 
was determined subsequent to the change, including what method was used 
to determine emissions when a change mandated the need for monitor 
recertification.



Sec. 96.31  Permitting authority's and Administrator's action on compliance certifications.

    (a) The permitting authority or the Administrator may review and 
conduct independent audits concerning any compliance certification or 
any other submission under the NOX Budget Trading Program and 
make appropriate adjustments of the information in the compliance 
certifications or other submissions.
    (b) The Administrator may deduct NOX allowances from or 
transfer NOX allowances to a unit's compliance account or a 
source's overdraft account based on the information in the compliance 
certifications or other submissions, as adjusted under paragraph (a) of 
this section.



             Subpart E--NOX Allowance Allocations



Sec. 96.40  State trading program budget.

    The State trading program budget allocated by the permitting 
authority under Sec. 96.42 for a control period will equal the total 
number of tons of NOX emissions apportioned to the 
NOX Budget units under Sec. 96.4 in the State for the control 
period, as determined by the applicable, approved State implementation 
plan.



Sec. 96.41  Timing requirements for NOX allowance allocations.

    (a) By September 30, 1999, the permitting authority will submit to 
the Administrator the NOX allowance allocations, in 
accordance with Sec. 96.42, for the control periods in 2003, 2004, and 
2005.

[[Page 593]]

    (b) By April 1, 2003 and April 1 of each year thereafter, the 
permitting authority will submit to the Administrator the NOX 
allowance allocations, in accordance with Sec. 96.42, for the control 
period in the year that is three years after the year of the applicable 
deadline for submission under this paragraph (b). If the permitting 
authority fails to submit to the Administrator the NOX 
allowance allocations in accordance with this paragraph (b), the 
Administrator will allocate, for the applicable control period, the same 
number of NOX allowances as were allocated for the preceding 
control period.
    (c) By April 1, 2004 and April 1 of each year thereafter, the 
permitting authority will submit to the Administrator the NOX 
allowance allocations, in accordance with Sec. 96.42, for any 
NOX allowances remaining in the allocation set-aside for the 
prior control period.



Sec. 96.42  NOX allowance allocations.

    (a)(1) The heat input (in mmBtu) used for calculating NOX 
allowance allocations for each NOX Budget unit under 
Sec. 96.4 will be:
    (i) For a NOX allowance allocation under Sec. 96.41(a), 
the average of the two highest amounts of the unit's heat input for the 
control periods in 1995, 1996, and 1997 if the unit is under 
Sec. 96.4(a)(1) or the control period in 1995 if the unit is under 
Sec. 96.4(a)(2); and
    (ii) For a NOX allowance allocation under Sec. 96.41(b), 
the unit's heat input for the control period in the year that is four 
years before the year for which the NOX allocation is being 
calculated.
    (2) The unit's total heat input for the control period in each year 
specified under paragraph (a)(1) of this section will be determined in 
accordance with part 75 of this chapter if the NOX Budget 
unit was otherwise subject to the requirements of part 75 of this 
chapter for the year, or will be based on the best available data 
reported to the permitting authority for the unit if the unit was not 
otherwise subject to the requirements of part 75 of this chapter for the 
year.
    (b) For each control period under Sec. 96.41, the permitting 
authority will allocate to all NOX Budget units under 
Sec. 96.4(a)(1) in the State that commenced operation before May 1 of 
the period used to calculate heat input under paragraph (a)(1) of this 
section, a total number of NOX allowances equal to 95 percent 
in 2003, 2004, and 2005, or 98 percent thereafter, of the tons of 
NOX emissions in the State trading program budget apportioned 
to electric generating units under Sec. 96.40 in accordance with the 
following procedures:
    (1) The permitting authority will allocate NOX allowances 
to each NOX Budget unit under Sec. 96.4(a)(1) in an amount 
equaling 0.15 lb/mmBtu multiplied by the heat input determined under 
paragraph (a) of this section, rounded to the nearest whole 
NOX allowance as appropriate.
    (2) If the initial total number of NOX allowances 
allocated to all NOX Budget units under Sec. 96.4(a)(1) in 
the State for a control period under paragraph (b)(1) of this section 
does not equal 95 percent in 2003, 2004, and 2005, or 98 percent 
thereafter, of the number of tons of NOX emissions in the 
State trading program budget apportioned to electric generating units, 
the permitting authority will adjust the total number of NOX 
allowances allocated to all such NOX Budget units for the 
control period under paragraph (b)(1) of this section so that the total 
number of NOX allowances allocated equals 95 percent in 2003, 
2004, and 2005, or 98 percent thereafter, of the number of tons of 
NOX emissions in the State trading program budget apportioned 
to electric generating units. This adjustment will be made by: 
multiplying each unit's allocation by 95 percent in 2003, 2004, and 
2005, or 98 percent thereafter, of the number of tons of NOX 
emissions in the State trading program budget apportioned to electric 
generating units divided by the total number of NOX 
allowances allocated under paragraph (b)(1) of this section, and 
rounding to the nearest whole NOX allowance as appropriate.
    (c) For each control period under Sec. 96.41, the permitting 
authority will allocate to all NOX Budget units under 
Sec. 96.4(a)(2) in the State that commenced operation before May 1 of 
the period used to calculate heat input under paragraph (a)(1) of this 
section, a total number of NOX allowances equal to 95 percent 
in 2003, 2004, and 2005, or 98 percent thereafter, of the tons of 
NOX

[[Page 594]]

emissions in the State trading program budget apportioned to non-
electric generating units under Sec. 96.40 in accordance with the 
following procedures:
    (1) The permitting authority will allocate NOX allowances 
to each NOX Budget unit under Sec. 96.4(a)(2) in an amount 
equaling 0.17 lb/mmBtu multiplied by the heat input determined under 
paragraph (a) of this section, rounded to the nearest whole 
NOX allowance as appropriate.
    (2) If the initial total number of NOX allowances 
allocated to all NOX Budget units under Sec. 96.4(a)(2) in 
the State for a control period under paragraph (c)(1) of this section 
does not equal 95 percent in 2003, 2004, and 2005, or 98 percent 
thereafter, of the number of tons of NOX emissions in the 
State trading program budget apportioned to non-electric generating 
units, the permitting authority will adjust the total number of 
NOX allowances allocated to all such NOX Budget 
units for the control period under paragraph (c)(1) of this section so 
that the total number of NOX allowances allocated equals 95 
percent in 2003, 2004, and 2005, or 98 percent thereafter, of the number 
of tons of NOX emissions in the State trading program budget 
apportioned to non-electric generating units. This adjustment will be 
made by: multiplying each unit's allocation by 95 percent in 2003, 2004, 
and 2005, or 98 percent thereafter, of the number of tons of 
NOX emissions in the State trading program budget apportioned 
to non-electric generating units divided by the total number of 
NOX allowances allocated under paragraph (c)(1) of this 
section, and rounding to the nearest whole NOX allowance as 
appropriate.
    (d) For each control period under Sec. 96.41, the permitting 
authority will allocate NOX allowances to NOX 
Budget units under Sec. 96.4 in the State that commenced operation, or 
is projected to commence operation, on or after May 1 of the period used 
to calculate heat input under paragraph (a)(1) of this section, in 
accordance with the following procedures:
    (1) The permitting authority will establish one allocation set-aside 
for each control period. Each allocation set-aside will be allocated 
NOX allowances equal to 5 percent in 2003, 2004, and 2005, or 
2 percent thereafter, of the tons of NOX emissions in the 
State trading program budget under Sec. 96.40, rounded to the nearest 
whole NOX allowance as appropriate.
    (2) The NOX authorized account representative of a 
NOX Budget unit under paragraph (d) of this section may 
submit to the permitting authority a request, in writing or in a format 
specified by the permitting authority, to be allocated NOX 
allowances for no more than five consecutive control periods under 
Sec. 96.41, starting with the control period during which the 
NOX Budget unit commenced, or is projected to commence, 
operation and ending with the control period preceding the control 
period for which it will receive an allocation under paragraph (b) or 
(c) of this section. The NOX allowance allocation request 
must be submitted prior to May 1 of the first control period for which 
the NOX allowance allocation is requested and after the date 
on which the permitting authority issues a permit to construct the 
NOX Budget unit.
    (3) In a NOX allowance allocation request under paragraph 
(d)(2) of this section, the NOX authorized account 
representative for units under Sec. 96.4(a)(1) may request for a control 
period NOX allowances in an amount that does not exceed 0.15 
lb/mmBtu multiplied by the NOX Budget unit's maximum design 
heat input (in mmBtu/hr) multiplied by the number of hours remaining in 
the control period starting with the first day in the control period on 
which the unit operated or is projected to operate.
    (4) In a NOX allowance allocation request under paragraph 
(d)(2) of this section, the NOX authorized account 
representative for units under Sec. 96.4(a)(2) may request for a control 
period NOX allowances in an amount that does not exceed 0.17 
lb/mmBtu multiplied by the NOX Budget unit's maximum design 
heat input (in mmBtu/hr) multiplied by the number of hours remaining in 
the control period starting with the first day in the control period on 
which the unit operated or is projected to operate.
    (5) The permitting authority will review, and allocate 
NOX allowances pursuant to, each NOX allowance 
allocation request under paragraph (d)(2) of

[[Page 595]]

this section in the order that the request is received by the permitting 
authority.
    (i) Upon receipt of the NOX allowance allocation request, 
the permitting authority will determine whether, and will make any 
necessary adjustments to the request to ensure that, for units under 
Sec. 96.4(a)(1), the control period and the number of allowances 
specified are consistent with the requirements of paragraphs (d)(2) and 
(3) of this section and, for units under Sec. 96.4(a)(2), the control 
period and the number of allowances specified are consistent with the 
requirements of paragraphs (d)(2) and (4) of this section.
    (ii) If the allocation set-aside for the control period for which 
NOX allowances are requested has an amount of NOX 
allowances not less than the number requested (as adjusted under 
paragraph (d)(5)(i) of this section), the permitting authority will 
allocate the amount of the NOX allowances requested (as 
adjusted under paragraph (d)(5)(i) of this section) to the 
NOX Budget unit.
    (iii) If the allocation set-aside for the control period for which 
NOX allowances are requested has a smaller amount of 
NOX allowances than the number requested (as adjusted under 
paragraph (d)(5)(i) of this section), the permitting authority will deny 
in part the request and allocate only the remaining number of 
NOX allowances in the allocation set-aside to the 
NOX Budget unit.
    (iv) Once an allocation set-aside for a control period has been 
depleted of all NOX allowances, the permitting authority will 
deny, and will not allocate any NOX allowances pursuant to, 
any NOX allowance allocation request under which 
NOX allowances have not already been allocated for the 
control period.
    (6) Within 60 days of receipt of a NOX allowance 
allocation request, the permitting authority will take appropriate 
action under paragraph (d)(5) of this section and notify the 
NOX authorized account representative that submitted the 
request and the Administrator of the number of NOX allowances 
(if any) allocated for the control period to the NOX Budget 
unit.
    (e) For a NOX Budget unit that is allocated 
NOX allowances under paragraph (d) of this section for a 
control period, the Administrator will deduct NOX allowances 
under Sec. 96.54(b) or (e) to account for the actual utilization of the 
unit during the control period. The Administrator will calculate the 
number of NOX allowances to be deducted to account for the 
unit's actual utilization using the following formulas and rounding to 
the nearest whole NOX allowance as appropriate, provided that 
the number of NOX allowances to be deducted shall be zero if 
the number calculated is less than zero:

NOX allowances deducted for actual utilization for units 
    under Sec. 96.4(a)(1) = (Unit's NOX allowances allocated 
    for control period)-(Unit's actual control period utilization  x  
    0.15 lb/mmBtu); and

NOX allowances deducted for actual utilization for units 
    under Sec. 96.4(a)(2) = (Unit's NOX allowances allocated 
    for control period)-(Unit's actual control period utilization  x  
    0.17 lb/mmBtu)

Where:

``Unit's NOX allowances allocated for control period'' is the 
number of NOX allowances allocated to the unit for the 
control period under paragraph (d) of this section; and
``Unit's actual control period utilization'' is the utilization (in 
mmBtu), as defined in Sec. 96.2, of the unit during the control period.

    (f) After making the deductions for compliance under Sec. 96.54(b) 
or (e) for a control period, the Administrator will notify the 
permitting authority whether any NOX allowances remain in the 
allocation set-aside for the control period. The permitting authority 
will allocate any such NOX allowances to the NOX 
Budget units in the State using the following formula and rounding to 
the nearest whole NOX allowance as appropriate:

Unit's share of NOX allowances remaining in allocation set-
    aside = Total NOX allowances remaining in allocation set-
    aside  x  (Unit's NOX allowance allocation  State 
    trading program budget excluding allocation set-aside)

Where:


[[Page 596]]


``Total NOX allowances remaining in allocation set-aside'' is 
the total number of NOX allowances remaining in the 
allocation set-aside for the control period to which the allocation set-
aside applies;
``Unit's NOX allowance allocation'' is the number of 
NOX allowances allocated under paragraph (b) or (c) of this 
section to the unit for the control period to which the allocation set-
aside applies; and
``State trading program budget excluding allocation set-aside'' is the 
State trading program budget under Sec. 96.40 for the control period to 
which the allocation set-aside applies multiplied by 95 percent if the 
control period is in 2003, 2004, or 2005 or 98 percent if the control 
period is in any year thereafter, rounded to the nearest whole 
NOX allowance as appropriate.

[63 FR 57514, Oct. 27, 1998, as amended at 63 FR 71225, Dec. 24, 1998]



           Subpart F--NOX Allowance Tracking System



Sec. 96.50  NOX Allowance Tracking System accounts.

    (a) Nature and function of compliance accounts and overdraft 
accounts. Consistent with Sec. 96.51(a), the Administrator will 
establish one compliance account for each NOX Budget unit and 
one overdraft account for each source with one or more NOX 
Budget units. Allocations of NOX allowances pursuant to 
subpart E of this part or Sec. 96.88 and deductions or transfers of 
NOX allowances pursuant to Sec. 96.31, Sec. 96.54, 
Sec. 96.56, subpart G of this part, or subpart I of this part will be 
recorded in the compliance accounts or overdraft accounts in accordance 
with this subpart.
    (b) Nature and function of general accounts. Consistent with 
Sec. 96.51(b), the Administrator will establish, upon request, a general 
account for any person. Transfers of allowances pursuant to subpart G of 
this part will be recorded in the general account in accordance with 
this subpart.



Sec. 96.51  Establishment of accounts.

    (a) Compliance accounts and overdraft accounts. Upon receipt of a 
complete account certificate of representation under Sec. 96.13, the 
Administrator will establish:
    (1) A compliance account for each NOX Budget unit for 
which the account certificate of representation was submitted; and
    (2) An overdraft account for each source for which the account 
certificate of representation was submitted and that has two or more 
NOX Budget units.
    (b) General accounts. (1) Any person may apply to open a general 
account for the purpose of holding and transferring allowances. A 
complete application for a general account shall be submitted to the 
Administrator and shall include the following elements in a format 
prescribed by the Administrator:
    (i) Name, mailing address, e-mail address (if any), telephone 
number, and facsimile transmission number (if any) of the NOX 
authorized account representative and any alternate NOX 
authorized account representative;
    (ii) At the option of the NOX authorized account 
representative, organization name and type of organization;
    (iii) A list of all persons subject to a binding agreement for the 
NOX authorized account representative or any alternate 
NOX authorized account representative to represent their 
ownership interest with respect to the allowances held in the general 
account;
    (iv) The following certification statement by the NOX 
authorized account representative and any alternate NOX 
authorized account representative: ``I certify that I was selected as 
the NOX authorized account representative or the 
NOX alternate authorized account representative, as 
applicable, by an agreement that is binding on all persons who have an 
ownership interest with respect to allowances held in the general 
account. I certify that I have all the necessary authority to carry out 
my duties and responsibilities under the NOX Budget Trading 
Program on behalf of such persons and that each such person shall be 
fully bound by my representations, actions, inactions, or submissions 
and by any order or decision issued to me by the Administrator or a 
court regarding the general account.''
    (v) The signature of the NOX authorized account 
representative and any alternate NOX authorized account 
representative and the dates signed.
    (vi) Unless otherwise required by the permitting authority or the 
Administrator, documents of agreement referred to in the account 
certificate of

[[Page 597]]

representation shall not be submitted to the permitting authority or the 
Administrator. Neither the permitting authority nor the Administrator 
shall be under any obligation to review or evaluate the sufficiency of 
such documents, if submitted.
    (2) Upon receipt by the Administrator of a complete application for 
a general account under paragraph (b)(1) of this section:
    (i) The Administrator will establish a general account for the 
person or persons for whom the application is submitted.
    (ii) The NOX authorized account representative and any 
alternate NOX authorized account representative for the 
general account shall represent and, by his or her representations, 
actions, inactions, or submissions, legally bind each person who has an 
ownership interest with respect to NOX allowances held in the 
general account in all matters pertaining to the NOX Budget 
Trading Program, not withstanding any agreement between the 
NOX authorized account representative or any alternate 
NOX authorized account representative and such person. Any 
such person shall be bound by any order or decision issued to the 
NOX authorized account representative or any alternate 
NOX authorized account representative by the Administrator or 
a court regarding the general account.
    (iii) Each submission concerning the general account shall be 
submitted, signed, and certified by the NOX authorized 
account representative or any alternate NOX authorized 
account representative for the persons having an ownership interest with 
respect to NOX allowances held in the general account. Each 
such submission shall include the following certification statement by 
the NOX authorized account representative or any alternate 
NOX authorized account representative any: ``I am authorized 
to make this submission on behalf of the persons having an ownership 
interest with respect to the NOX allowances held in the 
general account. I certify under penalty of law that I have personally 
examined, and am familiar with, the statements and information submitted 
in this document and all its attachments. Based on my inquiry of those 
individuals with primary responsibility for obtaining the information, I 
certify that the statements and information are to the best of my 
knowledge and belief true, accurate, and complete. I am aware that there 
are significant penalties for submitting false statements and 
information or omitting required statements and information, including 
the possibility of fine or imprisonment.''
    (iv) The Administrator will accept or act on a submission concerning 
the general account only if the submission has been made, signed, and 
certified in accordance with paragraph (b)(2)(iii) of this section.
    (3)(i) An application for a general account may designate one and 
only one NOX authorized account representative and one and 
only one alternate NOX authorized account representative who 
may act on behalf of the NOX authorized account 
representative. The agreement by which the alternate NOX 
authorized account representative is selected shall include a procedure 
for authorizing the alternate NOX authorized account 
representative to act in lieu of the NOX authorized account 
representative.
    (ii) Upon receipt by the Administrator of a complete application for 
a general account under paragraph (b)(1) of this section, any 
representation, action, inaction, or submission by any alternate 
NOX authorized account representative shall be deemed to be a 
representation, action, inaction, or submission by the NOX 
authorized account representative.
    (4)(i) The NOX authorized account representative for a 
general account may be changed at any time upon receipt by the 
Administrator of a superseding complete application for a general 
account under paragraph (b)(1) of this section. Notwithstanding any such 
change, all representations, actions, inactions, and submissions by the 
previous NOX authorized account representative prior to the 
time and date when the Administrator receives the superseding 
application for a general account shall be binding on the new 
NOX authorized account representative and the persons with an 
ownership interest with respect to the allowances in the general 
account.

[[Page 598]]

    (ii) The alternate NOX authorized account representative 
for a general account may be changed at any time upon receipt by the 
Administrator of a superseding complete application for a general 
account under paragraph (b)(1) of this section. Notwithstanding any such 
change, all representations, actions, inactions, and submissions by the 
previous alternate NOX authorized account representative 
prior to the time and date when the Administrator receives the 
superseding application for a general account shall be binding on the 
new alternate NOX authorized account representative and the 
persons with an ownership interest with respect to the allowances in the 
general account.
    (iii)(A) In the event a new person having an ownership interest with 
respect to NOX allowances in the general account is not 
included in the list of such persons in the account certificate of 
representation, such new person shall be deemed to be subject to and 
bound by the account certificate of representation, the representation, 
actions, inactions, and submissions of the NOX authorized 
account representative and any alternate NOX authorized 
account representative of the source or unit, and the decisions, orders, 
actions, and inactions of the Administrator, as if the new person were 
included in such list.
    (B) Within 30 days following any change in the persons having an 
ownership interest with respect to NOX allowances in the 
general account, including the addition of persons, the NOX 
authorized account representative or any alternate NOX 
authorized account representative shall submit a revision to the 
application for a general account amending the list of persons having an 
ownership interest with respect to the NOX allowances in the 
general account to include the change.
    (5)(i) Once a complete application for a general account under 
paragraph (b)(1) of this section has been submitted and received, the 
Administrator will rely on the application unless and until a 
superseding complete application for a general account under paragraph 
(b)(1) of this section is received by the Administrator.
    (ii) Except as provided in paragraph (b)(4) of this section, no 
objection or other communication submitted to the Administrator 
concerning the authorization, or any representation, action, inaction, 
or submission of the NOX authorized account representative or 
any alternate NOX authorized account representative for a 
general account shall affect any representation, action, inaction, or 
submission of the NOX authorized account representative or 
any alternate NOX authorized account representative or the 
finality of any decision or order by the Administrator under the 
NOX Budget Trading Program.
    (iii) The Administrator will not adjudicate any private legal 
dispute concerning the authorization or any representation, action, 
inaction, or submission of the NOX authorized account 
representative or any alternate NOX authorized account 
representative for a general account, including private legal disputes 
concerning the proceeds of NOX allowance transfers.
    (c) Account identification. The Administrator will assign a unique 
identifying number to each account established under paragraph (a) or 
(b) of this section.



Sec. 96.52  NOX Allowance Tracking System responsibilities of NOX authorized account representative.

    (a) Following the establishment of a NOX Allowance 
Tracking System account, all submissions to the Administrator pertaining 
to the account, including, but not limited to, submissions concerning 
the deduction or transfer of NOX allowances in the account, 
shall be made only by the NOX authorized account 
representative for the account.
    (b) Authorized account representative identification. The 
Administrator will assign a unique identifying number to each 
NOX authorized account representative.



Sec. 96.53  Recordation of NOX allowance allocations.

    (a) The Administrator will record the NOX allowances for 
2003 in the NOX Budget units' compliance accounts and the 
allocation set-asides, as allocated

[[Page 599]]

under subpart E of this part. The Administrator will also record the 
NOX allowances allocated under Sec. 96.88(a)(1) for each 
NOX Budget opt-in source in its compliance account.
    (b) Each year, after the Administrator has made all deductions from 
a NOX Budget unit's compliance account and the overdraft 
account pursuant to Sec. 96.54, the Administrator will record 
NOX allowances, as allocated to the unit under subpart E of 
this part or under Sec. 96.88(a)(2), in the compliance account for the 
year after the last year for which allowances were previously allocated 
to the compliance account. Each year, the Administrator will also record 
NOX allowances, as allocated under subpart E of this part, in 
the allocation set-aside for the year after the last year for which 
allowances were previously allocated to an allocation set-aside.
    (c) Serial numbers for allocated NOX allowances. When 
allocating NOX allowances to and recording them in an 
account, the Administrator will assign each NOX allowance a 
unique identification number that will include digits identifying the 
year for which the NOX allowance is allocated.



Sec. 96.54  Compliance.

    (a) NOX allowance transfer deadline. The NOX 
allowances are available to be deducted for compliance with a unit's 
NOX Budget emissions limitation for a control period in a 
given year only if the NOX allowances:
    (1) Were allocated for a control period in a prior year or the same 
year; and
    (2) Are held in the unit's compliance account, or the overdraft 
account of the source where the unit is located, as of the 
NOX allowance transfer deadline for that control period or 
are transferred into the compliance account or overdraft account by a 
NOX allowance transfer correctly submitted for recordation 
under Sec. 96.60 by the NOX allowance transfer deadline for 
that control period.
    (b) Deductions for compliance. (1) Following the recordation, in 
accordance with Sec. 96.61, of NOX allowance transfers 
submitted for recordation in the unit's compliance account or the 
overdraft account of the source where the unit is located by the 
NOX allowance transfer deadline for a control period, the 
Administrator will deduct NOX allowances available under 
paragraph (a) of this section to cover the unit's NOX 
emissions (as determined in accordance with subpart H of this part), or 
to account for actual utilization under Sec. 96.42(e), for the control 
period:
    (i) From the compliance account; and
    (ii) Only if no more NOX allowances available under 
paragraph (a) of this section remain in the compliance account, from the 
overdraft account. In deducting allowances for units at the source from 
the overdraft account, the Administrator will begin with the unit having 
the compliance account with the lowest NOX Allowance Tracking 
System account number and end with the unit having the compliance 
account with the highest NOX Allowance Tracking System 
account number (with account numbers sorted beginning with the left-most 
character and ending with the right-most character and the letter 
characters assigned values in alphabetical order and less than all 
numeric characters).
    (2) The Administrator will deduct NOX allowances first 
under paragraph (b)(1)(i) of this section and then under paragraph 
(b)(1)(ii) of this section:
    (i) Until the number of NOX allowances deducted for the 
control period equals the number of tons of NOX emissions, 
determined in accordance with subpart H of this part, from the unit for 
the control period for which compliance is being determined, plus the 
number of NOX allowances required for deduction to account 
for actual utilization under Sec. 96.42(e) for the control period; or
    (ii) Until no more NOX allowances available under 
paragraph (a) of this section remain in the respective account.
    (c)(1) Identification of NOX allowances by serial number. 
The NOX authorized account representative for each compliance 
account may identify by serial number the NOX allowances to 
be deducted from the unit's compliance account under paragraph (b), (d), 
or (e) of this section. Such identification shall be made in the 
compliance certification report submitted in accordance with Sec. 96.30.

[[Page 600]]

    (2) First-in, first-out. The Administrator will deduct 
NOX allowances for a control period from the compliance 
account, in the absence of an identification or in the case of a partial 
identification of NOX allowances by serial number under 
paragraph (c)(1) of this section, or the overdraft account on a first-
in, first-out (FIFO) accounting basis in the following order:
    (i) Those NOX allowances that were allocated for the 
control period to the unit under subpart E or I of this part;
    (ii) Those NOX allowances that were allocated for the 
control period to any unit and transferred and recorded in the account 
pursuant to subpart G of this part, in order of their date of 
recordation;
    (iii) Those NOX allowances that were allocated for a 
prior control period to the unit under subpart E or I of this part; and
    (iv) Those NOX allowances that were allocated for a prior 
control period to any unit and transferred and recorded in the account 
pursuant to subpart G of this part, in order of their date of 
recordation.
    (d) Deductions for excess emissions. (1) After making the deductions 
for compliance under paragraph (b) of this section, the Administrator 
will deduct from the unit's compliance account or the overdraft account 
of the source where the unit is located a number of NOX 
allowances, allocated for a control period after the control period in 
which the unit has excess emissions, equal to three times the number of 
the unit's excess emissions.
    (2) If the compliance account or overdraft account does not contain 
sufficient NOX allowances, the Administrator will deduct the 
required number of NOX allowances, regardless of the control 
period for which they were allocated, whenever NOX allowances 
are recorded in either account.
    (3) Any allowance deduction required under paragraph (d) of this 
section shall not affect the liability of the owners and operators of 
the NOX Budget unit for any fine, penalty, or assessment, or 
their obligation to comply with any other remedy, for the same 
violation, as ordered under the CAA or applicable State law. The 
following guidelines will be followed in assessing fines, penalties or 
other obligations:
    (i) For purposes of determining the number of days of violation, if 
a NOX Budget unit has excess emissions for a control period, 
each day in the control period (153 days) constitutes a day in violation 
unless the owners and operators of the unit demonstrate that a lesser 
number of days should be considered.
    (ii) Each ton of excess emissions is a separate violation.
    (e) Deductions for units sharing a common stack. In the case of 
units sharing a common stack and having emissions that are not 
separately monitored or apportioned in accordance with subpart H of this 
part:
    (1) The NOX authorized account representative of the 
units may identify the percentage of NOX allowances to be 
deducted from each such unit's compliance account to cover the unit's 
share of NOX emissions from the common stack for a control 
period. Such identification shall be made in the compliance 
certification report submitted in accordance with Sec. 96.30.
    (2) Notwithstanding paragraph (b)(2)(i) of this section, the 
Administrator will deduct NOX allowances for each such unit 
until the number of NOX allowances deducted equals the unit's 
identified percentage (under paragraph (e)(1) of this section) of the 
number of tons of NOX emissions, as determined in accordance 
with subpart H of this part, from the common stack for the control 
period for which compliance is being determined or, if no percentage is 
identified, an equal percentage for each such unit, plus the number of 
allowances required for deduction to account for actual utilization 
under Sec. 96.42(e) for the control period.
    (f) The Administrator will record in the appropriate compliance 
account or overdraft account all deductions from such an account 
pursuant to paragraphs (b), (d), or (e) of this section.



Sec. 96.55  Banking.

    (a) NOX allowances may be banked for future use or 
transfer in a compliance account, an overdraft account, or a general 
account, as follows:

[[Page 601]]

    (1) Any NOX allowance that is held in a compliance 
account, an overdraft account, or a general account will remain in such 
account unless and until the NOX allowance is deducted or 
transferred under Sec. 96.31, Sec. 96.54, Sec. 96.56, subpart G of this 
part, or subpart I of this part.
    (2) The Administrator will designate, as a ``banked'' NOX 
allowance, any NOX allowance that remains in a compliance 
account, an overdraft account, or a general account after the 
Administrator has made all deductions for a given control period from 
the compliance account or overdraft account pursuant to Sec. 96.54.
    (b) Each year starting in 2004, after the Administrator has 
completed the designation of banked NOX allowances under 
paragraph (a)(2) of this section and before May 1 of the year, the 
Administrator will determine the extent to which banked NOX 
allowances may be used for compliance in the control period for the 
current year, as follows:
    (1) The Administrator will determine the total number of banked 
NOX allowances held in compliance accounts, overdraft 
accounts, or general accounts.
    (2) If the total number of banked NOX allowances 
determined, under paragraph (b)(1) of this section, to be held in 
compliance accounts, overdraft accounts, or general accounts is less 
than or equal to 10% of the sum of the State trading program budgets for 
the control period for the States in which NOX Budget units 
are located, any banked NOX allowance may be deducted for 
compliance in accordance with Sec. 96.54.
    (3) If the total number of banked NOX allowances 
determined, under paragraph (b)(1) of this section, to be held in 
compliance accounts, overdraft accounts, or general accounts exceeds 10% 
of the sum of the State trading program budgets for the control period 
for the States in which NOX Budget units are located, any 
banked allowance may be deducted for compliance in accordance with 
Sec. 96.54, except as follows:
    (i) The Administrator will determine the following ratio: 0.10 
multiplied by the sum of the State trading program budgets for the 
control period for the States in which NOX Budget units are 
located and divided by the total number of banked NOX 
allowances determined, under paragraph (b)(1) of this section, to be 
held in compliance accounts, overdraft accounts, or general accounts.
    (ii) The Administrator will multiply the number of banked 
NOX allowances in each compliance account or overdraft 
account. The resulting product is the number of banked NOX 
allowances in the account that may be deducted for compliance in 
accordance with Sec. 96.54. Any banked NOX allowances in 
excess of the resulting product may be deducted for compliance in 
accordance with Sec. 96.54, except that, if such NOX 
allowances are used to make a deduction, two such NOX 
allowances must be deducted for each deduction of one NOX 
allowance required under Sec. 96.54.
    (c) Any NOX Budget unit may reduce its NOX 
emission rate in the 2001 or 2002 control period, the owner or operator 
of the unit may request early reduction credits, and the permitting 
authority may allocate NOX allowances in 2003 to the unit in 
accordance with the following requirements.
    (1) Each NOX Budget unit for which the owner or operator 
requests any early reduction credits under paragraph (c)(4) of this 
section shall monitor NOX emissions in accordance with 
subpart H of this part starting in the 2000 control period and for each 
control period for which such early reduction credits are requested. The 
unit's monitoring system availability shall be not less than 90 percent 
during the 2000 control period, and the unit must be in compliance with 
any applicable State or Federal emissions or emissions-related 
requirements.
    (2) NOX emission rate and heat input under paragraphs 
(c)(3) through (5) of this section shall be determined in accordance 
with subpart H of this part.
    (3) Each NOX Budget unit for which the owner or operator 
requests any early reduction credits under paragraph (c)(4) of this 
section shall reduce its NOX emission rate, for each control 
period for which early reduction credits are requested, to less than 
both 0.25 lb/mmBtu and 80 percent of the unit's NOX emission 
rate in the 2000 control period.

[[Page 602]]

    (4) The NOX authorized account representative of a 
NOX Budget unit that meets the requirements of paragraphs 
(c)(1)and (3) of this section may submit to the permitting authority a 
request for early reduction credits for the unit based on NOX 
emission rate reductions made by the unit in the control period for 2001 
or 2002 in accordance with paragraph (c)(3) of this section.
    (i) In the early reduction credit request, the NOX 
authorized account may request early reduction credits for such control 
period in an amount equal to the unit's heat input for such control 
period multiplied by the difference between 0.25 lb/mmBtu and the unit's 
NOX emission rate for such control period, divided by 2000 
lb/ton, and rounded to the nearest ton.
    (ii) The early reduction credit request must be submitted, in a 
format specified by the permitting authority, by October 31 of the year 
in which the NOX emission rate reductions on which the 
request is based are made or such later date approved by the permitting 
authority.
    (5) The permitting authority will allocate NOX 
allowances, to NOX Budget units meeting the requirements of 
paragraphs (c)(1) and (3) of this section and covered by early reduction 
requests meeting the requirements of paragraph (c)(4)(ii) of this 
section, in accordance with the following procedures:
    (i) Upon receipt of each early reduction credit request, the 
permitting authority will accept the request only if the requirements of 
paragraphs (c)(1), (c)(3), and (c)(4)(ii) of this section are met and, 
if the request is accepted, will make any necessary adjustments to the 
request to ensure that the amount of the early reduction credits 
requested meets the requirement of paragraphs (c)(2) and (4) of this 
section.
    (ii) If the State's compliance supplement pool has an amount of 
NOX allowances not less than the number of early reduction 
credits in all accepted early reduction credit requests for 2001 and 
2002 (as adjusted under paragraph (c)(5)(i) of this section), the 
permitting authority will allocate to each NOX Budget unit 
covered by such accepted requests one allowance for each early reduction 
credit requested (as adjusted under paragraph (c)(5)(i) of this 
section).
    (iii) If the State's compliance supplement pool has a smaller amount 
of NOX allowances than the number of early reduction credits 
in all accepted early reduction credit requests for 2001 and 2002 (as 
adjusted under paragraph (c)(5)(i) of this section), the permitting 
authority will allocate NOX allowances to each NOX 
Budget unit covered by such accepted requests according to the following 
formula:

Unit's allocated early reduction credits = [(Unit's adjusted early 
    reduction credits) / (Total adjusted early reduction credits 
    requested by all units)] x (Available NOX allowances from 
    the State's compliance supplement pool)

where:

``Unit's adjusted early reduction credits'' is the number of early 
reduction credits for the unit for 2001 and 2002 in accepted early 
reduction credit requests, as adjusted under paragraph (c)(5)(i) of this 
section.
``Total adjusted early reduction credits requested by all units'' is the 
number of early reduction credits for all units for 2001 and 2002 in 
accepted early reduction credit requests, as adjusted under paragraph 
(c)(5)(i) of this section.
``Available NOX allowances from the State's compliance 
supplement pool'' is the number of NOX allowances in the 
State's compliance supplement pool and available for early reduction 
credits for 2001 and 2002.

    (6) By May 1, 2003, the permitting authority will submit to the 
Administrator the allocations of NOX allowances determined 
under paragraph (c)(5) of this section. The Administrator will record 
such allocations to the extent that they are consistent with the 
requirements of paragraphs (c)(1) through (5) of this section.
    (7) NOX allowances recorded under paragraph (c)(6) of 
this section may be deducted for compliance under Sec. 96.54 for the 
control periods in 2003 or 2004. Notwithstanding paragraph (a) of this 
section, the Administrator will deduct as retired any NOX 
allowance that is recorded under paragraph (c)(6) of this section and is 
not deducted for compliance in accordance with Sec. 96.54 for the 
control period in 2003 or 2004.
    (8) NOX allowances recorded under paragraph (c)(6) of 
this section are treated as banked allowances in 2004

[[Page 603]]

for the purposes of paragraphs (a) and (b) of this section.



Sec. 96.56  Account error.

    The Administrator may, at his or her sole discretion and on his or 
her own motion, correct any error in any NOX Allowance 
Tracking System account. Within 10 business days of making such 
correction, the Administrator will notify the NOX authorized 
account representative for the account.



Sec. 96.57  Closing of general accounts.

    (a) The NOX authorized account representative of a 
general account may instruct the Administrator to close the account by 
submitting a statement requesting deletion of the account from the 
NOX Allowance Tracking System and by correctly submitting for 
recordation under Sec. 96.60 an allowance transfer of all NOX 
allowances in the account to one or more other NOX Allowance 
Tracking System accounts.
    (b) If a general account shows no activity for a period of a year or 
more and does not contain any NOX allowances, the 
Administrator may notify the NOX authorized account 
representative for the account that the account will be closed and 
deleted from the NOX Allowance Tracking System following 20 
business days after the notice is sent. The account will be closed after 
the 20-day period unless before the end of the 20-day period the 
Administrator receives a correctly submitted transfer of NOX 
allowances into the account under Sec. 96.60 or a statement submitted by 
the NOX authorized account representative demonstrating to 
the satisfaction of the Administrator good cause as to why the account 
should not be closed.



              Subpart G--NOX Allowance Transfers



Sec. 96.60  Submission of NOX allowance transfers.

    The NOX authorized account representatives seeking 
recordation of a NOX allowance transfer shall submit the 
transfer to the Administrator. To be considered correctly submitted, the 
NOX allowance transfer shall include the following elements 
in a format specified by the Administrator:
    (a) The numbers identifying both the transferor and transferee 
accounts;
    (b) A specification by serial number of each NOX 
allowance to be transferred; and
    (c) The printed name and signature of the NOX authorized 
account representative of the transferor account and the date signed.



Sec. 96.61  EPA recordation.

    (a) Within 5 business days of receiving a NOX allowance 
transfer, except as provided in paragraph (b) of this section, the 
Administrator will record a NOX allowance transfer by moving 
each NOX allowance from the transferor account to the 
transferee account as specified by the request, provided that:
    (1) The transfer is correctly submitted under Sec. 96.60;
    (2) The transferor account includes each NOX allowance 
identified by serial number in the transfer; and
    (3) The transfer meets all other requirements of this part.
    (b) A NOX allowance transfer that is submitted for 
recordation following the NOX allowance transfer deadline and 
that includes any NOX allowances allocated for a control 
period prior to or the same as the control period to which the 
NOX allowance transfer deadline applies will not be recorded 
until after completion of the process of recordation of NOX 
allowance allocations in Sec. 96.53(b).
    (c) Where a NOX allowance transfer submitted for 
recordation fails to meet the requirements of paragraph (a) of this 
section, the Administrator will not record such transfer.



Sec. 96.62  Notification.

    (a) Notification of recordation. Within 5 business days of 
recordation of a NOX allowance transfer under Sec. 96.61, the 
Administrator will notify each party to the transfer. Notice will be 
given to the NOX authorized account representatives of both 
the transferror and transferee accounts.
    (b) Notification of non-recordation. Within 10 business days of 
receipt of a NOX allowance transfer that fails to meet the 
requirements of Sec. 96.61(a), the Administrator will notify the 
NOX authorized account representatives of

[[Page 604]]

both accounts subject to the transfer of:
    (1) A decision not to record the transfer, and (2) The reasons for 
such non-recordation.
    (c) Nothing in this section shall preclude the submission of a 
NOX allowance transfer for recordation following notification 
of non-recordation.



                   Subpart H--Monitoring and Reporting



Sec. 96.70  General requirements.

    The owners and operators, and to the extent applicable, the 
NOX authorized account representative of a NOX 
Budget unit, shall comply with the monitoring and reporting requirements 
as provided in this subpart and in subpart H of part 75 of this chapter. 
For purposes of complying with such requirements, the definitions in 
Sec. 96.2 and in Sec. 72.2 of this chapter shall apply, and the terms 
``affected unit,'' ``designated representative,'' and ``continuous 
emission monitoring system'' (or ``CEMS'') in part 75 of this chapter 
shall be replaced by the terms ``NOX Budget unit,'' 
``NOX authorized account representative,'' and ``continuous 
emission monitoring system'' (or ``CEMS''), respectively, as defined in 
Sec. 96.2.
    (a) Requirements for installation, certification, and data 
accounting. The owner or operator of each NOX Budget unit 
must meet the following requirements. These provisions also apply to a 
unit for which an application for a NOX Budget opt-in permit 
is submitted and not denied or withdrawn, as provided in subpart I of 
this part:
    (1) Install all monitoring systems required under this subpart for 
monitoring NOX mass. This includes all systems required to 
monitor NOX emission rate, NOX concentration, heat 
input, and flow, in accordance with Secs. 75.72 and 75.76.
    (2) Install all monitoring systems for monitoring heat input, if 
required under Sec. 96.76 for developing NOX allowance 
allocations.
    (3) Successfully complete all certification tests required under 
Sec. 96.71 and meet all other provisions of this subpart and part 75 of 
this chapter applicable to the monitoring systems under paragraphs 
(a)(1) and (2) of this section.
    (4) Record, and report data from the monitoring systems under 
paragraphs (a)(1) and (2) of this section.
    (b) Compliance dates. The owner or operator must meet the 
requirements of paragraphs (a)(1) through (a)(3) of this section on or 
before the following dates and must record and report data on and after 
the following dates:
    (1) NOX Budget units for which the owner or operator 
intends to apply for early reduction credits under Sec. 96.55(d) must 
comply with the requirements of this subpart by May 1, 2000.
    (2) Except for NOX Budget units under paragraph (b)(1) of 
this section, NOX Budget units under Sec. 96.4 that commence 
operation before January 1, 2002, must comply with the requirements of 
this subpart by May 1, 2002.
    (3) NOX Budget units under Sec. 96.4 that commence 
operation on or after January 1, 2002 and that report on an annual basis 
under Sec. 96.74(d) must comply with the requirements of this subpart by 
the later of the following dates:
    (i) May 1, 2002; or
    (ii) The earlier of:
    (A) 180 days after the date on which the unit commences operation 
or, (B) For units under Sec. 96.4(a)(1), 90 days after the date on which 
the unit commences commercial operation.
    (4) NOX Budget units under Sec. 96.4 that commence 
operation on or after January 1, 2002 and that report on a control 
season basis under Sec. 96.74(d) must comply with the requirements of 
this subpart by the later of the following dates:
    (i) The earlier of:
    (A) 180 days after the date on which the unit commences operation 
or,
    (B) For units under Sec. 96.4(a)(1), 90 days after the date on which 
the unit commences commercial operation.
    (ii) However, if the applicable deadline under paragraph (b)(4)(i) 
section does not occur during a control period, May 1; immediately 
following the date determined in accordance with paragraph (b)(4)(i) of 
this section.
    (5) For a NOX Budget unit with a new stack or flue for 
which construction is completed after the applicable deadline under 
paragraph ( b)(1), (b)(2) or (b)(3) of this section or subpart I of this 
part:
    (i) 90 days after the date on which emissions first exit to the 
atmosphere through the new stack or flue;

[[Page 605]]

    (ii) However, if the unit reports on a control season basis under 
Sec. 96.74(d) and the applicable deadline under paragraph (b)(5)(i) of 
this section does not occur during the control period, May 1 immediately 
following the applicable deadline in paragraph (b)(5)(i) of this 
section.
    (6) For a unit for which an application for a NOX Budget 
opt in permit is submitted and not denied or withdrawn, the compliance 
dates specified under subpart I of this part.
    (c) Reporting data prior to initial certification. (1) The owner or 
operator of a NOX Budget unit that misses the certification 
deadline under paragraph (b)(1) of this section is not eligible to apply 
for early reduction credits. The owner or operator of the unit becomes 
subject to the certification deadline under paragraph (b)(2) of this 
section.
    (2) The owner or operator of a NOX Budget under 
paragraphs (b)(3) or (b)(4) of this section must determine, record and 
report NOX mass, heat input (if required for purposes of 
allocations) and any other values required to determine NOX 
Mass (e.g. NOX emission rate and heat input or NOX 
concentration and stack flow) using the provisions of Sec. 75.70(g) of 
this chapter, from the date and hour that the unit starts operating 
until all required certification tests are successfully completed.
    (d) Prohibitions. (1) No owner or operator of a NOX 
Budget unit or a non-NOX Budget unit monitored under 
Sec. 75.72(b)(2)(ii) shall use any alternative monitoring system, 
alternative reference method, or any other alternative for the required 
continuous emission monitoring system without having obtained prior 
written approval in accordance with Sec. 96.75.
    (2) No owner or operator of a NOX Budget unit or a non-
NOX Budget unit monitored under Sec. 75.72(b)(2)(ii) shall 
operate the unit so as to discharge, or allow to be discharged, 
NOX emissions to the atmosphere without accounting for all 
such emissions in accordance with the applicable provisions of this 
subpart and part 75 of this chapter except as provided for in Sec. 75.74 
of this chapter.
    (3) No owner or operator of a NOX Budget unit or a non-
NOX Budget unit monitored under Sec. 75.72(b)(2)(ii) shall 
disrupt the continuous emission monitoring system, any portion thereof, 
or any other approved emission monitoring method, and thereby avoid 
monitoring and recording NOX mass emissions discharged into 
the atmosphere, except for periods of recertification or periods when 
calibration, quality assurance testing, or maintenance is performed in 
accordance with the applicable provisions of this subpart and part 75 of 
this chapter except as provided for in Sec. 75.74 of this chapter.
    (4) No owner or operator of a NOX Budget unit or a non-
NOX Budget unit monitored under Sec. 75.72(b)(2)(ii) shall 
retire or permanently discontinue use of the continuous emission 
monitoring system, any component thereof, or any other approved emission 
monitoring system under this subpart, except under any one of the 
following circumstances:
    (i) During the period that the unit is covered by a retired unit 
exemption under Sec. 96.5 that is in effect;
    (ii) The owner or operator is monitoring emissions from the unit 
with another certified monitoring system approved, in accordance with 
the applicable provisions of this subpart and part 75 of this chapter, 
by the permitting authority for use at that unit that provides emission 
data for the same pollutant or parameter as the retired or discontinued 
monitoring system; or
    (iii) The NOX authorized account representative submits 
notification of the date of certification testing of a replacement 
monitoring system in accordance with Sec. 96.71(b)(2).



Sec. 96.71  Initial certification and recertification procedures

    (a) The owner or operator of a NOX Budget unit that is 
subject to an Acid Rain emissions limitation shall comply with the 
initial certification and recertification procedures of part 75 of this 
chapter, except that:
    (1) If, prior to January 1, 1998, the Administrator approved a 
petition under Sec. 75.17(a) or (b) of this chapter for apportioning the 
NOX emission rate measured in a common stack or a petition 
under Sec. 75.66 of this chapter for an alternative to a requirement in 
Sec. 75.17 of this chapter, the NOX authorized account 
representative shall resubmit

[[Page 606]]

the petition to the Administrator under Sec. 96.75(a) to determine if 
the approval applies under the NOX Budget Trading Program.
    (2) For any additional CEMS required under the common stack 
provisions in Sec. 75.72 of this chapter, or for any NOX 
concentration CEMS used under the provisions of Sec. 75.71(a)(2) of this 
chapter, the owner or operator shall meet the requirements of paragraph 
(b) of this section.
    (b) The owner or operator of a NOX Budget unit that is 
not subject to an Acid Rain emissions limitation shall comply with the 
following initial certification and recertification procedures, except 
that the owner or operator of a unit that qualifies to use the low mass 
emissions excepted monitoring methodology under Sec. 75.19 shall also 
meet the requirements of paragraph (c) of this section and the owner or 
operator of a unit that qualifies to use an alternative monitoring 
system under subpart E of part 75 of this chapter shall also meet the 
requirements of paragraph (d) of this section. The owner or operator of 
a NOX Budget unit that is subject to an Acid Rain emissions 
limitation, but requires additional CEMS under the common stack 
provisions in Sec. 75.72 of this chapter, or that uses a NOX 
concentration CEMS under Sec. 75.71(a)(2) of this chapter also shall 
comply with the following initial certification and recertification 
procedures.
    (1) Requirements for initial certification. The owner or operator 
shall ensure that each monitoring system required by subpart H of part 
75 of this chapter (which includes the automated data acquisition and 
handling system) successfully completes all of the initial certification 
testing required under Sec. 75.20 of this chapter. The owner or operator 
shall ensure that all applicable certification tests are successfully 
completed by the deadlines specified in Sec. 96.70(b). In addition, 
whenever the owner or operator installs a monitoring system in order to 
meet the requirements of this part in a location where no such 
monitoring system was previously installed, initial certification 
according to Sec. 75.20 is required.
    (2) Requirements for recertification. Whenever the owner or operator 
makes a replacement, modification, or change in a certified monitoring 
system that the Administrator or the permitting authority determines 
significantly affects the ability of the system to accurately measure or 
record NOX mass emissions or heat input or to meet the 
requirements of Sec. 75.21 of this chapter or appendix B to part 75 of 
this chapter, the owner or operator shall recertify the monitoring 
system according to Sec. 75.20(b) of this chapter. Furthermore, whenever 
the owner or operator makes a replacement, modification, or change to 
the flue gas handling system or the unit's operation that the 
Administrator or the permitting authority determines to significantly 
change the flow or concentration profile, the owner or operator shall 
recertify the continuous emissions monitoring system according to 
Sec. 75.20(b) of this chapter. Examples of changes which require 
recertification include: replacement of the analyzer, change in location 
or orientation of the sampling probe or site, or changing of flow rate 
monitor polynomial coefficients.
    (3) Certification approval process for initial certifications and 
recertification. (i) Notification of certification. The NOX 
authorized account representative shall submit to the permitting 
authority, the appropriate EPA Regional Office and the permitting 
authority a written notice of the dates of certification in accordance 
with Sec. 96.73.
    (ii) Certification application. The NOX authorized 
account representative shall submit to the permitting authority a 
certification application for each monitoring system required under 
subpart H of part 75 of this chapter. A complete certification 
application shall include the information specified in subpart H of part 
75 of this chapter.
    (iii) Except for units using the low mass emission excepted 
methodology under Sec. 75.19 of this chapter, the provisional 
certification date for a monitor shall be determined using the 
procedures set forth in Sec. 75.20(a)(3) of this chapter. A 
provisionally certified monitor may be used under the NOX 
Budget Trading Program for a period not to exceed 120 days after receipt 
by the permitting authority of the complete certification application 
for the monitoring system or component thereof

[[Page 607]]

under paragraph (b)(3)(ii) of this section. Data measured and recorded 
by the provisionally certified monitoring system or component thereof, 
in accordance with the requirements of part 75 of this chapter, will be 
considered valid quality-assured data (retroactive to the date and time 
of provisional certification), provided that the permitting authority 
does not invalidate the provisional certification by issuing a notice of 
disapproval within 120 days of receipt of the complete certification 
application by the permitting authority.
    (iv) Certification application formal approval process. The 
permitting authority will issue a written notice of approval or 
disapproval of the certification application to the owner or operator 
within 120 days of receipt of the complete certification application 
under paragraph (b)(3)(ii) of this section. In the event the permitting 
authority does not issue such a notice within such 120-day period, each 
monitoring system which meets the applicable performance requirements of 
part 75 of this chapter and is included in the certification application 
will be deemed certified for use under the NOX Budget Trading 
Program.
    (A) Approval notice. If the certification application is complete 
and shows that each monitoring system meets the applicable performance 
requirements of part 75 of this chapter, then the permitting authority 
will issue a written notice of approval of the certification application 
within 120 days of receipt.
    (B) Incomplete application notice. A certification application will 
be considered complete when all of the applicable information required 
to be submitted under paragraph (b)(3)(ii) of this section has been 
received by the permitting authority. If the certification application 
is not complete, then the permitting authority will issue a written 
notice of incompleteness that sets a reasonable date by which the 
NOX authorized account representative must submit the 
additional information required to complete the certification 
application. If the NOX authorized account representative 
does not comply with the notice of incompleteness by the specified date, 
then the permitting authority may issue a notice of disapproval under 
paragraph (b)(3)(iv)(C) of this section.
    (C) Disapproval notice. If the certification application shows that 
any monitoring system or component thereof does not meet the performance 
requirements of this part, or if the certification application is 
incomplete and the requirement for disapproval under paragraph 
(b)(3)(iv)(B) of this section has been met, the permitting authority 
will issue a written notice of disapproval of the certification 
application. Upon issuance of such notice of disapproval, the 
provisional certification is invalidated by the permitting authority and 
the data measured and recorded by each uncertified monitoring system or 
component thereof shall not be considered valid quality-assured data 
beginning with the date and hour of provisional certification. The owner 
or operator shall follow the procedures for loss of certification in 
paragraph (b)(3)(v) of this section for each monitoring system or 
component thereof which is disapproved for initial certification.
    (D) Audit decertification. The permitting authority may issue a 
notice of disapproval of the certification status of a monitor in 
accordance with Sec. 96.72(b).
    (v) Procedures for loss of certification. If the permitting 
authority issues a notice of disapproval of a certification application 
under paragraph (b)(3)(iv)(C) of this section or a notice of disapproval 
of certification status under paragraph (b)(3)(iv)(D) of this section, 
then:
    (A) The owner or operator shall substitute the following values, for 
each hour of unit operation during the period of invalid data beginning 
with the date and hour of provisional certification and continuing until 
the time, date, and hour specified under Sec. 75.20(a)(5)(i) of this 
chapter:
    (1) For units using or intending to monitor for NOX 
emission rate and heat input or for units using the low mass emission 
excepted methodology under Sec. 75.19 of this chapter, the maximum 
potential NOX emission rate and the maximum potential hourly 
heat input of the unit.

[[Page 608]]

    (2) For units intending to monitor for NOX mass emissions 
using a NOX pollutant concentration monitor and a flow 
monitor, the maximum potential concentration of NOX and the 
maximum potential flow rate of the unit under section 2.1 of appendix A 
of part 75 of this chapter;
    (B) The NOX authorized account representative shall 
submit a notification of certification retest dates and a new 
certification application in accordance with paragraphs (b)(3)(i) and 
(ii) of this section; and
    (C) The owner or operator shall repeat all certification tests or 
other requirements that were failed by the monitoring system, as 
indicated in the permitting authority's notice of disapproval, no later 
than 30 unit operating days after the date of issuance of the notice of 
disapproval.
    (c) Initial certification and recertification procedures for low 
mass emission units using the excepted methodologies under Sec. 75.19 of 
this chapter. The owner or operator of a gas-fired or oil-fired unit 
using the low mass emissions excepted methodology under Sec. 75.19 of 
this chapter shall meet the applicable general operating requirements of 
Sec. 75.10 of this chapter, the applicable requirements of Sec. 75.19 of 
this chapter, and the applicable certification requirements of 
Sec. 96.71 of this chapter, except that the excepted methodology shall 
be deemed provisionally certified for use under the NOX 
Budget Trading Program, as of the following dates:
    (1) For units that are reporting on an annual basis under 
Sec. 96.74(d);
    (i) For a unit that has commences operation before its compliance 
deadline under Sec. 96.71(b), from January 1 of the year following 
submission of the certification application for approval to use the low 
mass emissions excepted methodology under Sec. 75.19 of this chapter 
until the completion of the period for the permitting authority review; 
or
    (ii) For a unit that commences operation after its compliance 
deadline under Sec. 96.71(b), the date of submission of the 
certification application for approval to use the low mass emissions 
excepted methodology under Sec. 75.19 of this chapter until the 
completion of the period for permitting authority review, or
    (2) For units that are reporting on a control period basis under 
Sec. 96.74(b)(3)(ii) of this part:
    (i) For a unit that commenced operation before its compliance 
deadline under Sec. 96.71(b), where the certification application is 
submitted before May 1, from May 1 of the year of the submission of the 
certification application for approval to use the low mass emissions 
excepted methodology under Sec. 75.19 of this chapter until the 
completion of the period for the permitting authority review; or
    (ii) For a unit that commenced operation before its compliance 
deadline under Sec. 96.71(b), where the certification application is 
submitted after May 1, from May 1 of the year following submission of 
the certification application for approval to use the low mass emissions 
excepted methodology under Sec. 75.19 of this chapter until the 
completion of the period for the permitting authority review; or
    (iii) For a unit that commences operation after its compliance 
deadline under Sec. 96.71(b), where the unit commences operation before 
May 1, from May 1 of the year that the unit commenced operation, until 
the completion of the period for the permitting authority's review.
    (iv) For a unit that has not operated after its compliance deadline 
under Sec. 96.71(b), where the certification application is submitted 
after May 1, but before October 1st, from the date of submission of a 
certification application for approval to use the low mass emissions 
excepted methodology under Sec. 75.19 of this chapter until the 
completion of the period for the permitting authority's review.
    (d) Certification/recertification procedures for alternative 
monitoring systems. The NOX authorized account representative 
representing the owner or operator of each unit applying to monitor 
using an alternative monitoring system approved by the Administrator 
and, if applicable, the permitting authority under subpart E of part 75 
of this chapter shall apply for certification to the permitting 
authority prior to use of the system under the NOX Trading 
Program. The NOX authorized account representative shall

[[Page 609]]

apply for recertification following a replacement, modification or 
change according to the procedures in paragraph (b) of this section. The 
owner or operator of an alternative monitoring system shall comply with 
the notification and application requirements for certification 
according to the procedures specified in paragraph (b)(3) of this 
section and Sec. 75.20(f) of this chapter .



Sec. 96.72  Out of control periods.

    (a) Whenever any monitoring system fails to meet the quality 
assurance requirements of appendix B of part 75 of this chapter, data 
shall be substituted using the applicable procedures in subpart D, 
appendix D, or appendix E of part 75 of this chapter.
    (b) Audit decertification. Whenever both an audit of a monitoring 
system and a review of the initial certification or recertification 
application reveal that any system or component should not have been 
certified or recertified because it did not meet a particular 
performance specification or other requirement under Sec. 96.71 or the 
applicable provisions of part 75 of this chapter, both at the time of 
the initial certification or recertification application submission and 
at the time of the audit, the permitting authority will issue a notice 
of disapproval of the certification status of such system or component. 
For the purposes of this paragraph, an audit shall be either a field 
audit or an audit of any information submitted to the permitting 
authority or the Administrator. By issuing the notice of disapproval, 
the permitting authority revokes prospectively the certification status 
of the system or component. The data measured and recorded by the system 
or component shall not be considered valid quality-assured data from the 
date of issuance of the notification of the revoked certification status 
until the date and time that the owner or operator completes 
subsequently approved initial certification or recertification tests. 
The owner or operator shall follow the initial certification or 
recertification procedures in Sec. 96.71 for each disapproved system.



Sec. 96.73  Notifications.

    The NOX authorized account representative for a 
NOX Budget unit shall submit written notice to the permitting 
authority and the Administrator in accordance with Sec. 75.61 of this 
chapter, except that if the unit is not subject to an Acid Rain 
emissions limitation, the notification is only required to be sent to 
the permitting authority.



Sec. 96.74  Recordkeeping and reporting.

    (a) General provisions. (1) The NOX authorized account 
representative shall comply with all recordkeeping and reporting 
requirements in this section and with the requirements of Sec. 96.10(e).
    (2) If the NOX authorized account representative for a 
NOX Budget unit subject to an Acid Rain Emission limitation 
who signed and certified any submission that is made under subpart F or 
G of part 75 of this chapter and which includes data and information 
required under this subpart or subpart H of part 75 of this chapter is 
not the same person as the designated representative or the alternative 
designated representative for the unit under part 72 of this chapter, 
the submission must also be signed by the designated representative or 
the alternative designated representative.
    (b) Monitoring plans. (1) The owner or operator of a unit subject to 
an Acid Rain emissions limitation shall comply with requirements of 
Sec. 75.62 of this chapter, except that the monitoring plan shall also 
include all of the information required by subpart H of part 75 of this 
chapter.
    (2) The owner or operator of a unit that is not subject to an Acid 
Rain emissions limitation shall comply with requirements of Sec. 75.62 
of this chapter, except that the monitoring plan is only required to 
include the information required by subpart H of part 75 of this 
chapter.
    (c) Certification applications. The NOX authorized 
account representative shall submit an application to the permitting 
authority within 45 days after completing all initial certification or 
recertification tests required under Sec. 96.71 including the 
information required under subpart H of part 75 of this chapter.

[[Page 610]]

    (d) Quarterly reports. The NOX authorized account 
representative shall submit quarterly reports, as follows:
    (1) If a unit is subject to an Acid Rain emission limitation or if 
the owner or operator of the NOX budget unit chooses to meet 
the annual reporting requirements of this subpart H, the NOX 
authorized account representative shall submit a quarterly report for 
each calendar quarter beginning with:
    (i) For units that elect to comply with the early reduction credit 
provisions under Sec. 96.55 of this part, the calender quarter that 
includes the date of initial provisional certification under 
Sec. 96.71(b)(3)(iii). Data shall be reported from the date and hour 
corresponding to the date and hour of provisional certification; or
    (ii) For units commencing operation prior to May 1, 2002 that are 
not required to certify monitors by May 1, 2000 under Sec. 96.70(b)(1), 
the earlier of the calender quarter that includes the date of initial 
provisional certification under Sec. 96.71(b)(3)(iii) or, if the 
certification tests are not completed by May 1, 2002, the partial 
calender quarter from May 1, 2002 through June 30, 2002. Data shall be 
recorded and reported from the earlier of the date and hour 
corresponding to the date and hour of provisional certification or the 
first hour on May 1, 2002; or
    (iii) For a unit that commences operation after May 1, 2002, the 
calendar quarter in which the unit commences operation, Data shall be 
reported from the date and hour corresponding to when the unit commenced 
operation.
    (2) If a NOX budget unit is not subject to an Acid Rain 
emission limitation, then the NOX authorized account 
representative shall either:
    (i) Meet all of the requirements of part 75 related to monitoring 
and reporting NOX mass emissions during the entire year and 
meet the reporting deadlines specified in paragraph (d)(1) of this 
section; or
    (ii) Submit quarterly reports only for the periods from the earlier 
of May 1 or the date and hour that the owner or operator successfully 
completes all of the recertification tests required under 
Sec. 75.74(d)(3) through September 30 of each year in accordance with 
the provisions of Sec. 75.74(b) of this chapter. The NOX 
authorized account representative shall submit a quarterly report for 
each calendar quarter, beginning with:
    (A) For units that elect to comply with the early reduction credit 
provisions under Sec. 96.55, the calender quarter that includes the date 
of initial provisional certification under Sec. 96.71(b)(3)(iii). Data 
shall be reported from the date and hour corresponding to the date and 
hour of provisional certification; or
    (B) For units commencing operation prior to May 1, 2002 that are not 
required to certify monitors by May 1, 2000 under Sec. 96.70(b)(1), the 
earlier of the calender quarter that includes the date of initial 
provisional certification under Sec. 96.71(b)(3)(iii), or if the 
certification tests are not completed by May 1, 2002, the partial 
calender quarter from May 1, 2002 through June 30, 2002. Data shall be 
reported from the earlier of the date and hour corresponding to the date 
and hour of provisional certification or the first hour of May 1, 2002; 
or
    (C) For units that commence operation after May 1, 2002 during the 
control period, the calender quarter in which the unit commences 
operation. Data shall be reported from the date and hour corresponding 
to when the unit commenced operation; or
    (D) For units that commence operation after May 1, 2002 and before 
May 1 of the year in which the unit commences operation, the earlier of 
the calender quarter that includes the date of initial provisional 
certification under Sec. 96.71(b)(3)(iii) or, if the certification tests 
are not completed by May 1 of the year in which the unit commences 
operation, May 1 of the year in which the unit commences operation. Data 
shall be reported from the earlier of the date and hour corresponding to 
the date and hour of provisional certification or the first hour of May 
1 of the year after the unit commences operation.
    (E) For units that commence operation after May 1, 2002 and after 
September 30 of the year in which the unit commences operation, the 
earlier of the calender quarter that includes the date of initial 
provisional certification under Sec. 96.71(b)(3)(iii) or, if the 
certification tests are not completed by May

[[Page 611]]

1 of the year after the unit commences operation, May 1 of the year 
after the unit commences operation. Data shall be reported from the 
earlier of the date and hour corresponding to the date and hour of 
provisional certification or the first hour of May 1 of the year after 
the unit commences operation.
    (3) The NOX authorized account representative shall 
submit each quarterly report to the Administrator within 30 days 
following the end of the calendar quarter covered by the report. 
Quarterly reports shall be submitted in the manner specified in subpart 
H of part 75 of this chapter and Sec. 75.64 of this chapter.
    (i) For units subject to an Acid Rain Emissions limitation, 
quarterly reports shall include all of the data and information required 
in subpart H of part 75 of this chapter for each NOX Budget 
unit (or group of units using a common stack) as well as information 
required in subpart G of part 75 of this chapter.
    (ii) For units not subject to an Acid Rain Emissions limitation, 
quarterly reports are only required to include all of the data and 
information required in subpart H of part 75 of this chapter for each 
NOX Budget unit (or group of units using a common stack).
    (4) Compliance certification. The NOX authorized account 
representative shall submit to the Administrator a compliance 
certification in support of each quarterly report based on reasonable 
inquiry of those persons with primary responsibility for ensuring that 
all of the unit's emissions are correctly and fully monitored. The 
certification shall state that:
    (i) The monitoring data submitted were recorded in accordance with 
the applicable requirements of this subpart and part 75 of this chapter, 
including the quality assurance procedures and specifications; and
    (ii) For a unit with add-on NOX emission controls and for 
all hours where data are substituted in accordance with Sec. 75.34(a)(1) 
of this chapter, the add-on emission controls were operating within the 
range of parameters listed in the monitoring plan and the substitute 
values do not systematically underestimate NOX emissions; and
    (iii) For a unit that is reporting on a control period basis under 
Sec. 96.74(d) the NOX emission rate and NOX 
concentration values substituted for missing data under subpart D of 
part 75 of this chapter are calculated using only values from a control 
period and do not systematically underestimate NOX emissions.



Sec. 96.75  Petitions.

    (a) The NOX authorized account representative of a 
NOX Budget unit that is subject to an Acid Rain emissions 
limitation may submit a petition under Sec. 75.66 of this chapter to the 
Administrator requesting approval to apply an alternative to any 
requirement of this subpart.
    (1) Application of an alternative to any requirement of this subpart 
is in accordance with this subpart only to the extent that the petition 
is approved by the Administrator, in consultation with the permitting 
authority.
    (2) Notwithstanding paragraph (a)(1) of this section, if the 
petition requests approval to apply an alternative to a requirement 
concerning any additional CEMS required under the common stack 
provisions of Sec. 75.72 of this chapter, the petition is governed by 
paragraph (b) of this section.
    (b) The NOX authorized account representative of a 
NOX Budget unit that is not subject to an Acid Rain emissions 
limitation may submit a petition under Sec. 75.66 of this chapter to the 
permitting authority and the Administrator requesting approval to apply 
an alternative to any requirement of this subpart.
    (1) The NOX authorized account representative of a 
NOX Budget unit that is subject to an Acid Rain emissions 
limitation may submit a petition under Sec. 75.66 of this chapter to the 
permitting authority and the Administrator requesting approval to apply 
an alternative to a requirement concerning any additional CEMS required 
under the common stack provisions of Sec. 75.72 of this chapter or a 
NOX concentration CEMS used under 75.71(a)(2) of this 
chapter.
    (2) Application of an alternative to any requirement of this subpart 
is in accordance with this subpart only to the extent the petition under 
paragraph (b) of this section is approved by

[[Page 612]]

both the permitting authority and the Administrator.



Sec. 96.76  Additional requirements to provide heat input data for allocations purposes.

    (a) The owner or operator of a unit that elects to monitor and 
report NOX Mass emissions using a NOX 
concentration system and a flow system shall also monitor and report 
heat input at the unit level using the procedures set forth in part 75 
of this chapter for any source located in a state developing source 
allocations based upon heat input.
    (b) The owner or operator of a unit that monitor and report 
NOX Mass emissions using a NOX concentration 
system and a flow system shall also monitor and report heat input at the 
unit level using the procedures set forth in part 75 of this chapter for 
any source that is applying for early reduction credits under 
Sec. 96.55.



                   Subpart I--Individual Unit Opt-ins



Sec. 96.80  Applicability.

    A unit that is in the State, is not a NOX Budget unit 
under Sec. 96.4, vents all of its emissions to a stack, and is 
operating, may qualify, under this subpart, to become a NOX 
Budget opt-in source. A unit that is a NOX Budget unit, is 
covered by a retired unit exemption under Sec. 96.5 that is in effect, 
or is not operating is not eligible to become a NOX Budget 
opt-in source.



Sec. 96.81  General.

    Except otherwise as provided in this part, a NOX Budget 
opt-in source shall be treated as a NOX Budget unit for 
purposes of applying subparts A through H of this part.



Sec. 96.82  NOX authorized account representative.

    A unit for which an application for a NOX Budget opt-in 
permit is submitted and not denied or withdrawn, or a NOX 
Budget opt-in source, located at the same source as one or more 
NOX Budget units, shall have the same NOX 
authorized account representative as such NOX Budget units.



Sec. 96.83  Applying for NOX Budget opt-in permit.

    (a) Applying for initial NOX Budget opt-in permit. In 
order to apply for an initial NOX Budget opt-in permit, the 
NOX authorized account representative of a unit qualified 
under Sec. 96.80 may submit to the permitting authority at any time, 
except as provided under Sec. 96.86(g):
    (1) A complete NOX Budget permit application under 
Sec. 96.22;
    (2) A monitoring plan submitted in accordance with subpart H of this 
part; and
    (3) A complete account certificate of representation under 
Sec. 96.13, if no NOX authorized account representative has 
been previously designated for the unit.
    (b) Duty to reapply. The NOX authorized account 
representative of a NOX Budget opt-in source shall submit a 
complete NOX Budget permit application under Sec. 96.22 to 
renew the NOX Budget opt-in permit in accordance with 
Sec. 96.21(c) and, if applicable, an updated monitoring plan in 
accordance with subpart H of this part.



Sec. 96.84  Opt-in process.

    The permitting authority will issue or deny a NOX Budget 
opt-in permit for a unit for which an initial application for a 
NOX Budget opt-in permit under Sec. 96.83 is submitted, in 
accordance with Sec. 96.20 and the following:
    (a) Interim review of monitoring plan. The permitting authority will 
determine, on an interim basis, the sufficiency of the monitoring plan 
accompanying the initial application for a NOX Budget opt-in 
permit under Sec. 96.83. A monitoring plan is sufficient, for purposes 
of interim review, if the plan appears to contain information 
demonstrating that the NOX emissions rate and heat input of 
the unit are monitored and reported in accordance with subpart H of this 
part. A determination of sufficiency shall not be construed as 
acceptance or approval of the unit's monitoring plan.
    (b) If the permitting authority determines that the unit's 
monitoring plan is sufficient under paragraph (a) of this section and 
after completion of monitoring system certification under subpart H of 
this part, the NOX emissions

[[Page 613]]

rate and the heat input of the unit shall be monitored and reported in 
accordance with subpart H of this part for one full control period 
during which monitoring system availability is not less than 90 percent 
and during which the unit is in full compliance with any applicable 
State or Federal emissions or emissions-related requirements. Solely for 
purposes of applying the requirements in the prior sentence, the unit 
shall be treated as a ``NOX Budget unit'' prior to issuance 
of a NOX Budget opt-in permit covering the unit.
    (c) Based on the information monitored and reported under paragraph 
(b) of this section, the unit's baseline heat rate shall be calculated 
as the unit's total heat input (in mmBtu) for the control period and the 
unit's baseline NOX emissions rate shall be calculated as the 
unit's total NOX emissions (in lb) for the control period 
divided by the unit's baseline heat rate.
    (d) After calculating the baseline heat input and the baseline 
NOX emissions rate for the unit under paragraph (c) of this 
section, the permitting authority will serve a draft NOX 
Budget opt-in permit on the NOX authorized account 
representative of the unit.
    (e) Confirmation of intention to opt-in. Within 20 days after the 
issuance of the draft NOX Budget opt-in permit, the 
NOX authorized account representative of the unit must submit 
to the permitting authority a confirmation of the intention to opt in 
the unit or a withdrawal of the application for a NOX Budget 
opt-in permit under Sec. 96.83. The permitting authority will treat the 
failure to make a timely submission as a withdrawal of the 
NOX Budget opt-in permit application.
    (f) Issuance of draft NOX Budget opt-in permit. If the 
NOX authorized account representative confirms the intention 
to opt-in the unit under paragraph (e) of this section, the permitting 
authority will issue the draft NOX Budget opt-in permit in 
accordance with Sec. 96.20.
    (g) Notwithstanding paragraphs (a) through (f) of this section, if 
at any time before issuance of a draft NOX Budget opt-in 
permit for the unit, the permitting authority determines that the unit 
does not qualify as a NOX Budget opt-in source under 
Sec. 96.80, the permitting authority will issue a draft denial of a 
NOX Budget opt-in permit for the unit in accordance with 
Sec. 96.20.
    (h) Withdrawal of application for NOX Budget opt-in 
permit. A NOX authorized account representative of a unit may 
withdraw its application for a NOX Budget opt-in permit under 
Sec. 96.83 at any time prior to the issuance of the final NOX 
Budget opt-in permit. Once the application for a NOX Budget 
opt-in permit is withdrawn, a NOX authorized account 
representative wanting to reapply must submit a new application for a 
NOX Budget permit under Sec. 96.83.
    (i) Effective date. The effective date of the initial NOX 
Budget opt-in permit shall be May 1 of the first control period starting 
after the issuance of the initial NOX Budget opt-in permit by 
the permitting authority. The unit shall be a NOX Budget opt-
in source and a NOX Budget unit as of the effective date of 
the initial NOX Budget opt-in permit.



Sec. 96.85  NOX Budget opt-in permit contents.

    (a) Each NOX Budget opt-in permit (including any draft or 
proposed NOX Budget opt-in permit, if applicable) will 
contain all elements required for a complete NOX Budget opt-
in permit application under Sec. 96.22 as approved or adjusted by the 
permitting authority.
    (b) Each NOX Budget opt-in permit is deemed to 
incorporate automatically the definitions of terms under Sec. 96.2 and, 
upon recordation by the Administrator under subpart F, G, or I of this 
part, every allocation, transfer, or deduction of NOX 
allowances to or from the compliance accounts of each NOX 
Budget opt-in source covered by the NOX Budget opt-in permit 
or the overdraft account of the NOX Budget source where the 
NOX Budget opt-in source is located.



Sec. 96.86  Withdrawal from NOX Budget Trading Program.

    (a) Requesting withdrawal. To withdraw from the NOX 
Budget Trading Program, the NOX authorized account 
representative of a NOX Budget opt-in source shall submit to 
the permitting authority a request to withdraw effective as of a 
specified date prior to May 1 or after September 30. The submission 
shall be made no later than 90

[[Page 614]]

days prior to the requested effective date of withdrawal.
    (b) Conditions for withdrawal. Before a NOX Budget opt-in 
source covered by a request under paragraph (a) of this section may 
withdraw from the NOX Budget Trading Program and the 
NOX Budget opt-in permit may be terminated under paragraph 
(e) of this section, the following conditions must be met:
    (1) For the control period immediately before the withdrawal is to 
be effective, the NOX authorized account representative must 
submit or must have submitted to the permitting authority an annual 
compliance certification report in accordance with Sec. 96.30.
    (2) If the NOX Budget opt-in source has excess emissions 
for the control period immediately before the withdrawal is to be 
effective, the Administrator will deduct or has deducted from the 
NOX Budget opt-in source's compliance account, or the 
overdraft account of the NOX Budget source where the 
NOX Budget opt-in source is located, the full amount required 
under Sec. 96.54(d) for the control period.
    (3) After the requirements for withdrawal under paragraphs (b)(1) 
and (2) of this section are met, the Administrator will deduct from the 
NOX Budget opt-in source's compliance account, or the 
overdraft account of the NOX Budget source where the 
NOX Budget opt-in source is located, NOX 
allowances equal in number to and allocated for the same or a prior 
control period as any NOX allowances allocated to that source 
under Sec. 96.88 for any control period for which the withdrawal is to 
be effective. The Administrator will close the NOX Budget 
opt-in source's compliance account and will establish, and transfer any 
remaining allowances to, a new general account for the owners and 
operators of the NOX Budget opt-in source. The NOX 
authorized account representative for the NOX Budget opt-in 
source shall become the NOX authorized account representative 
for the general account.
    (c) A NOX Budget opt-in source that withdraws from the 
NOX Budget Trading Program shall comply with all requirements 
under the NOX Budget Trading Program concerning all years for 
which such NOX Budget opt-in source was a NOX 
Budget opt-in source, even if such requirements arise or must be 
complied with after the withdrawal takes effect.
    (d) Notification. (1) After the requirements for withdrawal under 
paragraphs (a) and (b) of this section are met (including deduction of 
the full amount of NOX allowances required), the permitting 
authority will issue a notification to the NOX authorized 
account representative of the NOX Budget opt-in source of the 
acceptance of the withdrawal of the NOX Budget opt-in source 
as of a specified effective date that is after such requirements have 
been met and that is prior to May 1 or after September 30.
    (2) If the requirements for withdrawal under paragraphs (a) and (b) 
of this section are not met, the permitting authority will issue a 
notification to the NOX authorized account representative of 
the NOX Budget opt-in source that the NOX Budget 
opt-in source's request to withdraw is denied. If the NOX 
Budget opt-in source's request to withdraw is denied, the NOX 
Budget opt-in source shall remain subject to the requirements for a 
NOX Budget opt-in source.
    (e) Permit amendment. After the permitting authority issues a 
notification under paragraph (d)(1) of this section that the 
requirements for withdrawal have been met, the permitting authority will 
revise the NOX Budget permit covering the NOX 
Budget opt-in source to terminate the NOX Budget opt-in 
permit as of the effective date specified under paragraph (d)(1) of this 
section. A NOX Budget opt-in source shall continue to be a 
NOX Budget opt-in source until the effective date of the 
termination.
    (f) Reapplication upon failure to meet conditions of withdrawal. If 
the permitting authority denies the NOX Budget opt-in 
source's request to withdraw, the NOX authorized account 
representative may submit another request to withdraw in accordance with 
paragraphs (a) and (b) of this section.
    (g) Ability to return to the NOX Budget Trading Program. 
Once a NOX Budget opt-in source withdraws from the 
NOX Budget Trading Program and its NOX Budget opt-
in permit is terminated under this section, the NOX authority 
account representative may not submit

[[Page 615]]

another application for a NOX Budget opt-in permit under 
Sec. 96.83 for the unit prior to the date that is 4 years after the date 
on which the terminated NOX Budget opt-in permit became 
effective.



Sec. 96.87  Change in regulatory status.

    (a) Notification. When a NOX Budget opt-in source becomes 
a NOX Budget unit under Sec. 96.4, the NOX 
authorized account representative shall notify in writing the permitting 
authority and the Administrator of such change in the NOX 
Budget opt-in source's regulatory status, within 30 days of such change.
    (b) Permitting authority's and Administrator's action. (1)(i) When 
the NOX Budget opt-in source becomes a NOX Budget 
unit under Sec. 96.4, the permitting authority will revise the 
NOX Budget opt-in source's NOX Budget opt-in 
permit to meet the requirements of a NOX Budget permit under 
Sec. 96.23 as of an effective date that is the date on which such 
NOX Budget opt-in source becomes a NOX Budget unit 
under Sec. 96.4.
    (ii)(A) The Administrator will deduct from the compliance account 
for the NOX Budget unit under paragraph (b)(1)(i) of this 
section, or the overdraft account of the NOX Budget source 
where the unit is located, NOX allowances equal in number to 
and allocated for the same or a prior control period as:
    (1) Any NOX allowances allocated to the NOX 
Budget unit (as a NOX Budget opt-in source) under Sec. 96.88 
for any control period after the last control period during which the 
unit's NOX Budget opt-in permit was effective; and
    (2) If the effective date of the NOX Budget permit 
revision under paragraph (b)(1)(i) of this section is during a control 
period, the NOX allowances allocated to the NOX 
Budget unit (as a NOX Budget opt-in source) under Sec. 96.88 
for the control period multiplied by the ratio of the number of days, in 
the control period, starting with the effective date of the permit 
revision under paragraph (b)(1)(i) of this section, divided by the total 
number of days in the control period.
    (B) The NOX authorized account representative shall 
ensure that the compliance account of the NOX Budget unit 
under paragraph (b)(1)(i) of this section, or the overdraft account of 
the NOX Budget source where the unit is located, includes the 
NOX allowances necessary for completion of the deduction 
under paragraph (b)(1)(ii)(A) of this section. If the compliance account 
or overdraft account does not contain sufficient NOX 
allowances, the Administrator will deduct the required number of 
NOX allowances, regardless of the control period for which 
they were allocated, whenever NOX allowances are recorded in 
either account.
    (iii)(A) For every control period during which the NOX 
Budget permit revised under paragraph (b)(1)(i) of this section is 
effective, the NOX Budget unit under paragraph (b)(1)(i) of 
this section will be treated, solely for purposes of NOX 
allowance allocations under Sec. 96.42, as a unit that commenced 
operation on the effective date of the NOX Budget permit 
revision under paragraph (b)(1)(i) of this section and will be allocated 
NOX allowances under Sec. 96.42.
    (B) Notwithstanding paragraph (b)(1)(iii)(A) of this section, if the 
effective date of the NOX Budget permit revision under 
paragraph (b)(1)(i) of this section is during a control period, the 
following number of NOX allowances will be allocated to the 
NOX Budget unit under paragraph (b)(1)(i) of this section 
under Sec. 96.42 for the control period: the number of NOX 
allowances otherwise allocated to the NOX Budget unit under 
Sec. 96.42 for the control period multiplied by the ratio of the number 
of days, in the control period, starting with the effective date of the 
permit revision under paragraph (b)(1)(i) of this section, divided by 
the total number of days in the control period.
    (2)(i) When the NOX authorized account representative of 
a NOX Budget opt-in source does not renew its NOX 
Budget opt-in permit under Sec. 96.83(b), the Administrator will deduct 
from the NOX Budget opt-in unit's compliance account, or the 
overdraft account of the NOX Budget source where the 
NOX Budget opt-in source is located, NOX 
allowances equal in number to and allocated for the same or a prior 
control period as any NOX allowances allocated to the 
NOX Budget opt-in source under Sec. 96.88 for any control 
period after the last control period for which the NOX

[[Page 616]]

Budget opt-in permit is effective. The NOX authorized account 
representative shall ensure that the NOX Budget opt-in 
source's compliance account or the overdraft account of the 
NOX Budget source where the NOX Budget opt-in 
source is located includes the NOX allowances necessary for 
completion of such deduction. If the compliance account or overdraft 
account does not contain sufficient NOX allowances, the 
Administrator will deduct the required number of NOX 
allowances, regardless of the control period for which they were 
allocated, whenever NOX allowances are recorded in either 
account.
    (ii) After the deduction under paragraph (b)(2)(i) of this section 
is completed, the Administrator will close the NOX Budget 
opt-in source's compliance account. If any NOX allowances 
remain in the compliance account after completion of such deduction and 
any deduction under Sec. 96.54, the Administrator will close the 
NOX Budget opt-in source's compliance account and will 
establish, and transfer any remaining allowances to, a new general 
account for the owners and operators of the NOX Budget opt-in 
source. The NOX authorized account representative for the 
NOX Budget opt-in source shall become the NOX 
authorized account representative for the general account.



Sec. 96.88  NOX allowance allocations to opt-in units.

    (a) NOX allowance allocation. (1) By December 31 
immediately before the first control period for which the NOX 
Budget opt-in permit is effective, the permitting authority will 
allocate NOX allowances to the NOX Budget opt-in 
source and submit to the Administrator the allocation for the control 
period in accordance with paragraph (b) of this section.
    (2) By no later than December 31, after the first control period for 
which the NOX Budget opt-in permit is in effect, and December 
31 of each year thereafter, the permitting authority will allocate 
NOX allowances to the NOX Budget opt-in source, 
and submit to the Administrator allocations for the next control period, 
in accordance with paragraph (b) of this section.
    (b) For each control period for which the NOX Budget opt-
in source has an approved NOX Budget opt-in permit, the 
NOX Budget opt-in source will be allocated NOX 
allowances in accordance with the following procedures:
    (1) The heat input (in mmBtu) used for calculating NOX 
allowance allocations will be the lesser of:
    (i) The NOX Budget opt-in source's baseline heat input 
determined pursuant to Sec. 96.84(c); or
    (ii) The NOX Budget opt-in source's heat input, as 
determined in accordance with subpart H of this part, for the control 
period in the year prior to the year of the control period for which the 
NOX allocations are being calculated.
    (2) The permitting authority will allocate NOX allowances 
to the NOX Budget opt-in source in an amount equaling the 
heat input (in mmBtu) determined under paragraph (b)(1) of this section 
multiplied by the lesser of:
    (i) The NOX Budget opt-in source's baseline 
NOX emissions rate (in lb/mmBtu) determined pursuant to 
Sec. 96.84(c); or
    (ii) The most stringent State or Federal NOX emissions 
limitation applicable to the NOX Budget opt-in source during 
the control period.

Subpart J--Mobile and Area Sources [Reserved]

                         PARTS 97-99 [RESERVED]

[[Page 617]]



                      SUBCHAPTER D--WATER PROGRAMS



                           PART 100 [RESERVED]



PART 104--PUBLIC HEARINGS ON EFFLUENT STANDARDS FOR TOXIC POLLUTANTS--Table of Contents




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 Administrator.
104.15  Promulgation of standards.
104.16  Filing and time.

    Authority: Secs. 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.



Sec. 104.1  Applicability.

    This part shall be applicable to hearings required by statute to be 
held in connection with the establishment of toxic pollutant effluent 
standards under section 307(a) of the Act.



Sec. 104.2  Definitions.

    As used in this part, the term:
    (a) Act means the Federal Water Pollution Control Act, as amended, 
33 U.S.C. 1251 et seq., Public Law 92-500, 86 Stat. 816.
    (b) Administrator means the Administrator of the Environmental 
Protection Agency, or any employee of the Agency to whom the 
Administrator may by order delegate his authority to carry out his 
functions under section 307(a) of the Act, or any person who shall by 
operation of law be authorized to carry out such functions.
    (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 Sec. 104.3 hereof.
    (f) Person means an individual, corporation, partnership, 
association, state, municipality or other political subdivision of a 
state, or any interstate body.
    (g) Effluent standard means any effluent standard or limitation, 
which may include a prohibition of any discharge, established or 
proposed to be established for any toxic pollutant under section 307(a) 
of the Act.
    (h) Presiding Officer means the Chief Administrative Law Judge of 
the Agency or a person designated by the Chief Administrative Law Judge 
or by the Administrator to preside at a hearing under this part, in 
accordance with Sec. 104.6 hereof.



Sec. 104.3  Notice of hearing; objection; public comment.

    (a) Notice of hearing. Whenever the Administrator 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 standard may file with the hearing clerk a concise 
statement of any such objection. No person may participate in the 
hearing on the proposed toxic pollutant 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 circumstances and for good cause shown the 
Presiding Officer may allow an objection to be filed after the filing 
deadline prescribed in the preceding sentence, which good cause must 
include at a minimum lack of actual notice on the part of the objector 
or any

[[Page 618]]

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 
requirements:
    (1) It shall be filed in triplicate with the hearing clerk within 
the time prescribed in paragraph (a) of this section;
    (2) It shall state concisely and with particularity each portion of 
the proposed standard to which objection is taken; to the greatest 
extent feasible it shall state the basis for such objection;
    (3) To the greatest extent feasible it shall (i) state specifically 
the objector's proposed modification to any such standard proposed by 
the Agency to which objection is taken, (ii) set forth the reasons why 
such modification is sought, and (iii) identify and describe the 
scientific or other basis for such proposed modification, including 
reference to any pertinent scientific data or authority in support 
thereof.

Any objection which fails to comply with the foregoing provisions shall 
not be accepted for filing. 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 reasons therefor.
    (c) Data in support of objection or modification. In the event that 
the time prescribed for filing objections pursuant to paragraphs (a) and 
(b) of this section is insufficient to permit an objecting party to 
fully set forth with such 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 objection, and file a 
more complete statement of such basis, information, and data 
(hereinafter referred 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 effluent 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 comments which shall be not later 
than the date set for commencement of the hearing. Such comments shall 
be received in evidence at the commencement of the hearing. The 
Administrator in making any decision based upon the record shall take 
into account the unavailability of cross-examination in determining the 
weight to be accorded such comments.
    (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.



Sec. 104.4  Statement of basis and purpose.

    Whenever the Administrator publishes a proposed effluent standard, 
the notice thereof published in the Federal Register shall include a 
statement of the basis and purpose of the standard or a summary thereof. 
This statement shall include:
    (a) The purpose of the proposed standard;
    (b) An explanation of how the proposed standard was derived;
    (c) Scientific and technical data and studies supporting the 
proposed standard or references thereto if the materials are published 
or otherwise readily available; and
    (d) Such other information as may be reasonably required to set 
forth fully the basis of the standard.

Where the notice of the proposed rulemaking summarizes the full 
statement of basis and purpose, or incorporates documents by reference, 
the documents thus summarized or incorporated by reference shall 
thereupon be made available by the Agency for inspection and copying by 
any interested person.



Sec. 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

[[Page 619]]

docket shall include all written objections filed by any party, any 
public comments received pursuant to Sec. 104.3(d), a verbatim 
transcript of the hearing, the statement of basis and purpose required 
by Sec. 104.4, and any supporting documents referred to therein, and 
other documents of exhibits that may be received in evidence or marked 
for identification by or at the direction of the Presiding Officer, or 
filed by any party in connection with the hearing. Copies of documents 
in the docket shall be available to any person upon payment to the 
Agency of such charges as the Agency may prescribe to cover the costs of 
duplication. The materials contained in the docket shall constitute the 
record.



Sec. 104.6  Designation of Presiding Officer.

    The Chief Administrative Law Judge of the Agency may preside 
personally at any hearing under this part, or he may designate another 
Administrative Law Judge as Presiding Officer for the hearing. In the 
event of the unavailability of any such Administrative Law Judge, the 
Administrator may designate a Presiding Officer. No person who has any 
personal pecuniary interest in the outcome of a proceeding under this 
part, or who has participated in the development or enforcement of any 
standard or proposed standard at issue in a proceeding hereunder, shall 
serve as Presiding Officer in such proceeding.



Sec. 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
    (e) Require any part or all of the evidence to be submitted in 
writing and by a certain date.



Sec. 104.8  Prehearing conferences.

    Prehearing conferences are encouraged for the purposes of 
simplification of issues, identification and scheduling of evidence and 
witnesses, the establishment of an orderly framework for the 
proceedings, the expediting of the hearing, and such other purposes of a 
similar nature as may be appropriate.
    (a) The Presiding Officer on his own motion may, and at the request 
of any party made within 20 days of the proposal of standards hereunder 
shall, direct all parties to appear at a specified time and place for an 
initial hearing session in the nature of a prehearing conference. 
Matters taken up at the conference may include, without limitation:
    (1) Consideration and simplification of any issues of law or fact;
    (2) Identification, advance submission, marking for identification, 
consideration of any objections to admission, and admission of 
documentary evidence;
    (3) Possible stipulations of fact;
    (4) The identification of each witness expected to be called by each 
party, and the nature and substance of his expected testimony;
    (5) Scheduling of witnesses where practicable, and limitation of the 
number of witnesses where appropriate in order to avoid delay or 
repetition;
    (6) If desirable, the segregation of the hearing into separate 
segments for different provisions of the proposed effluent standards and 
the establishment of separate service lists;
    (7) Encouragement of objecting parties to agree upon and designate 
lead counsel for objectors with common interests so as to avoid 
repetitious questioning of witnesses.
    (b) The Presiding Officer may, following a prehearing conference, 
issue an order setting forth the agreements reached by the parties or 
representatives, the schedule of witnesses, and a statement of issues 
for the hearing. In addition such order may direct the parties to file 
and serve copies of documents or materials, file and serve lists of 
witnesses which may include a short summary of the expected testimony of 
each and, in the case of an expert witness, his curriculum vitae, and 
may contain such other directions as may

[[Page 620]]

be appropriate to facilitate the proceedings.



Sec. 104.9  Admission of evidence.

    (a) Where the Presiding Officer has directed identification of 
witnesses and production of documentation evidence by a certain date, 
the Presiding Officer may exclude any such evidence, or refuse to allow 
any witness to testify, when the witness was not identified or the 
document was not served by the time set by the Presiding Officer. Any 
such direction with respect to a party's case in chief shall not 
preclude the use of such evidence or testimony on rebuttal or response, 
or upon a showing satisfactory to the Presiding Officer that good cause 
existed for failure to serve testimony or a document or identify a 
witness by the time required. The Presiding Officer may require direct 
testimony to be in writing under oath and served by a certain date, and 
may exclude testimony not so served.
    (b) At the first prehearing conference, or at another time before 
the beginning of the taking of oral testimony to be set by the Presiding 
Officer, the statement of basis and purpose, together with any 
publications or reference materials cited therein, except where excluded 
by stipulation, shall be received in evidence.
    (c) The Presiding Officer may exclude evidence which is immaterial, 
irrelevant, unduly repetitious or cumulative, or would involve undue 
delay, or which, if hearsay, is not of the sort upon which responsible 
persons are accustomed to rely.
    (d) If relevant and material evidence is contained in a report or 
document containing immaterial or irrelevant matter, such immaterial or 
irrelevant matter may be excluded.
    (e) Whenever written testimony or a document or object is excluded 
from evidence by the Presiding Officer, it shall at the request of the 
proponent be marked for identification. Where oral testimony is 
permitted by the Presiding Officer, but the Presiding Officer excludes 
particular oral testimony, the party offering such testimony may make a 
brief offer of proof.
    (f) Any relevant and material documentary evidence, including but 
not limited to affidavits, published articles, and official documents, 
regardless of the availability of the affiant or author for cross-
examination, may be admitted in evidence, subject to the provisions of 
paragraphs (a), (c), and (d) of this section. The availability or 
nonavailability of cross-examination shall be considered as affecting 
the weight to be accorded such evidence in any decision based upon the 
record.
    (g) Official notice may be taken by the Presiding Officer or the 
Administrator of any matter which could be judicially noticed in the 
United States District Courts, and of other facts within the specialized 
knowledge and experience of the Agency. Opposing parties shall be given 
adequate opportunity to show the contrary.



Sec. 104.10  Hearing procedures.

    (a) Following the admission in evidence of the materials described 
in Sec. 104.9(b), the Agency shall have the right at the commencement of 
the hearing to supplement that evidence or to introduce additional 
relevant evidence. Thereafter the evidence of each objector shall be 
presented in support of its objection and any proposed modification. The 
Agency staff shall then be given an opportunity to rebut or respond to 
the objectors' presentation, including at its option the introduction of 
evidence which tends to support a standard or standards other than as 
set forth in the Agency's own initially proposed standards. In the event 
that evidence which tends to support such other standard or standards is 
offered and received in evidence, then the objectors may thereafter 
rebut or respond to any such new evidence.
    (b) The burden of proof as to any modification of any standard 
proposed by the Agency shall be upon the party who advocates such 
modification to show that the proposed modification is justified based 
upon a preponderance of the evidence.
    (c) Where necessary in order to prevent undue prolongation of the 
hearing, or to comply with time limitations set forth in the Act, the 
Presiding Officer may limit the number of witnesses who may testify, and 
the scope and extent of cross-examination.

[[Page 621]]

    (d) A verbatim transcript of the hearing shall be maintained and 
shall constitute a part of the record.
    (e) If a party objects to the admission or rejection of any evidence 
or to any other ruling of the Presiding Officer during the hearing, he 
shall state briefly the grounds of such objection. With respect to any 
ruling on evidence, it shall not be necessary for any party to claim an 
exception in order to preserve any right of subsequent review.
    (f) Any party may at any time withdraw his objection to a proposed 
effluent standard.



Sec. 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.



Sec. 104.12  Certification of record.

    As soon as possible after the hearing, the Presiding Officer shall 
transmit to the hearing clerk the transcript of the testimony and 
exhibits introduced in the hearing. The Presiding Officer shall attach 
to the original transcript his certificate stating that, to the best of 
his knowledge and belief, the 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.



Sec. 104.13  Interlocutory and post-hearing 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 
Officer concludes that (1) the ruling from which review is sought 
involves an important question as to which there is substantial ground 
for difference of opinion, and (2) either (i) a subsequent reversal of 
his ruling would be likely to result in substantial delay or expense if 
left to the conclusion of the proceedings, or (ii) a ruling on the 
question by the Administrator would be of material assistance in 
expediting the hearing. The certificate shall be in writing and shall 
specify the material relevant to the ruling certified. If the 
Administrator determines that interlocutory review is not warranted, he 
may decline to consider the ruling which has been certified.
    (b) Where the Presiding Officer declines to certify a ruling the 
party who had requested certification may apply to the Administrator for 
interlocutory review, or the Administrator may on his own motion direct 
that any matter be submitted to him for review, subject to the standards 
for review set forth in paragraph (a) of this section. An application 
for review shall be in writing and shall briefly state the grounds 
relied on. If the Administrator takes no action with respect to such 
application for interlocutory review within 15 days of its filing, such 
application shall be deemed to have been denied.
    (c) Unless otherwise ordered by the Presiding Officer or the 
Administrator, the hearing shall continue pending consideration by the 
Administrator of any ruling or request for interlocutory review.
    (d) Unless otherwise ordered by the Presiding Officer or the 
Administrator, briefs in response to any application for interlocutory 
review may be filed by any party within five days of the filing of the 
application for review.
    (e) Failure to request or obtain interlocutory review does not waive 
the rights of any party to complain of a ruling following completion of 
the hearing. Within five days following the close of a hearing under 
this part, any party may apply to the Administrator for post-hearing 
review of any procedural ruling, or any ruling made by the Presiding 
Officer concerning the admission or exclusion of evidence to which 
timely objection was made. Within seven days following the filing of any 
such application any other party may file a brief in response thereto.
    (f) If the Administrator on review under paragraph (e) of this 
section determines that evidence was improperly excluded, he may order 
its admission

[[Page 622]]

without remand for further proceedings, or may remand with such 
instructions as he deems appropriate concerning cross-examination, or 
opportunity 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 
whether 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 admitted 
without cross-examination, the Administrator shall consider the lack of 
opportunity for cross-examination in determining the weight to be given 
such evidence.
    (g) Motions shall be brief, in writing, and may be filed at any time 
following the publication of the proposed effluent standards, unless 
otherwise ordered by the Presiding Officer or the Administrator. Unless 
otherwise ordered or provided in these rules, responses to motions may 
be filed within seven days of the actual filing of the motion with the 
hearing clerk.



Sec. 104.14  Tentative and final decision by the Administrator.

    (a) As soon as practicable following the certification of the record 
and the filing by the parties of briefs and proposed findings of fact 
and conclusions under Sec. 104.11, the Administrator, with such staff 
assistance as he deems necessary and appropriate, shall review the 
entire record and prepare and file a tentative decision based thereon. 
The tentative decision shall include findings of fact and conclusions, 
and shall be filed with the hearing clerk who shall at once transmit a 
copy thereof to each party who participated at the hearing, or his 
attorney or other representative.
    (b) Upon filing of the tentative decision, the Administrator may 
allow a reasonable time for the parties to file with him any exceptions 
to the tenative decision, a brief in support of such exceptions 
containing appropriate references to the record, and any proposed 
changes in the tentative decision. Such materials shall, upon 
submission, become part of the record. As soon as practicable after the 
filing thereof the Administrator shall prepare and file a final 
decision, copies of which shall be transmitted to the parties or their 
representatives in the manner prescribed in paragraph (a) of this 
section.
    (c) In the event that the Administrator determines that due and 
timely execution of his functions, including compliance with time 
limitations established by law, imperatively and unavoidably so 
requires, he may omit the preparation and filing of the tentative 
decision and related procedures set forth in paragraph (b) of this 
section, and shall instead prepare and file a final decision, copies of 
which shall be transmitted to the parties or their representatives in 
the manner prescribed in paragraph (a) of this section.
    (d) Any decision rendered by the Administrator pursuant to this 
section shall include a statement of his findings and conclusions, and 
the reasons and basis therefor, and shall indicate the toxic pollutant 
effluent standard or standards which the Administrator is promulgating 
or intends to promulgate based thereon.



Sec. 104.15  Promulgation of standards.

    Upon consideration of the record, at the time of his final decision 
the Administrator shall determine whether the proposed effluent standard 
or standards should be promulgated as proposed, or whether any 
modification thereof is justified based upon a proponderance of the 
evidence adduced at the hearing, regardless of whether or not such 
modification was actually proposed by any objecting party. If he 
determines that a modification is not justified, he shall promulgate the 
standard or standards as proposed. If he determines that a modification 
is justified, he shall promulgate a standard or standards as so 
modified.



Sec. 104.16  Filing and time.

    (a) All documents or papers required or authorized by the foregoing 
provisions of this part including, but not limited to, motions, 
applications for review, and briefs, shall be filed in duplicate with 
the hearing clerk, except as otherwise expressly provided in these 
rules. Any document or paper so required or authorized to be filed with

[[Page 623]]

the hearing clerk, if it is filed during the course of the hearing, 
shall be also filed with the Presiding Officer. A copy of each document 
or paper filed by any party with the Presiding Officer, with the hearing 
clerk, or with the Administrator shall be served upon all other parties, 
except to the extent that the list of parties to be so served may be 
modified by order of the Presiding Officer, and each such document or 
paper shall be accompanied by a certificate of such service.
    (b) A party may be represented in any proceeding under this part by 
an attorney or other authorized representative. When any document or 
paper is required under these rules to be served upon a party such 
service shall be made upon such attorney or other representative.
    (c) Except where these rules or an order of the Presiding Officer 
require receipt of a document by a certain date, any document or paper 
required or authorized to be filed by this part shall be deemed to be 
filed when postmarked, or in the case of papers delivered other than by 
mail, when received by the hearing clerk.
    (d) Sundays and legal holidays shall be included in computing the 
time allowed for the filing of any document or paper, provided, that 
when such time expires on a Sunday or legal holiday, such period shall 
be extended to include the next following business day.



PART 108--EMPLOYEE PROTECTION HEARINGS--Table of Contents




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.



Sec. 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).



Sec. 108.2  Definitions.

    As used in this part, the term:
    (a) Act means the Federal Water Pollution Control Act, as amended;
    (b) Effluent limitation means any effluent limitation which is 
established as a condition of a permit issued or proposed to be issued 
by a State or by the Environmental Protection Agency pursuant to section 
402 of the Act; any toxic or pretreatment effluent standard established 
under section 307 of the Act; any standard of performance 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 Administrator under section 
309 of the Act; any order issued by a State to secure compliance with a 
permit, or condition thereof, issued under a 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 Sec. 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 Administrator of the Environmental Protection Agency.



Sec. 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 investigation under this part to the Regional 
Administrator of the region in which such discrimination is alleged to 
have occurred.



Sec. 108.4  Investigation by Regional Administrator.

    Upon receipt of any request meeting the requirements of Sec. 108.3, 
the Regional Administrator shall conduct a full investigation of the 
matter, in

[[Page 624]]

order to determine whether the request may be related to an effluent 
limitation or order under the Act. Following the investigation, the 
Regional Administrator shall notify the employee requesting the 
investigation (or the employee's representative) and the employer of 
such employee, in writing, of his preliminary findings and conclusions. 
The employee, the representative of such employee, or the employer may 
within fifteen days following receipt of the preliminary findings and 
conclusions of the Regional Administrator request a hearing under this 
part. Upon receipt of such a request, the Regional Administrator, with 
the concurrence of the Chief Administrative Law Judge, shall publish 
notice of a hearing to be held not less than 30 days following the date 
of such publication where he determines that there are factual issues 
concerning the existence of the alleged discrimination or its 
relationship to an effluent limitation or order under the Act. The 
notice shall specify a date before which any party (or representative of 
such party) may submit a request to appear.



Sec. 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 parties, he may dismiss the 
hearing. The Administrative Law Judge, on his own motion, or at the 
request of any party, shall have the power to hold prehearing 
conferences, to issue subpoenas for the attendance and testimony of 
witnesses and the production of relevant papers, books, and documents, 
and he may administer oaths. The Regional Administrator, and any party 
submitting a request pursuant to Sec. 108.3 or Sec. 108.4, or counsel or 
other representative of such party or the Regional Administrator, may 
appear and offer evidence at the hearing.



Sec. 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 recommendations concerning the alleged discrimination, and shall 
submit such tentative findings and recommendations to the Administrator. 
The Administrator shall adopt or modify the findings and recommendations 
of the Administrative Law Judge, and shall make copies of such findings 
and recommendations available to the complaining employee, the employer, 
and the public.



Sec. 108.7  Hearing before Administrator.

    At his option, the Administrator may exercise any powers of an 
Administrative Law Judge with respect to hearings under this part.



PART 109--CRITERIA FOR STATE, LOCAL AND REGIONAL OIL REMOVAL CONTINGENCY PLANS--Table of Contents




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. 11(j)(1)(B), 84 Stat. 96, 33 U.S.C. 1161(j)(1)(B).

    Source: 36 FR 22485, Nov. 25, 1971, unless otherwise noted.



Sec. 109.1  Applicability.

    The criteria in this part are provided to assist State, local and 
regional agencies in the development of oil removal contingency plans 
for the inland navigable waters of the United States and all areas other 
than the high seas, coastal and contiguous zone waters, coastal and 
Great Lakes ports and harbors and such other areas as may be agreed upon 
between the Environmental Protection Agency and the Department of 
Transportation in accordance with section 11(j)(1)(B) of the Federal 
Act, Executive Order No. 11548 dated July 20, 1970 (35 FR 11677) and 
Sec. 306.2 of the National Oil and Hazardous Materials Pollution 
Contingency Plan (35 FR 8511).

[[Page 625]]



Sec. 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 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.
    (d) Major disaster means any hurricane, tornado, storm, flood, high 
water, wind-driven water, tidal wave, earthquake, drought, fire, or 
other catastrophe in any part of the United States which, in the 
determination of the President, is or threatens to become of sufficient 
severity and magnitude to warrant disaster assistance by the Federal 
Government to supplement the efforts and available resources of States 
and local governments and relief organizations in alleviating the 
damage, loss, hardship, 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 
Virgin Islands, and the Trust Territory of the Pacific Islands.
    (f) Federal Act means the Federal Water Pollution Control Act, as 
amended, 33 U.S.C. 1151 et seq.



Sec. 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, coordinated and effective action 
to minimize damage resulting from oil discharges. Such plans will be 
directed toward the protection of the public health or welfare of the 
United States, including, but not limited to, fish, shellfish, wildlife, 
and public and private property, shorelines, and beaches. The 
development and implementation of such plans shall be consistent with 
the National Oil and Hazardous Materials Pollution Contingency Plan. 
State, local and regional oil removal contingency plans shall provide 
for the coordination of the total response to an oil discharge so that 
contingency organizations established thereunder can function 
independently, in conjunction with each other, or in conjunction with 
the National and Regional Response Teams established by the National Oil 
and Hazardous Materials Pollution Contingency Plan.



Sec. 109.4  Relationship to Federal response actions.

    The National Oil and Hazardous Materials Pollution Contingency Plan 
provides that the Federal on-scene commander shall investigate all 
reported spills. If such investigation shows that appropriate action is 
being taken by either the discharger or non-Federal entities, the 
Federal on-scene commander shall monitor and provide advice or 
assistance, as required. If appropriate containment or cleanup action is 
not being taken by the discharger or non-Federal entities, the Federal 
on-scene commander will take control of the response activity in 
accordance with section 11(c)(1) of the Federal Act.



Sec. 109.5  Development and implementation criteria for State, local and regional oil removal contingency plans.

    Criteria for the development and implementation of State, local and 
regional oil removal contingency plans are:
    (a) Definition of the authorities, responsibilities and duties of 
all persons, organizations or agencies which are to be involved or could 
be involved in planning or directing oil removal operations, with 
particular care to clearly define the authorities, responsibilities and 
duties of State and local governmental agencies to avoid unnecessary 
duplication of contingency planning

[[Page 626]]

activities and to minimize the potential for conflict and confusion that 
could be generated in an emergency situation as a result of such 
duplications.
    (b) Establishment of notification procedures for the purpose of 
early detection and timely notification of an oil discharge including:
    (1) The identification of critical water use areas to facilitate the 
reporting of and response to oil discharges.
    (2) A current list of names, telephone numbers and addresses of the 
responsible persons and alternates on call to receive notification of an 
oil discharge as well as the names, telephone numbers and addresses of 
the organizations and agencies to be notified when an oil discharge is 
discovered.
    (3) Provisions for access to a reliable communications system for 
timely notification of an oil discharge and incorporation in the 
communications system of the capability for interconnection with the 
communications systems established under related oil removal contingency 
plans, particularly State and National plans.
    (4) An established, prearranged procedure for requesting assistance 
during a major disaster or when the situation exceeds the response 
capability of the State, local or regional authority.
    (c) Provisions to assure that full resource capability is known and 
can be committed during an oil discharge situation including:
    (1) The identification and inventory of applicable equipment, 
materials and supplies which are available locally and regionally.
    (2) An estimate of the equipment, materials and supplies which would 
be required to remove the maximum oil discharge to be anticipated.
    (3) Development of agreements and arrangements in advance of an oil 
discharge for the acquisition of equipment, materials and supplies to be 
used in responding to such a discharge.
    (d) Provisions for well defined and specific actions to be taken 
after discovery and notification of an oil discharge including:
    (1) Specification of an oil discharge response operating team 
consisting of trained, prepared and available operating personnel.
    (2) Predesignation of a properly qualified oil discharge response 
coordinator who is charged with the responsibility and delegated 
commensurate authority for directing and coordinating response 
operations and who knows how to request assistance from Federal 
authorities operating under existing national and regional contingency 
plans.
    (3) A preplanned location for an oil discharge response operations 
center and a reliable communications system for directing the 
coordinated overall response operations.
    (4) Provisions for varying degrees of response effort depending on 
the severity of the oil discharge.
    (5) Specification of the order of priority in which the various 
water uses are to be protected where more than one water use may be 
adversely affected as a result of an oil discharge and where response 
operations may not be adequate to protect all uses.
    (e) Specific and well defined procedures to facilitate recovery of 
damages and enforcement measures as provided for by State and local 
statutes and ordinances.



Sec. 109.6  Coordination.

    For the purposes of coordination, the contingency plans of State and 
local governments should be developed and implemented in consultation 
with private interests. A copy of any oil removal contingency plan 
developed by State and local governments should be forwarded to the 
Council on Environmental Quality upon request to facilitate the 
coordination of these contingency plans with the National Oil and 
Hazardous Materials Pollution Contingency Plan.



PART 110--DISCHARGE OF OIL--Table of Contents




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.


[[Page 627]]


    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.



Sec. 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 pursuant to section 303 of the Act or 
promulgated by EPA pursuant to that section;
    MARPOL 73/78 means the International Convention 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 United 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 interstate or foreign commerce, including 
all waters that are subject to the ebb and flow of the tide;
    (b) Interstate waters, including interstate wetlands;
    (c) All other waters such as intrastate lakes, rivers, streams 
(including intermittent streams), mudflats, sandflats, and wetlands, the 
use, degradation, or destruction of which would affect or could affect 
interstate or foreign commerce including any such waters:
    (1) That are or could be used by interstate or foreign travelers for 
recreational or other purposes;
    (2) From which fish or shellfish are or could be taken and sold in 
interstate or foreign commerce;
    (3) That are used or could be used for industrial purposes by 
industries in interstate commerce;
    (d) All impoundments of waters otherwise defined as navigable waters 
under this section;
    (e) Tributaries of waters identified in paragraphs (a) through (d) 
of this section, including adjacent wetlands; and
    (f) Wetlands adjacent to waters identified in paragraphs (a) through 
(e) of this section: Provided, That waste treatment systems (other than 
cooling ponds meeting the criteria of this paragraph) are not waters of 
the United States;

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 frequency or duration sufficient to 
support, and that under normal circumstances do support, a prevalence of 
vegetation typically adapted for life in saturated soil conditions. 
Wetlands generally include 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]



Sec. 110.2  Applicability.

    The regulations of this part apply to the discharge of oil 
prohibited by section 311(b)(3) of the Act.

[61 FR 7421, Feb. 28, 1996]

[[Page 628]]



Sec. 110.3  Discharge of oil in such quantities 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 Administrator has determined may be harmful to 
the public health or welfare or the environment of the United States 
include discharges of oil that:
    (a) Violate applicable water quality standards; or
    (b) Cause a film or sheen upon or discoloration of the surface of 
the water or adjoining shorelines or cause a sludge or emulsion to be 
deposited beneath the surface of the water or upon adjoining shorelines.

[61 FR 7421, Feb. 28, 1996]



Sec. 110.4  Dispersants.

    Addition of dispersants or emulsifiers to oil to be discharged that 
would circumvent the provisions of this part is prohibited.

[52 FR 10719, Apr. 2, 1987. Redesignated at 61 FR 7421, Feb. 28, 1996]



Sec. 110.5  Discharges of oil not determined ``as may be harmful'' pursuant to Section 311(b)(3) of the Act.

    Notwithstanding any other provisions of this part, the Administrator 
has not determined the following discharges of oil ``as may be harmful'' 
for purposes of section 311(b) of the Act:
    (a) Discharges of oil from a properly functioning vessel engine 
(including an 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]



Sec. 110.6  Notice.

    Any person in charge of a vessel or of an onshore or offshore 
facility shall, as soon as he or she has knowledge of any discharge of 
oil from such vessel or facility in violation of section 311(b)(3) of 
the Act, immediately notify the National Response Center (NRC) (800-424-
8802; in the Washington, DC metropolitan area, 202-426-2675). If direct 
reporting to the NRC is not practicable, reports may be made to the 
Coast Guard or EPA predesignated On-Scene Coordinator (OSC) for the 
geographic area where the discharge occurs. All such reports shall be 
promptly relayed to the NRC. If it is not possible to notify the NRC or 
the predesignated OCS immediately, reports may be made immediately to 
the nearest Coast Guard unit, provided that the person in charge of the 
vessel or onshore or offshore facility notifies the NRC as soon as 
possible. The reports shall be made in accordance with such procedures 
as the Secretary of Transportation may prescribe. The procedures for 
such notice are set forth in U.S. Coast Guard regulations, 33 CFR part 
153, subpart B and in the National Oil and Hazardous Substances 
Pollution Contingency Plan, 40 CFR part 300, subpart E.

(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]



PART 112--OIL POLLUTION PREVENTION--Table of Contents




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 Administrator.
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 Understanding Between the 
          Secretary of Transportation and the Administrator of the 
          Environmental Protection Agency
Appendix B to Part 112--Memorandum of Understanding Among the Secretary

[[Page 629]]

          of the Interior, Secretary of Transportation, and 
          Administrator of the Environmental Protection Agency
Appendix C to Part 112--Substantial Harm Criteria
Appendix D to Part 112--Determination of a Worst Case Discharge Planning 
          Volume
Appendix E to Part 112--Determination and Evaluation 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.




Sec. 112.1  General applicability.

    (a) This part establishes procedures, methods and equipment and 
other requirements for equipment to prevent the discharge of oil from 
non-transportation-related onshore and offshore facilities into or upon 
the navigable waters of the United States or adjoining shorelines.
    (b) Except as provided in paragraph (d) of this section, this part 
applies to owners or operators of non-transportation-related onshore and 
offshore facilities engaged in drilling, producing, gathering, storing, 
processing, refining, transferring, distributing 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 navigable 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 
regulations to the same extent as any person, except for the provisions 
of Sec. 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 consideration 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 structures which may serve to restrain, hinder, 
contain, or otherwise prevent a discharge of oil from reaching navigable 
waters of the United States or adjoining shorelines; and
    (ii) Equipment or operations of vessels or transportation-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 Secretary of Transportation and 
the Administrator of the Environmental Protection Agency, dated November 
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 requirements:
    (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 Sec. 112.7, designed to complement existing laws, regulations, 
rules, standards, policies and procedures pertaining to safety 
standards, fire prevention and pollution prevention rules, so as to form 
a comprehensive balanced Federal/State spill prevention program to 
minimize the potential for oil discharges. Compliance with this part 
does not in any way relieve the owner or operator of an onshore or an 
offshore facility from compliance with other Federal, State or local 
laws.

[38 FR 34165, Dec. 11, 1973, as amended at 41 FR 12657, Mar. 26, 1976]



Sec. 112.2  Definitions.

    For the purposes of this part:

[[Page 630]]

    Adverse weather means the weather conditions that make it difficult 
for response equipment and 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 consider include significant wave height as specified in 
Appendix E to this part, as appropriate, ice conditions, 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 combination of transportation-
related and non-transportation-related components that is subject to the 
jurisdiction of more than one Federal agency under section 311(j) of the 
Clean Water Act.
    Contract or other approved means: (1) A written contractual 
agreement with an oil spill removal organization(s) that identifies and 
ensures the availability of the necessary personnel and equipment within 
appropriate response times; and/or
    (2) A written certification by the owner or operator that the 
necessary personnel and equipment resources, owned or operated by the 
facility owner or operator, are available to respond to a discharge 
within appropriate response times; and/or
    (3) Active membership in a local or regional oil spill removal 
organization(s) that has identified and ensures adequate access through 
such membership to necessary personnel and equipment to respond to a 
discharge within appropriate response times in the specified geographic 
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 pursuant to section 13 of the River and 
Harbor Act of 1899 (30 Stat. 1121, 33 U.S.C. 407), or sections 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 
Committees (for planning) or members of the Federal On-Scene 
Coordinator's spill response structure (during responses). These areas 
may include wetlands, National and State parks, critical habitats for 
endangered/threatened species, wilderness and natural resource areas, 
marine sanctuaries and estuarine 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 
historical and archeological sites and parks. These areas may also 
include unique habitats such as: aquaculture sites and agricultural 
surface water intakes, bird nesting areas, critical biological resource 
areas, designated migratory routes, and designated seasonal habitats.
    Injury means a measurable adverse change, either long- or short-
term, in the chemical or physical quality or the viability of a natural 
resource resulting either directly or indirectly from exposure to a 
discharge of oil, or exposure to a product of reactions resulting from a 
discharge of oil.
    Maximum extent practicable means the limitations used to determine 
oil spill planning resources and response times for on-water recovery, 
shoreline protection, and cleanup for worst case discharges from onshore 
non- transportation-related facilities in adverse weather. It considers 
the planned capability to respond to a worst case discharge in adverse 
weather, as contained in a response plan that meets the requirements in 
Sec. 112.20 or in a specific plan approved by the Regional 
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;

[[Page 631]]

    (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 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 
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 waters of the United States, which is not a 
transportation-related facility.
    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.
    Oil Spill Removal Organization means an entity that provides oil 
spill response resources, and includes any for-profit or not-for-profit 
contractor, cooperative, or in-house response resources that have been 
established in a geographic area to provide 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.
    Owner or operator means any person owning or operating an onshore 
facility or an offshore facility, and in the case of any abandoned 
offshore facility, the person who owned or operated such facility 
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 defined at 40 CFR part 110.
    Transportation-related and non-transportation-related as applied to 
an onshore or offshore facility, are defined in the Memorandum of 
Understanding between the Secretary of Transportation and the 
Administrator of the Environmental Protection 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 Islands.
    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-transportation-related 
facility means the largest foreseeable 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]



Sec. 112.3  Requirements for preparation and implementation of Spill Prevention Control and Countermeasure 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 
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 a Spill Prevention Control and Countermeasure 
Plan (hereinafter ``SPCC Plan''), in writing and in accordance with 
Sec. 112.7. Except as provided 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 effective date of this part, and that have 
discharged or

[[Page 632]]

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 Sec. 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 drilling or workover rigs, barge mounted 
offshore drilling or workover rigs, and portable fueling facilities 
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 Sec. 112.7, using good engineering practice. When the mobile or 
portable facility is moved, it must be located and installed using the 
spill prevention 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 reviewed by a Registered Professional 
Engineer and certified to by such Professional Engineer. By means of 
this certification the engineer, having examined 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 Sec. 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 complete copy of the Plan at such facility if the facility 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 during normal 
working hours.
    (f) Extensions of time. (1) The Regional Administrator may authorize 
an extension of time for the preparation and full implementation of an 
SPCC 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 
subject 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 qualified personnel, or delays in construction or 
equipment 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)(1) of this section may submit a letter of request to the 
Regional Administrator. Such letter shall include:
    (i) A complete copy of the SPCC Plan, if completed;
    (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 implementation of any 
corrective actions being taken or contemplated, including interim dates 
for completion of tests or studies, installation and operation of any 
necessary equipment or other preventive measures.

In addition, 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 extension of time 
pursuant to paragraph (f)(2) of this section shall in no way relieve the 
owner or operator from his obligation to comply with the requirements of 
Sec. 112.3 (a), (b) or (c). Where an extension of time is authorized by 
the Regional Administrator for

[[Page 633]]

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 Sec. 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 authorized.

[38 FR 34165, Dec. 11, 1973, as amended at 41 FR 12657, Mar. 26, 1976]



Sec. 112.4  Amendment of SPCC Plans by Regional Administrator.

    (a) Notwithstanding compliance with Sec. 112.3, whenever a facility 
subject to Sec. 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 Administrator, 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 facility;
    (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 failure analysis of 
system or subsystem in which the failure occurred;
    (9) The corrective actions and/or countermeasures taken, including 
an adequate description of equipment repairs and/or replacements;
    (10) Additional preventive measures taken or contemplated to 
minimize the possibility of recurrence;
    (11) Such other information as the Regional Administrator may 
reasonably require pertinent to the Plan or spill event.
    (b) Section 112.4 shall not apply until the expiration of the time 
permitted for the preparation and implementation of an SPCC Plan 
pursuant to Sec. 112.3 (a), (b), (c) and (f).
    (c) A complete copy of all information provided to the Regional 
Administrator pursuant to paragraph (a) of this section shall be sent at 
the same time to the State agency in charge of water pollution control 
activities in and for the State in which the facility is located. Upon 
receipt of such information such State agency may conduct a review and 
make recommendations to the Regional Administrator 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 
agency under paragraph (c) of this section, the Regional Administrator 
may require the owner or operator of such facility to amend the SPCC 
Plan if he finds that the Plan does not meet the requirements of this 
part or that the amendment of the Plan is necessary to prevent and to 
contain discharges 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 addressed to, or by personal delivery to, the facility 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 facility 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.

[[Page 634]]

The amendment 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 amendment 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 additional 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 decision.

[38 FR 34165, Dec. 11, 1973, as amended at 41 FR 12658, Mar. 26, 1976]



Sec. 112.5  Amendment of Spill Prevention Control and Countermeasure Plans by owners or operators.

    (a) Owners or operators of facilities subject to Sec. 112.3 (a), (b) 
or (c) shall amend the SPCC Plan for such facility in accordance with 
Sec. 112.7 whenever there is a change in facility design, construction, 
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 facilities subject to Sec. 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 review and evaluation, the owner or operator 
shall amend the SPCC Plan within six months of the review 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 effective to satisfy the 
requirements of this section unless it has been certified by a 
Professional Engineer in accordance with Sec. 112.3(d).



Sec. 112.7  Guidelines for the preparation and implementation of a Spill Prevention Control and Countermeasure Plan.

    The SPCC Plan shall be a carefully thought-out plan, prepared in 
accordance with good engineering practices, and which has the full 
approval of management at a level with authority to commit the necessary 
resources. If the plan calls for additional facilities or procedures, 
methods, or equipment not yet fully operational, these items should be 
discussed in separate paragraphs, and the details of installation and 
operational start-up should be explained separately. The complete SPCC 
Plan shall follow the sequence outlined below, and include 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 potential for equipment 
failure (such as tank overflow, 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

[[Page 635]]

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 systems;
    (iv) Weirs, booms or other barriers;
    (v) Spill diversion ponds;
    (vi) Retention ponds;
    (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 Sec. 112.7(c) to prevent discharged oil from 
reaching the navigable waters is not practicable from any onshore or 
offshore 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, equipment and materials 
required to expeditiously control and remove any harmful quantity of oil 
discharged.
    (e) In addition to the minimal prevention standards listed under 
Sec. 112.7(c), sections of the Plan should include a complete discussion 
of conformance 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 production facilities). 
(i) Drainage from diked storage areas should be restrained by valves or 
other positive means to prevent a spill or other excessive leakage of 
oil into the drainage system or inplant effluent treatment system, 
except where plan systems are designed to handle such leakage. Diked 
areas may be emptied by pumps or ejectors; however, 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 
paragraphs (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 systems 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 construction 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 containment is provided for the entire 
contents of the largest single tank plus sufficient freeboard to allow 
for precipitation. Diked areas should be sufficiently impervious to 
contain spilled oil. Dikes, containment curbs, and pits are commonly 
employed for this purpose, but they may not always be appropriate. An 
alternative system could consist of

[[Page 636]]

a complete drainage trench enclosure arranged so that a spill could 
terminate and be safely confined 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 installation 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 storage of oil should be 
avoided, unless the buried section of the shell is adequately coated, 
since partial 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 techniques as hydrostatic testing, visual inspection or a system of 
non-destructive shell thickness testing. Comparison records should be 
kept where appropriate, and tank supports and foundations should be 
included in these inspections. In addition, the 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 internal heating coils, 
the following factors should be considered and applied, as appropriate.
    (A) The steam return or exhaust lines from internal heating coils 
which discharge into an open water course should be monitored for 
contamination, or passed through a settling tank, skimmer, or other 
separation or retention system.
    (B) The feasibility of installing an external heating 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 facility, high liquid 
level pump cutoff devices set to stop flow at a predetermined tank 
content level.
    (C) Direct audible or code signal communication between the tank 
gauger and the pumping station.
    (D) A fast response system for determining the liquid level of each 
bulk storage tank such as digital computers, telepulse, or direct vision 
gauges or their equivalent.
    (E) Liquid level sensing devices should be regularly tested to 
insure proper operation.
    (ix) Plant effluents which are discharged into navigable waters 
should have disposal facilities observed frequently enough to detect 
possible system 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 sufficiently large to cause the accumulation 
of oil in diked areas should be promptly corrected.
    (xi) Mobile or portable oil storage tanks (onshore) 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 
subject to periodic flooding or washout.

[[Page 637]]

    (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 warrant. If a section of 
buried line is exposed for any reason, it should be carefully examined 
for deterioration. 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 exposed 
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 operating personnel at which time the general 
condition of items, such as flange joints, expansion joints, valve 
glands and bodies, catch pans, pipeline supports, locking of valves, and 
metal surfaces 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 facility 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/unloading rack 
(onshore). (i) Tank car and tank truck loading/unloading procedures 
should meet the minimum requirements and regulation established 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 provided in loading/unloading areas to prevent 
vehicular departure before complete disconnect of flexible or fixed 
transfer lines.
    (iv) Prior to filling and departure of any tank car or tank truck, 
the lowermost drain and all outlets of such vehicles should be closely 
examined for leakage, and if necessary, tightened, adjusted, or replaced 
to prevent liquid leakage while in transit.
    (5) Oil production facilities (onshore)--(i) Definition. An onshore 
production facility may include all wells, flowlines, separation 
equipment, storage facilities, gathering lines, and auxiliary non-
transportation-related equipment and facilities in a single geographical 
oil or gas field operated by a single operator.
    (ii) Oil production facility (onshore) drainage. (A) At tank 
batteries and central treating stations where an accidental discharge of 
oil would have a reasonable possibility of reaching navigable waters, 
the dikes or equivalent required under Sec. 112.7(c)(1) 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 approved methods.
    (B) Field drainage ditches, road ditches, and oil traps, sumps or 
skimmers, if such exist, should be inspected at regularly scheduled 
intervals for accumulation of oil that may have escaped from small 
leaks. Any such accumulations should be removed.
    (iii) Oil production facility (onshore) bulk storage 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 systems 
such as those outlined in Sec. 112.7(c)(1). Drainage from

[[Page 638]]

undiked areas should be safely confined 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 foundation 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:
    (1) Adequate tank capacity to assure that a tank will not overfill 
should a pumper/gauger be delayed in making his regular rounds.
    (2) Overflow equalizing lines between tanks so that a full tank can 
overflow to an adjacent tank.
    (3) 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 system.
    (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 detect 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 examinations, corrosion protection, flowline 
replacement, and adequate records, as appropriate, for the individual 
facility.
    (6) Oil drilling and workover facilities (onshore). (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 intercept 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 facilities (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 collection sump or equivalent collection 
system sufficient to prevent discharges of oil into the navigable waters 
of the United States. Where drains and sumps are not practicable oil 
contained in collection 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 
available to remove liquid from the sump and assure that oil does not 
escape. A regular scheduled preventive maintenance inspection and 
testing program should be employed to assure reliable operation of the 
liquid removal system and pump start-up device. Redundant automatic sump 
pumps and control devices may be required on some installations.
    (iv) In areas where separators and treaters are equipped with dump 
valves whose predominant mode of failure is in the closed position and 
pollution risk is high, the facility should be specially equipped to 
prevent the escape of

[[Page 639]]

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 automatically 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 discharges.
    (vi) Pressure tanks should be equipped with high and low pressure 
sensing devices to activate an alarm and/or control the flow or other 
acceptable 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 systems should be prepared and maintained at 
the facility. Such procedures should be included as part of the SPCC 
Plan.
    (ix) Testing and inspection of the pollution prevention 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 sufficiently described to determine method of 
activation or control, e.g., pressure differential, change in fluid or 
flow conditions, combination of pressure and flow, manual or remote 
control mechanisms. 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, including fire, loss of control and other abnormal 
conditions, occur. The degree of control system redundancy should vary 
with hazard exposure and probable 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 
applicable State regulations.
    (xiii) In order that there will be no misunderstanding of joint and 
separate duties and obligations to perform work in a safe and pollution 
free manner, written instructions should be prepared by the owner or 
operator for contractors and subcontractors 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 require 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 associated 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 environmental 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

[[Page 640]]

documented and maintained at the facility.
    (8) Inspections and records. Inspections required 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 appropriate 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 securely 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 status.
    (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. Consideration should be given to: (A) 
Discovery of spills occurring during hours of darkness, both by 
operating 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 responsible for properly instructing their personnel in 
the operation and maintenance of equipment to prevent the discharges of 
oil and applicable pollution control laws, rules and regulations.
    (ii) Each applicable facility should have a designated person who is 
accountable for oil spill prevention and who reports to line management.
    (iii) Owners or operators should schedule and conduct spill 
prevention briefings for their operating personnel at intervals frequent 
enough to assure adequate understanding of the SPCC Plan for that 
facility. Such briefings should highlight and describe known spill 
events or failures, malfunctioning components, and recently developed 
precautionary measures.



Sec. 112.20  Facility response plans.

    (a) The owner or operator of any non-transportation-related onshore 
facility that, because of its location, could reasonably be expected to 
cause substantial harm to the environment by discharging oil into or on 
the navigable waters or adjoining shorelines shall prepare and submit a 
facility response plan to the Regional Administrator, according to the 
following provisions:
    (1) For the owner or operator of a facility in operation on or 
before February 18, 1993 who is required to prepare and submit a 
response plan under 33 U.S.C. 1321(j)(5), the Oil Pollution Act of 1990 
(Pub. L. 101-380, 33 U.S.C. 2701 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 Regional Administrator 
before August 30, 1994.
    (2) The owner or operator of a facility in operation on or after 
August 30, 1994 that satisfies the criteria in paragraph (f)(1) of this 
section or that is notified by the Regional Administrator pursuant to 
paragraph (b) of this section

[[Page 641]]

shall prepare and submit a facility response plan that satisfies the 
requirements of this section to the Regional Administrator.
    (i) For a facility that commenced operations after February 18, 1993 
but prior to August 30, 1994, and is required to prepare and submit a 
response plan based on the criteria in paragraph (f)(1) of this section, 
the owner or operator shall submit the response plan or updated portions 
of the response plan, along with a completed version of the response 
plan cover sheet contained in Appendix F to this part, to the Regional 
Administrator prior to August 30, 1994.
    (ii) For a newly constructed facility that commences operation after 
August 30, 1994, and is required to prepare and submit a response plan 
based on the criteria in paragraph (f)(1) of this section, the owner or 
operator shall submit the response plan, along with a completed version 
of the response plan cover sheet contained in Appendix F to this part, 
to the Regional Administrator prior to the start of operations 
(adjustments to the response plan to reflect changes that occur at the 
facility during the start-up phase of operations must be submitted to 
the Regional Administrator after an operational trial period of 60 
days).
    (iii) For a facility required to prepare and submit a response plan 
after August 30, 1994, as a result of a planned change in design, 
construction, operation, or maintenance that renders the facility 
subject to the criteria in paragraph (f)(1) of this section, the owner 
or operator shall submit the response plan, along with a completed 
version of the response plan cover sheet contained in Appendix F to this 
part, to the Regional Administrator before the portion of the facility 
undergoing change commences operations (adjustments to the response plan 
to reflect changes that occur at the facility during the start-up phase 
of operations must be submitted to the Regional Administrator after an 
operational trial period of 60 days).
    (iv) For a facility required to prepare and submit a response plan 
after August 30, 1994, as a result of an unplanned event or change in 
facility characteristics that renders the facility subject to the 
criteria in paragraph (f)(1) of this section, the owner or operator 
shall submit the response plan, along with a completed version of the 
response plan cover sheet contained in Appendix F to this part, to the 
Regional Administrator within six months of the unplanned event or 
change.
    (3) In the event the owner or operator of a facility that is 
required to prepare and submit a response plan uses an alternative 
formula that is comparable to one contained in Appendix C to this part 
to evaluate the criterion in paragraph (f)(1)(ii)(B) or (f)(1)(ii)(C) of 
this section, the owner or operator shall attach documentation to the 
response plan cover sheet contained in Appendix F to this part that 
demonstrates the reliability and analytical soundness of the alternative 
formula.
    (b)(1) The Regional Administrator may at any time require the owner 
or operator of any non-transportation-related onshore facility to 
prepare and submit a facility response plan under this section after 
considering the factors in paragraph (f)(2) of this section. If such a 
determination is made, the Regional Administrator shall notify the 
facility owner or operator in writing and shall provide a basis for the 
determination. If the Regional Administrator notifies the owner or 
operator in writing of the requirement to prepare and submit a response 
plan under this section, the owner or operator of the facility shall 
submit the response plan to the Regional Administrator within six months 
of receipt of such written notification.
    (2) The Regional Administrator shall review plans submitted by such 
facilities to determine whether the facility could, because of its 
location, reasonably be expected to cause significant and substantial 
harm to the environment by discharging oil into or on the navigable 
waters or adjoining shorelines.
    (c) The Regional Administrator shall determine whether a facility 
could, because of its location, reasonably be expected to cause 
significant and substantial harm to the environment by discharging oil 
into or on the navigable waters or adjoining shorelines, based on the 
factors in paragraph (f)(3) of this

[[Page 642]]

section. If such a determination is made, the Regional Administrator 
shall notify the owner or operator of the facility in writing and:
    (1) Promptly review the facility response plan;
    (2) Require amendments to any response plan that does not meet the 
requirements of this section;
    (3) Approve any response plan that meets the requirements of this 
section; and
    (4) Review each response plan periodically thereafter on a schedule 
established by the Regional Administrator provided that the period 
between plan reviews does not exceed five years.
    (d)(1) The owner or operator of a facility for which a response plan 
is required under this part shall revise and resubmit revised portions 
of the response plan within 60 days of each facility change that 
materially may affect the response to a worst case discharge, including:
    (i) A change in the facility's configuration that materially alters 
the information included in the response plan;
    (ii) A change in the type of oil handled, stored, or transferred 
that materially alters the required response resources;
    (iii) A material change in capabilities of the oil spill removal 
organization(s) that provide equipment and personnel to respond to 
discharges of oil described in paragraph (h)(5) of this section;
    (iv) A material change in the facility's spill prevention and 
response equipment or emergency response procedures; and
    (v) Any other changes that materially affect the implementation of 
the response plan.
    (2) Except as provided in paragraph (d)(1) of this section, 
amendments to personnel and telephone number lists included in the 
response plan and a change in the oil spill removal organization(s) that 
does not result in a material change in support capabilities do not 
require approval by the Regional Administrator. Facility owners or 
operators shall provide a copy of such changes to the Regional 
Administrator as the revisions occur.
    (3) The owner or operator of a facility that submits changes to a 
response plan as provided in paragraph (d)(1) or (d)(2) of this section 
shall provide the EPA-issued facility identification number (where one 
has been assigned) with the changes.
    (4) The Regional Administrator shall review for approval changes to 
a response plan submitted pursuant to paragraph (d)(1) of this section 
for a facility determined pursuant to paragraph (f)(3) of this section 
to have the potential to cause significant and substantial harm to the 
environment.
    (e) If the owner or operator of a facility determines pursuant to 
paragraph (a)(2) of this section that the facility could not, because of 
its location, reasonably be expected to cause substantial harm to the 
environment by discharging oil into or on the navigable waters or 
adjoining shorelines, the owner or operator shall complete and maintain 
at the facility the certification form contained in Appendix C to this 
part and, in the event an alternative formula that is comparable to one 
contained in Appendix C to this part is used to evaluate the criterion 
in paragraph (f)(1)(ii)(B) or (f)(1)(ii)(C) of this section, the owner 
or operator shall attach documentation to the certification form that 
demonstrates the reliability and analytical soundness of the comparable 
formula and shall notify the Regional Administrator in writing that an 
alternative formula was used.
    (f)(1) A facility could, because of its location, reasonably be 
expected to cause substantial harm to the environment by discharging oil 
into or on the navigable waters or adjoining shorelines pursuant to 
paragraph (a)(2) of this section, if it meets any of the following 
criteria applied in accordance with the flowchart contained in 
Attachment C-I to Appendix C to this part:
    (i) The facility transfers oil over water to or from vessels and has 
a total oil storage capacity greater than or equal to 42,000 gallons; or
    (ii) The facility's total oil storage capacity is greater than or 
equal to 1 million gallons, and one of the following is true:
    (A) The facility does not have secondary containment for each 
aboveground storage area sufficiently large

[[Page 643]]

to contain the capacity of the largest aboveground oil storage tank 
within each storage area plus sufficient freeboard to allow for 
precipitation;
    (B) The facility is located at a distance (as calculated using the 
appropriate formula in Appendix C to this part or a comparable formula) 
such that a discharge from the facility could cause injury to fish and 
wildlife and sensitive environments. For further description of fish and 
wildlife and sensitive environments, see Appendices I, II, and III of 
the ``Guidance for Facility and Vessel Response Plans: Fish and Wildlife 
and Sensitive Environments'' (see Appendix E to this part, section 10, 
for availability) and the applicable Area Contingency Plan prepared 
pursuant to section 311(j)(4) of the Clean Water Act;
    (C) The facility is located at a distance (as calculated using the 
appropriate formula in Appendix C to this part or a comparable formula) 
such 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, because of its 
location, reasonably be expected to cause substantial harm to the 
environment by discharging oil into or on the navigable waters or 
adjoining shorelines pursuant to paragraph (b) of this section, the 
Regional Administrator shall consider the following:
    (A) Type of transfer operation;
    (B) Oil storage capacity;
    (C) Lack of secondary containment;
    (D) Proximity to fish and wildlife and sensitive environments and 
other areas determined by the Regional Administrator to possess 
ecological value;
    (E) Proximity to drinking water intakes;
    (F) Spill history; and
    (G) Other site-specific characteristics and environmental factors 
that the Regional Administrator determines to be relevant to protecting 
the environment from harm by discharges of oil into or on navigable 
waters or adjoining shorelines.
    (ii) Any person, including a member of the public or any 
representative from a Federal, State, or local agency who believes that 
a facility subject to this section could, because of its location, 
reasonably be expected to cause substantial harm to the environment by 
discharging oil into or on the navigable waters or adjoining shorelines 
may petition the Regional Administrator to determine whether the 
facility meets the criteria in paragraph (f)(2)(i) of this section. Such 
petition shall include a discussion of how the factors in paragraph 
(f)(2)(i) of this section apply to the facility in question. The RA 
shall consider such petitions and respond in an appropriate amount of 
time.
    (3) To determine whether a facility could, because of its location, 
reasonably be expected to cause significant and substantial harm to the 
environment by discharging oil into or on the navigable waters or 
adjoining shorelines, the Regional Administrator may consider the 
factors in paragraph (f)(2) of this section as well as the following:
    (i) Frequency of past 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)(1) All facility response plans shall be consistent with the 
requirements of the National Oil and Hazardous Substance Pollution 
Contingency Plan (40 CFR part 300) and applicable Area Contingency Plans 
prepared pursuant to section 311(j)(4) of the Clean Water Act. The 
facility response plan should be coordinated with the local emergency 
response plan developed by the local emergency planning committee under 
section 303 of Title III of the Superfund Amendments and Reauthorization 
Act of 1986 (42 U.S.C. 11001 et seq.). Upon request, the owner or 
operator should provide a copy of the facility response plan to the 
local emergency planning committee or State emergency response 
commission.
    (2) The owner or operator shall review relevant portions of the 
National Oil and Hazardous Substances Pollution Contingency Plan and 
applicable Area Contingency Plan annually and, if necessary, revise the 
facility response

[[Page 644]]

plan to ensure consistency with these plans.
    (3) The owner or operator shall review and update the facility 
response plan periodically to reflect changes at the facility.
    (h) A response plan shall follow the format of the model facility-
specific response plan included in Appendix F to this part, unless an 
equivalent response 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 
action plan as specified in paragraphs (h)(1) of this section and be 
supplemented with a cross-reference section to identify the location of 
the elements listed in paragraphs (h)(2) through (h)(10) of this 
section. To meet the requirements of this part, a response plan shall 
address the following elements, as further described in Appendix F to 
this part:
    (1) Emergency response action plan. The response plan shall include 
an emergency response action plan in the format specified in paragraphs 
(h)(1)(i) through (viii) of this section that is maintained 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, including contracting authority, to implement 
removal actions;
    (ii) The identity of individuals or organizations to be contacted in 
the event of a discharge so that immediate communications between the 
qualified individual identified in paragraph (h)(1) of this section and 
the appropriate Federal officials and the persons providing response 
personnel and equipment can be ensured;
    (iii) A description of information to pass to response personnel in 
the event of a reportable spill;
    (iv) A description of the facility's response equipment and its 
location;
    (v) A description of response personnel capabilities, including the 
duties of persons at the facility during a response action and their 
response times and qualifications;
    (vi) Plans for evacuation of the facility and a reference to 
community evacuation plans, as appropriate;
    (vii) A description of immediate measures to secure the source of 
the discharge, and to provide adequate containment and drainage of 
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 qualified 
individual identified in paragraph (h)(1) of this section.
    (3) Information about emergency response. The response plan shall 
include:
    (i) The identity of private personnel and equipment necessary to 
remove to the maximum extent practicable a worst case discharge and 
other discharges of oil described in paragraph (h)(5) of this section, 
and to mitigate or prevent a substantial threat of a worst case 
discharge (To identify response resources to meet the facility response 
plan requirements of this section, owners or operators shall follow 
Appendix E to this part or, where not appropriate, shall clearly 
demonstrate in the response plan why use of Appendix E of this part is 
not appropriate at the facility and make comparable arrangements for 
response resources);
    (ii) Evidence of contracts or other approved means for ensuring the 
availability of such personnel and equipment;
    (iii) The identity and the telephone number of individuals or 
organizations to be contacted in the event of a discharge so that 
immediate communications between the qualified individual identified in 
paragraph (h)(1) of this section and the appropriate Federal official 
and the persons providing response personnel and equipment can be 
ensured;
    (iv) A description of information to pass to response personnel in 
the event of a reportable spill;
    (v) A description of response personnel capabilities, including the 
duties of persons at the facility during a response action and their 
response times and qualifications;

[[Page 645]]

    (vi) A description of the facility's response equipment, the 
location of the equipment, and equipment testing;
    (vii) Plans for evacuation of the facility and a reference to 
community evacuation plans, as appropriate;
    (viii) A diagram of evacuation routes; and
    (ix) A description of the duties of the qualified individual 
identified in paragraph (h)(1) of this section, that include:
    (A) Activate internal alarms and hazard communication systems to 
notify all facility personnel;
    (B) Notify all response personnel, as needed;
    (C) Identify the character, exact source, amount, and extent of the 
release, as well as the other items needed for notification;
    (D) Notify and provide necessary information to the appropriate 
Federal, State, and local authorities with designated response roles, 
including the National Response Center, State Emergency Response 
Commission, and Local Emergency Planning Committee;
    (E) Assess the interaction of the spilled substance with water and/
or other substances stored at the facility and notify response personnel 
at the scene of that assessment;
    (F) Assess the possible hazards to human health and the environment 
due to the release. This assessment must consider both the direct and 
indirect effects of the release (i.e., the effects of any toxic, 
irritating, or asphyxiating gases that may be generated, or the effects 
of any hazardous surface water runoffs from water or chemical agents 
used to control fire and heat-induced explosion);
    (G) Assess and implement prompt removal actions to contain and 
remove the substance released;
    (H) Coordinate rescue and response actions as previously arranged 
with all response personnel;
    (I) Use authority to immediately access company funding to initiate 
cleanup activities; and
    (J) Direct cleanup activities until properly relieved of this 
responsibility.
    (4) Hazard evaluation. The response plan shall discuss the 
facility's known or reasonably identifiable history of discharges 
reportable under 40 CFR part 110 for the entire life of the facility and 
shall identify areas within the facility where discharges could occur 
and what the potential effects of the discharges would be on the 
affected environment. To assess the range of areas potentially affected, 
owners or operators shall, where appropriate, consider the distance 
calculated in paragraph (f)(1)(ii) of this section to determine whether 
a facility could, because of its location, reasonably be expected to 
cause substantial harm to the environment by discharging oil into or on 
the navigable waters or adjoining shorelines.
    (5) Response planning levels. The response plan shall include 
discussion of specific planning scenarios 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 planning quantity shall 
be the larger of the amounts calculated for each component of the 
facility;
    (ii) A discharge of 2,100 gallons or less, provided that this amount 
is less than the worst case discharge amount. For complexes, this 
planning quantity shall be the larger of the amounts calculated for each 
component of the facility; and
    (iii) A discharge greater than 2,100 gallons and less than or equal 
to 36,000 gallons or 10 percent of the capacity of the largest tank at 
the facility, whichever is less, provided that this amount is less than 
the worst case discharge amount. For complexes, this planning quantity 
shall be the larger of the amounts calculated for each component of the 
facility.
    (6) Discharge detection systems. The response plan shall describe 
the procedures and equipment used to detect discharges.
    (7) Plan implementation. The response plan shall describe:

[[Page 646]]

    (i) Response actions to be carried out by facility personnel or 
contracted personnel under the response plan to ensure the safety of the 
facility and to mitigate or prevent discharges described in paragraph 
(h)(5) of this section or the substantial threat of such discharges;
    (ii) A description of the equipment to be used for each scenario;
    (iii) Plans to dispose of contaminated cleanup materials; and
    (iv) Measures to provide adequate containment and drainage of 
spilled oil.
    (8) Self-inspection, drills/exercises, and response training. The 
response plan shall include:
    (i) A checklist and record of inspections for tanks, secondary 
containment, and response equipment;
    (ii) A description of the drill/exercise program to be carried out 
under the response plan as described in Sec. 112.21;
    (iii) A description of the training program to be carried out under 
the response plan as described in Sec. 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)(1) In the event the owner or operator of a facility does not 
agree with the Regional Administrator's determination that the facility 
could, because of its location, reasonably be expected to cause 
substantial harm or significant and substantial harm to the environment 
by discharging oil into or on the navigable waters or adjoining 
shorelines, or that amendments to the facility response plan are 
necessary prior to approval, such as changes to the worst case discharge 
planning volume, the owner or operator may submit a request for 
reconsideration to the Regional Administrator and provide additional 
information and data in writing to support the request. The request and 
accompanying information must be submitted to the Regional Administrator 
within 60 days of receipt of notice of the Regional Administrator's 
original decision. The Regional Administrator shall consider the request 
and render a decision as rapidly as practicable.
    (2) In the event the owner or operator of a facility believes a 
change in the facility's classification status is warranted because of 
an unplanned event or change in the facility's characteristics (i.e., 
substantial harm or significant and substantial harm), the owner or 
operator may submit a request for reconsideration to the Regional 
Administrator and provide additional information and data in writing to 
support the request. The Regional Administrator shall consider the 
request and render a decision as rapidly as practicable.
    (3) After a request for reconsideration under paragraph (i)(1) or 
(i)(2) of this section has been denied by the Regional Administrator, an 
owner or operator may appeal a determination made by the Regional 
Administrator. The appeal shall be made to the EPA Administrator and 
shall be made in writing within 60 days of receipt of the decision from 
the Regional Administrator that the request for reconsideration was 
denied. A complete copy of the appeal must be sent to the Regional 
Administrator at the time the appeal is made. The appeal shall contain a 
clear and concise statement of the issues and points of fact in the 
case. It also may contain additional information from the owner or 
operator, or from any other person. The EPA Administrator may request 
additional information from the owner or operator, or from any other 
person. The EPA Administrator shall render a decision as rapidly as 
practicable and shall notify the owner or operator of the decision.

[59 FR 34098, July 1, 1994]



Sec. 112.21  Facility response training and drills/exercises.

    (a) The owner or operator of any facility required to prepare a 
facility response plan under Sec. 112.20 shall develop and implement a 
facility response training program and a drill/exercise

[[Page 647]]

program that satisfy the requirements of this section. The owner or 
operator shall describe the programs in the response plan as provided in 
Sec. 112.20(h)(8).
    (b) The facility owner or operator shall develop a facility response 
training program to train those personnel involved in oil spill response 
activities. It is recommended that the training program be based on the 
USCG's Training Elements for Oil Spill Response, as applicable to 
facility operations. An alternative program can also be acceptable 
subject to approval by the Regional Administrator.
    (1) The owner or operator shall be responsible for the proper 
instruction of facility personnel in the procedures to respond to 
discharges of oil and in applicable oil spill response laws, rules, and 
regulations.
    (2) Training shall be functional in nature according to job tasks 
for both supervisory and non-supervisory operational personnel.
    (3) Trainers shall develop specific lesson plans on subject areas 
relevant to facility personnel involved in oil spill response and 
cleanup.
    (c) The facility owner or operator shall develop a program of 
facility response drills/exercises, including evaluation procedures. A 
program that follows the National Preparedness for Response Exercise 
Program (PREP) (see Appendix E to this part, section 10, for 
availability) will be deemed satisfactory for purposes of this section. 
An alternative program can also be acceptable subject to approval by the 
Regional Administrator.

[59 FR 34101, July 1, 1994]

    Appendix A to Part 112--Memorandum of Understanding Between the 
 Secretary of Transportation and the Administrator of the Environmental 
                            Protection Agency

                         section ii--definitions

    The Environmental Protection Agency and the Department of 
Transportation agree that for the purposes of Executive Order 11548, the 
term:
    (1) Non-transportation-related onshore and offshore facilities 
means:
    (A) Fixed onshore and offshore oil well drilling facilities 
including all equipment and appurtenances related thereto used in 
drilling operations for exploratory or development wells, but excluding 
any terminal facility, unit or process integrally associated with the 
handling or transferring of oil in bulk to or from a vessel.
    (B) Mobile onshore and offshore oil well drilling platforms, barges, 
trucks, or other mobile facilities including all equipment and 
appurtenances related thereto when such mobile facilities are fixed in 
position for the purpose of drilling operations for exploratory or 
development wells, but excluding any terminal facility, unit or process 
integrally associated with the handling or transferring of oil in bulk 
to or from a vessel.
    (C) Fixed onshore and offshore oil production structures, platforms, 
derricks, and rigs including all equipment and appurtenances related 
thereto, as well as completed wells and the wellhead separators, oil 
separators, and storage facilities used in the production of oil, but 
excluding any terminal facility, unit or process integrally associated 
with the handling or transferring of oil in bulk to or from a vessel.
    (D) Mobile onshore and offshore oil production facilities including 
all equipment and appurtenances related thereto as well as completed 
wells and wellhead equipment, piping from wellheads to oil separators, 
oil separators, and storage facilities used in the production of oil 
when such mobile facilities are fixed in position for the purpose of oil 
production operations, but excluding any terminal facility, unit or 
process integrally associated with the handling or transferring of oil 
in bulk to or from a vessel.
    (E) Oil refining facilities including all equipment and 
appurtenances related thereto as well as in-plant processing units, 
storage units, piping, drainage systems and waste treatment units used 
in the refining of oil, but excluding any terminal facility, unit or 
process integrally associated with the handling or transferring of oil 
in bulk to or from a vessel.
    (F) Oil storage facilities including all equipment and appurtenances 
related thereto as well as fixed bulk plant storage, terminal oil 
storage facilities, consumer storage, pumps and drainage systems used in 
the storage of oil, but excluding inline or breakout storage tanks 
needed for the continuous operation of a pipeline system and any 
terminal facility, unit or process integrally associated with the 
handling or transferring of oil in bulk to or from a vessel.
    (G) Industrial, commercial, agricultural or public facilities which 
use and store oil, but excluding any terminal facility, unit or process 
integrally associated with the handling or transferring of oil in bulk 
to or from a vessel.
    (H) Waste treatment facilities including in-plant pipelines, 
effluent discharge lines, and storage tanks, but excluding waste 
treatment facilities located on vessels and terminal storage tanks and 
appurtenances

[[Page 648]]

for the reception of oily ballast water or tank washings from vessels 
and associated systems used for off-loading vessels.
    (I) Loading racks, transfer hoses, loading arms and other equipment 
which are appurtenant to a nontransportation-related facility or 
terminal facility and which are used to transfer oil in bulk to or from 
highway vehicles or railroad cars.
    (J) Highway vehicles and railroad cars which are used for the 
transport of oil exclusively within the confines of a nontransportation-
related facility and which are not intended to transport oil in 
interstate or intrastate commerce.
    (K) Pipeline systems which are used for the transport of oil 
exclusively within the confines of a nontransportation-related facility 
or terminal facility and which are not intended to transport oil in 
interstate or intrastate commerce, but excluding pipeline systems used 
to transfer oil in bulk to or from a vessel.
    (2) Transportation-related onshore and offshore facilities means:
    (A) Onshore and offshore terminal facilities including transfer 
hoses, loading arms and other equipment and appurtenances used for the 
purpose of handling or transferring oil in bulk to or from a vessel as 
well as storage tanks and appurtenances for the reception of oily 
ballast water or tank washings from vessels, but excluding terminal 
waste treatment facilities and terminal oil storage facilities.
    (B) Transfer hoses, loading arms and other equipment appurtenant to 
a non-transportation-related facility which is used to transfer oil in 
bulk to or from a vessel.
    (C) Interstate and intrastate onshore and offshore pipeline systems 
including pumps and appurtenances related thereto as well as in-line or 
breakout storage tanks needed for the continuous operation of a pipeline 
system, and pipelines from onshore and offshore oil production 
facilities, but excluding onshore and offshore piping from wellheads to 
oil separators and pipelines which are used for the transport of oil 
exclusively within the confines of a nontransportation-related facility 
or terminal facility and which are not intended to transport oil in 
interstate or intrastate commerce or to transfer oil in bulk to or from 
a vessel.
    (D) Highway vehicles and railroad cars which are used for the 
transport of oil in interstate or intrastate commerce and the equipment 
and appurtenances related thereto, and equipment used for the fueling of 
locomotive units, as well as the rights-of-way on which they operate. 
Excluded are highway vehicles and railroad cars and motive power used 
exclusively within the confines of a nontransportation-related facility 
or terminal facility and which are not intended for use in interstate or 
intrastate commerce.

Appendix B to Part 112--Memorandum of Understanding Among the Secretary 
 of the Interior, Secretary of Transportation, and Administrator of the 
                     Environmental Protection Agency

                                 Purpose

    This Memorandum of Understanding (MOU) establishes the 
jurisdictional responsibilities for offshore facilities, including 
pipelines, pursuant to section 311 (j)(1)(c), (j)(5), and (j)(6)(A) of 
the Clean Water Act (CWA), as amended by the Oil Pollution Act of 1990 
(Public Law 101-380). The Secretary of the Department of the Interior 
(DOI), Secretary of the Department of Transportation (DOT), and 
Administrator of the Environmental Protection Agency (EPA) agree to the 
division of responsibilities set forth below for spill prevention and 
control, response planning, and equipment inspection activities pursuant 
to those provisions.

                               Background

    Executive Order (E.O.) 12777 (56 FR 54757) delegates to DOI, DOT, 
and EPA various responsibilities identified in section 311(j) of the 
CWA. Sections 2(b)(3), 2(d)(3), and 2(e)(3) of E.O. 12777 assigned to 
DOI spill prevention and control, contingency planning, and equipment 
inspection activities associated with offshore facilities. Section 
311(a)(11) defines the term ``offshore facility'' to include facilities 
of any kind located in, on, or under navigable waters of the United 
States. By using this definition, the traditional DOI role of regulating 
facilities on the Outer Continental Shelf is expanded by E.O. 12777 to 
include inland lakes, rivers, streams, and any other inland waters.

                            Responsibilities

    Pursuant to section 2(i) of E.O. 12777, DOI redelegates, and EPA and 
DOT agree to assume, the functions vested in DOI by sections 2(b)(3), 
2(d)(3), and 2(e)(3) of E.O. 12777 as set forth below. For purposes of 
this MOU, the term ``coast line'' shall be defined as in the Submerged 
Lands Act (43 U.S.C. 1301(c)) to mean ``the line of ordinary low water 
along that portion of the coast which is in direct contact with the open 
sea and the line marking the seaward limit of inland waters.''
    1. To EPA, DOI redelegates responsibility for non-transportation-
related offshore facilities located landward of the coast line.
    2. To DOT, DOI redelegates responsibility for transportation-related 
facilities, including pipelines, located landward of the coast line. The 
DOT retains jurisdiction for deepwater ports and their associated 
seaward pipelines, as delegated by E.O. 12777.

[[Page 649]]

    3. The DOI retains jurisdiction over facilities, including 
pipelines, located seaward of the coast line, except for deepwater ports 
and associated seaward pipelines delegated by E.O. 12777 to DOT.

                             Effective Date

    This MOU is effective on the date of the final execution by the 
indicated signatories.

                               Limitations

    1. The DOI, DOT, and EPA may agree in writing to exceptions to this 
MOU on a facility-specific basis. Affected parties will receive 
notification of the exceptions.
    2. Nothing in this MOU is intended to replace, supersede, or modify 
any existing agreements between or among DOI, DOT, or EPA.

                      Modification and Termination

    Any party to this agreement may propose modifications by submitting 
them in writing to the heads of the other agency/department. No 
modification may be adopted except with the consent of all parties. All 
parties shall indicate their consent to or disagreement with any 
proposed modification within 60 days of receipt. Upon the request of any 
party, representatives of all parties shall meet for the purpose of 
considering 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 appendix shows the 
decision tree with the criteria to identify whether a facility ``could 
reasonably be expected to cause substantial harm to the environment by 
discharging into or on the navigable waters or adjoining shorelines.'' 
In addition, the Regional Administrator has the discretion to identify 
facilities that must prepare and submit facility-specific response plans 
to EPA.

                            1.1  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) Sabine-Neches River, TX;
    (10) Galveston Bay and Houston Ship Channel, TX;
    (11) Corpus Christi, TX;
    (12) Los Angeles/Long Beach Harbor, CA;
    (13) San Francisco Bay, San Pablo Bay, Carquinez Strait, and Suisun 
Bay to Antioch, CA;
    (14) Straits of Juan de Fuca from Port Angeles, WA to and including 
Puget Sound, WA;
    (15) Prince William Sound, AK; and
    (16) Others as specified by the Regional Administrator for any EPA 
Region.
    1.1.3  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 confined 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 description 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 submit a response 
plan to EPA. Daily oil transfer operations at these types of facilities 
occur between barges and vessels and onshore bulk storage tanks over 
open water. These facilities are located adjacent to navigable water.

[[Page 650]]

    2.2  Lack of Adequate Secondary Containment at Facilities 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 gallons 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 Environments 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 located 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 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 Area Contingency Plan. Facility owners 
or operators must determine the distance at which an oil spill could 
cause injury 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 storage 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 facility would shut down a public drinking 
water intake shall be calculated using the appropriate formula presented 
in Attachment C-III to this appendix or a comparable 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 
response plan to EPA.

   3.0  Certification for Facilities That Do Not Pose Substantial Harm

    If the facility does not meet the substantial harm criteria listed 
in Attachment C-I to this appendix, the owner or operator shall complete 
and maintain at the facility the certification form contained in 
Attachment C-II to this appendix. In the event an alternative formula 
that is comparable to the one in this appendix is used to evaluate the 
substantial harm criteria, the owner or operator shall attach 
documentation to the certification form that demonstrates the 
reliability and analytical soundness of the comparable formula and shall 
notify the Regional Administrator in writing that an alternative formula 
was used.

                             4.0  References

    Chow, V.T. 1959. Open Channel Hydraulics. McGraw Hill.
    USCG IFR (58 FR 7353, February 5, 1993). This document is available 
through EPA's rulemaking docket as noted in Appendix E to this part, 
section 10.

[[Page 651]]

                        Attachments to Appendix C
[GRAPHIC] [TIFF OMITTED] TC01MR92.009

 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 capacity greater than or 
equal to 42,000 gallons?
    Yes ______       No ______      

[[Page 652]]

    2. Does the facility have a total oil storage capacity greater than 
or equal to 1 million gallons and does the facility lack secondary 
containment that is sufficiently large to contain the capacity of the 
largest aboveground oil storage tank plus sufficient freeboard to allow 
for precipitation within any aboveground oil storage tank area?
    Yes ______       No ______      
    3. Does the facility have a total oil storage capacity greater than 
or equal to 1 million gallons and is the facility located at a distance 
(as calculated using the appropriate formula in Attachment C-III to this 
appendix or a comparable formula \1\) such that a discharge from the 
facility could cause injury to fish and wildlife and sensitive 
environments? For further description of fish and wildlife and sensitive 
environments, see Appendices I, II, and III 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.
    Yes ______      No ______      
    4. Does the facility have a total oil storage capacity greater than 
or equal to 1 million gallons and is the facility located at a distance 
(as calculated using the appropriate formula in Attachment C-III to this 
appendix or a comparable formula \1\) such that a discharge from the 
facility would shut down a public drinking water intake \2\ ?
---------------------------------------------------------------------------

    \1\ If a comparable formula is used, documentation of the 
reliability and analytical soundness of the comparable formula 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).
---------------------------------------------------------------------------

    Yes ______      No ______      
    5. Does the facility have a total oil storage capacity greater than 
or equal to 1 million gallons and has the facility experienced a 
reportable oil 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 examined and 
am familiar with the information submitted in this document, and that 
based on my inquiry of those individuals responsible for obtaining this 
information, I believe that the submitted information is true, accurate, 
and complete.
_______________________________________________________________________
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 distance, EPA considered oil transport mechanisms over 
land and on still, tidal influence, and moving navigable waters. EPA has 
determined that the primary concern for calculation of a planning 
distance is the transport of oil in navigable waters during adverse 
weather conditions. Therefore, two formulas have been developed to 
determine distances for planning purposes from the point of discharge at 
the facility to the potential site of impact on moving and still waters, 
respectively. The formula for oil transport on moving navigable water is 
based on the velocity of the water body and the time interval for 
arrival of response resources. The still water formula accounts for the 
spread of discharged oil over the surface of the water. The method to 
determine oil transport on tidal influence areas is based on the type of 
oil spilled and the distance down current during ebb tide and up current 
during flood tide to the point of maximum tidal influence.
    1.2  EPA's formulas were designed to be simple to use. However, 
facility owners or operators may calculate planning distances using more 
sophisticated formulas, which take into account broader scientific or 
engineering principles, or local conditions. Such comparable formulas 
may result in different planning distances than EPA's formulas. In the 
event that an alternative formula that is comparable to one contained in 
this appendix is used to evaluate the criterion in 40 CFR 
112.20(f)(1)(ii)(B) or (f)(1)(ii)(C), the owner or operator shall attach 
documentation to the response plan cover sheet contained in Appendix F 
to this part that demonstrates the reliability and analytical soundness 
of the alternative formula and shall notify the Regional Administrator 
in writing that an alternative formula was used.\1\
---------------------------------------------------------------------------

    \1\ For persistent oils or non-persistent oils, a worst case 
trajectory model (i.e., an alternative formula) may be substituted for 
the distance formulas described in still, moving, and tidal waters, 
subject to Regional Administrator's review of the model. An example of 
an alternative formula that is comparable to the one contained in this 
appendix would be a worst case trajectory calculation based on credible 
adverse winds, currents, and/or river stages, over a range of seasons, 
weather conditions, and river stages. Based on historical information or 
a spill trajectory model, the Agency may require that additional fish 
and wildlife and sensitive environments or public drinking water intakes 
also be protected.

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

[[Page 653]]

    1.3  A regulated facility may meet the criteria for the potential to 
cause substantial harm to the environment without having to perform a 
planning distance calculation. For facilities that meet the substantial 
harm criteria because of inadequate secondary containment or oil spill 
history, as listed in the flowchart in Attachment C-I to this appendix, 
calculation of the planning distance is unnecessary. For facilities that 
do not meet the substantial harm criteria for secondary containment or 
oil spill history as listed in the flowchart, calculation of a planning 
distance for proximity to fish and wildlife and sensitive environments 
and public drinking water intakes is required, unless it is clear 
without performing the calculation (e.g., the facility is located in a 
wetland) that these areas would be impacted.
    1.4  A facility owner or operator who must perform a planning 
distance calculation on navigable water is only required to do so for 
the type of navigable water conditions (i.e., moving water, still water, 
or tidal- influenced water) applicable to the facility. If a facility 
owner or operator determines that more than one type of navigable water 
condition applies, then the facility owner or operator is required to 
perform a planning distance calculation for each navigable water type to 
determine the greatest single distance that oil may be transported. As a 
result, the final planning distance for oil transport on water shall be 
the greatest individual distance rather than a summation of each 
calculated planning distance.
    1.5  The planning distance formula for transport on moving waterways 
contains three variables: the velocity of the navigable water (v), the 
response time interval (t), and a conversion factor (c). The velocity, 
v, is determined by using the Chezy-Manning equation, which, in this 
case, models the flood flow rate of water in open channels. The Chezy-
Manning equation contains three variables which must be determined by 
facility owners or operators. Manning's Roughness Coefficient (for flood 
flow rates), n, can be determined from Table 1 of this attachment. The 
hydraulic radius, r, can be estimated using the average mid-channel 
depth from charts provided by the sources listed in Table 2 of this 
attachment. The average slope of the river, s, can be determined using 
topographic maps that can be ordered from the U.S. Geological Survey, as 
listed in Table 2 of this attachment.
    1.6  Table 3 of this attachment contains specified time intervals 
for estimating the arrival of response resources at the scene of a 
discharge. Assuming no prior planning, response resources should be able 
to arrive at the discharge site within 12 hours of the discovery of any 
oil discharge in Higher Volume Port Areas and within 24 hours in Great 
Lakes and all other river, canal, inland, and nearshore areas. The 
specified time intervals in Table 3 of Appendix C are to be used only to 
aid in the identification of whether a facility could cause substantial 
harm to the environment. Once it is determined that a plan must be 
developed for the facility, the owner or operator shall reference 
Appendix E to this part to determine appropriate resource levels and 
response times. The specified time intervals of this appendix include a 
3-hour time period for deployment of boom and other response equipment. 
The Regional Administrator may identify additional areas as appropriate.

              2.0  Oil Transport on Moving Navigable Waters

    2.1  The facility owner or operator must use the following formula 
or a comparable formula as described in Sec. 112.20(a)(3) to calculate 
the planning distance for oil transport on moving navigable water:

d=v x t x c; where
d: the distance downstream from a facility within which fish and 
wildlife and sensitive environments could be injured or a public 
drinking water intake would be shut down in the event of an oil 
discharge (in miles);
v: the velocity of the river/navigable water of concern (in ft/sec) as 
determined by Chezy-Manning's equation (see below and Tables 1 and 2 of 
this attachment);
t: the time interval specified in Table 3 based upon the type of water 
body and location (in hours); and
c: constant conversion factor 0.68 sec mile/hr ft 
(3600 sec/hr  5280 ft/mile).
    2.2 Chezy-Manning's equation is used to determine velocity:
v=1.5/n x r\2/3\ x s\1/2\; where
v=the velocity of the river of concern (in ft/sec);
n=Manning's Roughness Coefficient from Table 1 of this attachment;
r=the hydraulic radius; the hydraulic radius can be approximated for 
parabolic channels by multiplying the average mid-channel depth of the 
river (in feet) by 0.667 (sources for obtaining the mid-channel depth 
are listed in Table 2 of this attachment); and
s=the average slope of the river (unitless) obtained from U.S. 
Geological Survey topographic maps at the address listed in Table 2 of 
this attachment.

[[Page 654]]



      Table 1.--Manning's Roughness Coefficient for Natural Streams
 [Note: Coefficients are presented for high flow rates at or near flood
                                 stage.]
------------------------------------------------------------------------
                                                              Roughness
                     Stream description                      coefficient
                                                                 (n)
------------------------------------------------------------------------
             Minor Streams (Top Width 100 ft.)
Clean:
  Straight.................................................        0.03
  Winding..................................................        0.04
Sluggish (Weedy, deep pools):
  No trees or brush........................................        0.06
  Trees and/or brush.......................................        0.10
             Major Streams (Top Width >100 ft.)
Regular section:
  (No boulders/brush)......................................       0.035
Irregular section:
  (Brush)..................................................        0.05
------------------------------------------------------------------------

       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 ordered and a VISA or Mastercard 
will be accepted.
The mid-channel depth to be used in the calculation 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 Institute
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 Illinois Waterway to Lake 
Michigan:
U.S. Army Corps of Engineers
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 Reservoirs, Tennessee River and 
Tributaries:
Tennessee Valley Authority
Maps and Engineering Section
416 Union Avenue
Knoxville, Tennessee 37902
Phone: (615) 632-2921
Charts of Black Warrior River, Alabama River, Tombigbee River, 
Apalachicola River and Pearl River:
U.S. Army Corps of Engineers
Mobile District
P.O. Box 2288
Mobile, Alabama 36628-0001
Phone: (205) 690-2511
The average slope of the river (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 Resources (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 determined from the 
topographic maps using the following steps:
    (1) Locate the facility on the map.
    (2) Find the Normal Pool Elevation at the point of discharge from 
the facility into the water (A).
    (3) Find the Normal Pool Elevation of the public drinking water 
intake or fish and wildlife and sensitive environment located downstream 
(B) (Note: The owner or operator should use a minimum of 20 miles 
downstream as a cutoff to obtain the average slope if the location of a 
specific public drinking water intake or fish and wildlife and sensitive 
environment is unknown).
    (4) If the Normal Pool Elevation is not available, the elevation 
contours can be used to find the slope. Determine elevation of the water 
at the point of discharge from the facility (A). Determine the elevation 
of the 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 facility and the 
public drinking water intake or fish and wildlife and sensitive 
environments (C).
    (6) Use the following formula to find the slope, which will be a 
unitless value: Average

[[Page 655]]

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 
owners or operators repeat the measurement under a variety of conditions 
to obtain the most accurate estimate of the surface water velocity under 
adverse weather conditions.
    2.5  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 downstream. Owners or operators of facilities that store 
persistent as well as non-persistent oils may use a comparable formula. 
The volume of oil discharged is not included as part of the planning 
distance calculation for moving navigable waters. Facilities that will 
meet this substantial harm criterion are those with facility capacities 
greater than or equal to 1 million gallons. It is assumed that these 
facilities are capable of having an oil discharge of sufficient quantity 
to cause injury to fish and wildlife and sensitive environments or shut 
down a public drinking water intake. While owners or operators of 
transfer facilities that store greater than or equal to 42,000 gallons 
are not required to use a planning distance formula for purposes of the 
substantial harm criteria, they should use a planning distance 
calculation in the development of facility-specific response plans.

                   Table 3.--Specified Time Intervals
------------------------------------------------------------------------
                                              Substantial harm planning
              Operating areas                        time (hrs)
------------------------------------------------------------------------
Higher volume port area...................  12 hour arrival+3 hour
                                             deployment=15 hours.
Great Lakes...............................  24 hour arrival+3 hour
                                             deployment=27 hours.
All other rivers and canals, inland, and    24 hour arrival+3 hour
 nearshore areas.                            deployment=27 hours.
------------------------------------------------------------------------

    2.6  Example of the Planning Distance Calculation for Oil Transport 
on Moving Navigable Waters. The following example provides a sample 
calculation using the planning 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 attachment for 
a regular section of a major stream with a top width greater than 100 
feet. The top width of the river can be found from the topographic map.

n=0.035.
Find slope, s, where A=727 feet, B=710 feet, and C=25 miles.

Solving:
s=[(727 ft-1710 ft)/25 miles] x [1 mile/5280 feet]=1.3 x 10-4
    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 environment (or 20 miles downstream if applicable). This value 
is multiplied by 0.667 to obtain the hydraulic radius. The mid-channel 
depth is found by obtaining values for r and s from the sources shown in 
Table 2 for the Monongahela River.

Solving:
r=0.667 x 20 feet=13.33 feet
Solve for v using:
v=1.5/n x r2/3 x s1/2:
v=[1.5/
0.035] x (13.33)2/3 x (1.3 x 10-4)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 planning distance for 
this facility.

                    3.0  Oil Transport on Still Water

    3.1  For bodies of water including lakes or ponds that do not have a 
measurable velocity, the spreading of the oil over the surface must be 
considered. Owners or operators of facilities located next to still 
water bodies may use a comparable means of calculating the planning 
distance. If a comparable formula is used, documentation of the 
reliability and analytical soundness of the comparable calculation 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 water, the following analysis was 
performed to provide an example of the type of formula that may be used 
to calculate the planning distance. For this example, a worst case 
discharge of 2,000,000 gallons is used.

[[Page 656]]

    (1) The surface area in square feet covered by an oil spill on still 
water, A1, can be determined by the following formula,\2\ where V is the 
volume of the spill in gallons and C is a constant conversion factor:
---------------------------------------------------------------------------

    \2\ Huang, J.C. and Monastero, F.C., 1982. Review of the State-of-
the-Art of Oil Pollution Models. Final report submitted to the American 
Petroleum Institute by Raytheon Ocean Systems, Co., East Providence, 
Rhode Island.
---------------------------------------------------------------------------

A1=105 x V\3/4\ x C
C=0.1643
A1=105 x (2,000,000 gallons)\3/4\ x (0.1643)
A1=8.74 x 108 ft2
    (2) The spreading formula is based on the theoretical condition that 
the oil will spread uniformly in all directions forming a circle. In 
reality, the outfall of the discharge will direct the oil to the surface 
of the water where it intersects the shoreline. Although the oil will 
not spread uniformly in all directions, it is assumed that the discharge 
will spread from the shoreline into a semi-circle (this assumption does 
not account for winds or wave action).
    (3) The area of a circle= r2
    (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=( r2)/2
Solving for the radius, r, using the relationship 
A1=A2: 8.74 x 108 
ft2=(2)/2
Therefore, r=23,586 ft
r=23,586 ft5,280 ft/mile=4.5 miles
Assuming a 20 knot wind under storm conditions:
1 knot=1.15 miles/hour
20 knots x 1.15 miles/hour/knot=23 miles/hr
Assuming that the oil slick moves at 3 percent of the wind's speed:\3\
---------------------------------------------------------------------------

    \3\ Oil Spill Prevention & Control. National Spill Control School, 
Corpus Christi State University, Thirteenth Edition, May 1990.
---------------------------------------------------------------------------

23 miles/hour x 0.03=0.69 miles/hour

    (5) To estimate the distance that the oil will travel, use the times 
required for response resources to arrive at different geographic 
locations as shown in Table 3 of this attachment.

For example:
For Higher Volume Port Areas: 15 hrs x 0.69 miles/hr=10.4 miles
For Great Lakes and all other areas: 27 hrs x 0.69 miles/hr=18.6 miles

    (6) The total distance that the oil will travel from the point of 
discharge, including the distance due to spreading, is calculated as 
follows:

Higher Volume Port Areas: d=10.4+4.5 miles or approximately 15 miles
Great Lakes and all other areas: d=18.6+4.5 miles or approximately 23 
miles

               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 persistent and non-persistent 
oils. Persistent oils are of primary concern because they can 
potentially cause harm over a greater distance. For persistent oils 
discharged into tidal waters, the planning distance is 15 miles from the 
facility down current during ebb tide and to the point of maximum tidal 
influence or 15 miles, whichever is less, during flood tide.
    4.2  For non-persistent oils discharged into tidal waters, the 
planning distance is 5 miles from the facility down current during ebb 
tide and to the point of maximum tidal 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 distance 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 downstream from 
locks along a slow moving river which is affected by tides. The river 
velocity, v, is determined to be 0.5 feet/second from the Chezy-Manning 
equation used to calculate oil transport on moving navigable waters. The 
specified time interval, t, obtained from Table 3 of this attachment for 
river areas is 27 hours. Therefore, solving for the planning distance, 
d:

d=v x t x c
d=(0.5 ft/sec) x (27 hours) x (0.68 secmile/hrft)
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 potential for 
oil to be transported over land to navigable waters of the United 
States. The owner or operator must evaluate the likelihood that portions 
of a worst case discharge would reach navigable waters via open channel 
flow or from sheet flow across the land, or be prevented from reaching 
navigable waters when trapped in natural or man-made depressions 
excluding secondary containment structures.
    5.2  As discharged oil travels over land, it may enter a storm drain 
or open concrete channel intended for drainage. It is assumed that once 
oil reaches such an inlet, it will flow into the receiving navigable 
water. During a storm event, it is highly probable that the oil will 
either flow into the drainage structures or follow the natural contours 
of

[[Page 657]]

the land and flow into the navigable water. Expected minimum and maximum 
velocities are provided as examples of open concrete channel and pipe 
flow. The ranges listed below reflect minimum and maximum velocities 
used as design criteria.\4\ The calculation below demonstrates that the 
time required for oil to travel through a storm drain or open concrete 
channel to navigable water is negligible and can be considered 
instantaneous. The velocities are:
---------------------------------------------------------------------------

    \4\ The design velocities were obtained from Howard County, Maryland 
Department of Public Works' Storm Drainage Design Manual.
---------------------------------------------------------------------------

For open concrete channels:
maximum velocity=25 feet per second
minimum velocity=3 feet per second
For storm drains:
maximum velocity=25 feet per second
minimum 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 (distance/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 determine the 
planning distance are illustrated in Figure C-I of this attachment. The 
relevant distances can be described as follows:

D1=Distance from the nearest opportunity for discharge, X1, 
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, X2, 
to fish and wildlife and sensitive environments not bordering navigable 
water.

    5.5  A facility owner or operator whose nearest opportunity for 
discharge is located within 0.5 mile of a navigable water must complete 
the planning distance calculation (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., D1 is less than 0.5 mile and other 
factors are conducive to oil travel over land) to storm drains that flow 
to navigable waters. Factors to be considered in assessing oil transport 
over land to storm drains shall include the topography of the 
surrounding area, drainage patterns, man-made barriers (excluding 
secondary containment structures), and soil distribution and porosity. 
Storm drains or concrete drainage channels that are located in close 
proximity to the facility can provide a direct pathway to navigable 
waters, regardless of the length of the drainage pipe. If D1 is less 
than or equal to 0.5 mile, a discharge from the facility could pose 
substantial harm because the time to travel the distance from the storm 
drain to the navigable water (D2) is virtually instantaneous.
    5.7  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 facility to navigable waters. Factors to be 
considered in assessing oil transport over land to fish and wildlife and 
sensitive environments should include the topography of the surrounding 
area, drainage patterns, man-made barriers (excluding secondary 
containment structures), and soil distribution and porosity.
    5.8  If a facility is not found to pose substantial harm to fish and 
wildlife and sensitive environments not bordering navigable waters via 
oil transport on land, then supporting documentation should be 
maintained at the facility. However, such documentation should be 
submitted with the response plan if a facility is found to pose 
substantial harm.

[[Page 658]]

[GRAPHIC] [TIFF OMITTED] TC01MR92.010

[59 FR 34102, July 1, 1994]

[[Page 659]]

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 environment. The calculation of a worst case 
discharge planning volume is used for emergency planning purposes, and 
is required in 40 CFR 112.20 for facility owners or operators who must 
prepare a response plan. When planning for the amount of resources and 
equipment necessary to respond to the worst case discharge planning 
volume, adverse weather conditions must be taken into consideration. An 
owner or operator is required to determine the facility's worst case 
discharge planning volume from either Part A of this appendix for an 
onshore storage facility, or Part B of this appendix for an onshore 
production facility. The worksheet considers the provision of adequate 
secondary containment at a facility.
    1.2  For onshore storage facilities and production facilities, 
permanently manifolded oil storage tanks are defined as tanks that are 
designed, installed, and/or operated in such a manner that the multiple 
tanks function as one storage unit (i.e., multiple tank volumes are 
equalized). In a worst case discharge scenario, a single failure could 
cause the discharge of the contents of more than one tank. The owner or 
operator must provide evidence in the response plan that tanks with 
common piping or piping systems are not operated as one unit. If such 
evidence is provided and is acceptable to the RA, the worst case 
discharge planning volume would be based on the capacity of the largest 
oil storage tank within a common secondary containment area or the 
largest oil storage tank within a single secondary containment area, 
whichever is greater. For permanently manifolded tanks that function as 
one oil storage unit, the worst case discharge planning volume would be 
based on the combined oil storage capacity of all manifolded tanks or 
the capacity of the largest single oil storage tank within a secondary 
containment area, whichever is greater. For purposes of this rule, 
permanently manifolded tanks that are separated by internal divisions 
for each tank are considered to be single tanks and individual 
manifolded tank volumes are not combined.
    1.3  For production facilities, the presence of exploratory wells, 
production wells, and oil storage tanks must be considered in the 
calculation. Part B of this appendix takes these additional factors into 
consideration and provides steps for their inclusion in the total worst 
case discharge planning volume. Onshore oil production facilities may 
include all wells, flowlines, separation equipment, storage facilities, 
gathering lines, and auxiliary non-transportation-related equipment and 
facilities in a single geographical oil or gas field operated by a 
single operator. Although a potential worst case discharge planning 
volume is calculated within each section of the worksheet, the final 
worst case amount depends on the risk parameter that results in the 
greatest volume.
    1.4  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.'' 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 calculations for 
worst case discharge planning volume derived by using the EPA and USCG 
methodologies and plan for whichever volume is greater.

  PART A: WORST CASE DISCHARGE PLANNING VOLUME CALCULATION FOR ONSHORE 
                         STORAGE FACILITIES \1\
---------------------------------------------------------------------------

    \1\ ``Storage facilities'' represent all facilities subject to this 
part, excluding oil production facilities.
---------------------------------------------------------------------------

    Part A of this worksheet is to be completed by the owner or operator 
of an SPCC-regulated facility (excluding oil production facilities) if 
the facility meets the criteria as presented in Appendix C to this part, 
or if it is determined by the RA that the facility could cause 
substantial harm to the environment. If you are the owner or operator of 
a production facility, please proceed to Part B of this worksheet.

                       A.1  SINGLE-TANK FACILITIES

    For facilities containing only one aboveground oil storage tank, the 
worst case discharge planning volume equals the capacity of the oil 
storage tank. If adequate secondary containment (sufficiently large to 
contain the capacity of the aboveground oil storage tank plus sufficient 
freeboard to allow for precipitation) exists for the oil storage tank, 
multiply the capacity of the tank by 0.8.
    (1) FINAL WORST CASE VOLUME: ________ GAL
    (2) Do not proceed further.

[[Page 660]]

          A.2  SECONDARY CONTAINMENT--MULTIPLE-TANK FACILITIES

    Are all aboveground oil storage tanks or groups of aboveground oil 
storage tanks at the facility without adequate secondary containment? 
\2\
---------------------------------------------------------------------------

    \2\ Secondary containment is defined in 40 CFR 112.7(e)(2). 
Acceptable methods and structures for containment are also given in 40 
CFR 112.7(c)(1).
---------------------------------------------------------------------------

________ (Y/N)

    A.2.1  If the answer is yes, the final worst case discharge 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 aboveground oil 
storage capacity of tanks without adequate secondary 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 secondary containment area or the 
combined capacity of a group of aboveground oil storage tanks 
permanently manifolded together, whichever is greater, PLUS THE VOLUME 
FROM QUESTION A.2.2.
    FINAL WORST CASE VOLUME: \3\ ________ GAL
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

  PART B: WORST CASE DISCHARGE PLANNING VOLUME CALCULATION FOR ONSHORE 
                          PRODUCTION 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 Appendix C to this part, or if it is determined by 
the RA that the facility could cause substantial harm. A production 
facility consists of all wells (producing and exploratory) and related 
equipment in a single geographical oil or gas field operated by a single 
operator.

                       B.1  SINGLE-TANK FACILITIES

    B.1.1  For facilities containing only one aboveground oil storage 
tank, the worst case discharge planning volume equals the capacity of 
the aboveground oil storage tank plus the production volume of the well 
with the highest output at the facility. If adequate secondary 
containment (sufficiently large to contain the capacity of the 
aboveground oil storage tank plus sufficient freeboard to allow for 
precipitation) exists for the storage tank, multiply the capacity of the 
tank by 0.8.
    B.1.2  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 unattended can be predicted, then the production 
volume is equal to the pumping rate of the well multiplied by the 
greatest number of days the facility is unattended.
    B.1.3  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-1 to this appendix provides methods for 
calculating the production volume for exploratory wells and production 
wells producing under pressure.
    (1) FINAL WORST CASE VOLUME: ________ GAL
    (2) Do not proceed further.

          B.2  SECONDARY CONTAINMENT--MULTIPLE-TANK FACILITIES

    Are all aboveground oil storage tanks or groups of aboveground oil 
storage tanks at the facility without adequate secondary containment?

______ (Y/N)

    B.2.1  If the answer is yes, the final worst case volume equals the 
total aboveground oil storage capacity without adequate secondary 
containment plus the production volume of the well with the highest 
output at the facility.
    (1) For facilities with production wells producing by pumping, if 
the rate of the well with the highest output is known and the number of 
days the facility is unattended can be predicted, then the production 
volume is equal to the pumping rate of the well multiplied by the 
greatest number of days the facility is unattended.
    (2) If the pumping rate of the well with the highest output is 
estimated or the maximum number of days the facility is unattended is 
estimated, then the production volume is determined from the pumping 
rate of the well multiplied by 1.5 times the greatest number of days 
that the facility has been or is expected to be unattended.
    (3) Attachment D-1 to this appendix provides methods for calculating 
the production volumes for exploratory wells and production wells 
producing under pressure.
    (A) FINAL WORST CASE VOLUME: ________ GAL
    (B) Do not proceed further.

[[Page 661]]

    B.2.2  If the answer is no, calculate the total aboveground oil 
storage capacity of tanks without adequate secondary 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 secondary containment area or the 
combined capacity of a group of aboveground oil storage tanks 
permanently manifolded together, whichever is greater, plus the 
production volume of the well with the highest output, PLUS THE VOLUME 
FROM QUESTION B.2.2. Attachment D-1 provides methods for calculating the 
production volumes for exploratory wells and production wells producing 
under pressure.
    (1) FINAL WORST CASE VOLUME: \4\ ________ GAL
---------------------------------------------------------------------------

    \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) Do not proceed further.

                        Attachments to Appendix D

 Attachment D-I--Methods to Calculate Production Volumes for Production 
 Facilities With Exploratory Wells or Production Wells Producing Under 
                                Pressure

                            1.0  Introduction

    The owner or operator of a production facility with exploratory 
wells or production wells producing under pressure shall compare the 
well rate of the highest output well (rate of well), in barrels per day, 
to the ability of response equipment and personnel to recover the volume 
of oil that could be discharged (rate of recovery), in barrels per day. 
The result of this comparison will determine the method used to 
calculate the production volume for the production facility. This 
production volume is to be used to calculate the worst case discharge 
planning volume in Part B of this appendix.

                       2.0  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 production volume would 
be the 30-day forecasted well rate for a well 10,000 feet deep or less, 
or the 45-day forecasted well rate for a well deeper than 10,000 feet.
    (1) For wells 10,000 feet deep or less:
Production volume=30 days  x  rate of well.
    (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 volume1 + discharge 
volume2
    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 recovering oil (discharge 
volume1).

Discharge volume1=(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 volume2).
    (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 recovery)
    (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 recovery)

                              3.0  Example

    3.1  A facility consists of two production wells producing under 
pressure, which are both less than 10,000 feet deep. The well rate of 
well A is 5 barrels per day, and the well rate of well B is 10 barrels 
per day. The facility is unattended for a maximum of 7 days. The 
facility operator estimates that it will take 2 days to have response 
equipment and personnel on scene and responding to a blowout, and that 
the projected rate of recovery will be 20 barrels per day.
    (1) First, the facility operator determines that the highest output 
well is well B. The facility operator calculates the ratio of the rate 
of well to the rate of recovery:

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 volume1=(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


[[Page 662]]


    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]

    Appendix E to Part 112--Determination and Evaluation of Required 
             Response Resources 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 requirements of Sec. 112.20. To 
identify response resources to meet the facility response plan 
requirements of 40 CFR 112.20(h), owners or operators shall follow this 
appendix or, where not appropriate, shall clearly demonstrate in the 
response plan why use of this appendix is not appropriate at the 
facility and make comparable arrangements for response resources.
    1.2  Definitions.
    1.2.1  Nearshore is an operating area defined as extending 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, Inland, 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 Canals, 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 distillation 
criteria for a non-persistent oil. Persistent oils are further 
classified based on specific gravity as follows:
    (A) Group 2--specific gravity less than 0.85;
    (B) Group 3--specific gravity equal to or greater than 0.85 and less 
than 0.95;
    (C) Group 4--specific gravity equal to or greater than 0.95 and less 
than 1.0; or
    (D) Group 5--specific gravity equal to or greater than 1.0.
    (2) A non-petroleum oil with a specific gravity of 0.8 or greater. 
These oils are further classified based on specific gravity as follows:
    (A) Group 2--specific gravity equal to or greater than 0.8 and less 
than 0.85;
    (B) Group 3--specific gravity equal to or greater than 0.85 and less 
than 0.95;
    (C) Group 4--specific gravity equal to or greater than 0.95 and less 
than 1.0; or
    (D) Group 5--specific gravity equal to or greater than 1.0.
    1.2.8  Other definitions are included in Sec. 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 season. Therefore, it is difficult to identify a single 
stockpile of response equipment that will function effectively in each 
geographic location (i.e., operating area).
    2.2  Facilities handling, storing, or 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 systems. The criteria in Table 1 of this appendix shall be used 
to evaluate the operability in a given environment. These criteria 
reflect the general conditions in certain operating environments.
    2.3.1  The Regional Administrator may require documentation that the 
boom identified in a facility response plan meets the criteria in Table 
1 of this appendix. Absent acceptable documentation, the Regional 
Administrator may require that the boom be tested to demonstrate that it 
meets the criteria in Table 1 of this appendix. Testing must be in 
accordance with ASTM F 715, ASTM F 989, or other tests approved by EPA 
as deemed appropriate (see Appendix E to this part, section 10, for 
general availability of documents).
    2.4  Table 1 of this appendix lists criteria for oil recovery 
devices and boom. All other equipment necessary to sustain or support 
response operations in an operating environment must be designed to 
function in the

[[Page 663]]

same conditions. For example, boats that deploy or support skimmers or 
boom must be capable of being safely operated in the significant wave 
heights listed for the applicable operating environment.
    2.5  A facility owner or operator shall refer to the applicable Area 
Contingency Plan (ACP), where available, to determine if ice, debris, 
and weather-related visibility are significant factors to evaluate the 
operability of equipment. The ACP may also identify the average 
temperature ranges expected in the facility's operating area. All 
equipment identified in a response plan must be designed to operate 
within those conditions or ranges.
    2.6  This appendix provides information on response resource 
mobilization and response times. The distance of the facility from the 
storage location of the response resources must be used to determine 
whether the 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 discharges) and section 5.3 of this appendix 
(for worst case discharges). The facility owner or operator must plan 
for notification and mobilization of Tier 2 and 3 response resources as 
necessary to meet the requirements for arrival on-scene in accordance 
with section 5.3 of this appendix. An on-water speed of 5 knots and a 
land speed of 35 miles per hour is assumed, unless the facility owner or 
operator can demonstrate otherwise.
    2.7  In identifying equipment, the facility owner or operator shall 
list the storage location, quantity, and manufacturer's make and model. 
For oil recovery devices, the effective daily recovery capacity, as 
determined using section 6 of this appendix, must be included. For boom, 
the overall boom height (draft and freeboard) shall be included. A 
facility owner or operator is responsible for ensuring that the 
identified boom has compatible connectors.

    3.0  Determining Response Resources Required for Small Discharges

    3.1  A facility owner or operator shall identify sufficient response 
resources available, by contract or other approved means as described in 
Sec. 112.2, to respond to a small discharge. A small discharge is 
defined as any discharge volume less than or equal to 2,100 gallons, but 
not to exceed the calculated worst case discharge. The equipment must be 
designed to function in the operating environment at the point of 
expected use.
    3.2  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 
discharge.'' 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 complexes must compare oil spill volumes for a 
small discharge and an average most probable discharge and plan for 
whichever quantity is greater.
    3.3  The response resources shall, as appropriate, include:
    3.3.1  One thousand feet of containment boom (or, for complexes with 
marine transfer components, 1,000 feet of containment boom or two times 
the length of the largest vessel that regularly conducts oil transfers 
to or from the facility, whichever is greater), and a means of deploying 
it within 1 hour of the discovery of a spill;
    3.3.2  Oil recovery devices with an effective daily recovery 
capacity equal to the amount of oil discharged in a small discharge or 
greater which is available at the facility within 2 hours of the 
detection of 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 sufficient response 
resources available, by contract or other approved means as described in 
Sec. 112.2, to respond to a medium discharge of oil for that facility. 
This will require response resources capable of containing and 
collecting up to 36,000 gallons of oil or 10 percent of the worst case 
discharge, whichever is less. All equipment identified must be designed 
to operate in the applicable operating environment specified in Table 1 
of this appendix.
    4.2  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 ``medium discharge'' is termed ``the maximum most probable 
discharge.'' The USCG revisions to 33 CFR part 154 define ``the maximum 
most probable discharge'' as a discharge of 1,200 barrels (50,400 
gallons) or 10 percent of the worst case discharge, whichever is less. 
Owners or operators of complexes must compare spill volumes for a medium 
discharge and a maximum most probable discharge and plan for whichever 
quantity is greater.
    4.3  Oil recovery devices identified to meet the applicable medium 
discharge volume planning criteria must be located such that they are 
capable of arriving on-scene within 6 hours in higher volume port areas 
and the Great Lakes and within 12 hours in all other areas. Higher 
volume port areas and Great Lakes areas are defined in section 1.1 of 
Appendix C to this part.

[[Page 664]]

    4.4  Because rapid control, containment, and removal of oil are 
critical to reduce spill impact, the owner or operator must determine 
response resources using an effective daily recovery capacity for oil 
recovery devices equal to 50 percent of the planning volume applicable 
for the facility as determined in section 4.1 of this appendix. The 
effective daily recovery capacity for oil recovery devices identified in 
the plan must be determined using the criteria in section 6 of this 
appendix.
    4.5  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 Sec. 112.2, to 
arrive within the required response times for oil collection and 
containment and for protection of fish and wildlife and sensitive 
environments. For further description of fish and wildlife and sensitive 
environments, see Appendices I, II, and III to DOC/NOAA's ``Guidance for 
Facility and Vessel Response Plans: Fish and Wildlife and Sensitive 
Environments'' (see Appendix E to this part, section 10, for 
availability) and the applicable ACP. While the regulation does not set 
required quantities of boom for oil collection and containment, the 
response plan shall identify and ensure, by contract or other approved 
means as described in Sec. 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 temporary storage 
capacity to meet section 9.2 of this appendix. If available storage 
capacity is insufficient to meet this level, then the effective daily 
recovery capacity must be derated (downgraded) to the limits of the 
available storage capacity.
    4.7  The following is an example of a medium discharge volume 
planning calculation for equipment identification in a higher volume 
port area: The facility's largest aboveground storage tank volume is 
840,000 gallons. Ten percent of this capacity is 84,000 gallons. Because 
10 percent of the facility's largest tank, or 84,000 gallons, is greater 
than 36,000 gallons, 36,000 gallons is used as the planning volume. The 
effective daily recovery capacity is 50 percent of the planning volume, 
or 18,000 gallons per day. The ability of oil recovery devices to meet 
this capacity must be calculated using the procedures in section 6 of 
this appendix. Temporary storage capacity available on-scene must equal 
twice the daily recovery capacity as indicated in section 9.2 of this 
appendix, or 36,000 gallons per day. This is the information the 
facility owner or operator must use to identify and ensure the 
availability of the required response resources, by contract or other 
approved means as described in Sec. 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 Practicable

    5.1  A facility owner or operator shall identify and ensure the 
availability of, by contract or other approved means as described in 
Sec. 112.2, sufficient response resources to respond to the worst case 
discharge of oil to the maximum extent practicable. Section 7 of this 
appendix describes the method to determine the necessary response 
resources. A worksheet is provided as Attachment E-1 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 discharge at the transportation-
related portion of the facility. The USCG requires that transportation-
related facility owners or operators use a different calculation for the 
worst case discharge in the revisions to 33 CFR part 154. Owners or 
operators of complex facilities that are regulated by EPA and the USCG 
must compare both calculations of worst case discharge derived by EPA 
and the USCG and plan for whichever volume is greater.
    5.3  Oil spill response resources identified in the response plan 
and available, by contract or other approved means as described in 
Sec. 112.2, to meet the applicable worst case discharge planning volume 
must be located such that they are capable of arriving at the scene of a 
discharge within the times specified for the applicable response tier 
listed below:

------------------------------------------------------------------------
                                   Tier 1        Tier 2        Tier 3
------------------------------------------------------------------------
Higher volume port areas.....  6 hrs........  30 hrs......  54 hrs
Great Lakes..................  12 hrs.......  36 hrs......  60 hrs
All other river and canal,     12 hrs.......  36 hrs......  60 hrs
 inland, and nearshore areas.
------------------------------------------------------------------------

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 respond to the worst case discharge planning 
volume. For example, at a worst case discharge in an inland area, the 
first tier of response resources (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 discharge within 12 hours; the second tier of response resources 
would arrive within 36 hours; and the third tier of response resources 
would arrive within 60 hours.

[[Page 665]]

    5.4  The effective daily recovery capacity for oil recovery devices 
identified in the response plan must be determined using the criteria in 
section 6 of this appendix. A facility owner or operator shall identify 
the storage locations of all response resources used for each tier. The 
owner or operator of a facility whose required daily recovery capacity 
exceeds the applicable contracting caps in Table 5 of this appendix 
shall, as appropriate, identify sources of additional equipment, their 
location, and the arrangements made to obtain this equipment during a 
response. The owner or operator of a facility whose calculated planning 
volume exceeds the applicable contracting caps in Table 5 of this 
appendix shall, as appropriate, identify sources of additional equipment 
equal to twice the cap listed in Tier 3 or the amount necessary to reach 
the calculated planning volume, whichever is lower. The resources 
identified above the cap shall be capable of arriving on-scene not later 
than the Tier 3 response times in section 5.3 of this appendix. No 
contract is required. While general listings of available response 
equipment may be used to identify additional sources (i.e., ``public'' 
resources vs. ``private'' resources), the response plan shall identify 
the specific sources, locations, and quantities of equipment that a 
facility owner or operator has considered in his or her planning. When 
listing USCG-classified oil spill removal organization(s) that have 
sufficient removal capacity to recover the volume above the response 
capacity cap for the specific facility, as specified in Table 5 of this 
appendix, it is not necessary to list specific quantities of equipment.
    5.5  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 insufficient, 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-regulated facility that is required to plan for response in 
shallow 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 
Sec. 112.2, to arrive on-scene within the specified response times for 
oil containment and collection. The specific quantity of boom required 
for collection and containment will depend on the facility-specific 
information and response strategies employed. A facility owner or 
operator shall, as appropriate, also identify sufficient quantities of 
oil containment boom to protect fish and wildlife and sensitive 
environments. For further description of fish and wildlife and sensitive 
environments, see Appendices I, II, and III to DOC/NOAA's ``Guidance for 
Facility and Vessel Response Plans: Fish and Wildlife and Sensitive 
Environments'' (see Appendix E to this part, section 10, for 
availability), and the applicable ACP. Refer to this guidance document 
for the number of days and geographic areas (i.e., operating 
environments) specified 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 Sec. 112.2, the availability of 
an oil spill removal organization(s) (as described in Sec. 112.2) 
capable of responding to a shoreline cleanup operation involving the 
calculated volume of oil and emulsified oil that might impact the 
affected shoreline. The volume of oil that shall, as appropriate, be 
planned for is calculated through the application of factors contained 
in Tables 2 and 3 of this appendix. The volume calculated from these 
tables is intended to assist the facility owner or operator to identify 
an oil spill removal organization with sufficient resources and 
expertise.

  6.0  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 capacities must be used to determine whether 
there is sufficient capacity to meet the applicable planning criteria 
for a small discharge, a medium discharge, and a worst case discharge to 
the maximum extent practicable.
    6.2  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 potential limitations due to 
available daylight, weather, sea state, and percentage of emulsified oil 
in the recovered material. The RA may assign a lower efficiency factor 
to equipment listed in a response plan if it is determined that such a 
reduction is warranted.
    6.2.1  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 capacity); and

[[Page 666]]

E--20 percent efficiency factor (or lower factor as determined 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 \1/4\ inch.
    6.2.4  Facility owners or operators that include oil recovery 
devices whose throughput is not measurable using a pump capacity or 
belt/mop speed may provide information to support an alternative method 
of calculation. This information must be submitted following the 
procedures in section 6.3.2 of this appendix.
    6.3  As an alternative to section 6.2 of this appendix, a facility 
owner or operator may submit adequate evidence that a different 
effective daily recovery capacity should be applied for a specific oil 
recovery device. Adequate evidence is actual verified performance data 
in 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 appropriate (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 alternative:

R = D  x  U

where:

R--Effective daily recovery capacity;
D--Average Oil Recovery Rate in barrels per hour (Item 26 in F 808-83; 
Item 13.1.15 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 
periods.

    6.3.2  A facility owner or operator submitting a response plan shall 
provide data that supports the effective daily recovery capacities for 
the oil recovery devices listed. The following is an example of these 
calculations:
    (1) A weir skimmer identified in a response plan has a 
manufacturer's rated throughput at the pump of 267 gallons per minute 
(gpm).

267 gpm=381 barrels per hour (bph)
R=381 bph x 24 hr/day x 0.2=1,829 barrels per day

    (2) After testing using ASTM procedures, the skimmer's oil recovery 
rate is determined to be 220 gpm. The facility owner or operator 
identifies sufficient resources available to support operations for 12 
hours per day.

220 gpm=314 bph
R=314 bph x 12 hr/day=3,768 barrels per day

    (3) The facility owner or operator will be able to use the higher 
capacity if sufficient temporary oil storage capacity is available. 
Determination of alternative efficiency factors under section 6.2 of 
this appendix or the acceptability of an alternative effective daily 
recovery capacity under section 6.3 of this appendix will be made by the 
Regional Administrator as deemed appropriate.

      7.0  Calculating Planning Volumes for a Worst Case Discharge

    7.1  A facility owner or operator shall plan for a response to the 
facility's worst case discharge. The planning for on-water oil recovery 
must take into account a loss of some oil to the environment due to 
evaporative and natural dissipation, potential increases in volume due 
to emulsification, and the potential for deposition of oil on the 
shoreline. The procedures for non-petroleum oils are discussed in 
section 7.7 of this appendix.
    7.2  The following procedures must be used by a facility 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 appropriate group(s) for the types of 
oil handled, stored, or transported at the facility [persistent (Groups 
2, 3, 4, 5) or non-persistent (Group 1)]; and the facility's specific 
operating area. See sections 1.2.2 and 1.2.7 of this appendix for the 
definitions of non-persistent and persistent oils, respectively. 
Facilities that handle, store, or transport oil from different oil 
groups must calculate each group separately, unless the oil group 
constitutes 10 percent or less by volume of the facility's total oil 
storage capacity. This information is to be used with Table 2 of this 
appendix to determine the percentages of the total volume to be used for 
removal capacity planning. Table 2 of this appendix divides the volume 
into three categories: oil lost to the environment; oil deposited on the 
shoreline; and oil available for on-water recovery.
    7.2.2  The on-water oil recovery volume shall, as appropriate, be 
adjusted using the appropriate emulsification factor found in Table 3 of 
this appendix. Facilities that 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.

[[Page 667]]

    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 
identified or contracted to arrive on-scene within the applicable time 
for each response tier. Three tiers are specified. For higher volume 
port areas, the contracted tiers of resources must be located such that 
they are capable of arriving on-scene within 6 hours for Tier 1, 30 
hours for Tier 2, and 54 hours for Tier 3 of the discovery of an oil 
discharge. For all other rivers and canals, inland, nearshore areas, and 
the Great Lakes, these tiers are 12, 36, and 60 hours.
    7.2.4  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 sustaining operations for the time period specified in 
Table 2 of this appendix. The facility owner or operator shall identify 
and ensure the availability, by contract or other approved means as 
described in Sec. 112.2, of sufficient oil spill recovery devices to 
provide the effective daily oil recovery capacity required. If the 
required capacity exceeds the applicable cap specified in Table 5 of 
this appendix, then a facility owner or operator shall ensure, by 
contract or other approved means as described in Sec. 112.2, only for 
the quantity of resources required to meet the cap, but shall identify 
sources of additional resources as indicated in section 5.4 of this 
appendix. The owner or operator of a facility whose planning volume 
exceeded the cap in 1993 must make arrangements to identify and ensure 
the availability, by contract or other approved means as described in 
Sec. 112.2, for additional capacity to be under contract by 1998 or 
2003, as appropriate. For a facility that handles multiple groups of 
oil, the required effective daily recovery capacity for each oil group 
is calculated before applying the cap. The oil group calculation 
resulting in the largest on-water recovery volume 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 capacity.
    7.3  The procedures discussed in sections 7.3.1-7.3.3 of this 
appendix must be used to calculate the planning volume for 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 appropriate group(s) for the types 
of oil handled, stored, or transported at the facility [persistent 
(Groups 2, 3, or 4) or non-persistent (Group 1)]; and the geographic 
area(s) in which the facility operates (i.e., operating areas). For a 
facility handling, storing, or transporting oil from different 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 resources located at the facility or that cannot 
rely on sufficient 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 
Sec. 112.2, the availability of these resources. The response plan must 
also identify an individual located at the facility to work with the 
fire department for Group 1 through Group 4 oil fires. This individual 
shall also verify that sufficient well-trained fire fighting resources 
are available within a reasonable response time to a worst case 
scenario. The individual may be the qualified individual identified in 
the response plan or another appropriate individual located at the 
facility.
    7.5  The following is an example of the procedure described above in 
sections 7.2 and 7.3 of this appendix: A facility with a 270,000 barrel 
(11.3 million gallons) capacity for #6 oil (specific gravity 0.96) is 
located in a higher volume port area. The facility is on a peninsula and 
has docks on both the ocean and bay sides. The facility has four 
aboveground oil storage tanks with a combined total capacity of 80,000 
barrels (3.36 million gallons) and no secondary containment. The 
remaining facility tanks are inside secondary containment structures. 
The largest aboveground oil storage tank (90,000 barrels or 3.78 million 
gallons) has its own secondary containment. Two 50,000 barrel (2.1 
million gallon) tanks (that are not connected by a manifold) are within 
a common secondary containment tank area, which is capable of holding 
100,000 barrels (4.2 million gallons) plus sufficient freeboard.
    7.5.1  The worst case discharge for the facility is calculated by 
adding the capacity of all aboveground oil storage tanks without 
secondary containment (80,000 barrels) plus the capacity of the largest 
aboveground oil storage tank inside secondary containment. The resulting 
worst case discharge volume is 170,000 barrels or 7.14 million gallons.

[[Page 668]]

    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. 
Resources for the remaining 7,850 bpd for Tier 1, 9,750 bpd for Tier 2, 
and 7,600 bpd for Tier 3 shall be identified but need not be contracted 
for in advance. The facility owner or operator shall, as appropriate, 
also identify or contract for quantities of boom identified in their 
response plan for the protection of fish and wildlife and sensitive 
environments within the area potentially impacted by a worst case 
discharge from the facility. For further description of fish and 
wildlife and sensitive environments, see Appendices I, II, and III to 
DOC/NOAA's ``Guidance for Facility and Vessel Response Plans: Fish and 
Wildlife and Sensitive Environments,'' (see Appendix E to this part, 
section 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 discharge.
    7.6  The procedures discussed in sections 7.6.1--7.6.3 of this 
appendix must be used to determine appropriate response resources for 
facilities with Group 5 oils.
    7.6.1  The owner or operator of a facility that handles, stores, or 
transports Group 5 oils shall, as appropriate, identify the response 
resources available by contract or other approved means, as described in 
Sec. 112.2. The equipment identified in a response plan shall, as 
appropriate, include:
    (1) Sonar, sampling equipment, or other methods for locating the oil 
on the bottom or suspended in the water column;
    (2) Containment boom, sorbent boom, silt curtains, or other methods 
for containing the oil that may remain floating on the surface or to 
reduce spreading on the bottom;
    (3) Dredges, pumps, or other equipment necessary to recover oil from 
the bottom and shoreline;
    (4) Equipment necessary to assess the impact of such discharges; and
    (5) Other appropriate equipment necessary to respond to a discharge 
involving the type of oil handled, stored, or transported.
    7.6.2  Response resources identified in a response plan for a 
facility that handles, stores, or transports Group 5 oils under section 
7.6.1 of this appendix shall be capable of being deployed (on site) 
within 24 hours of discovery of a discharge to the area where the 
facility is operating.
    7.6.3  A response plan must identify response resources with fire 
fighting capability. The owner or operator of a facility that handles, 
stores, or transports Group 5 oils that does not have adequate fire 
fighting resources located at the facility or that cannot rely on 
sufficient local fire fighting resources must identify adequate fire 
fighting resources. It is recommended that the owner or operator ensure, 
by contract or other approved means as described in Sec. 112.2, the 
availability of these resources. The response plan shall also identify 
an individual located at the facility to work with the fire department 
for Group 5 oil fires. This individual shall also verify that sufficient 
well-trained fire fighting resources are available within a reasonable 
response time to respond to a worst case discharge. The individual may 
be the qualified individual identified in the response plan or another 
appropriate individual located at the facility.
    7.7  The procedures described in sections 7.7.1-7.7.5 of this 
appendix must be used to determine appropriate response plan development 
and evaluation criteria for facilities that handle, store, or transport 
non-petroleum oils. Refer to section 8 of this appendix for information 
on the limitations on the use of dispersants for inland and nearshore 
areas.
    7.7.1  An owner or operator of a facility that handles, stores, or 
transports non-petroleum oil must provide information in his or her plan 
that identifies:
    (1) Procedures and strategies for responding to a worst case 
discharge of non-petroleum oils to the maximum extent practicable; and
    (2) Sources of the equipment and supplies necessary to locate, 
recover, and mitigate such a discharge.
    7.7.2  An owner or operator of a facility that handles, stores, or 
transports non-petroleum oil must ensure that any equipment identified 
in a response plan is capable of operating in the conditions expected in 
the geographic area(s) (i.e., operating environments) in which the 
facility operates using the criteria in Table 1 of this appendix. When 
evaluating the operability of equipment, the facility owner or operator 
must consider limitations that are identified in the appropriate ACPs, 
including:
    (1) Ice conditions;
    (2) Debris;
    (3) Temperature ranges; and
    (4) Weather-related visibility.
    7.7.3  The owner or operator of a facility that handles, stores, or 
transports non-petroleum oil must identify the response resources that 
are available by contract or other approved means, as described in 
Sec. 112.2. The equipment described in the response plan shall, as 
appropriate, include:
    (1) Containment boom, sorbent boom, or other methods for containing 
oil floating on the surface or to protect shorelines from impact;
    (2) Oil recovery devices appropriate for the type of non-petroleum 
oil carried; and

[[Page 669]]

    (3) Other appropriate equipment necessary to respond to a discharge 
involving the type of oil carried.
    7.7.4  Response resources identified in a response plan according to 
section 7.7.3 of this appendix must be capable of commencing an 
effective on-scene response within the applicable tier response times in 
section 5.3 of this appendix.
    7.7.5  A response plan must identify response resources with fire 
fighting capability. The owner or operator of a facility that handles, 
stores, or transports non-petroleum oils that does not have adequate 
fire fighting resources located at the facility or that cannot rely on 
sufficient local fire fighting resources must identify adequate fire 
fighting resources. It is recommended that the owner or operator ensure, 
by contract or other approved means as described in Sec. 112.2, the 
availability of these resources. The response plan must also identify an 
individual located at the facility to work with the fire department for 
non-petroleum fires. This individual shall also verify that sufficient 
well-trained fire fighting resources are available within a reasonable 
response time to a worst case scenario. The individual may be the 
qualified individual identified in the response plan or another 
appropriate individual located at the facility.

    8.0  Determining the Availability of Alternative Response Methods

    8.1  For dispersants to be identified in a response plan, they must 
be on the NCP Product Schedule that is maintained by EPA. (Some States 
have a list of approved dispersants for use within State waters. These 
State-approved dispersants are listed on the NCP Product Schedule.)
    8.2  Identification of dispersant application in the plan does not 
imply that the use of this technique will be authorized. Actual 
authorization for use during a spill response will be governed by the 
provisions of the NCP and the applicable ACP. To date, dispersant 
application has not been approved by ACPs for inland areas or shallow 
nearshore areas.

   9.0  Additional Equipment Necessary to Sustain Response Operations

    9.1  A facility owner or operator shall, as appropriate, ensure that 
sufficient numbers of trained personnel and boats, aerial spotting 
aircraft, containment boom, sorbent materials, boom anchoring materials, 
and other supplies are available to sustain response operations to 
completion. All such equipment must be suitable for use with the primary 
equipment identified in the response plan. A facility owner or operator 
is not required to list these resources, but shall certify their 
availability.
    9.2  A facility owner or operator shall evaluate the availability of 
adequate temporary storage capacity to sustain the effective daily 
recovery capacities from equipment identified in the plan. Because of 
the inefficiencies of oil spill recovery devices, response plans must 
identify daily storage capacity equivalent to twice the effective daily 
recovery capacity required on-scene. This temporary storage capacity may 
be reduced if a facility owner or operator can demonstrate by waste 
stream analysis that the efficiencies of the oil recovery devices, 
ability to decant waste, or the availability of alternative temporary 
storage or disposal locations will reduce the overall volume of oily 
material storage requirement.
    9.3  A facility owner or operator shall ensure that his or her 
planning includes the capability to arrange for disposal of recovered 
oil products. Specific disposal procedures will be addressed in the 
applicable ACP.

                    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. Environmental Protection Agency, 401 M Street, SW., 
Washington, 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 calling 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 docket hours are subject to change.
    10.2  The docket will mail copies of materials to requestors 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 
703-412-9810. The Telecommunications Device for the Deaf (TDD) Hotline 
number is 800-553-7672, or, in the Washington, DC metropolitan area, 
703-412-3323.
    10.3  Documents Referenced
    (1) National Preparedness for Response Exercise Program (PREP). The 
PREP draft guidelines are available from United States Coast Guard 
Headquarters (G-MEP-4), 2100 Second Street, SW., Washington, DC 20593. 
(See 58 FR 53990, October 19, 1993, Notice of Availability of PREP 
Guidelines).
    (2) ``Guidance for Facility and Vessel Response Plans: Fish and 
Wildlife and Sensitive Environments'' (published in the Federal

[[Page 670]]

Register by DOC/NOAA 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
-------------------------------------------------------------------------
                                    Significant wave height
      Operating environment                   \1\             Sea state
------------------------------------------------------------------------
Rivers and Canals................   1 foot......            1
Inland...........................   3 feet......            2
Great Lakes......................   4 feet......          2-3
Ocean............................   6 feet......          3-4
------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                                      Boom
-----------------------------------------------------------------------------------------------------------------
                                                                         Use
           Boom property           -----------------------------------------------------------------------------
                                     Rivers and canals        Inland           Great Lakes           Ocean
----------------------------------------------------------------------------------------------------------------
Significant Wave Height \1\.......   1.....   3.....   4....   6
Sea State.........................  1.................  2.................  2-3..............  3-4
Boom height--inches (draft plus     6-18..............  18-42.............  18-42............   42
 freeboard).
Reserve Buoyancy to Weight Ratio..  2:1...............  2:1...............  2:1..............  3:1 to 4:1
Total Tensile Strength--pounds....  4,500.............  15,000-20,000.....  15,000-20,000....  
                                                                                                20,000
Skirt Fabric Tensile Strength--     200...............  300...............  300..............  500
 pounds.
Skirt Fabric Tear Strength--pounds  100...............  100...............  100..............  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                    3 days                                 4 days
             recovery              -----------------------------------------------------------------------------
-----------------------------------                Percent                                Percent
                                      Percent     recovered   Percent oil    Percent     recovered   Percent oil
           Oil group \1\              natural      floating     onshore      natural      floating     Onshore
                                    dissipation      oil                   dissipation      oil
----------------------------------------------------------------------------------------------------------------
1. Non-persistent oils............           80           10           10           80           20           10
2. Light crudes...................           40           15           45           50           50           30
3. Medium crudes and fuels........           20           15           65           30           50           50
4. Heavy crudes and fuels.........            5           20           75           10           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.


 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 considerations 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, respectively.


                   Table 4 to Appendix E--On-Water Oil Recovery Resource Mobilization Factors
----------------------------------------------------------------------------------------------------------------
                         Operating area                               Tier 1          Tier 2          Tier 3
----------------------------------------------------------------------------------------------------------------
Rivers and Canals...............................................            0.30            0.40            0.60

[[Page 671]]

 
Inland/Nearshore Great Lakes....................................            0.15            0.25           0.40
----------------------------------------------------------------------------------------------------------------
Note: These mobilization factors are for total resources mobilized, not incremental response resources.


                        Table 5 to Appendix E--Response Capability Caps by Operating Area
----------------------------------------------------------------------------------------------------------------
                                                                      Tier 1          Tier 2          Tier 3
----------------------------------------------------------------------------------------------------------------
February 18, 1993:
    All except Rivers & Canals, Great Lakes.....................    10K bbls/day    20K bbls/day   40K bbls/day.
    Great Lakes.................................................     5K bbls/day    10K bbls/day   20K bbls/day.
    Rivers & Canals.............................................   1.5K bbls/day   3.0K bbls/day  6.0K bbls/day.
February 18, 1998:
    All except Rivers & Canals, Great Lakes.....................  12.5K bbls/day    25K bbls/day   50K bbls/day.
    Great Lakes.................................................  6.35K bbls/day  12.3K bbls/day   25K bbls/day.
    Rivers & Canals.............................................    1.875K bbls/  3.75K bbls/day  7.5K bbls/day.
                                                                             day
February 18, 2003:
    All except Rivers & Canals, Great Lakes.....................             TBD             TBD            TBD.
    Great Lakes.................................................             TBD             TBD            TBD.
    Rivers & Canals.............................................             TBD             TBD            TBD.
----------------------------------------------------------------------------------------------------------------
Note: The caps show cumulative overall effective daily recovery capacity, not incremental increases.
TBD=To Be Determined.


[[Page 672]]

                        Attachments to Appendix E
[GRAPHIC] [TIFF OMITTED] TC01MR92.011


[[Page 673]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.012


[[Page 674]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.013


[[Page 675]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.014

[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
    1.3.3  Response Equipment Testing/Deployment
    1.3.4  Personnel
    1.3.5  Evacuation Plans
    1.3.6  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

[[Page 676]]

    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 waters or adjoining shorelines are 
required to prepare and submit facility-specific response plans to EPA 
in accordance with the provisions in this appendix. This appendix 
further describes the required elements in Sec. 112.20(h).
    (B) Response plans must be sent to the appropriate EPA Regional 
office. Figure F-1 of this Appendix lists each EPA Regional office and 
the address where owners or operators must submit their response plans. 
Those facilities deemed by the Regional Administrator (RA) to pose a 
threat of significant and substantial harm to the environment will have 
their plans reviewed and approved by EPA. In certain cases, information 
required in the model response plan is similar to information currently 
maintained in the facility's Spill Prevention, Control, and 
Countermeasures (SPCC) Plan as required by 40 CFR 112.3. In these cases, 
owners or operators may reproduce the information and include a 
photocopy in the response plan.
    (C) A complex may develop a single response plan with a set of core 
elements for all regulating agencies and separate sections for the non-
transportation-related and transportation-related components, as 
described in Sec. 112.20(h). Owners or operators of large facilities 
that handle, store, or transport oil at more than one geographically 
distinct location (e.g., oil storage areas at opposite ends of a single, 
continuous parcel of property) shall, as appropriate, develop separate 
sections of the response plan for each storage area.

[[Page 677]]

[GRAPHIC] [TIFF OMITTED] TC01MR92.015

                   1.1  Emergency Response Action Plan

    Several sections of the response plan shall be co-located for easy 
access by response personnel during an actual 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 arranged so 
response actions are not delayed. The Action Plan may be arranged in a 
number of ways. For example, the sections of the Emergency Response 
Action Plan may be photocopies or condensed versions of the forms 
included in

[[Page 678]]

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 personnel. The Emergency Response Action Plan shall be made up 
of the following sections:

1. Qualified Individual Information (Section 1.2) partial
2. Emergency Notification Phone List (Section 1.3.1) partial
3. Spill Response Notification Form (Section 1.3.1) partial
4. Response Equipment List and Location (Section 1.3.2) complete
5. Response Equipment Testing and 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 section may be obtained from the 
facility's existing SPCC Plan.
    1.2.1  Facility name and location: Enter facility name and street 
address. Enter the address of corporate headquarters only if corporate 
headquarters are physically located 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 facility 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 Wellhead Protection Program are outlined by the State or Territory 
in which the facility resides.
---------------------------------------------------------------------------

    \1\ A wellhead protection area is defined as the surface and 
subsurface area surrounding a water well or wellfield, supplying a 
public water system, through which contaminants are reasonably likely to 
move toward and reach such water well or wellfield. For further 
information regarding State and territory protection programs, facility 
owners or operators may contact the SDWA Hotline at 1-800-426-4791.
---------------------------------------------------------------------------

    1.2.4  Owner/operator: Write the name of the company or person 
operating the facility and the name of the person or company that owns 
the facility, if the two are different. List the address of the owner, 
if the two are different.
    1.2.5  Qualified Individual: Write the name of the qualified 
individual for the entire facility. If more than one person is listed, 
each individual indicated in this section shall have full authority to 
implement the facility response plan. For each individual, list: name, 
position, home and work addresses (street addresses, not P.O. boxes), 
emergency phone number, and specific response training experience.
    1.2.6  Date of Oil Storage Start-up: Enter the year which the 
present facility first started storing oil.
    1.2.7  Current Operation: Briefly describe the facility's operations 
and include the Standard Industry Classification (SIC) code.
    1.2.8  Dates and Type of Substantial Expansion: Include information 
on expansions that have occurred at the facility. Examples of such 
expansions include, but are not limited to: Throughput expansion, 
addition of a product line, change of a product line, and installation 
of additional oil storage capacity. The data provided shall include all 
facility historical information and detail the expansion of the 
facility. An example of substantial expansion is any material alteration 
of the facility which causes the owner or operator of the facility to 
re-evaluate and increase the response equipment necessary to adequately 
respond to a worst case discharge from the facility.
Date of Last Update: ______

                        Facility Information Form

Facility Name:__________________________________________________________
  Location (Street Address):____________________________________________
    City: ______ State: ______ Zip: ______
    County: ______ Phone Number: (    ) ______
    Latitude: ______ Degrees ______ Minutes ______ Seconds
    Longitude: ______ Degrees ______ Minutes ______ Seconds
Wellhead Protection Area:_______________________________________________
Owner:__________________________________________________________________
  Owner Location (Street Address):______________________________________

        (if different from Facility Address)
    City: ______ State:______ Zip: ______
    County: ______ Phone Number: (    ) ______
Operator (if not Owner):________________________________________________
Qualified Individual(s): (attach additional sheets if more than one)
  Name:_________________________________________________________________
  Position:_____________________________________________________________
  Work Address:_________________________________________________________
  Home Address:_________________________________________________________
  Emergency Phone Number: (      )______________________________________
Date of Oil Storage Start-up:___________________________________________

[[Page 679]]

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 discharge. The Emergency 
Response Information section of the plan must include the following 
components:
    (1) The information provided in the Emergency Notification Phone 
List in section 1.3.1 identifies and prioritizes the names and phone 
numbers of the organizations and personnel that need to be notified 
immediately in the event of an emergency. This section shall include all 
the appropriate phone numbers for the facility. These numbers must be 
verified each time the plan is updated. The contact list must be 
accessible to all facility employees to ensure that, in case of a 
discharge, any employee on site could immediately notify the appropriate 
parties.
    (2) The Spill Response Notification Form in section 1.3.1 creates a 
checklist of information that shall be provided to the National Response 
Center (NRC) and other response personnel. All information on this 
checklist must be known at the time of notification, or be in the 
process of being collected. This notification form is based on a similar 
form used by the NRC. Note: Do not delay spill notification to collect 
the information on the list.
    (3) Section 1.3.2 provides a description of the facility's list of 
emergency response equipment and location of the response equipment. 
When appropriate, the amount of oil that emergency response equipment 
can handle and any limitations (e.g., launching sites) must be 
described.
    (4) Section 1.3.3 provides information regarding response equipment 
tests and deployment drills. Response equipment deployment exercises 
shall be conducted to ensure that response equipment is operational and 
the personnel who would operate the equipment in a spill response are 
capable of deploying and operating it. Only a representative sample of 
each type of response equipment needs to be deployed and operated, as 
long as the remainder is properly maintained. If appropriate, testing of 
response equipment may be conducted while it is being deployed. 
Facilities without facility-owned response equipment must ensure that 
the oil spill removal organization that is identified in the response 
plan to provide this response equipment certifies that the deployment 
exercises have been met. Refer to the National Preparedness for Response 
Exercise Program (PREP) Guidelines (see Appendix E to this part, section 
10, for availability), which satisfy Oil Pollution Act (OPA) response 
exercise requirements.
    (5) Section 1.3.4 lists the facility response personnel, including 
those employed by the facility and those under contract to the facility 
for response activities, the amount of time needed for personnel to 
respond, their responsibility in the case of an emergency, and their 
level of response training. Three different forms are included in this 
section. The Emergency Response Personnel List shall be composed of all 
personnel employed by the facility whose duties involve responding to 
emergencies, including oil 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 second form is a 
list of the Emergency Response Contractors (both primary and secondary) 
retained by the facility. Any changes in contractor status must be 
reflected in updates to the response plan. Evidence of contracts with 
response contractors shall be included in this section so that the 
availability of resources can be verified. The last form is the Facility 
Response Team List, which shall be composed of both emergency response 
personnel (referenced by job title/position) and emergency response 
contractors, included in one of the two lists described above, that will 
respond immediately upon discovery of an oil spill or other emergency 
(i.e., the first people to respond). These are to be persons normally on 
the facility premises or primary response contractors. Examples of these 
personnel would be the Facility Hazardous Materials (HAZMAT) Spill Team 
1, Facility Fire Engine Company 1, Production Supervisor, or Transfer 
Supervisor. Company personnel must be able to respond immediately and 
adequately if contractor support is not available.
    (6) Section 1.3.5 lists factors that must, as appropriate, be 
considered when preparing an evacuation plan.
    (7) Section 1.3.6 references the responsibilities of the qualified 
individual for the facility in the event of an emergency.
    (B) The information provided in the emergency response section will 
aid in the assessment of the facility's ability to respond to a worst 
case discharge and will identify additional assistance that may be 
needed. In addition, the facility owner or operator may want to produce 
a wallet-size card containing a checklist of the immediate response and 
notification steps to be taken in the event of an oil discharge.

                           1.3.1  Notification

Date of Last Update:____________________________________________________

[[Page 680]]

            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.
------------------------------------------------------------------------
1. National Response Center (NRC):                        1-800-424-8802
                                                      ------------------
 
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./Cooperatives):
                                                      ------------------
 
6. Fire Marshall:
                                                      ------------------
 
  Evening Phone:
                                                      ------------------
 
7. State Emergency Response Commission (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:________________________________________________________________

_______________________________________________________________________

City:___________________________________________________________________

State:__________________________________________________________________

Zip:____________________________________________________________________
Were Materials Discharged? ______ (Y/N) Confidential? ______ (Y/N)
Meeting Federal Obligations to Report? ______ (Y/N) Date Called: ______
Calling for Responsible Party? ______ (Y/N) Time Called: ______

                          Incident Description

Source and/or Cause of Incident:________________________________________

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

Date of Incident:_______________________________________________________
Time of Incident: ______ AM/PM

Incident Address/Location:______________________________________________

_______________________________________________________________________
Nearest City:________________ State: ______ County: ________ Zip: 
________
Distance from City: ______ Units of Measure: ______ Direction from City: 
______
Section: ________ Township: ________ Range: ________ Borough: ________
Container Type: ______ Tank Oil Storage Capacity: ________ Units of 
Measure: ______
Facility Oil Storage Capacity: ________ Units of Measure: ______
Facility Latitude: ______ Degrees ______ Minutes ______ Seconds
Facility Longitude: ______ Degrees ______ Minutes ______ Seconds

                                Material

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Material Discharged
             CHRIS Code                Discharged quantity       Unit of measure            in water               Quantity           Unit of measure
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 

[[Page 681]]

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


                             Response Action

Actions Taken to Correct, Control or Mitigate Incident:

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

                                 Impact

Number of Injuries: ______ Number of Deaths: ______
Were there Evacuations? ______ (Y/N) Number Evacuated: ______
Was there any Damage? ______ (Y/N)
Damage in Dollars (approximate):________________________________________

Medium Affected:________________________________________________________

Description:____________________________________________________________

More Information about Medium:__________________________________________

_______________________________________________________________________

_______________________________________________________________________

                         Additional Information

Any information about the incident not recorded elsewhere in the report:

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

                          Caller Notifications

EPA? ______ (Y/N) USCG? ______ (Y/N) State? ______ (Y/N)
Other? ______ (Y/N) Describe: ____________

                     1.3.2  Response Equipment List

    Date of Last Update:______

                    Facility Response Equipment List

1. Skimmers/Pumps--Operational Status:__________________________________
  Type, Model, and Year:________________________________________________
  ______________________________________________________________________
    Type    Model    Year
  Number:_______________________________________________________________
  Capacity: ________ gal./min.
  Daily Effective Recovery Rate:________________________________________
  Storage Location(s):__________________________________________________
  Date Fuel Last Changed:_______________________________________________
2. Boom--Operational Status:____________________________________________
  Type, Model, and Year:________________________________________________
    Type    Model    Year
  Number:_______________________________________________________________
    Size (length): ________ ft.
    Containment Area: ________ sq. ft.
  Storage Location:_____________________________________________________
    3. Chemicals Stored (Dispersants listed on EPA's NCP Product 
Schedule)

----------------------------------------------------------------------------------------------------------------
                                                                               Date      Treatment     Storage
                            Type                                 Amount     purchased     capacity     location
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------

    Were appropriate procedures used to receive approval for use of 
dispersants in accordance with the NCP (40 CFR 300.910) and the Area 
Contingency Plan (ACP), where applicable?______ (Y/N).
    Name and State of On-Scene Coordinator (OSC) authorizing use: ______ 
.
    Date Authorized: ______ .
    4. Dispersant Dispensing Equipment--Operational Status: ______ .

------------------------------------------------------------------------
                                                               Response
          Type and year              Capacity     Storage        time
                                                  location    (minutes)
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------

[[Page 682]]

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

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 frequency and channel 
and/or cellular phone numbers)--Operational Status: ______

------------------------------------------------------------------------
                                                     Storage location/
     Type and year               Quantity                 number
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------

    8. Fire Fighting and Personnel Protective Equipment--Operational 
Status: ______

------------------------------------------------------------------------
     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:________________________
Inspection Frequency:___________________________________________________
Last Deployment Drill Date:_____________________________________________
Deployment Frequency:___________________________________________________
Oil Spill Removal Organization Certification (if applicable):___________

                            1.3.4  Personnel

    Date of Last Update:________

[[Page 683]]



                                                              Emergency Response Personnel
                                                                    Company Personnel
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Name                  Phone \1\             Response time       Responsibility during response action         Response training type/date
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.
--------------------------------------------------------------------------------------------------------------------------------------------------------
2.
--------------------------------------------------------------------------------------------------------------------------------------------------------
3.
--------------------------------------------------------------------------------------------------------------------------------------------------------
4.
--------------------------------------------------------------------------------------------------------------------------------------------------------
5.
--------------------------------------------------------------------------------------------------------------------------------------------------------
6.
--------------------------------------------------------------------------------------------------------------------------------------------------------
7.
--------------------------------------------------------------------------------------------------------------------------------------------------------
8.
--------------------------------------------------------------------------------------------------------------------------------------------------------
9.
--------------------------------------------------------------------------------------------------------------------------------------------------------
10.
--------------------------------------------------------------------------------------------------------------------------------------------------------
11.
--------------------------------------------------------------------------------------------------------------------------------------------------------
12.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Phone number to be used when person is not on-site.


                                                             Emergency Response Contractors
                                                              Date of Last Update: ________
--------------------------------------------------------------------------------------------------------------------------------------------------------
       Contractor                   Phone                 Response time                               Contract responsibility \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                             ---------------------------------------------------------------------------
 
                                                                             ---------------------------------------------------------------------------
2.
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                             ---------------------------------------------------------------------------
 
                                                                             ---------------------------------------------------------------------------

[[Page 684]]

 
3.
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                             ---------------------------------------------------------------------------
 
                                                                             ---------------------------------------------------------------------------
4.
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                             ---------------------------------------------------------------------------
 
                                                                             ---------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Include evidence of contracts/agreements with response contractors to ensure the availability of personnel and response equipment.


                                                                 Facility Response Team
                                                              Date of Last Update:________
--------------------------------------------------------------------------------------------------------------------------------------------------------
                         Team member                             Response time (minutes)                 Phone or pager number (day/evening)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Qualified Individual:
                                                               ...........................                      /
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               ...........................                      /
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               ...........................                      /
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               ...........................                      /
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               ...........................                      /
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               ...........................                      /
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               ...........................                      /
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                                                               ...........................                      /
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                                                               ...........................                      /
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                                                               ...........................                      /
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                                                               ...........................                      /
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 685]]

 
                                                               ...........................                      /
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                                                               ...........................                      /
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Note: If the facility uses contracted help in an emergency response situation, the owner or operator must provide the contractors' names and review the
  contractors' capacities to provide adequate personnel and response equipment.


[[Page 686]]

                         1.3.5  Evacuation Plans

    1.3.5.1  Based on the analysis of the facility, as discussed 
elsewhere in the plan, a facility-wide evacuation plan shall be 
developed. In addition, plans to evacuate parts of the facility that are 
at a high risk of exposure in the event of a spill or other release must 
be developed. Evacuation routes must be shown on a diagram of the 
facility (see section 1.9 of this appendix). When developing evacuation 
plans, consideration must be given to the following factors, as 
appropriate:
    (1) Location of stored materials;
    (2) Hazard imposed by spilled material;
    (3) Spill flow direction;
    (4) Prevailing wind direction and speed;
    (5) Water currents, tides, or wave conditions (if applicable);
    (6) Arrival route of emergency response personnel and response 
equipment;
    (7) Evacuation routes;
    (8) Alternative routes of evacuation;
    (9) Transportation of injured personnel to nearest emergency medical 
facility;
    (10) Location of alarm/notification systems;
    (11) The need for a centralized check-in area for evacuation 
validation (roll call);
    (12) Selection of a mitigation command center; and
    (13) Location of shelter at the facility as an alternative to 
evacuation.
    1.3.5.2  One resource that may be helpful to owners or operators in 
preparing this section of the response plan is The Handbook of Chemical 
Hazard Analysis Procedures by the Federal Emergency Management Agency 
(FEMA), Department of Transportation (DOT), and EPA. The Handbook of 
Chemical Hazard Analysis Procedures is available from: FEMA , 
Publication Office, 500 C. Street, S.W., Washington, DC 20472, (202) 
646-3484.
    1.3.5.3  As specified in Sec. 112.20(h)(1)(vi), the facility owner 
or operator must reference existing community evacuation plans, as 
appropriate.

                  1.3.6  Qualified Individual's Duties

    The duties of the designated qualified individual are specified in 
Sec. 112.20(h)(3)(ix). The qualified individual's duties must be 
described and be consistent with the minimum requirements in 
Sec. 112.20(h)(3)(ix). In addition, the qualified individual must be 
identified with the Facility Information in section 1.2 of the response 
plan.

                         1.4  Hazard Evaluation

    This section requires the facility owner or operator to examine the 
facility's operations closely and to predict where discharges could 
occur. Hazard evaluation is a widely used industry practice that allows 
facility owners or operators to develop a complete understanding of 
potential hazards and the response actions necessary to address these 
hazards. The Handbook of Chemical Hazard Analysis Procedures, prepared 
by the EPA, DOT, and the FEMA and the Hazardous Materials Emergency 
Planning Guide (NRT-1), prepared by the National Response Team are good 
references for conducting a hazard analysis. Hazard identification and 
evaluation will assist facility owners or operators in planning for 
potential discharges, thereby reducing the severity of discharge impacts 
that may occur in the future. The evaluation also may help the operator 
identify and correct potential sources of discharges. In addition, 
special hazards to workers and emergency response personnel's health and 
safety shall be evaluated, as well as the facility's oil spill history.

                      1.4.1  Hazard  Identification

    The Tank and Surface Impoundment (SI) forms, or their equivalent, 
that are part of this section must be completed according to the 
directions below. (``Surface Impoundment'' means a facility or part of a 
facility which is a natural topographic depression, man-made excavation, 
or diked area formed primarily of earthen materials (although it may be 
lined with man-made materials), which is designed to hold an 
accumulation of liquid wastes or wastes containing free liquids, and 
which is not an injection well or a seepage facility.) Similar 
worksheets, or their equivalent, must be developed for any other type of 
storage containers.
    (1) List each tank at the facility with a separate and distinct 
identifier. Begin aboveground tank identifiers with an ``A'' and 
belowground tank identifiers with a ``B'', or submit multiple sheets 
with the aboveground tanks and belowground tanks on separate sheets.
    (2) Use gallons for the maximum capacity of a tank; and use square 
feet for the area.
    (3) Using the appropriate identifiers and the following 
instructions, fill in the appropriate forms:
    (a) Tank or SI number--Using the aforementioned identifiers (A or B) 
or multiple reporting sheets, identify each tank or SI at the facility 
that stores oil or hazardous materials.
    (b) Substance Stored--For each tank or SI identified, record the 
material that is stored therein. If the tank or SI is used to store more 
than one material, list all of the stored materials.
    (c) Quantity Stored--For each material stored in each tank or SI, 
report the average volume of material stored on any given day.
    (d) Tank Type or Surface Area/Year--For each tank, report the type 
of tank (e.g., floating top), and the year the tank was originally 
installed. If the tank has been refabricated, the year that the latest 
refabrication was completed must be recorded in parentheses next to the 
year installed. For

[[Page 687]]

each SI, record the surface area of the impoundment and the year it went 
into service.
    (e) Maximum Capacity--Record the operational maximum capacity for 
each tank and SI. If the maximum capacity varies with the season, record 
the upper and lower limits.
    (f) Failure/Cause--Record the cause and date of any tank or SI 
failure which has resulted in a loss of tank or SI contents.
    (4) Using the numbers from the tank and SI forms, label a schematic 
drawing of the facility. This drawing shall be identical to any 
schematic drawings included in the SPCC Plan.
    (5) Using knowledge of the facility and its operations, describe the 
following in writing:
    (a) The loading and unloading of transportation vehicles that risk 
the discharge of oil or release of hazardous substances during transport 
processes. These operations may include loading and unloading of trucks, 
railroad cars, or vessels. Estimate the volume of material involved in 
transfer operations, if the exact volume cannot be determined.
    (b) Day-to-day operations that may present a risk of discharging oil 
or releasing a hazardous substance. These activities include scheduled 
venting, piping repair or replacement, valve maintenance, transfer of 
tank contents from one tank to another, etc. (not including 
transportation-related activities). Estimate the volume of material 
involved in these operations, if the exact volume cannot be determined.
    (c) The secondary containment volume associated with each tank and/
or transfer point at the facility. The numbering scheme developed on the 
tables, or an equivalent system, must be used to identify each 
containment area. Capacities must be listed for each individual unit 
(tanks, slumps, drainage traps, and ponds), as well as the facility 
total.
    (d) Normal daily throughput for the facility and any effect on 
potential discharge volumes that a negative or positive change in that 
throughput may cause.

                                                             Hazard Identification Tanks \1\
                                                              Date of Last Update: ________
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                                      Substance Stored (Oil
              Tank No.                    and Hazardous          Quantity Stored         Tank Type/Year        Maximum Capacity        Failure/Cause
                                           Substance)               (gallons)                                     (gallons)
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\1\ Tank = any container that stores oil.
Attach as many sheets as necessary.


                                                    Hazard Identification Surface Impoundments (SIs)
                                                              Date of Last Update: ________
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Quantity Stored                               Maximum Capacity
               SI No.                   Substance Stored            (gallons)          Surface Area/Year          (gallons)            Failure/Cause
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
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[[Page 688]]

 
 
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Attach as many sheets as necessary.

                      1.4.2  Vulnerability Analysis

    The vulnerability analysis shall address the potential effects 
(i.e., to human health, property, or the environment) of an oil 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 
operators can use a comparable formula that is considered acceptable by 
the RA. If a comparable formula is used, documentation of the 
reliability and analytical soundness of the formula must be attached to 
the response plan cover sheet. This analysis must be prepared for each 
facility and, as appropriate, must discuss the vulnerability of:
    (1) Water intakes (drinking, cooling, or other);
    (2) Schools;
    (3) Medical facilities;
    (4) Residential areas;
    (5) Businesses;
    (6) Wetlands or other sensitive environments; \2\
---------------------------------------------------------------------------

    \2\ Refer to the DOC/NOAA ``Guidance for Facility and Vessel 
Response Plans: Fish and Wildlife and Sensitive Environments'' (See 
appendix E to this part, section 10, for availability).
---------------------------------------------------------------------------

    (7) Fish and wildlife;
    (8) Lakes and streams;
    (9) Endangered flora and fauna;
    (10) Recreational areas;
    (11) Transportation routes (air, land, and water);
    (12) Utilities; and
    (13) Other areas of economic importance (e.g., beaches, marinas) 
including terrestrially sensitive environments, aquatic environments, 
and unique habitats.

            1.4.3  Analysis of the Potential for an Oil Spill

    Each owner or operator shall analyze the probability of a spill 
occurring at the facility. This analysis shall incorporate factors such 
as oil spill history, horizontal range of a potential spill, and 
vulnerability to natural disaster, and shall, as appropriate, 
incorporate other factors such as tank age. This analysis will provide 
information for developing discharge scenarios for a worst case 
discharge and small and medium discharges and aid in the development of 
techniques to reduce the size and frequency of spills. The owner or 
operator may need to research the age of the tanks and the oil spill 
history at the facility.

              1.4.4  Facility Reportable Oil Spill History

    Briefly describe the facility's reportable oil spill \3\ history for 
the entire life of the facility to the extent that such information is 
reasonably identifiable, including:
---------------------------------------------------------------------------

    \3\ As described in 40 CFR part 110, reportable oil spills are those 
that: (a) violate applicable water quality standards, or (b) cause a 
film or sheen upon or discoloration of the surface of the water or 
adjoining shorelines or cause a sludge or emulsion to be deposited 
beneath the surface of the water or upon adjoining shorelines.
---------------------------------------------------------------------------

    (1) Date of discharge(s);
    (2) List of discharge causes;
    (3) Material(s) discharged;
    (4) Amount discharged in gallons;
    (5) Amount of discharge that reached navigable waters, if 
applicable;
    (6) Effectiveness and capacity of secondary containment;
    (7) Clean-up actions taken;
    (8) Steps taken to reduce possibility of recurrence;
    (9) Total oil storage capacity of the tank(s) or impoundment(s) from 
which the material discharged;
    (10) Enforcement actions;
    (11) Effectiveness of monitoring equipment; and
    (12) Description(s) of how each oil spill was detected.


[[Page 689]]


The information solicited in this section may be similar to requirements 
in 40 CFR 112.4(a). Any duplicate information required by Sec. 112.4(a) 
may be photocopied and inserted.

                        1.5  Discharge Scenarios

    In this section, the owner or operator is required to provide a 
description of the facility's worst case discharge, as well as a small 
and medium spill, as appropriate. A multi-level planning approach has 
been chosen because the response actions to a spill (i.e., necessary 
response equipment, products, and personnel) are dependent on the 
magnitude of the spill. Planning for lesser discharges is necessary 
because the nature of the response may be qualitatively different 
depending on the quantity of the discharge. The facility owner or 
operator shall discuss the potential direction of the spill pathway.

                   1.5.1  Small and Medium Discharges

    1.5.1.1  To address multi-level planning requirements, the owner or 
operator must consider types of facility-specific spill scenarios that 
may contribute to a small or medium spill. The scenarios shall account 
for all the operations that take place at the facility, including but 
not limited to:
    (1) Loading and unloading of surface transportation;
    (2) Facility maintenance;
    (3) Facility piping;
    (4) Pumping stations and sumps;
    (5) Oil storage tanks;
    (6) Vehicle refueling; and
    (7) Age and condition of facility and components.
    1.5.1.2  The scenarios shall also consider factors that affect the 
response efforts required by the facility. These include but are not 
limited to:
    (1) Size of the spill;
    (2) Proximity to downgradient wells, waterways, and drinking water 
intakes;
    (3) Proximity to fish and wildlife and sensitive environments;
    (4) Likelihood that the discharge will travel offsite (i.e., 
topography, drainage) ;
    (5) Location of the material spilled (i.e., on a concrete pad or 
directly on the soil);
    (6) Material discharged;
    (7) Weather or aquatic conditions (i.e., river flow);
    (8) Available remediation equipment;
    (9) Probability of a chain reaction of failures; and
    (10) Direction of spill pathway.

                       1.5.2  Worst Case Discharge

    1.5.2.1  In this section, the owner or operator must identify the 
worst case discharge volume at the facility. Worksheets for production 
and non-production facility owners or operators to use when calculating 
worst case discharge are presented in Appendix D to this part. When 
planning for the worst case discharge response, all of the 
aforementioned factors listed in the small and medium discharge section 
of the response plan shall be addressed.
    1.5.2.2  For onshore storage facilities and production facilities, 
permanently manifolded oil storage tanks are defined as tanks that are 
designed, installed, and/or operated in such a manner that the multiple 
tanks function as one storage unit (i.e., multiple tank volumes are 
equalized). In this section of the response plan, owners or operators 
must provide evidence that oil storage tanks with common piping or 
piping systems are not operated as one unit. If such evidence is 
provided and is acceptable to the RA, the worst case discharge volume 
shall be based on the combined oil storage capacity of all manifold 
tanks or the oil storage capacity of the largest single oil storage tank 
within the secondary containment area, whichever is greater. For 
permanently manifolded oil storage tanks that function as one storage 
unit, the worst case discharge shall be based on the combined oil 
storage capacity of all manifolded tanks or the oil storage capacity of 
the largest single tank within a secondary containment area, whichever 
is greater. For purposes of the worst case discharge calculation, 
permanently manifolded oil storage tanks that are separated by internal 
divisions for each tank are considered to be single tanks and individual 
manifolded tank volumes are not combined.

                    1.6  Discharge Detection Systems

    In this section, the facility owner or operator shall provide a 
detailed description of the procedures and equipment used to detect 
discharges. A section on spill detection by personnel and a discussion 
of automated spill detection, if applicable, shall be included for both 
regular operations and after hours operations. In addition, the facility 
owner or operator shall discuss how the reliability of any automated 
system will be checked and how frequently the system will be inspected.

                 1.6.1  Discharge Detection by Personnel

    In this section, facility owners or operators shall describe the 
procedures and personnel that will detect any spill or uncontrolled 
discharge of oil or release of a hazardous substance. A thorough 
discussion of facility inspections must be included. In addition, a 
description of initial response actions shall be addressed. This section 
shall reference section 1.3.1 of the response plan for emergency 
response information.

                  1.6.2  Automated Discharge Detection

    In this section, facility owners or operators must describe any 
automated spill detection equipment that the facility has in place. This 
section shall include a discussion

[[Page 690]]

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 explain in detail 
how to implement the facility's emergency response plan by describing 
response actions to be carried out under the plan to ensure the safety 
of the facility and to mitigate or prevent discharges described in 
section 1.5 of the response plan. This section shall include the 
identification of response resources for small, medium, and worst case 
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 identified 
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 following items must be addressed:
    (1) Emergency plans for spill response;
    (2) Additional response training;
    (3) Additional contracted help;
    (4) Access to additional response equipment/experts; and
    (5) Ability to implement the plan including response training and 
practice drills.
    1.7.1.2A recommended form detailing immediate actions follows.

                  Oil Spill Response--Immediate Actions
------------------------------------------------------------------------
 
1. Stop the product flow..................  Act quickly to secure pumps,
                                             close valves, etc.
2. Warn personnel.........................  Enforce safety and security
                                             measures.
3. Shut off ignition sources..............  Motors, electrical circuits,
                                             open flames, etc.
4. Initiate containment...................  Around the tank and/or in
                                             the water with oil boom.
5. Notify NRC.............................  1-800-424-8802
6. Notify OSC
7. Notify, as appropriate
------------------------------------------------------------------------
Source: FOSS, Oil Spill Response--Emergency Procedures, Revised December
  3, 1992.

                          1.7.2  Disposal Plans

    1.7.2.1  Facility owners or operators must describe how and where 
the facility intends to recover, reuse, decontaminate, or dispose of 
materials after a discharge has taken place. The appropriate permits 
required to transport or dispose of recovered materials according to 
local, State, and Federal requirements must be addressed. Materials that 
must be accounted for in the disposal plan, as appropriate, include:
    (1) Recovered product;
    (2) Contaminated soil;
    (3) Contaminated equipment and materials, including drums, tank 
parts, valves, and shovels;
    (4) Personnel protective equipment;
    (5) Decontamination solutions;
    (6) Adsorbents; and
    (7) Spent chemicals.
    1.7.2.2  These plans must be prepared in accordance with Federal 
(e.g., the Resource Conservation and Recovery Act [RCRA]), State, and 
local regulations, where applicable. A copy of the disposal plans from 
the facility's SPCC Plan may be inserted with this section, including 
any diagrams in those plans.

------------------------------------------------------------------------
                                     Disposal                RCRA permit/
             Material                facility     Location     manifest
------------------------------------------------------------------------
1.
------------------------------------------------------------------------
2.
------------------------------------------------------------------------
3.
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4.
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                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 information 
presented in section 1.4.1 of the response plan);
    (2) The route of drainage from oil storage and transfer areas;
    (3) The construction materials used in drainage troughs;
    (4) The type and number of valves and separators used in the 
drainage system;
    (5) Sump pump capacities;

[[Page 691]]

    (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 inspection and 
monitoring requirements for drainage contained 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 facility response 
training and for drills/exercises according to the requirements of 40 
CFR 112.21. Logs must be kept for facility drills/exercises, personnel 
response training, and spill prevention meetings. Much of the 
recordkeeping information required by this section is also contained in 
the SPCC Plan required by 40 CFR 112.3. These logs may be included in 
the facility response plan or kept as an annex to the facility response 
plan.

                     1.8.1  Facility Self-Inspection

    Pursuant to 40 CFR 112.7(e)(8), each facility shall include the 
written procedures and records of inspections in the SPCC Plan. The 
inspection shall include the tanks, secondary containment, and response 
equipment at the facility. 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 response equipment is 
a new requirement in this plan. Facility self-inspection requires two 
steps: (1) a checklist of things to inspect; and (2) a method of 
recording the actual inspection and its findings. The date of each 
inspection shall be noted. These records are required to be maintained 
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                      Tank or SI#                  Date                   Comments
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[[Page 692]]

 
 
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                 1.8.1.2  Response Equipment Inspection

    Using the Emergency Response Equipment List provided in section 
1.3.2 of the response plan, describe each type of response equipment, 
checking for the following:

                      Response Equipment Checklist

    1. Inventory (item and quantity);
    2. Storage location;
    3. Accessibility (time to access and respond);
    4. Operational status/condition;
    5. Actual use/testing (last test date and frequency of testing); and
    6. Shelf life (present age, expected replacement date).

Please note any discrepancies between this list and the available 
response equipment.

                                        Response Equipment Inspection Log
                             [Use section 1.3.2 of the response plan as a checklist]
----------------------------------------------------------------------------------------------------------------
              Inspector                               Date                                Comments
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[[Page 693]]

 
 
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                1.8.1.3  Secondary Containment Inspection

    Inspect the secondary containment (as described in sections 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 liquid);
    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 
section.

                    1.8.2  Facility Drills/Exercises

    (A) CWA section 311(j)(5), as amended by OPA, requires the response 
plan to contain a description of facility drills/exercises. According to 
40 CFR 112.21(c), the facility owner or operator shall develop a program 
of facility response drills/exercises, including evaluation procedures. 
Following the PREP guidelines (see Appendix E to this part, section 10, 
for availability) would satisfy a facility's requirements for drills/
exercises under this part. Alternately, under Sec. 112.21(c), a facility 
owner or operator may develop a program that is not based on the PREP 
guidelines. Such a program is subject to approval by the Regional 
Administrator based on the description of the program provided in the 
response plan.
    (B) The PREP Guidelines specify that the facility conduct internal 
and external drills/exercises. The internal exercises include: qualified 
individual notification drills, spill management team tabletop 
exercises, equipment deployment exercises, and unannounced exercises. 
External exercises include Area Exercises. Credit for an Area or 
Facility-specific Exercise will be given to the facility for an actual 
response to a 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, documented and self-certified.
    (C) Section 112.20(h)(8)(ii) requires the facility owner or operator 
to provide a description of the drill/exercise program to be carried out 
under the response plan. Qualified Individual Notification Drill and 
Spill Management Team Tabletop Drill logs shall be provided in sections 
1.8.2.1 and 1.8.2.2, respectively. These logs may be included in the 
facility response plan or kept as an annex to the facility response 
plan. See section 1.3.3 of this appendix for Equipment Deployment Drill 
Logs.

    1.8.2.1  Qualified Individual Notification Drill Logs Qualified 
                    Individual Notification Drill Log

Date:___________________________________________________________________
Company:________________________________________________________________
Qualified Individual(s):________________________________________________
Emergency Scenario:_____________________________________________________
_______________________________________________________________________
_______________________________________________________________________
Evaluation:_____________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
Changes to be Implemented:______________________________________________
_______________________________________________________________________
_______________________________________________________________________
Time Table for Implementation:__________________________________________

[[Page 694]]

_______________________________________________________________________

 1.8.2.2  Spill Management Team Tabletop Exercise Logs Spill Management 
                       Team Tabletop Exercise Log

Date:___________________________________________________________________
Company:________________________________________________________________
Qualified Individual(s):________________________________________________
Emergency Scenario:_____________________________________________________
_______________________________________________________________________
_______________________________________________________________________
Evaluation:_____________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
Changes to be Implemented:______________________________________________
_______________________________________________________________________
_______________________________________________________________________
Time Table for Implementation:__________________________________________

                        1.8.3  Response Training

    Section 112.21(a) requires facility owners or operators to develop 
programs for facility response training. Facility owners or operators 
are required by Sec. 112.20(h)(8)(iii) to provide a description of the 
response training program to be carried out under the response plan. A 
facility's training program can be based on the USCG's Training Elements 
for Oil Spill Response, to the extent applicable to facility operations, 
or another response training program acceptable to the RA. The training 
elements are available from Petty Officer Daniel Caras at (202) 267-6570 
or fax 267-4085/4065. Personnel response training logs and discharge 
prevention meeting logs shall be included in sections 1.8.3.1 and 
1.8.3.2 of the response plan respectively. These logs may be included in 
the facility response plan or kept as an annex to the facility response 
plan.

                1.8.3.1  Personnel Response Training Logs

                     Personnel Response Training Log
------------------------------------------------------------------------
                               Response training/   Prevention training/
            Name               date and number of    date and number of
                                      hours                 hours
------------------------------------------------------------------------
 
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------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------

               1.8.3.2  Discharge Prevention Meetings Logs

                    Discharge Prevention Meeting Log

Date:___________________________________________________________________

Attendees:______________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________


------------------------------------------------------------------------
  Subject/issue identified       Required action     Implementation date
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------

[[Page 695]]

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

                              1.9  Diagrams

    The facility-specific response plan shall include the following 
diagrams. Additional diagrams that would aid in the development of 
response plan sections may also be included.

(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 impoundments;
    (F) process buildings;
    (G) transfer areas;
    (H) secondary containment systems (location and capacity);
    (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 regulated by EPA and the portion(s) 
regulated by other Agencies. In most cases, this interface is defined as 
the last valve inside secondary containment before piping leaves the 
secondary containment area to connect to the transportation-related 
portion of the facility (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 official.
(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 appropriate, include:
    (A) site plan diagram with evacuation route(s); and
    (B) location of evacuation regrouping areas.

                             1.10  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 section.

                     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-1) must 
accompany the response plan to provide the Agency with basic information 
concerning the facility. This section will describe the Response Plan 
Cover Sheet and provide instructions for its completion.

                        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/operator 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 facility.
    (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).

[[Page 696]]

    (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 obtained from public library resources).
    (7) Largest Oil Storage Tank Capacity: Enter the capacity in GALLONS 
of the largest aboveground oil storage tank at the facility.
    (8) Maximum Oil Storage Capacity: Enter the total maximum capacity 
in GALLONS of all aboveground oil storage tanks at the 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 opportunity 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 Appendix C to this 
part, mark the appropriate answer to each question. Explanations of 
referenced terms can be found in Appendix C to this part. If a 
comparable formula to the ones described in Attachment C-III to Appendix 
C to this part is used to calculate the planning distance, documentation 
of the reliability and analytical soundness of the formula must be 
attached to the response plan cover sheet.

                           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 Administration (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 Program
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 Storage Industry. Prepared by CONCAWE's 
Risk Assessment Ad-hoc Group.
    U.S. Department of Housing and Urban Development. 1987. Siting of 
HUD-Assisted Projects Near Hazardous Facilities: Acceptable Separation 
Distances from Explosive and Flammable Hazards. Prepared by the Office 
of Environment and Energy, Environmental Planning Division, Department 
of Housing and Urban Development. Washington, DC.
    U.S. DOT, FEMA and U.S. EPA. Handbook of Chemical Hazard Analysis 
Procedures.
    U.S. DOT, FEMA and U.S. EPA. Technical Guidance for Hazards 
Analysis: Emergency Planning for Extremely Hazardous Substances.
    The National Response Team. 1987. Hazardous Materials Emergency 
Planning Guide. Washington, DC.
    The National Response Team. 1990. Oil Spill Contingency Planning, 
National Status: A Report to the President. Washington, DC. U.S. 
Government Printing Office.
    Offshore Inspection and Enforcement Division. 1988. Minerals 
Management Service, Offshore Inspection Program: National Potential 
Incident of Noncompliance (PINC) List. Reston, VA.

[[Page 697]]

                        Attachments to Appendix F

                Attachment F-1--Response Plan Cover Sheet

    This cover sheet will provide EPA with basic information concerning 
the facility. It must accompany a submitted facility response plan. 
Explanations and detailed instructions can be found in Appendix F. 
Please type or write legibly in blue or black ink. Public reporting 
burden for the collection of this information is estimated to vary from 
1 hour to 270 hours per response in the first year, with an average of 5 
hours per response. This estimate includes time for reviewing 
instructions, searching existing data sources, gathering the data 
needed, and completing and reviewing the collection of information. Send 
comments regarding the burden estimate of this information, including 
suggestions for reducing this burden to: Chief, Information Policy 
Branch, 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: \1\

    \1\ These numbers may be obtained from public library resources.
---------------------------------------------------------------------------

_______________________________________________________________________

Largest Aboveground Oil Storage Tank Capacity (Gallons):

_______________________________________________________________________

Number of Aboveground Oil Storage Tanks:

_______________________________________________________________________
Longitude (Degrees: West):

_______________________________________________________________________
degrees, minutes, seconds_______________________________________________

Standard Industrial Classification (SIC) Code: \1\______________________

_______________________________________________________________________

Maximum Oil Storage Capacity (Gallons):_________________________________

Worst Case Oil Discharge Amount (Gallons):______________________________

Facility Distance to Navigable Water. Mark the appropriate line.________
0-\1/4\ mile ____ \1/4\-\1/2\ mile ____ \1/2\-1 mile ____ >1 mile ____

               Applicability of Substantial Harm Criteria

    Does the facility transfer oil over-water \2\ to or from vessels and 
does the facility have a total oil storage capacity greater than or 
equal to 42,000 gallons?
---------------------------------------------------------------------------

    \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 establish 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.
---------------------------------------------------------------------------

Yes_____________________________________________________________________

No______________________________________________________________________

    Does the facility have a total oil storage capacity greater than or 
equal to 1 million gallons and, within any storage area, does the 
facility lack secondary containment \2\ that is sufficiently large to 
contain the capacity of the largest aboveground oil storage tank plus 
sufficient freeboard to allow for precipitation?

Yes_____________________________________________________________________

No______________________________________________________________________

    Does the facility have a total oil storage capacity greater than or 
equal to 1 million gallons and is the facility located at a 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\
---------------------------------------------------------------------------

    \3\ For further description of fish and wildlife and sensitive 
environments, see Appendices I, II, and III to DOC/NOAA's ``Guidance for 
Facility and Vessel Response Plans: Fish and Wildlife and Sensitive 
Environments'' (see Appendix E to this part, section 10, for 
availability) and the applicable ACP.

---------------------------------------------------------------------------
Yes_____________________________________________________________________

No______________________________________________________________________

Does the facility have a total oil storage capacity greater than or 
equal to 1 million gallons and is the facility located at a 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 greater than or 
equal to 1 million gallons and has the facility experienced a reportable 
oil spill \2\ in an amount greater than or equal to 10,000 gallons 
within the last 5 years?


[[Page 698]]


Yes_____________________________________________________________________

No______________________________________________________________________

                              Certification

    I certify under penalty of law that I have personally examined and 
am familiar with the information submitted in this document, and that 
based on my inquiry of those individuals responsible for obtaining 
information, I believe that the submitted information is true, accurate, 
and complete.

Signature:______________________________________________________________

Name (Please type or print):____________________________________________

_______________________________________________________________________

Title:__________________________________________________________________

Date:___________________________________________________________________

[59 FR 34122, July 1, 1994; 59 FR 49006, Sept. 26, 1994]



PART 113--LIABILITY LIMITS FOR SMALL ONSHORE STORAGE FACILITIES--Table of Contents




                    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(f)(2), 86 Stat. 867 (33 U.S.C. 1251 (1972)).

    Source: 38 FR 25440, Sept. 13, 1973, unless otherwise noted.



                    Subpart A--Oil Storage Facilities



Sec. 113.1  Purpose.

    This subpart establishes size classifications and associated 
liability limits for small onshore oil storage facilities with fixed 
capacity of 1,000 barrels or less.




Sec. 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 removal of 
said discharge is performed by the United States Government pursuant to 
the provisions of subsection 311(c)(1) of the Act, the liability of the 
owner or operator and the facility will be limited to the amounts 
specified in Sec. 113.4.




Sec. 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 
surrounding surface.
    (b) Act means the Federal Water Pollution Control 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 facility (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 Contingency Plan and identified in approved Regional Oil and 
Hazardous Substances Pollution Contingency 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 Coordinator may determine to 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.

Additionally, the terms not otherwise defined herein shall have the 
meanings assigned them by section 311(a) of the Act.



[[Page 699]]





Sec. 113.4  Size classes and associated liability 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 knowledge of the owner or operator, the following limits of 
liability are established for fixed onshore facilities in the classes 
specified:
    (a) Aboveground storage.

------------------------------------------------------------------------
                                                                 Limit
             Size class                  Capacity (barrels)    (dollars)
------------------------------------------------------------------------
I...................................  Up to 10...............      4,000
II..................................  11 to 170..............     60,000
III.................................  171 to 500.............    150,000
IV..................................  501 to 1,000...........    200,000
------------------------------------------------------------------------

    (b) Belowground storage.

------------------------------------------------------------------------
                                                                 Limit
             Size class                  Capacity (barrels)    (dollars)
------------------------------------------------------------------------
I...................................  Up to 10...............      5,200
II..................................  11 to 170..............     78,000
III.................................  171 to 500.............    195,000
IV..................................  501 to 1,000...........    260,000
------------------------------------------------------------------------



Sec. 113.5  Exclusions.

    This subpart does not apply to:
    (a) Those facilities whose average daily oil throughout is more than 
their fixed oil storage capacity.
    (b) Vehicles and rolling stock.




Sec. 113.6  Effect on other laws.

    Nothing herein shall be construed to limit the liability of any 
facility under State or local law or under any Federal law other than 
section 311 of the Act, nor shall the liability of any facility for any 
charges or damages under State or local law reduce its liability to the 
Federal Government under section 311 of the Act, as limited by this 
subpart.



PART 116--DESIGNATION OF HAZARDOUS SUBSTANCES--Table of Contents




Sec.
116.1  Applicability.
116.2  Abbreviations.
116.3  Definitions.
116.4  Designation of hazardous substances.

    Authority: Secs. 311(b)(2)(A) and 501(a), Federal Water Pollution 
Control Act (33 U.S.C. 1251 et seq.).



Sec. 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 applies to discharges of substances designated in Table 
116.4.

[43 FR 10474, Mar. 13, 1978]



Sec. 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]



Sec. 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 exchange between the water and the circulatory system;
    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 established or to be 
established by the United States under article 24 of the Convention of 
the Territorial 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 circumstances identified

[[Page 700]]

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 
permit 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 inseparable by 
physical means.
    Navigable waters is defined in section 502(7) of the Act to mean 
``waters of the United States, including 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 commerce, including all waters which are subject to the ebb and 
flow of the tide, and including adjacent wetlands; the term wetlands as 
used in this regulation shall include those areas that are inundated or 
saturated by surface or ground water at a frequency and duration 
sufficient to support, and that under normal circumstances do support, a 
prevelance of vegetation typically adapted for life in saturated soil 
conditions. Wetlands generally include 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 destruction of which affect interstate commerce including, but not 
limited to:
    (i) Intrastate lakes, rivers, streams, and wetlands which are 
utilized by interstate travelers for recreational or other purposes; and
    (ii) Intrastate lakes, rivers, streams, and wetlands from which fish 
or shellfish are or could be taken and sold in interstate commerce; and
    (iii) Intrastate lakes, rivers, streams, and wetlands which are 
utilized for industrial purposes by industries in interstate commerce.


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 waters 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 vessel;
    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 submerged land;
    Otherwise subject to the jurisdiction of the United States means 
subject to the jurisdiction of the United States by virtue of United 
States citizenship, United States vessel documentation or numbering, or 
as provided for by international agreement 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 Fishery 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 Continental 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

[[Page 701]]

natural resource belonging to, appertaining 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 seaward 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]



Sec. 116.4  Designation of hazardous substances.

    The elements and compounds appearing in Tables 116.4 A and B are 
designated as hazardous substances in accordance with section 
311(b)(2)(A) of the Act. This designation includes any isomers and 
hydrates, as well as any solutions and mixtures containing these 
substances. Synonyms and Chemical Abstract System (CAS) numbers have 
been added for convenience of the user only. In case of any disparity 
the common names shall be considered the designated substance.

                                   Table 116.4A--List of Hazardous Substances
----------------------------------------------------------------------------------------------------------------
            Common name                CAS No.             Synonyms                   Isomers           CAS No.
----------------------------------------------------------------------------------------------------------------
Acetaldehyde.......................       75070  Ethanal, ethyl aldehyde,     ......................  ..........
                                                  acetic aldehyde.
Acetic acid........................       64197  Glacial acetic acid,         ......................  ..........
                                                  vinegar acid.
Acetic anhydride...................      108247  Acetic oxide, acetyl oxide.  ......................  ..........
Acetone cyanohydrin................       75865  2-methyllactonitrile, alpha- ......................  ..........
                                                  hydroxyisobutyronitrile.
Acetyl bromide.....................      506967  ...........................  ......................  ..........
Acetyl chloride....................       79367  ...........................  ......................  ..........
Acrolein...........................      107028  2-propenal, acrylic          ......................  ..........
                                                  aldehyde, acrylaldehyde,
                                                  acraldehyde.
Acrylonitrile......................      107131  Cyanoethylene, Fumigrain,    ......................  ..........
                                                  Ventox, propeneitrile,
                                                  vinyl cyanide.
Adipic acid........................      124049  Hexanedioic acid...........  ......................  ..........
Aldrin.............................      309002  Octalene, HHDN.............  ......................  ..........
Allyl alcohol......................      107186  2-propen-1-ol, 1-propenol-   ......................  ..........
                                                  3, vinyl carbinol.
Allyl chloride.....................      107051  3-chloropropene, 3-          ......................  ..........
                                                  chloropropylene,
                                                  Chlorallylene.
Aluminum sulfate...................    10043013  Alum.......................  ......................  ..........
Ammonia............................     7664417  ...........................  ......................  ..........
Ammonium acetate...................      631618  Acetic acid ammonium, salt.  ......................  ..........
Ammonium benzoate..................     1863634  ...........................  ......................  ..........
Ammonium bicarbonate...............     1066337  Acid ammonium carbonate,     ......................  ..........
                                                  ammonium hydrogen
                                                  carbonate.
Ammonium bichromate................     7789095  ...........................  ......................  ..........
Ammonium bifluoride................     1341497  Acid ammonium fluoride,      ......................  ..........
                                                  ammonium hydrogen fluoride.
Ammonium bisulfite.................    10192300  ...........................  ......................  ..........
Ammonium carbamate.................     1111780  Ammonium aminoformate......  ......................  ..........
Ammonium carbonate.................      506876  ...........................  ......................  ..........
Ammonium chloride..................    12125029  Ammonium muriate, sal        ......................  ..........
                                                  ammoniac, salmiac, Amchlor.
Ammonium chromate..................     7788989  ...........................  ......................  ..........
Ammonium citrate dibasic...........     3012655  Diammonium citrate, citric   ......................  ..........
                                                  acid diammonium salt.
Ammonium fluoborate................    13826830  Ammonium fluoroborate,       ......................  ..........
                                                  ammonium borofluoride.
Ammonium fluoride..................    12125018  Neutral ammonium fluoride..  ......................  ..........
Ammonium hydroxide.................     1336216  ...........................  ......................  ..........
Ammonium oxalate...................     6009707  ...........................  ......................  ..........
                                        5972736  ...........................  ......................  ..........
                                       14258492  ...........................  ......................  ..........
Ammonium silicofluoride............    16919190  Ammonium fluosilicate......  ......................  ..........
Ammonium sulfamate.................     7773060  Ammate, AMS, ammonium        ......................  ..........
                                                  amidosulfate.
Ammonium sulfide...................    12135761  ...........................  ......................  ..........

[[Page 702]]

 
Ammonium sulfite...................    10196040  ...........................  ......................  ..........
                                       10192300  ...........................  ......................  ..........
Ammonium tartrate..................     3164292  Tartaric acid ammonium salt  ......................  ..........
                                       14307438  ...........................  ......................  ..........
Ammonium thiocyanate...............     1762954  Ammonium rhodanide,          ......................  ..........
                                                  ammonium sulfocyanate,
                                                  ammonium sulfocyanide.
Amly acetate.......................      628637  Amylacetic ester...........  iso-..................      123922
                                                 Pear oil...................  sec-..................      626380
                                                 Banana oil.................  tert-.................      625161
Aniline............................       62533  Aniline oil, phenylamine,    ......................  ..........
                                                  aminobenzene, aminophen,
                                                  kyanol.
Antimony pentachloride.............     7647189  ...........................  ......................  ..........
Antimony potassium tartrate........    28300745  Tartar emetic, tartrated     ......................  ..........
                                                  antimony, tartarized
                                                  antimony, potassium
                                                  antimonyltartrate.
Antimony tribromide................     7789619  ...........................  ......................  ..........
Antimony trichloride...............    10025919  Butter of antimony.........  ......................  ..........
Antimony trifluoride...............     7783564  Antimony fluoride..........  ......................  ..........
Antimony trioxide..................     1309644  Diantimony trioxide,         ......................  ..........
                                                  flowers of antimony.
Arsenic disulfide..................     1303328  Red arsenic sulfide........  ......................  ..........
Arsenic pentoxide..................     1303282  Arsenic acid anhydride,      ......................  ..........
                                                  arsenic oxide.
Arsenic trichloride................     7784341  Arsenic chloride, arsenious  ......................  ..........
                                                  chloride, arsenous
                                                  chloride, butter of
                                                  arsenic.
Arsenic trioxide...................     1327533  Arsenious acid, arsenious    ......................  ..........
                                                  oxide, white arsenic.
Arsenic trisulfide.................     1303339  Arsenious sulfide, yellow    ......................  ..........
                                                  arsenic sulfide.
Barium cyanide.....................      542621  ...........................  ......................  ..........
Benzene............................       71432  Cyclohexatriene, benzol....  ......................  ..........
Benzoic acid.......................       65850  Benzenecarboxylic acid,      ......................  ..........
                                                  phenylformic acid,
                                                  dracylic acid.
Benzonitrile.......................      100470  Phenyl cyanide,              ......................  ..........
                                                  cyanobenzene.
Benzoyl chloride...................       98884  Benzenecarbonyl chloride...  ......................  ..........
Benzyl chloride....................      100447  ...........................  ......................  ..........
Beryllium chloride.................     7787475  ...........................  ......................  ..........
Beryllium fluoride.................     7787497  ...........................  ......................  ..........
Beryllium nitrate..................     7787555  ...........................  ......................  ..........
                                       13597994  ...........................  ......................  ..........
Butyl acetate......................      123864  Acetic acid butyl ester....  iso-..................      110190
                                                                              sec-..................      105464
                                                                              tert-.................      540885
Butylamine.........................      109739  1-aminobutane..............  iso-..................       78819
                                                                              sec-..................      513495
                                                                              sec-..................    13952846
                                                                              tert-.................       75649
n/butyl phthalate..................       84742  1.2-benzenedicarboxylic      ......................  ..........
                                                  acid, dibutyl ester,
                                                  dibutyl phthalate.
Butyric acid.......................      107926  Butanoic acid, ethylacetic   iso-..................       79312
                                                  acid.
Cadmium acetate....................      543908  ...........................  ......................  ..........
Cadmium bromide....................     7789426  ...........................  ......................  ..........
Cadmium chloride...................    10108642  ...........................  ......................  ..........
Calcium arsenate...................     7778441  Tricalcium orthoarsenate...  ......................  ..........
Calcium arsenite...................    52740166  ...........................  ......................  ..........
Calcium carbide....................       75207  Carbide, acetylenogen......  ......................  ..........
Calcium chromate...................    13765190  Calcium chrome yellow,       ......................  ..........
                                                  geblin, yellow ultramarine.
Calcium cyanide....................      592018  ...........................  ......................  ..........
Calcium dodecylbenzenesulfonate....    26264062  ...........................  ......................  ..........
Calcium hypochlorite...............     7778543  ...........................  ......................  ..........
Captan.............................      133062  Orthocide-406, SR-406,       ......................  ..........
                                                  Vancide-89.
Carbaryl...........................       63252  Sevin......................  ......................  ..........
Carbofuran.........................     1563662  Furadan....................  ......................  ..........
Carbon disulfide...................       75150  Carbon bisulfide,            ......................  ..........
                                                  dithiocarbonic anhydride.
Carbon tetrachloride...............       56235  Tetrachloromethane           ......................  ..........
                                                  Perchloromethane.
Chlordane..........................       57749  Toxichlor, chlordan........  ......................  ..........
Chlorine...........................       75003  ...........................  ......................  ..........
Chlorobenzene......................      108907  Monochlorobenzene, benzene   ......................  ..........
                                                  chloride.
Chloroform.........................       67663  Trichloromethane...........  ......................  ..........
Chlorpyrifos.......................     2921882  Dursban....................  ......................  ..........
Chlorosulfonic acid................     7790945  Sulfuric chlorohydrin......  ......................  ..........
Chromic acetate....................     1066304  ...........................  ......................  ..........
Chromic acid.......................    11115745  Chromic anhydride, chromium  ......................  ..........
                                                  trioxide.
Chromic sulfate....................    10101538  ...........................  ......................  ..........
Chromous chloride..................    10049055  ...........................  ......................  ..........
Cobaltous bromide..................     7789437  Cobalt bromide.............  ......................  ..........

[[Page 703]]

 
Coabaltous formate.................      544183  Cobalt formate.............  ......................  ..........
Cobaltous sulfamate................    14017415  Cobalt sulfamate...........  ......................  ..........
Coumaphos..........................       56724  Co-Ral.....................  ......................  ..........
Cresol.............................     1319773  Cresylic acid..............  m-....................      108394
                                                 Hydroxytoluene.............  o-....................       95487
                                                                              p-....................      106445
Crotonaldehyde.....................     4170303  2-butenal propylene          ......................  ..........
                                                  aldelhyde.
Cupric acetate.....................      142712  Copper acetate, crystalized  ......................  ..........
                                                  verdigris.
Cupric acetoarsenite...............    12002038  Copper acetoarsenite,        ......................  ..........
                                                  copper acetate arsenite,
                                                  Paris green.
Cupric chloride....................     7447394  Copper chloride............  ......................  ..........
Cupric nitrate.....................     3251238  Copper nitrate.............  ......................  ..........
Cupric oxalate.....................     5893663  Copper oxalate.............  ......................  ..........
Cupric sulfate.....................     7758987  Copper sulfate.............  ......................  ..........
Cupric sulfate, ammoniated.........    10380297  Ammoniated copper sulfate..  ......................  ..........
Cupric tartrate....................      815827  Copper tartrate............  ......................  ..........
Cyanogen chloride..................      506774  ...........................  ......................  ..........
Cyclohexane........................      110827  Hexahydrobenzene,            ......................  ..........
                                                  hexamethylene,
                                                  hexanaphthene.
2,4-D acid.........................       94757  2,4-dichlorophenoxyacetic    ......................  ..........
                                                  acid.
2,4-D ester........................       94111  2,4-dichlorophenoxyacetic    ......................  ..........
                                                  acid ester.
                                          94791
                                          94804
                                        1320189
                                        1928387
                                        1928616
                                        1929733
                                        2971382
                                       25168267
                                       53467111
DDT................................       50293  p,p'-DDT...................  ......................  ..........
Diazinon...........................      333415  Dipofene, Diazitol,          ......................  ..........
                                                  Basudin, Spectracide.
Dicamba............................     1918009  2-methoxy-3,6-               ......................  ..........
                                                  dichlorobenzoic acid.
Dichlobenil........................     1194656  2,6-dichlorobenzonitrile,    ......................  ..........
                                                  2,6-DBN.
Dichlone...........................      117806  Phygon,                      ......................  ..........
                                                  dichloronaphthoquinone.
Dichlorobenzene....................    25321226  Di-chloricide..............  Ortho.................       95501
                                                 Paramoth (Para)............  Para..................      106467
Dichloropropane....................    26638197  Propylene dichloride.......  1,1...................       78999
                                                                              1,2...................       78875
                                                                              1,3...................      142289
Dichloropropene....................    26952238  ...........................  1,3...................      542756
                                                                              2,3...................       78886
Dichloropropene-dichloropropane         8003198  D-D mixture Vidden D.......  ......................  ..........
 (mixture).
2,2-Dichloropropionic acid.........       75990  Dalapon....................  ......................  ..........
Dichlorvos.........................       62737  2,2-dichlorovinyl dimethyl   ......................  ..........
                                                  phosphate, Vapona.
Dicofol............................      115322  Di(p-chlorophenyl)-          ......................  ..........
                                                  trichloromethylcarbinol,
                                                  DTMC, dicofol.
Dieldrin...........................       60571  Alvit......................  ......................  ..........
Diethylamine.......................      109897  ...........................  ......................  ..........
Dimethylamine......................      124403  ...........................  ......................  ..........
Dinitrobenzene (mixed).............    25154545  Dinitrobenzol..............  m-....................       99650
                                                                              o-....................      528290
                                                                              p-....................      100254
Dinitrophenol......................       51285  Aldifen....................  (2,5-)................      329715
                                                                              (2,4-)................
                                                                              (2,6-)................      573568
Dinitrotoluene.....................    25321146  DNT........................  2,4...................      121142
                                                                              2,6...................      606202
                                                                              3,4...................      610399
Diquat.............................       85007  Aquacide...................  ......................  ..........
                                        2764729  Dextrone, Reglone, Diquat    ......................  ..........
                                                  dibromide.
Disulfoton.........................      298044  Di-syston..................  ......................  ..........
Diuron.............................      330541  DCMU, DMU..................  ......................  ..........
Dodecylbenzenesulfonic acid........    27176870  ...........................  ......................  ..........
Endosulfan.........................      115297  Thiodan....................  ......................  ..........
Endrin.............................       72208  Mendrin, Compound 269......  ......................  ..........
Epichlorohydrin....................      106898  -chloropropylene oxide.....  ......................  ..........
Ethion.............................      563122  Nialate, ethyl methylene,    ......................  ..........
                                                  phosphorodithioate.
Ethylbenzene.......................      100414  Phenylethane...............  ......................  ..........
Ethylenediamine....................      107153  1,2-diaminoethane..........  ......................  ..........
Ethylenediamine-tetraacetic acid          60004  Edetic acid, Havidote,       ......................  ..........
 (EDTA).                                          (ethylenedinitrilo)-
                                                  tetraacetic acid.

[[Page 704]]

 
Ethylene dibromide.................      106934  1,2-dibromoethane acetylene  ......................  ..........
                                                  dibromide sym-
                                                  dibromoethylene.
Ethylene dichloride................      107062  1,2-dichloroethane sym-      ......................  ..........
                                                  bichloroethane.
Ferric ammonium citrate............     1185575  Ammonium ferric citrate....  ......................  ..........
Ferric ammonium oxalate............     2944674  Ammonium ferric oxalate....  ......................  ..........
                                       55488874  ...........................  ......................  ..........
Ferric chloride....................     7705080  Flores martis, iron          ......................  ..........
                                                  trichloride.
Ferric fluoride....................     7783508  ...........................  ......................  ..........
Ferric nitrate.....................    10421484  Iron nitrate...............  ......................  ..........
Ferric sulfate.....................    10028225  Ferric persulfate, ferric    ......................  ..........
                                                  sesquisulfate, ferric
                                                  tersulfate.
Ferrous ammonium sulfate...........    10045893  Mohr's salt, iron ammonium   ......................  ..........
                                                  sulfate.
Ferrous chloride...................     7758943  Iron chloride, iron          ......................  ..........
                                                  dichloride, iron
                                                  protochloride.
Ferrous sulfate....................     7720787  Green vitriol..............  ......................  ..........
                                        7782630  Iron vitriol, iron sulfate,  ......................  ..........
                                                  iron protosulfate.
Formaldehyde.......................       50000  Methyl aldehyde, methanal,   ......................  ..........
                                                  formalin.
Formic acid........................       64186  Methanoic acid.............  ......................  ..........
Fumaric acid.......................      110178  Trans-butenedioic acid,      ......................  ..........
                                                  trans-1,2-
                                                  ethylenedicarboxylic acid,
                                                  boletic acid, allomaleic
                                                  acid.
Furfural...........................       98011  2-furaldehyde, pyromucic     ......................  ..........
                                                  aldehyde.
Guthion............................       86500  Gusathion, azinphos-methyl.  ......................  ..........
Heptachlor.........................       76448  Velsicol-104, Drinox,        ......................  ..........
                                                  Heptagran.
Hexachlorocyclopentadiene..........       77474  Perchlorocyclopentadiene...  ......................  ..........
Hydrochloric acid..................     7647010  Hydrogen chloride, muriatic  ......................  ..........
                                                  acid.
Hydrofluoric acid..................     7664393  Fluohydric acid............  ......................  ..........
Hydrogen cyanide...................       74908  Hydrocyanic acid...........  ......................  ..........
Hydrogen sulfide...................     7783064  Hydrosulfuric acid sulfur    ......................  ..........
                                                  hydride.
Isoprene...........................       78795  2-methyl-1,3-butadiene.....  ......................  ..........
Isopropanolamine                       42504461  ...........................  ......................  ..........
 dodecylbenzenesulfonate.
Kepone.............................      143500  Chlordecone                  ......................  ..........
                                                  1,1a,3,3a,4,5,5,5a,5b,6-
                                                  decachlorooctahydro-1,3,4-
                                                  metheno-2H-
                                                  cyclobuta(cd)pentalen-2-
                                                  one.
Lead acetate.......................      301042  Sugar of lead..............  ......................  ..........
Lead arsenate......................     7784409  ...........................  ......................  ..........
                                        7645252  ...........................  ......................  ..........
                                       10102484  ...........................  ......................  ..........
Lead chloride......................     7758954  ...........................  ......................  ..........
Lead fluoborate....................    13814965  Lead fluoroborate..........  ......................  ..........
Lead fluoride......................     7783462  Lead difluoride, plumbous    ......................  ..........
                                                  fluoride.
Lead iodide........................    10101630  ...........................  ......................  ..........
Lead nitrate.......................    10099748  ...........................  ......................  ..........
Lead stearate......................     7428480  Stearic acid lead salt.....  ......................  ..........
                                        1072351  ...........................  ......................  ..........
                                       52652592  ...........................  ......................  ..........
Lead sulfate.......................     7446142  ...........................  ......................  ..........
Lead sulfide.......................     1314870  Galena.....................  ......................  ..........
Lead thiocyanate...................      592870  Lead sulfocyanate..........  ......................  ..........
Lindane............................       58899  Gamma-BHC, gamma-benzene     ......................  ..........
                                                  hexachloride.
Lithium chromate...................    14307358  ...........................  ......................  ..........
Malathion..........................      121755  Phospothion................  ......................  ..........
Maleic acid........................      110167  Cis-butenedioic acid, cis-   ......................  ..........
                                                  1,2-ethylenedicarboxylic
                                                  acid, toxilic acid.
Maleic anhydride...................      108316  2,5-furandione, cis-         ......................  ..........
                                                  butenedioic anhydride,
                                                  toxilic anhydride.
Mercaptodimethur...................      203657  Mesurol....................  ......................  ..........
Mercuric cyanide...................      592041  Mercury cyanide............  ......................  ..........
Mercuric nitrate...................    10045940  Mercury nitrate, mercury     ......................  ..........
                                                  pernitrate.
Mercuric sulfate...................     7783359  Mercury sulfate, mercury     ......................  ..........
                                                  persulfate.
Mercuric thiocyanate...............      592858  Mercury thiocyanate,         ......................  ..........
                                                  mercuric sulfocyanate,
                                                  mercuric sulfocyanide.
Mercurous nitrate..................     7782867  ...........................  ......................  ..........
                                       10415755  Mercury protonitrate.......  ......................  ..........
Methoxychlor.......................       72435  DMDT, methoxy-DDT..........  ......................  ..........
Methyl mercaptan...................       74931  Methanethiol,                ......................  ..........
                                                  mercaptomethane, methyl
                                                  sulfhydrate, thiomethyl
                                                  alcohol.
Methyl methacrylate................       80626  Methacrylic acid methyl      ......................  ..........
                                                  ester, methyl-2-methyl-2-
                                                  propenoate.
Methyl parathion...................      298000  Nitrox-80..................  ......................  ..........
Mevinphos..........................     7786347  Phosdrin...................  ......................  ..........
Mexacarbate........................      315184  Zectran....................  ......................  ..........

[[Page 705]]

 
Monoethylamine.....................       75047  Ethylamine, aminoethane....  ......................  ..........
Monomethylamine....................       74895  Methylamine, aminomethane..  ......................  ..........
Naled..............................      300765  Dibrom.....................  ......................  ..........
Naphthalene........................       91203  White tar, tar camphor,      ......................  ..........
                                                  naphthalin.
Naphthenic acid....................     1338245  Cyclohexanecarboxylic acid,  ......................  ..........
                                                  hexahydrobenzoic acid.
Nickel ammonium sulfate............    15699180  Ammonium nickel sulfate....  ......................  ..........
Nickel chloride....................    37211055  Nickelous chloride.........  ......................  ..........
                                        7718549  ...........................  ......................  ..........
Nickel hydroxide...................    12054487  Nickelous hydroxide........  ......................  ..........
Nickel nitrate.....................    14216752  ...........................  ......................  ..........
Nickel sulfate.....................     7786814  Nickelous sulfate..........  ......................  ..........
Nitric acid........................     7697372  Aqua fortis................  ......................  ..........
Nitrobenzene.......................       98953  Nitrobenzol, oil of mirbane  ......................  ..........
Nitrogen dioxide...................    10102440  Nitrogen tetraoxide........  ......................  ..........
Nitrophenol (mixed)................    25154556  Mononitrophenol............  m-....................      554847
                                                                              o-....................       88755
                                                                              p-....................      100027
Nitrotoluene.......................     1321126  ...........................  Ortho.................       88722
                                                                              Meta..................       99081
                                                                              Para..................       99990
Paraformaldehyde...................    30525894  Paraform, Formagene,         ......................  ..........
                                                  Triformol, polymerized
                                                  formaldehyde,
                                                  polyoxymethylene.
Parathion..........................       56382  DNTP, Niran................  ......................  ..........
Pentachlorophenol..................       87865  PCP, Penta.................  ......................  ..........
Phenol.............................      108952  Carbolic acid, phenyl        ......................  ..........
                                                  hydroxide, hydroxybenzene,
                                                  oxybenzene.
Phosgene...........................       75445  Diphosgene, carbonyl         ......................  ..........
                                                  chloride, chloroformyl
                                                  chloride.
Phosphoric acid....................     7664382  Orthophosphoric acid.......  ......................  ..........
Phosphorus.........................     7723140  Black phosphorus, red        ......................  ..........
                                                  phosphorus, white
                                                  phosphorus, yellow
                                                  phosphorus.
Phosphorus oxychloride.............    10025873  Phosphoryl chloride,         ......................  ..........
                                                  phosphorus chloride.
Phosphorus pentasulfide............     1314803  Phosphoric sulfide,          ......................  ..........
                                                  thiophosphoric anhydride,
                                                  phosphorus persulfide.
Phosphorus trichloride.............     7719122  Phosphorous chloride.......  ......................  ..........
Polychorinated biphenyls...........     1336363  PCB, Aroclor,                ......................  ..........
                                                  polychlorinated diphenyls.
Potassium arsenate.................     7784410  ...........................  ......................  ..........
Potassium arsenite.................    10124502  Potassium metaarsenite.....  ......................  ..........
Potassium bichromate...............     7778509  Potassium dichromate.......  ......................  ..........
Potassium chromate.................     7789006  ...........................  ......................  ..........
Potassium cyanide..................      151508  ...........................  ......................  ..........
Potassium hydroxide................     1310583  Potassium hydrate, caustic   ......................  ..........
                                                  potash, potassa.
Potassium permanganate.............     7722647  Chameleon mineral..........  ......................  ..........
Propargite.........................     2312358  Omite......................  ......................  ..........
Propionic acid.....................       79094  Propanoic acid,              ......................  ..........
                                                  methylacetic acid,
                                                  ethylformic acid.
Propionic anhydride................      123626  Propanoic anhydride,         ......................  ..........
                                                  methylacetic anhydride.
Propylene oxide....................       75569  Propene oxide..............  ......................  ..........
Pyrethrins.........................      121299  Pyrethrin I................  ......................  ..........
                                         121211  Pyrethrin II...............  ......................  ..........
Quinoline..........................       91225  1-benzazine,                 ......................  ..........
                                                  benzo(b)pyridine,
                                                  leuocoline, chinoleine,
                                                  leucol.
Resorcinol.........................      108463  Resorcin, 1,3-benzenediol,   ......................  ..........
                                                  meta-dihydroxybenzene.
Selenium oxide.....................     7446084  Selenium dioxide...........  ......................  ..........
Silver nitrate.....................     7761888  Nitric acid silver (1+)      ......................  ..........
                                                  salt lunar caustic.
Sodium.............................     7440235  Natrium....................  ......................  ..........
Sodium arsenate....................     7631892  Disodium arsenate..........  ......................  ..........
Sodium arsenite....................     7784465  Sodium metaarsenite........  ......................  ..........
Sodium bichromate..................    10588019  Sodium dichromate..........  ......................  ..........
Sodium bifluoride..................     1333831  ...........................  ......................  ..........
Sodium bisulfite...................     7631905  Sodium acid sulfite, sodium  ......................  ..........
                                                  hydrogen sulfite.
Sodium chromate....................     7775113  ...........................  ......................  ..........
Sodium cyanide.....................      143339  ...........................  ......................  ..........
Sodium dodecylbenzene-sulfonate....    25155300  ...........................  ......................  ..........
Sodium fluoride....................     7681494  Villiaumite................  ......................  ..........
Sodium hydrosulfide................    16721805  Sodium hydrogen sulfide....  ......................  ..........
Sodium hydroxide...................     1310732  Caustic soda, soda lye,      ......................  ..........
                                                  sodium hydrate.
Sodium hypochlorite................     7681529  Bleach.....................  ......................  ..........
                                       10022705  ...........................  ......................  ..........
Sodium methylate...................      124414  Sodium methoxide...........  ......................  ..........

[[Page 706]]

 
Sodium nitrite.....................     7632000  ...........................  ......................  ..........
Sodium phosphate, dibasic..........     7558794  ...........................  ......................  ..........
                                       10039324  ...........................  ......................  ..........
                                       10140655  ...........................  ......................  ..........
Sodium phosphate, tribasic.........     7785844  ...........................  ......................  ..........
                                        7601549  ...........................  ......................  ..........
                                       10101890  ...........................  ......................  ..........
                                       10361894  ...........................  ......................  ..........
                                        7758294  ...........................  ......................  ..........
                                       10124568  ...........................  ......................  ..........
Sodium selenite....................    10102188  ...........................  ......................  ..........
                                        7782823  ...........................  ......................  ..........
Strontium chromate.................     7789062  ...........................  ......................  ..........
Strychnine.........................       57249  ...........................  ......................  ..........
Styrene............................      100425  Vinylbenzene,                ......................  ..........
                                                  phenylethylene, styrol,
                                                  styrolene, cinnamene,
                                                  cinnamol.
Sulfuric acid......................     7664939  Oil of vitriol, oleum......  ......................  ..........
Sulfur monochloride................    12771083  Sulfur chloride............  ......................  ..........
2,4,5-T acid.......................       93765  2,4,5-                       ......................  ..........
                                                  trichlorophenoxyacetic
                                                  acid.
2,4,5-T amines.....................     6369966  Acetic acid (2,4,5-          ......................  ..........
                                                  trichlorophenoxy)-compound
                                                  with N,N-
                                                  dimethylmethanamine (1:1).
                                        6369977  Acetic acid (2,4,5-          ......................  ..........
                                                  trichlorophenoxy)-compound
                                                  with N-methylmethanamine
                                                  (1:1).
                                        1319728  Acetic acid (2,4,5-          ......................  ..........
                                                  trichlorophenoxy)-compound
                                                  with 1-amino-2-propanol
                                                  (1:1).
                                        3813147  Acetic acid (2,4,5-          ......................  ..........
                                                  trichlorophenoxy)-compound
                                                  with 2,2'2''-nitrilotris
                                                  [ethanol] (1:1).
2,4,5-T esters.....................     2545597  2,4,5-                       ......................  ..........
                                                  trichlorophenoxyacetic
                                                  esters.
                                          93798  ...........................  ......................  ..........
                                       61792072  ...........................  ......................  ..........
                                        1928478  ...........................  ......................  ..........
                                       25168154  ...........................  ......................  ..........
2,4,5-T salts......................    13560991  Acetic acid (2,4,5-          ......................  ..........
                                                  trichlorophenoxy)-sodium
                                                  salt.
TDE................................       72548  DDD........................  ......................  ..........
2,4,5-TP acid......................       93721  Propanoic acid 2-(2,4,5-     ......................  ..........
                                                  trichlorophenoxy).
2,4,5-TP esters....................    32534955  Propanoic acid, 2-(2,4,5-    ......................  ..........
                                                  trichlorophenoxy)-,
                                                  isooctyl ester.
Tetraethyl lead....................       78002  Lead tetraethyl, TEL.......  ......................  ..........
Tetraethyl pyrophosphate...........      107493  TEPP.......................  ......................  ..........
Thallium sulfate...................    10031591  ...........................  ......................  ..........
                                        7446186  ...........................  ......................  ..........
Toluene............................      108883  Toluol, methylbenzene,       ......................  ..........
                                                  phenylmethane, Methacide.
Toxaphene..........................     8001352  Camphechlor................  ......................  ..........
Trichlorfon........................       52686  Dipterex...................  ......................  ..........
                                                 Dylox......................  ......................  ..........
Trichlorethylene...................       79016  Ethylene trichloride.......  ......................  ..........
Trichlorophenol....................    25167822  Collunosol, Dowicide 2 or    (2,3,4-)..............    15950660
                                                  2S, Omal, Phenachlor.       (2,3,5-)..............      933788
                                                                              (2,3,6-)..............      933755
                                                                              (2,4,5-)..............       95954
                                                                              (2,4,6-)..............       88062
                                                                              (3,4,5-)..............      609198
Triethanolamine                        27323417  ...........................  ......................  ..........
 dodecylbenzenesulfonate.
Triethylamine......................      121448  ...........................  ......................  ..........
Trimethylamine.....................       75503  TMA........................  ......................  ..........
Uranyl acetate.....................      541093  ...........................  ......................  ..........
Uranyl nitrate.....................    10102064  ...........................  ......................  ..........
                                       36478769  ...........................  ......................  ..........
Vanadium pentoxide.................     1314621  Vanadic anhydride, vanadic   ......................  ..........
                                                  acid anhydride.
Vanadyl sulfate....................    27774136  Vanadic sulfate, vanadium    ......................  ..........
                                                  sulfate.
Vinyl acetate......................      108054  Acetic acid ethylene ether.  ......................  ..........
Vinylidene chloride................       75354  1,1-dichlorethylene........  ......................  ..........
                                                 1,1-dichloroethene.........  ......................  ..........
Xylene (mixed).....................     1330207  Dimethylbenzene............  m-....................      108383
                                                 Xylol......................  o-....................       95476
                                                                              p-....................      106423
Xylenol............................     1300716  Dimethylphenol,              ......................  ..........
                                                  hydroxydimethylbenzene.
Zinc acetate.......................      557346  ...........................  ......................  ..........
Zinc ammonium chloride.............    14639975  ...........................  ......................  ..........

[[Page 707]]

 
                                       14639986  ...........................  ......................  ..........
                                       52628258  ...........................  ......................  ..........
Zinc borate........................     1332076  ...........................  ......................  ..........
Zinc bromide.......................     7699458  ...........................  ......................  ..........
Zinc carbonate.....................     3486359  ...........................  ......................  ..........
Zinc chloride......................     7646857  Butter of zinc.............  ......................  ..........
Zinc cyanide.......................      557211  ...........................  ......................  ..........
Zinc fluoride......................     7783495  ...........................  ......................  ..........
Zinc formate.......................      557415  ...........................  ......................  ..........
Zinc hydrosulfite..................     7779864  ...........................  ......................  ..........
Zinc nitrate.......................     7779886  ...........................  ......................  ..........
Zinc phenolsulfonate...............      127822  Zinc sulfocarbolate........  ......................  ..........
Zinc phosphide.....................     1314847  ...........................  ......................  ..........
Zinc silicofluoride................    16871719  Zinc fluosilicate..........  ......................  ..........
Zinc sulfate.......................     7733020  White vitriol, zinc          ......................  ..........
                                                  vitriol, white copperas.
Zirconium nitrate..................    13746899  ...........................  ......................  ..........
Zirconium potassium fluoride.......    16923958  ...........................  ......................  ..........
Zirconium sulfate..................    14644612  Disulfatozirconic acid.....  ......................  ..........
Zirconium tetrachloride............    10026116  ...........................  ......................  ..........
----------------------------------------------------------------------------------------------------------------


        Table 116.4B--List of Hazardous Substances by CAS Number
------------------------------------------------------------------------
               CAS No.                            Common name
------------------------------------------------------------------------
50000...............................  Formaldehyde
50293...............................  DDT
51285...............................  2,4-Dinitrophenol
52686...............................  Trichlorfon
56382...............................  Parathion
56724...............................  Coumaphos
57249...............................  Strychnine
57749...............................  Chlordane
58899...............................  Lindane
60004...............................  Ethylenediaminetetraacetic
                                        acid (EDTA)
60571...............................  Dieldrin
62533...............................  Aniline
62737...............................  Dichlorvos
63252...............................  Carbaryl
64186...............................  Formic acid
64197...............................  Acetic acid
65850...............................  Benzoic acid
67663...............................  Chloroform
71432...............................  Benzene
72208...............................  Endrin
72435...............................  Methoxychlor
72548...............................  TDE
74895...............................  Monomethylamine
74908...............................  Hydrogen cyanide
74931...............................  Methyl mercaptan
75047...............................  Monoethylamine
75070...............................  Acetaldehyde
75150...............................  Carbon disulfide
75207...............................  Calcium carbide
75445...............................  Phosgene
75503...............................  Trimethylamine
75649...............................  tert-Butylamine
75865...............................  Acetone cyanohydrin
75990...............................  2,2-Dichloropropionic acid
76448...............................  Heptachlor
78002...............................  Tetraethyl lead
78795...............................  Isoprene
78819...............................  iso-Butylamine
79094...............................  Propionic acid
79312...............................  iso-Butyric acid
79367...............................  Acetyl chloride
80626...............................  Methyl methacrylate
85007...............................  Diquat
86500...............................  Guthion
87865...............................  Pentachlorophenol
88755...............................  o-Nitrophenol
91203...............................  Naphthalene
91225...............................  Quinoline
93765...............................  2,4,5-T acid
93798...............................  2,4,5-T ester
94111...............................  2,4-D ester
94757...............................  2,4-D acid
94791...............................  2,4-D ester
94804...............................  2,4-D Butyl ester
95476...............................  o-Xylene
95487...............................  o-Cresol
98011...............................  Furfural
98884...............................  Benzoyl chloride
98953...............................  Nitrobenzene
99650...............................  m-Dinitrobenzene
100027..............................  p-Nitrophenol
100254..............................  p-Dinitrobenzene
100414..............................  Ethylbenzene
100425..............................  Styrene
100447..............................  Benzyl chloride
100470..............................  Benzonitrile
105464..............................  sec-Butyl acetate
106423..............................  p-Xylene
106445..............................  p-Cresol
107028..............................  Acrolein
107051..............................  Allyl chloride
107131..............................  Acrylonitrile
107153..............................  Ethylenediamine
107186..............................  Allyl alcohol
107493..............................  Tetraethyl pyrophosphate
107926..............................  n-Butyric acid
108054..............................  Vinyl acetate
108247..............................  Acetic anhydride
108316..............................  Maleic anhydride
108383..............................  m-Xylene
108394..............................  m-Cresol
108463..............................  Resorcinol
108883..............................  Toluene
108907..............................  Chlorobenzene
108952..............................  Phenol
109739..............................  n-Butylamine
109897..............................  Diethylamine
110167..............................  Maleic acid
110178..............................  Fumaric acid
110190..............................  iso-Butyl acetate
110827..............................  Cyclohexane

[[Page 708]]

 
115297..............................  Endosulfan
115322..............................  Dicofol
117806..............................  Dichlone
121211..............................  Pyrethrin
121299..............................  Pyrethrin
121448..............................  Triethylamine
121755..............................  Malathion
123626..............................  Propionic anhydride
123864..............................  n-Butyl acetate
123922..............................  iso-Amyl acetate
124403..............................  Dimethylamine
124414..............................  Sodium methylate
127822..............................  Zinc phenolsulfonate
133062..............................  Captan
142712..............................  Cupric acetate
143339..............................  Sodium cyanide
151508..............................  Potassium cyanide
298000..............................  Methyl parathion
298044..............................  Disulfoton
300765..............................  Naled
301042..............................  Lead acetate
309002..............................  Aldrin
315184..............................  Mexacarbate
329715..............................  2,5-Dinitrophenol
330541..............................  Diuron
333415..............................  Diazinon
506774..............................  Cyanogen chloride
506876..............................  Ammonium carbonate
506967..............................  Acetyl bromide
513495..............................  sec-Butylamine
528290..............................  o-Dinitrobenzene
540885..............................  tert-Butyl acetate
541093..............................  Uranyl acetate
542621..............................  Barium cyanide
543908..............................  Cadmium acetate
544183..............................  Cobaltous formate
554847..............................  m-Nitrophenol
557211..............................  Zinc cyanide
557346..............................  Zinc acetate
557415..............................  Zinc formate
563122..............................  Ethion
573568..............................  2,6-Dinitrophenol
592018..............................  Calcium cyanide
592041..............................  Mercuric cyanide
592858..............................  Mercuric thiocyanate
592870..............................  Lead thiocyanate
625161..............................  tert-Amyl acetate
626380..............................  sec-Amyl acetate
628637..............................  n-Amyl acetate
631618..............................  Ammonium acetate
815827..............................  Cupric tartrate
1066304.............................  Chromic acetate
1066337.............................  Ammonium bicarbonate
1072351.............................  Lead stearate
1111780.............................  Ammonium carbamate
1185575.............................  Ferric ammonium citrate
1194656.............................  Dichlobenil
1300716.............................  Xylenol
1303282.............................  Arsenic pentoxide
1303328.............................  Arsenic disulfide
1303339.............................  Arsenic trisulfide
1309644.............................  Antimony trioxide
1310583.............................  Potassium hydroxide
1310732.............................  Sodium hydroxide
1314621.............................  Vanadium pentoxide
1314803.............................  Phosphorus pentasulfide
1314847.............................  Zinc phosphide
1314870.............................  Lead sulfide
1319773.............................  Cresol (mixed)
1320189.............................  2,4-D ester
1327533.............................  Arsenic trioxide
1330207.............................  Xylene
1332076.............................  Zinc borate
1333831.............................  Sodium bifluoride
1336216.............................  Ammonium hydroxide
1336363.............................  Polychlorinated biphenyls
1338245.............................  Naphthenic acid
1341497.............................  Ammonium bifluoride
1762954.............................  Ammonium thiocyanate
1863634.............................  Ammonium benzoate
1918009.............................  Dicamba
1928387.............................  2,4-D esters
1928478.............................  2,4,5-T ester
1928616.............................  2,4-D ester
1929733.............................  2,4-D ester
2545597.............................  2,4,5-T ester
2764729.............................  Diquat
2921882.............................  Chlorpyrifos
2944674.............................  Ferric ammonium oxalate
2971382.............................  2,4-D ester
3012655.............................  Ammonium citrate, dibasic
3164292.............................  Ammonium tartrate
3251238.............................  Cupric nitrate
3486359.............................  Zinc carbonate
5893663.............................  Cupric oxalate
5972736.............................  Ammonium oxalate
6009707.............................  Ammonium oxalate
6369966.............................  2,4,5-T ester
7428480.............................  Lead stearate
7440235.............................  Sodium
7446084.............................  Selenium oxide
7446142.............................  Lead sulfate
7447394.............................  Cupric chloride
7558794.............................  Sodium phosphate, dibasic
7601549.............................  Sodium phosphate, tribasic
7631892.............................  Sodium arsenate
7631905.............................  Sodium bisulfite
7632000.............................  Sodium nitrite
7645252.............................  Lead arsenate
7646857.............................  Zinc chloride
7647010.............................  Hydrochloric acid
7647189.............................  Antimony pentachloride
7664382.............................  Phosphoric acid
7664393.............................  Hydrofluoric acid
7664417.............................  Ammonia
7664939.............................  Sulfuric acid
7681494.............................  Sodium fluoride
7681529.............................  Sodium hypochlorite
7697372.............................  Nitric acid
7699458.............................  Zinc bromide
7705080.............................  Ferric chloride
7718549.............................  Nickel chloride
7719122.............................  Phosphorus trichloride
7720787.............................  Ferrous sulfate
7722647.............................  Potassium permanganate
7723140.............................  Phosphorus
7733020.............................  Zinc sulfate
7758294.............................  Sodium phosphate, tribasic
7758943.............................  Ferrous chloride
7758954.............................  Lead chloride
7758987.............................  Cupric sulfate
7773060.............................  Ammonium sulfamate
7775113.............................  Sodium chromate
7778441.............................  Calcium arsenate
7778509.............................  Potassium bichromate
7778543.............................  Calcium hypochlorite
7779864.............................  Zinc hydrosulfite
7779886.............................  Zinc nitrate
7782505.............................  Chlorine
7782630.............................  Ferrous sulfate
7782823.............................  Sodium selenite
7782867.............................  Mercurous nitrate

[[Page 709]]

 
7783359.............................  Mercuric sulfate
7783462.............................  Lead fluoride
7783495.............................  Zinc fluoride
7783508.............................  Ferric fluoride
7783564.............................  Antimony trifluoride
7784341.............................  Arsenic trichloride
7784409.............................  Lead arsenate
7784410.............................  Potassium arsenate
7784465.............................  Sodium arsenite
7785844.............................  Sodium phosphate, tribasic
7786347.............................  Mevinphos
7786814.............................  Nickel sulfate
7787475.............................  Beryllium chloride
7787497.............................  Beryllium fluoride
7787555.............................  Beryllium nitrate
7788989.............................  Ammonium chromate
7789006.............................  Potassium chromate
7789062.............................  Strontium chromate
7789095.............................  Ammonium bichromate
7789426.............................  Cadmium bromide
7789437.............................  Cobaltous bromide
7789619.............................  Antimony tribromide
7790945.............................  Chlorosulfonic acid
8001352.............................  Toxaphene
10022705............................  Sodium hypochlorite
10025873............................  Phosphorus oxychloride
10025919............................  Antimony trichloride
10026116............................  Zirconium tetrachloride
10028225............................  Ferric sulfate
10028247............................  Sodium phosphate, dibasic
10039324............................  Sodium phosphate, dibasic
10043013............................  Aluminum sulfate
10045893............................  Ferrous ammonium sulfate
10045940............................  Mercuric nitrate
10049055............................  Chromous chloride
10099748............................  Lead nitrate
10101538............................  Chromic sulfate
10101630............................  Lead iodide
10101890............................  Sodium phosphate, tribasic
10102064............................  Uranyl nitrate
10102188............................  Sodium selenite
10102440............................  Nitrogen dioxide
10102484............................  Lead arsenate
10108642............................  Cadmium chloride
10124502............................  Potassium arsenite
10124568............................  Sodium phosphate, tribasic
10140655............................  Sodium phosphate, dibasic
10192300............................  Ammonium bisulfite
10196040............................  Ammonium sulfite
10361894............................  Sodium phosphate, tribasic
10380297............................  Cupric sulfate, ammoniated
10415755............................  Mercurous nitrate
10421484............................  Ferric nitrate
10588019............................  Sodium bichromate
11115745............................  Chromic acid
12002038............................  Cupric acetoarsenite
12054487............................  Nickel hydroxide
12125018............................  Ammonium fluoride
12125029............................  Ammonium chloride
12135761............................  Ammonium sulfide
12771083............................  Sulfur chloride
13597994............................  Beryllium nitrate
13746899............................  Zirconium nitrate
13765190............................  Calcium chromate
13814965............................  Lead fluoborate
13826830............................  Ammonium fluoborate
13952846............................  sec-Butylamine
14017415............................  Cobaltous sulfamate
14216752............................  Nickel nitrate
14258492............................  Ammonium oxalate
14307358............................  Lithium chromate
14307438............................  Ammonium tartrate
14639975............................  Zinc ammonium chloride
14639986............................  Zinc ammonium chloride
14644612............................  Zirconium sulfate
15699180............................  Nickel ammonium sulfate
16721805............................  Sodium hydrosulfide
16871719............................  Zinc silicofluoride
16919190............................  Ammonium silicofluoride
16923958............................  Zirconium potassium fluoride
25154545............................  Dinitrobenzene
25154556............................  Nitrophenol
25155300............................  Sodium dodecylbenzenesulfonate
25167822............................  Trichlorophenol
25168154............................  2,4,5-T ester
25168267............................  2,4-D ester
26264062............................  Calcium dodecylbenzenesulfonate
27176870............................  Dodecylbenzenesulfonic acid
27323417............................  Triethanolamine
                                       dodecylbenzenesulfonate
27774136............................  Vanadyl sulfate
28300745............................  Antimony potassium tartrate
30525894............................  Paraformaldehyde
36478769............................  Uranyl nitrate
37211055............................  Nickel chloride
42504461............................  Dodecylbenzenesulfonate
                                       isopropanolamine
52628258............................  Zinc ammonium chloride
52740166............................  Calcium arsenite
53467111............................  2,4-D ester
55488874............................  Ferric ammonium oxalate
61792072............................  2,4,5-T ester
------------------------------------------------------------------------


[43 FR 10474, Mar. 13, 1978; 43 FR 27533, June 26, 1978, as amended at 
44 FR 10268, Feb. 16, 1979; 44 FR 65400, Nov. 13, 1979; 44 FR 66602, 
Nov. 20, 1979; 54 FR 33482, Aug. 14, 1989]



PART 117--DETERMINATION OF REPORTABLE QUANTITIES FOR HAZARDOUS SUBSTANCES--Table of Contents




                      Subpart A--General Provisions

Sec.
117.1  Definitions.
117.2  Abbreviations.
117.3  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  Notice.
117.23  Liabilities for removal.


[[Page 710]]


    Authority: Secs. 311 and 501(a), Federal Water Pollution Control Act 
(33 U.S.C. 1251 et seq.), (``the Act'') and Executive Order 11735, 
superseded by Executive Order 12777, 56 FR 54757.

    Source: 44 FR 50776, Aug. 29, 1979, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 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 Sec. 117.3, the discharge of which is a violation of 
section 311(b)(3) and requires notice as set forth in Sec. 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 contains or carries a reportable quantity of a 
hazardous substance.
    (d) Public record means the NPDES permit application 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 containing 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 incorporated 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 
municipality (as defined by section 502(4) of the Act). This definition 
includes any sewers that convey wastewater to such a treatment works, 
but does not include pipes, sewers or other conveyances not connected to 
a facility providing treatment. The term also means the municipality as 
defined in section 502(4) of the Act, which has jurisdiction over the 
indirect discharges to and the discharges 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 established by the United 
States under Article 24 of the Convention on the Territorial Sea and 
Contiguous 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 waters which are subject to the ebb and flow of the tide;
    (2) Interstate waters, including interstate wetlands;
    (3) All other waters such as intrastate lakes, rivers, streams, 
(including intermittent streams), mudflats, sandflats, and wetlands, the 
use, degradation or destruction of which would affect or could affect 
interstate or foreign commerce including any such waters:
    (i) Which are or could be used by interstate or foreign travelers 
for recreational or other purposes;
    (ii) From which fish or shellfish are or could be taken and sold in 
interstate or foreign commerce;
    (iii) Which are used or could be used for industrial purposes by 
industries in interstate commerce;
    (4) All impoundments of waters otherwise defined as navigable waters 
under this paragraph;
    (5) Tributaries of waters identified in paragraphs (i) (1) through 
(4) of this section, including adjacent wetlands; and
    (6) Wetlands adjacent to waters identified in paragraphs (i) (1) 
through (5) of this section (``Wetlands'' means those areas that are 
inundated or saturated by surface or ground water at a frequency and 
duration sufficient to support, and that under normal circumstances do 
support, a prevalence of vegetation typically adapted for life in

[[Page 711]]

saturated soil conditions. Wetlands generally included playa lakes, 
swamps, marshes, bogs, and similar areas such as sloughs, prairie 
potholes, wet meadows, prairie river overflows, mudflats, and natural 
ponds): Provided, That waste treatment systems (other than cooling ponds 
meeting the criteria of this paragraph) 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.

    (j) Process waste water means any water which, during manufacturing 
or processing, comes into direct contact with or results from the 
production or use of any raw material, intermediate product, finished 
product, byproduct, or waste product.

[44 FR 50776, Aug. 29, 1979, as amended at 58 FR 45039, Aug. 25, 1993]



Sec. 117.2  Abbreviations.

    NPDES equals National Pollutant Discharge Elimination System. RQ 
equals reportable quantity.



Sec. 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 reportable quantity listed in Table 302.4 for 
that substance.

 Table 117.3--Reportable Quantities of Hazardous 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 ``Category'' which lists the code letters ``X'', ``A'', ``B'', 
``C'', and ``D'' associated with reportable quantities of 1, 10, 100, 
1000, and 5000 pounds, respectively.

  Table 117.3--Reportable Quantities of Hazardous Substances Designated
             Pursuant to Section 311 of the Clean Water Act
------------------------------------------------------------------------
                                                         RQ in pounds
            Material                   Category           (kilograms)
------------------------------------------------------------------------
Acetaldehyde....................  C.................  1,000 (454)
Acetic acid.....................  D.................  5,000 (2,270)
Acetic anhydride................  D.................  5,000 (2,270)
Acetone cyanohydrin.............  A.................  10 (4.54)
Acetyl bromide..................  D.................  5,000 (2,270)
Acetyl chloride.................  D.................  5,000 (2,270)
Acrolein........................  X.................  1 (0.454)
Acrylonitrile...................  B.................  100 (45.4)
Adipic acid.....................  D.................  5,000 (2,270)
Aldrin..........................  X.................  1 (0.454)
Allyl alcohol...................  B.................  100 (45.4)
Allyl chloride..................  C.................  1,000 (454)
Aluminum sulfate................  D.................  5,000 (2,270)
Ammonia.........................  B.................  100 (45.4)
Ammonium acetate................  D.................  5,000 (2,270)
Ammonium benzoate...............  D.................  5,000 (2,270)
Ammonium bicarbonate............  D.................  5,000 (2,270)
Ammonium bichromate.............  A.................  10 (4.54)
Ammonium bifluoride.............  B.................  100 (45.4)
Ammonium bisulfite..............  D.................  5,000 (2,270)
Ammonium carbamate..............  D.................  5,000 (2,270)
Ammonium carbonate..............  D.................  5,000 (2,270)
Ammonium chloride...............  D.................  5,000 (2,270)
Ammonium chromate...............  A.................  10 (4.54)
Ammonium citrate dibasic........  D.................  5,000 (2,270)
Ammonium fluoborate.............  D.................  5,000 (2,270)
Ammonium fluoride...............  B.................  100 (45.4)
Ammonium hydroxide..............  C.................  1,000 (454)
Ammonium oxalate................  D.................  5,000 (2,270)
Ammonium silicofluoride.........  C.................  1,000 (454)
Ammonium sulfamate..............  D.................  5,000 (2,270)
Ammonium sulfide................  B.................  100 (45.4)
Ammonium sulfite................  D.................  5,000 (2,270)
Ammonium tartrate...............  D.................  5,000 (2,270)
Ammonium thiocyanate............  D.................  5,000 (2,270)

[[Page 712]]

 
Amyl acetate....................  D.................  5,000 (2,270)
Aniline.........................  D.................  5,000 (2,270)
Antimony pentachloride..........  C.................  1,000 (454)
Antimony potassium tartrate.....  B.................  100 (45.4)
Antimony tribromide.............  C.................  1,000 (454)
Antimony trichloride............  C.................  1,000 (454)
Antimony trifluoride............  C.................  1,000 (454)
Antimony trioxide...............  C.................  1,000 (454)
Arsenic disulfide...............  X.................  1 (0.454)
Arsenic pentoxide...............  X.................  1 (0.454)
Arsenic trichloride.............  X.................  1 (0.454)
Arsenic trioxide................  X.................  1 (0.454)
Arsenic trisulfide..............  X.................  1 (0.454)
Barium cyanide..................  A.................  10 (4.54)
Benzene.........................  A.................  10 (4.54)
Benzoic acid....................  D.................  5,000 (2,270)
Benzonitrile....................  D.................  5,000 (2,270)
Benzoyl chloride................  C.................  1,000 (454)
Benzyl chloride.................  B.................  100 (45.4)
Beryllium chloride..............  X.................  1 (0.454)
Beryllium fluoride..............  X.................  1 (0.454)
Beryllium nitrate...............  X.................  1 (0.454)
Butyl acetate...................  D.................  5,000 (2,270)
Butylamine......................  C.................  1,000 (454)
n-Butyl phthalate...............  A.................  10 (4.54)
Butyric acid....................  D.................  5,000 (2,270)
Cadmium acetate.................  A.................  10 (4.54)
Cadmium bromide.................  A.................  10 (4.54)
Cadmium chloride................  A.................  10 (4.54)
Calcium arsenate................  X.................  1 (0.454)
Calcium arsenite................  X.................  1 (0.454)
Calcium carbide.................  A.................  10 (4.54)
Calcium chromate................  A.................  10 (4.54)
Calcium cyanide.................  A.................  10 (4.54)
Calcium dodecylbenzenesulfonate.  C.................  1,000 (454)
Calcium hypochlorite............  A.................  10 (4.54)
Captan..........................  A.................  10 (4.54)
Carbaryl........................  B.................  100 (45.4)
Carbofuran......................  A.................  10 (4.54)
Carbon disulfide................  B.................  100 (45.4)
Carbon tetrachloride............  A.................  10 (4.54)
Chlordane.......................  X.................  1 (0.454)
Chlorine........................  A.................  10 (4.54)
Chlorobenzene...................  B.................   100 (45.4)
Chloroform......................  A.................  10 (4.54)
Chlorosulfonic acid.............  C.................  1,000 (454)
Chlorpyrifos....................  X.................  1 (0.454)
Chromic acetate.................  C.................  1,000 (454)
Chromic acid....................  A.................  10 (4.54)
Chromic sulfate.................  C.................  1,000 (454)
Chromous chloride...............  C.................  1,000 (454)
Cobaltous bromide...............  C.................  1,000 (454)
Cobaltous formate...............  C.................  1,000 (454)
Cobaltous sulfamate.............  C.................  1,000 (454)
Coumaphos.......................  A.................  10 (4.54)
Cresol..........................  B.................  100 (45.4)
Crotonaldehyde..................  B.................   100 (45.4)
Cupric acetate..................  B.................   100 (45.4)
Cupric acetoarsenite............  X.................  1 (0.454)
Cupric chloride.................  A.................  10 (4.54)
Cupric nitrate..................  B.................  100 (45.4)
Cupric oxalate..................  B.................  100 (45.4)
Cupric sulfate..................  A.................  10 (4.54)
Cupric sulfate, ammoniated......  B.................  100 (45.4)
Cupric tartrate.................  B.................  100 (45.4)
Cyanogen chloride...............  A.................  10 (4.54)
Cyclohexane.....................  C.................  1,000 (454)
2,4-D Acid......................  B.................  100 (45.4)
2,4-D Esters....................  B.................  100 (45.4)
DDT.............................  X.................  1 (0.454)
Diazinon........................  X.................  1 (0.454)

[[Page 713]]

 
Dicamba.........................  C.................  1,000 (454)
Dichlobenil.....................  B.................  100 (45.4)
Dichlone........................  X.................  1 (0.454)
Dichlorobenzene.................  B.................  100 (45.4)
Dichloropropane.................  C.................  1,000 (454)
Dichloropropene.................  B.................  100 (45.4)
Dichloropropene-Dichloropropane   B.................  100 (45.4)
 (mixture).
2,2-Dichloropropionic acid......  D.................  5,000 (2,270)
Dichlorvos......................  A.................  10 (4.54)
Dicofol.........................  A.................  10 (4.54)
Dieldrin........................  X.................  1 (0.454)
Diethylamine....................  B.................  100 (45.4)
Dimethylamine...................  C.................  1,000 (454)
Dinitrobenzene (mixed)..........  B.................  100 (45.4)
Dinitrophenol...................  A.................  10 (45.4)
Dinitrotoluene..................  A.................  10 (4.54)
Diquat..........................  C.................  1,000 (454)
Disulfoton......................  X.................  1 (0.454)
Diuron..........................  B.................  100 (45.4)
Dodecylbenzenesulfonic acid.....  C.................  1,000 (454)
Endosulfan......................  X.................  1 (0.454)
Endrin..........................  X.................  1 (0.454)
Epichlorohydrin.................  B.................  100 (45.4)
Ethion..........................  A.................  10 (4.54)
Ethylbenzene....................  C.................  1,000 (454)
Ethylenediamine.................  D.................  5,000 (2,270)
Ethylenediamine-tetraacetic acid  D.................  5,000 (2,270)
 (EDTA).
Ethylene dibromide..............  X.................  1 (0.454)
Ethylene dichloride.............  B.................  100 (45.4)
Ferric ammonium citrate.........  C.................  1,000 (454)
Ferric ammonium oxalate.........  C.................  1,000 (454)
Ferric chloride.................  C.................  1,000 (454)
Ferric fluoride.................  B.................  100 (45.4)
Ferric nitrate..................  C.................  1,000 (454)
Ferric sulfate..................  C.................  1,000 (454)
Ferrous ammonium sulfate........  C.................  1,000 (454)
Ferrous chloride................  B.................  100 (45.4)
Ferrous sulfate.................  C.................  1,000 (454)
Formaldehyde....................  B.................  100 (45.4)
Formic acid.....................  D.................  5,000 (2,270)
Fumaric acid....................  D.................  5,000 (2,270)
Furfural........................  D.................  5,000 (2,270)
Guthion.........................  X.................  1 (0.454)
Heptachlor......................  X.................  1 (0.454)
Hexachlorocyclopentadiene.......  A.................  10 (4.54)
Hydrochloric acid...............  D.................  5,000 (2,270)
Hydrofluoric acid...............  B.................  100 (45.4)
Hydrogen cyanide................  A.................  10 (4.54)
Hydrogen sulfide................  B.................  100 (45.4)
Isoprene........................  B.................  100 (45.4)
Isopropanolamine                  C.................  1,000 (454)
 dodecylbenzenesulfonate.
Kepone..........................  X.................  1 (0.454)
Lead acetate....................  A.................  10 (4.54)
Lead arsenate...................  X.................  1 (0.454)
Lead chloride...................  A.................  10 (4.54)
Lead fluoborate.................  A.................  10 (4.54)
Lead fluoride...................  A.................  10 (4.54)
Lead iodide.....................  A.................  10 (4.54)
Lead nitrate....................  A.................  10 (4.54)
Lead stearate...................  A.................  10 (4.54)
Lead sulfate....................  A.................  10 (4.54)
Lead sulfide....................  A.................  10 (4.54)
Lead thiocyanate................  A.................  10 (4.54)
Lindane.........................  X.................  1 (0.454)
Lithium chromate................  A.................  10 (4.54)
Malathion.......................  B.................  100 (45.4)
Maleic acid.....................  D.................  5,000 (2,270)
Maleic anhydride................  D.................  5,000 (2,270)
Mercaptodimethur................  A.................  10 (4.54)
Mercuric cyanide................  X.................  1 (0.454)
Mercuric nitrate................  A.................  10 (4.54)

[[Page 714]]

 
Mercuric sulfate................  A.................  10 (4.54)
Mercuric thiocyanate............  A.................  10 (4.54)
Mercurous nitrate...............  A.................  10 (4.54)
Methoxychlor....................  X.................  1 (0.454)
Methyl mercaptan................  B.................   100 (45.4)
Methyl methacrylate.............  C.................  1,000 (454)
Methyl parathion................  B.................   100 (45.4)
Mevinphos.......................  A.................  10 (4.54)
Mexacarbate.....................  C.................  1,000 (454)
Monoethylamine..................  B.................   100 (45.4)
Monomethylamine.................  B.................   100 (45.4)
Naled...........................  A.................  10 (4.54)
Naphthalene.....................  B.................   100 (45.4)
Naphthenic acid.................  B.................   100 (45.4)
Nickel ammonium sulfate.........  B.................   100 (45.4)
Nickel chloride.................  B.................   100 (45.4)
Nickel hydroxide................  A.................  10 (4.54)
Nickel nitrate..................  B.................   100 (45.4)
Nickel sulfate..................  B.................  100 (45.4)
Nitric acid.....................  C.................  1,000 (454)
Nitrobenzene....................  C.................  1,000 (454)
Nitrogen dioxide................  A.................  10 (4.54)
Nitrophenol (mixed).............  B.................  100 (45.4)
Nitrotoluene....................  C.................  1,000 (454)
Paraformaldehyde................  C.................  1,000 (454)
Parathion.......................  A.................  10 (4.54)
Pentachlorophenol...............  A.................  10 (4.54)
Phenol..........................  C.................  1,000 (454)
Phosgene........................  A.................  10 (4.54)
Phosphoric acid.................  D.................  5,000 (2,270)
Phosphorus......................  X.................  1 (0.454)
Phosphorus oxychloride..........  C.................  1,000 (454)
Phosphorus pentasulfide.........  B.................  100 (45.4)
Phosphorus trichloride..........  C.................  1,000 (454)
Polychlorinated biphenyls.......  X.................  1 (0.454)
Potassium arsenate..............  X.................  1 (0.454)
Potassium arsenite..............  X.................  1 (0.454)
Potassium bichromate............  A.................  10 (4.54)
Potassium chromate..............  A.................  10 (4.54)
Potassium cyanide...............  A.................  10 (4.54)
Potassium hydroxide.............  C.................  1,000 (454)
Potassium permanganate..........  B.................  100 (45.4)
Propargite......................  A.................  10 (4.54)
Propionic acid..................  D.................  5,000 (2,270)
Propionic anhydride.............  D.................  5,000 (2,270)
Propylene oxide.................  B.................  100 (45.4)
Pyrethrins......................  X.................  1 (0.454)
Quinoline.......................  D.................  5,000 (2,270)
Resorcinol......................  D.................  5,000 (2,270)
Selenium oxide..................  A.................  10 (4.54)
Silver nitrate..................  X.................  1 (0.454)
Sodium..........................  A.................  10 (4.54)
Sodium arsenate.................  X.................  1 (0.454)
Sodium arsenite.................  X.................  1 (0.454)
Sodium bichromate...............  A.................  10 (4.54)
Sodium bifluoride...............  B.................  100 (45.4)
Sodium bisulfite................  D.................  5,000 (2,270)
Sodium chromate.................  A.................  10 (4.54)
Sodium cyanide..................  A.................  10 (4.54)
Sodium dodecylbenzenesulfonate..  C.................  1,000 (454)
Sodium fluoride.................  C.................  1,000 (454)
Sodium hydrosulfide.............  D.................  5,000 (2,270)
Sodium hydroxide................  C.................  1,000 (454)
Sodium hypochlorite.............  B.................  100 (45.4)
Sodium methylate................  C.................  1,000 (454)
Sodium nitrite..................  B.................  100 (45.4)
Sodium phosphate, dibasic.......  D.................  5,000 (2,270)
Sodium phosphate, tribasic......  D.................  5,000 (2,270)
Sodium selenite.................  B.................  100 (45.4)
Strontium chromate..............  A.................  10 (4.54)
Strychnine......................  A.................  10 (4.54)

[[Page 715]]

 
Styrene.........................  C.................  1,000 (454)
Sulfuric acid...................  C.................  1,000 (454)
Sulfur monochloride.............  C.................  1,000 (454)
2,4,5-T acid....................  C.................  1,000 (454)
2,4,5-T amines..................  D.................  5,000 (2,270)
2,4,5-T esters..................  C.................  1,000 (454)
2,4,5-T salts...................  C.................  1,000 (454)
TDE.............................  X.................  1 (0.454)
2,4,5-TP acid...................  B.................  100 (45.4)
2,4,5-TP acid esters............  B.................  100 (45.4)
Tetraethyl lead.................  A.................  10 (4.54)
Tetraethyl pyrophosphate........  A.................  10 (4.54)
Thallium sulfate................  B.................  100 (45.4)
Toluene.........................  C.................  1,000 (454)
Toxaphene.......................  X.................  1 (0.454)
Trichlorfon.....................  B.................  100 (45.4)
Trichloroethylene...............  B.................  100 (45.4)
Trichlorophenol.................  A.................  10 (4.54)
Triethanolamine                   C.................  1,000 (454)
 dodecylbenzenesulfonate.
Triethylamine...................  D.................  5,000 (2,270)
Trimethylamine..................  B.................  100 (45.4)
Uranyl acetate..................  B.................  100 (45.4)
Uranyl nitrate..................  B.................  100 (45.4)
Vanadium pentoxide..............  C.................  1,000 (454)
Vanadyl sulfate.................  C.................  1,000 (454)
Vinyl acetate...................  D.................  5,000 (2,270)
Vinylidene chloride.............  B.................  100 (45.4)
Xylene (mixed)..................  B.................  100 (45.4)
Xylenol.........................  C.................  1,000 (454)
Zinc acetate....................  C.................  1,000 (454)
Zinc ammonium chloride..........  C.................  1,000 (454)
Zinc borate.....................  C.................  1,000 (454)
Zinc bromide....................  C.................  1,000 (454)
Zinc carbonate..................  C.................  1,000 (454)
Zinc chloride...................  C.................  1,000 (454)
Zinc cyanide....................  A.................  10 (4.54)
Zinc fluoride...................  C.................  1,000 (454)
Zinc formate....................  C.................  1,000 (454)
Zinc hydrosulfite...............  C.................  1,000 (454)
Zinc nitrate....................  C.................  1,000 (454)
Zinc phenolsulfonate............  D.................  5,000 (2,270)
Zinc phosphide..................  B.................  100 (45.4)
Zinc silicofluoride.............  D.................  5,000 (2,270)
Zinc sulfate....................  C.................  1,000 (454)
Zirconium nitrate...............  D.................  5,000 (2,270)
Zirconium potassium fluoride....  C.................  1,000 (454)
Zirconium sulfate...............  D.................  5,000 (2,270)
Zirconium tetrachloride.........  D.................  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]



                        Subpart B--Applicability



Sec. 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 contiguous zone as provided in 
section 311(b)(3) of the Act, except to the extent that the owner or 
operator can show such that discharges are made:
    (a) In compliance with a permit issued under the Marine Protection, 
Research and Sanctuaries Act of 1972 (33 U.S.C. 1401 et seq.);
    (b) In compliance with approved water treatment plant operations as

[[Page 716]]

specified by local or State regulations pertaining to safe drinking 
water;
    (c) Pursuant to the label directions for application of a pesticide 
product registered under section 3 or section 24 of the Federal 
Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended (7 
U.S.C. 136 et seq.), or pursuant to the terms and conditions of an 
experimental use permit issued under section 5 of FIFRA, or pursuant to 
an exemption granted under section 18 of FIFRA;
    (d) In compliance with the regulations issued under section 3004 or 
with permit conditions issued pursuant to section 3005 of the Resource 
Conservation and Recovery Act (90 Stat. 2795; 42 U.S.C. 6901);
    (e) In compliance with instructions of the On-Scene Coordinator 
pursuant to 40 CFR part 1510 (the National Oil and Hazardous Substances 
Pollution Plan) or 33 CFR 153.10(e) (Pollution by Oil and Hazardous 
Substances) or in accordance with applicable removal regulations as 
required by section 311(j)(1)(A);
    (f) In compliance with a permit issued under Sec. 165.7 of Title 14 
of the State of California Administrative Code;
    (g) From a properly functioning inert gas system when used to 
provide inert gas to the cargo tanks of a vessel;
    (h) From a permitted source and are excluded by Sec. 117.12 of this 
regulation;
    (i) To a POTW and are specifically excluded or reserved in 
Sec. 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)).



Sec. 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 discharges from a point 
source, identified in a permit or permit application under section 402 
of this Act, which are caused by events occurring within the scope of 
the relevant operating or treatment systems; or
    (b) A discharge is ``in compliance with a permit issued under 
section 402 of this Act'' if the permit contains an effluent limitation 
specifically applicable to the substance discharged or an effluent 
limitation applicable to another waste parameter which has been 
specifically identified in the permit as intended to limit such 
substance, and the discharge is in compliance with the effluent 
limitation.
    (c) A discharge results ``from circumstances identified, reviewed 
and made a part of the public record with respect to a permit issued or 
modified under section 402 of the Act, and subject to a condition in 
such permit,'' whether or not the discharge is in compliance with the 
permit, where:
    (1) The permit application, the permit, or another portion of the 
public record contains documents that specifically identify:
    (i) The substance and the amount of the substance; and
    (ii) The origin and source of the substance; and
    (iii) The treatment which is to be provided for the discharge either 
by:
    (A) An on-site treatment system separate from any treatment system 
treating the permittee's normal discharge; or
    (B) A treatment system designed to treat the permittee's normal 
discharge and which is additionally capable of treating the identified 
amount of the identified substance; or
    (C) Any combination of the above; and
    (2) The permit contains a requirement that the substance and amounts 
of the substance, as identified in Sec. 117.12(c)(1)(i) and 
Sec. 117.12(c)(1)(ii) be treated pursuant to Sec. 117.12(c)(1)(iii) in 
the event of an on-site release; and
    (3) The treatment to be provided is in place.
    (d) A discharge is a ``continuous or anticipated intermittent 
discharge from a point source, identified in a permit or permit 
application under section 402 of this Act, and caused by events 
occurring within the scope of

[[Page 717]]

the relevant operating or treatment systems,'' whether or not the 
discharge is in compliance with the permit, if:
    (1) The hazardous substance is discharged from a point source for 
which a valid permit exists or for which a permit application has been 
submitted; and
    (2) The discharge of the hazardous substance results from:
    (i) The contamination of noncontact cooling water or storm water, 
provided that such cooling water or storm water is not contaminated by 
an on-site spill of a hazardous substance; or
    (ii) A continuous or anticipated intermittent discharge of process 
waste water, and the discharge originates within the manufacturing or 
treatment systems; or
    (iii) An upset or failure of a treatment system or of a process 
producing a continuous or anticipated intermittent discharge where the 
upset or failure results from a control problem, an operator error, a 
system failure or malfunction, an equipment or system startup or 
shutdown, an equipment wash, or a production schedule change, provided 
that such upset or failure is not caused by an on-site spill of a 
hazardous substance.

[44 FR 50776, Aug. 29, 1979, as amended at 44 FR 58910, Oct. 12, 1979]



Sec. 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 discharge originates from a mobile 
source, except where such source has contracted with, or otherwise 
received written permission from the owners or operators of the POTW to 
discharge that quantity, and the mobile source can show that prior to 
accepting the substance from an industrial discharger, the substance had 
been treated to comply with any effluent limitation under sections 301, 
302 or 306 or pretreatment standard under section 307 applicable to that 
facility.



Sec. 117.14  Demonstration projects.

    Notwithstanding any other provision of this part, the Administrator 
of the Environmental Protection Agency may, on a case-by-case basis, 
allow the discharge of designated hazardous substances in connection 
with research or demonstration projects relating to the prevention, 
control, or abatement of hazardous substance pollution. The 
Administrator will allow such a discharge only where he determines that 
the expected environmental benefit from such a discharge will outweigh 
the potential hazard associated with the discharge.



         Subpart C--Notice of Discharge of a Reportable Quantity



Sec. 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 hazardous substance from such vessel or facility in 
quantities equal to or exceeding in any 24-hour period the reportable 
quantity determined by this part, immediately notify the appropriate 
agency of the United States Government of such discharge. Notice shall 
be given in accordance with such procedures as the Secretary of 
Transportation has set forth in 33 CFR 153.203. This provision applies 
to all discharges not specifically excluded or reserved by another 
section of these regulations.



Sec. 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 quantity determined by 
this part, the owner, operator or person in charge will be liable, 
pursuant to section 311 (f) and (g) of the Act, to the United States 
Government for the actual costs incurred in the removal of such 
substance, subject only to the defenses and monetary limitations 
enumerated in section 311 (f) and (g) of the Act.

The Administrator may act to mitigate the damage to the public health or 
welfare caused by a discharge and the cost of such mitigation shall be 
considered a cost incurred under section 311(c) for the removal of that 
substance by the United States Government.

[[Page 718]]



PART 121--STATE CERTIFICATION OF ACTIVITIES REQUIRING A FEDERAL LICENSE OR PERMIT--Table of Contents




                           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 notification.
121.14  Forwarding to affected State.
121.15  Hearings on objection of affected State.
121.16  Waiver.

              Subpart C--Certification by the Administrator

121.21  When Administrator certifies.
121.22  Applications.
121.23  Notice and hearing.
121.24  Certification.
121.25  Adoption of new water quality standards.
121.26  Inspection of facility or activity before operation.
121.27  Notification to licensing or permitting agency.
121.28  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



Sec. 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 permit granted by an 
agency of the Federal Government to conduct any activity which may 
result in any discharge into the navigable waters of the United States.
    (b) Licensing or permitting agency means any agency of the Federal 
Government to which application is made for a license or permit.
    (c) Administrator means the Administrator, Environmental Protection 
Agency.
    (d) Regional Administrator means the Regional designee appointed by 
the Administrator, Environmental Protection Agency.
    (e) Certifying agency means the person or agency designated by the 
Governor of a State, by statute, or by other governmental act, to 
certify compliance 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 concurrent authority 
to certify, the State agency shall be the certifying agency. Where water 
quality standards have been promulgated by the Administrator pursuant to 
section 10(c)(2) of the Act, or where no State or interstate agency has 
authority to certify, the Administrator shall be the certifying agency.
    (f) Act means the Federal Water Pollution Control Act, 33 U.S.C. 
1151 et seq.
    (g) Water quality standards means standards established pursuant to 
section 10(c) of the Act, and State-adopted water quality standards for 
navigable waters which are not interstate waters.



Sec. 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 affixed to such 
application) and bases its certification upon an evaluation of the 
information contained in such application which is relevant to water 
quality considerations, or (ii) examined other information furnished by 
the applicant sufficient to permit the certifying agency to make the 
statement described in paragraph (a)(3) of this section;
    (3) A statement that there is a reasonable assurance that the 
activity

[[Page 719]]

will be conducted in a manner which will not violate applicable water 
quality standards;
    (4) A statement of any conditions which the certifying agency deems 
necessary or desirable with respect to the discharge of the activity; 
and
    (5) Such other information as the certifying agency may determine to 
be appropriate.
    (b) The certifying agency may modify the certification in such 
manner as may be agreed upon by the certifying agency, the licensing or 
permitting agency, and the Regional Administrator.



Sec. 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.



           Subpart B--Determination of Effect on Other States



Sec. 121.11  Copies of documents.

    (a) Upon receipt from an applicant of an application for a license 
or permit without an accompanying certification, the licensing or 
permitting agency shall either: (1) Forward one copy of the application 
to the appropriate certifying agency and two copies to the Regional 
Administrator, or (2) forward three copies of the application to the 
Regional Administrator, pursuant to an agreement between the licensing 
or permitting agency and the Administrator that the Regional 
Administrator will transmit a copy of the application to the appropriate 
certifying agency. Upon subsequent receipt from an applicant of a 
certification, the licensing or permitting agency shall forward a copy 
of such certification to the Regional Administrator, unless such 
certification shall have been made by the Regional Administrator 
pursuant to Sec. 121.24.
    (b) Upon receipt from an applicant of an application for a license 
or permit with an accompanying certification, the licensing or 
permitting agency shall forward two copies of the application and 
certification to the Regional Administrator.
    (c) Only those portions of the application which relate to water 
quality considerations shall be forwarded to the Regional Administrator.



Sec. 121.12  Supplemental information.

    If the documents forwarded to the Regional Administrator by the 
licensing or permitting agency pursuant to Sec. 121.11 do not contain 
sufficient information for the Regional Administrator to make the 
determination provided for in Sec. 121.13, the Regional Administrator 
may request, and the licensing or permitting agency shall obtain from 
the applicant and forward to the Regional Administrator, any 
supplemental information as may be required to make such determination.



Sec. 121.13  Review by Regional Administrator and notification.

    The Regional Administrator shall review the application, 
certification, and any supplemental information provided in accordance 
with Secs. 121.11 and 121.12 and if the Regional Administrator 
determines there is reason to believe that a discharge may affect the 
quality of the waters of any State or States other than the State in 
which the discharge originates, the Regional Administrator shall, no 
later than 30 days of the date of receipt of the application and 
certification from the licensing or permitting agency as provided in 
Sec. 121.11, so notify each affected State, the licensing or permitting 
agency, and the applicant.



Sec. 121.14  Forwarding to affected State.

    The Regional Administrator shall forward to each affected State a 
copy of the material provided in accordance with Sec. 121.11.



Sec. 121.15  Hearings on objection of affected 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

[[Page 720]]

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.



Sec. 121.16  Waiver.

    The certification requirement with respect to an application for a 
license or permit shall be waived upon:
    (a) Written notification from the State or interstate agency 
concerned that it expressly waives its authority to act on a request for 
certification; or
    (b) Written notification from the licensing or permitting agency to 
the Regional Administrator of the failure of the State or interstate 
agency concerned to act on such request for certification within a 
reasonable period of time after receipt of such request, as determined 
by the licensing or permitting agency (which period shall generally be 
considered to be 6 months, but in any event shall not exceed 1 year).

In the event of a waiver hereunder, the Regional Administrator shall 
consider such waiver as a substitute for a certification, and as 
appropriate, shall conduct the review, provide the notices, and perform 
the other functions identified in Secs. 121.13, 121.14, and 121.15. The 
notices required by Sec. 121.13 shall be provided not later than 30 days 
after the date of receipt by the Regional Administrator of either 
notification referred to herein.



              Subpart C--Certification by the Administrator



Sec. 121.21  When Administrator certifies.

    Certification by the Administrator that the discharge resulting from 
an activity requiring a license or permit will not violate applicable 
water 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 
respect to those water quality standards promulgated by him; or
    (b) Water quality standards have been established, but no State or 
interstate agency has authority to give such a certification.



Sec. 121.22  Applications.

    An applicant for certification from the Administrator shall submit 
to the Regional Administrator a complete description of the discharge 
involved in the activity for which certification is sought, with a 
request for certification signed by the applicant. Such description 
shall include the following:
    (a) The name and address of the applicant;
    (b) A description of the facility or activity, and of any discharge 
into navigable waters which may result from the conduct of any activity 
including, but not limited to, the construction or operation of the 
facility, including the biological, chemical, thermal, and other 
characteristics of the discharge, and the location or locations at which 
such discharge may enter navigable waters;
    (c) A description of the function and operation of equipment or 
facilities to treat wastes or other effluents which may be discharged, 
including specification of the degree of treatment expected to be 
attained;
    (d) The date or dates on which the activity will begin and end, if 
known, and the date or dates on which the discharge will take place;
    (e) A description of the methods and means being used or proposed to 
monitor the quality and characteristics of the discharge and the 
operation of equipment or facilities employed in the treatment or 
control of wastes or other effluents.



Sec. 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 
improvement, and other parties known to be interested in the matter, 
including adjacent property owners and conservation organizations, or 
may provide such notice in a newspaper of general circulation in the 
area in which the activity is proposed to be conducted if the Regional 
Administrator deems mailed notice to be impracticable. Interested 
parties shall be

[[Page 721]]

provided an opportunity to comment on such request in such manner as the 
Regional Administrator deems appropriate. All interested and affected 
parties will be given reasonable opportunity to present evidence and 
testimony at a public hearing on the question whether to grant or deny 
certification if the Regional Administrator determines that such a 
hearing is necessary or appropriate.



Sec. 121.24  Certification.

    If, after considering the complete description, the record of a 
hearing, if any, held pursuant to Sec. 121.23, and such other 
information and data as the Regional Administrator deems relevant, the 
Regional Administrator determines that there is reasonable assurance 
that the proposed activity will not result in a violation of applicable 
water quality standards, he shall so certify. If the Regional 
Administrator determines that no water quality standards are applicable 
to the waters which might be affected by the proposed activity, he shall 
so notify the applicant and the licensing or permitting agency in 
writing and shall provide the licensing or permitting agency with 
advice, suggestions, and recommendations with respect to conditions to 
be incorporated in any license or permit to achieve compliance with the 
purpose of this Act. In such case, no certification shall be required.



Sec. 121.25  Adoption of new water quality standards.

    (a) In any case where:
    (1) A license or permit was issued without certification due to the 
absence of applicable water quality standards; and
    (2) Water quality standards applicable to the waters into which the 
licensed or permitted activity may discharge are subsequently 
established; and
    (3) The Administrator is the certifying agency because:
    (i) No State or interstate agency has authority to certify; or
    (ii) Such new standards were promulgated by the Administrator 
pursuant to section 10(c)(2) of the Act; and
    (4) The Regional Administrator determines that such uncertified 
activity is violating water quality standards;

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 within 6 months of 
the date of such notice to take action which in the opinion of the 
Regional Administrator will result in compliance with applicable water 
quality standards, the Regional Administrator shall notify the licensing 
or permitting agency that the licensee or permittee has failed, after 
reasonable notice, to comply with such standards and that suspension of 
the applicable license or permit is required by section 21(b)(9)(B) of 
the Act.
    (b) Where a license or permit is suspended pursuant to paragraph (a) 
of this section, and where the licensee or permittee subsequently takes 
action which in the Regional Administrator's opinion will result in 
compliance with applicable water quality standards, the Regional 
Administrator shall then notify the licensing or permitting agency that 
there is reasonable assurance that the licensed or permitted activity 
will comply with applicable water quality standards.



Sec. 121.26  Inspection of facility or activity before operation.

    Where any facility or activity has received certification pursuant 
to Sec. 121.24 in connection with the issuance of a license or permit 
for construction, and where such facility or activity is not required to 
obtain an operating license or permit, the Regional Administrator or his 
representative, prior to the initial operation of such facility or 
activity, shall be afforded the opportunity to inspect such facility or 
activity for the purpose of determining if the manner in which such 
facility or activity will be operated or conducted will violate 
applicable water quality standards.



Sec. 121.27  Notification to licensing or permitting agency.

    If the Regional Administrator, after an inspection pursuant to 
Sec. 121.26, determines that operation of the proposed facility or 
activity will violate

[[Page 722]]

applicable water quality standards, he shall so notify the applicant and 
the licensing or permitting agency, including his recommendations as to 
remedial measures necessary to bring the operation of the proposed 
facility into compliance with such standards.



Sec. 121.28  Termination of suspension.

    Where a licensing or permitting agency, following a public hearing, 
suspends a license or permit after receiving the Regional 
Administrator's notice and recommendation pursuant to Sec. 121.27, the 
applicant may submit evidence to the Regional Administrator that the 
facility or activity or the operation or conduct thereof has been 
modified so as not to violate water quality standards. If the Regional 
Administrator determines that water quality standards will not be 
violated, he shall so notify the licensing or permitting agency.



                        Subpart D--Consultations



Sec. 121.30  Review and advice.

    The Regional Administrator may, and upon request shall, provide 
licensing and permitting agencies with determinations, definitions and 
interpretations with respect to the meaning and content of water quality 
standards where they have been federally approved under section 10 of 
the Act, and findings with respect to the application of all applicable 
water quality standards in particular cases and in specific 
circumstances relative to an activity for which a license or permit is 
sought. The Regional Administrator may, and upon request shall, also 
advise licensing and permitting agencies as to the status of compliance 
by dischargers with the conditions and requirements of applicable water 
quality standards. In cases where an activity for which a license or 
permit is sought will affect water quality, but for which there are no 
applicable water quality standards, the Regional Administrator may 
advise licensing or permitting agencies with respect to conditions of 
such license or permit to achieve compliance with the purpose of the 
Act.



PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM--Table of Contents




         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 Programs, see 
          Sec. 123.25).
122.5  Effect of a permit.
122.6  Continuation of expiring permits.
122.7  Confidentiality of information.

  Subpart B--Permit Application and Special NPDES Program Requirements

122.21  Application for a permit (applicable to State programs, see 
          Sec. 123.25).
122.22  Signatories to permit applications and reports (applicable to 
          State programs, see Sec. 123.25).
122.23  Concentrated animal feeding operations (applicable to State 
          NPDES programs, see Sec. 123.25).
122.24  Concentrated aquatic animal production facilities (applicable to 
          State NPDES programs, see Sec. 123.25).
122.25  Aquaculture projects (applicable to State NPDES programs, see 
          Sec. 123.25).
122.26  Storm water discharges (applicable to State NPDES programs, see 
          Sec. 123.25).
122.27  Silvicultural activities (applicable to State NPDES programs, 
          see Sec. 123.25).
122.28  General permits (applicable to State NPDES programs, see 
          Sec. 123.25).
122.29  New sources and new dischargers.

                      Subpart C--Permit Conditions

122.41  Conditions applicable to all permits (applicable to State 
          programs, see Sec. 123.25).
122.42  Additional conditions applicable to specified categories of 
          NPDES permits (applicable to State NPDES programs, see 
          Sec. 123.25).
122.43  Establishing permit conditions (applicable to State programs, 
          see Sec. 123.25).
122.44  Establishing limitations, standards and other permit conditions 
          (applicable to State NPDES programs, see Sec. 123.25).
122.45  Calculating NPDES permit conditions (applicable to State NPDES 
          programs, see Sec. 123.25).
122.46  Duration of permits (applicable to State programs, see 
          Sec. 123.25).
122.47  Schedules of compliance.
122.48  Requirements for recording and reporting of monitoring results 
          (applicable to State programs, see Sec. 123.25).
122.49  Considerations under Federal law.

[[Page 723]]

122.50  Disposal of pollutants into wells, into publicly owned treatment 
          works or by land application (applicable to State NPDES 
          programs, see Sec. 123.25).

   Subpart D--Transfer, Modification, Revocation and Reissuance, and 
                         Termination of Permits

122.61  Transfer of permits (applicable to State programs, see 
          Sec. 123.25).
122.62  Modification or revocation and reissuance of permits (applicable 
          to State programs, see Sec. 123.25).
122.63  Minor modifications of permits.
122.64  Termination of permits (applicable to State programs, see 
          Sec. 123.25).

Appendix A to Part 122--NPDES Primary Industry Categories
Appendix B to Part 122--Criteria for Determining a Concentrated Animal 
          Feeding Operation (Sec. 122.23)
Appendix C to Part 122--Criteria for Determining a Concentrated Aquatic 
          Animal Production Facility (Sec. 122.24)
Appendix D to Part 122--NPDES Permit Application Testing Requirements 
          (Sec. 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 
          Bureau of Census
Appendix H to Part 122--Counties with Unincorporated 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 Unincorporated 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



Sec. 122.1  Purpose and scope.

    (a) Coverage. (1) These regulations contain provisions for the 
National Pollutant Discharge Elimination System (NPDES) Program under 
section 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. 96-483, Pub. L. 
97-117, and Pub. L. 100-4; 33 U.S.C.1251 et seq.)
    (2) These regulations cover basic EPA permitting 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 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 discharge 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 
Sec. 122.2.
    (2) The following are point sources requiring NPDES permits for 
discharges:
    (i) Concentrated animal feeding operations as defined in 
Sec. 122.23;
    (ii) Concentrated aquatic animal production facilities as defined in 
Sec. 122.24;
    (iii) Discharges into aquaculture projects as set forth in 
Sec. 122.25;
    (iv) Discharges of storm water as set forth in Sec. 122.26; and
    (v) Silvicultural point sources as defined in Sec. 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 paragraph (a)(1) 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 appropriate provisions of subtitle C of the Solid Waste 
Disposal Act, Part C of the Safe Drinking Water Act, the Marine 
Protection, Research, and Sanctuaries Act of 1972, or the Clean Air Act, 
or under State permit programs approved by the Administrator as adequate 
to assure compliance with section 405 of the CWA.
    (4) The Regional Administrator may designate any person subject to 
the standards for sewage sludge use and

[[Page 724]]

disposal as a ``treatment works treating domestic sewage'' as defined in 
Sec. 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 Sec. 122.21 within 180 days of 
being notified by the Regional Administrator that a permit is required. 
The Regional Administrator's decision to designate a person as a 
``treatment works treating domestic sewage'' under this paragraph shall 
be stated in the fact sheet or statement of basis for the permit.
    (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 Sec. 123.25. If a section or 
paragraph of part 122 or 124 is applicable to States, through reference 
in Sec. 123.25, that fact is signaled by the following words at the end 
of the section or paragraph heading: (Applicable to State programs, see 
Sec. 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 permits must submit their applications on 
EPA's permit application forms when available. Most of the information 
requested on these application forms is required by these regulations. 
The basic information required in the general form (Form 1) and the 
additional information required for NPDES applications (Forms 2 a 
through d) are listed in Sec. 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 authorities 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 related variance proceedings, and in the approval of State NPDES 
programs. These requirements carry out the purposes of the public 
participation requirements of 40 CFR part 25 (Public Participation), 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]



Sec. 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 limitations to which a ``discharge,'' a 
``sewage sludge use or disposal practice,'' or a related activity is 
subject under the CWA, including ``effluent limitations,'' water quality 
standards, standards of performance, toxic effluent standards or 
prohibitions, ``best management practices,'' pretreatment standards, and 
``standards for sewage sludge use or disposal'' under sections 301, 302, 
303, 304, 306, 307, 308, 403 and 405 of CWA.
    Application means the EPA standard national forms for applying for a 
permit, including any additions, revisions or modifications to the 
forms; or forms approved by EPA for use in ``approved States,'' 
including any approved modifications or revisions.

[[Page 725]]

    Approved program or approved State means a State or interstate 
program which has been approved 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 discharges'' 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 discharges'' 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 
program (including such POTWs located in a State that has elected to 
assume local program responsibilities 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 Administrator in 
conjunction with the State Director, because of the potential for its 
sludge use or disposal practices to adversely affect public health and 
the environment.
    Contiguous zone means the entire zone established by the United 
States under Article 24 of the Convention on the Territorial Sea and the 
Contiguous Zone.
    Continuous discharge means a ``discharge'' which occurs without 
interruption throughout the operating hours of the facility, except for 
infrequent shutdowns for maintenance, process changes, or other similar 
activities.
    CWA means the Clean Water Act (formerly referred to as the Federal 
Water Pollution Control Act or Federal Water Pollution Control Act 
Amendments of 1972) Public Law 92-500, as amended by Public Law 95-217, 
Public Law 95-576, Public Law 96-483 and Public Law 97-117, 33 U.S.C. 
1251 et seq.
    CWA and regulations means the Clean Water Act (CWA) and applicable 
regulations promulgated thereunder. In the case of an approved State 
program, it includes State program requirements.
    Daily discharge means the ``discharge of a pollutant'' measured 
during a 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 measurement, 
the ``daily discharge'' is calculated as the average measurement of the 
pollutant over the day.
    Direct discharge means the ``discharge of a pollutant.''
    Director means the Regional Administrator or the State Director, as 
the context requires, or an authorized representative. When there is no 
``approved State program,'' and there is an EPA administered program, 
``Director'' means the Regional Administrator. When there is an approved 
State 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 
Sec. 123.1.) In such cases, the term ``Director'' means the Regional 
Administrator and not the State Director.
    Discharge when used without qualification means the ``discharge of a 
pollutant.''
    Discharge of a pollutant means:

[[Page 726]]

    (a) Any addition of any ``pollutant'' or combination of pollutants 
to ``waters of the United States'' from any ``point source,'' or
    (b) Any addition of any pollutant or combination of pollutants to 
the waters of the ``contiguous zone'' or the ocean from any point source 
other than a vessel or other floating craft which is being used as a 
means of transportation.

This definition includes additions of pollutants into waters of the 
United States from: surface runoff which is collected or channelled by 
man; discharges through pipes, sewers, or other conveyances owned by a 
State, municipality, or other person which do not lead to a treatment 
works; and discharges through pipes, sewers, or other conveyances, 
leading into privately owned treatment works. This term does not include 
an addition of pollutants by any ``indirect discharger.''
    Discharge Monitoring Report (``DMR'') means the EPA uniform national 
form, including any subsequent additions, revisions, or modifications 
for the reporting of self-monitoring results by permittees. 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 
information, as appropriate, in place of EPA's.
    DMR means ``Discharge Monitoring Report.''
    Draft permit means a document prepared under Sec. 124.6 indicating 
the Director's tentative decision to issue or deny, modify, revoke and 
reissue, terminate, or reissue a ``permit.'' A notice of intent to 
terminate a permit, and a notice of intent to deny a permit, as 
discussed in Sec. 124.5, are types of ``draft permits.'' A denial of a 
request for modification, revocation and reissuance, or termination, as 
discussed in Sec. 124.5, is not a ``draft permit.'' A ``proposed 
permit'' is not a ``draft permit.''
    Effluent limitation means any restriction imposed by the Director on 
quantities, discharge rates, and concentrations of ``pollutants'' which 
are ``discharged'' from ``point sources'' into ``waters of the United 
States,'' the waters of the ``contiguous zone,'' or the ocean.
    Effluent limitations guidelines means a regulation published by the 
Administrator under section 304(b) of CWA to adopt or revise ``effluent 
limitations.''
    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 within the limits of any 
Indian reservation under the jurisdiction of the United States 
Government, notwithstanding the issuance of any patent, and including 
rights-of-way running through the reservation.
    General permit means an NPDES ``permit'' issued under Sec. 122.28 
authorizing a category of discharges under the CWA within a geographical 
area.
    Hazardous substance means any substance designated 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 
authority over a Federal Indian reservation.
    Indirect discharger means a nondomestic discharger 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 substantial 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 Administrator, or, in the case of ``approved 
State programs,'' the Regional Administrator in conjunction with the 
State Director.
    Maximum daily discharge limitation means the highest allowable 
``daily discharge.''

[[Page 727]]

    Municipality means a city, town, borough, county, parish, district, 
association, or other public body created by or under State law and 
having jurisdiction over disposal of sewage, industrial wastes, or other 
wastes, or an Indian tribe or an authorized Indian tribal organization, 
or a designated and approved management agency under section 208 of CWA.
    National Pollutant Discharge Elimination System (NPDES) means the 
national program for issuing, modifying, revoking and reissuing, 
terminating, monitoring and enforcing permits, and imposing and 
enforcing pretreatment requirements, under sections 307, 402, 318, and 
405 of CWA. The term includes an ``approved 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 includes 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, seafood processing vessel, or aggregate plant, that begins 
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 mobile oil and gas developmental drilling rig that commences the 
discharge of pollutants after August 13, 1979, at a ``site'' under EPA's 
permitting jurisdiction for which it is not covered by an individual or 
general permit and which is located in an area determined by the 
Regional Administrator in the issuance of a final permit to be an area 
or biological concern. In determining whether an area is an area of 
biological concern, the Regional Administrator shall consider the 
factors specified in 40 CFR 125.122(a) (1) through (10).

An offshore or coastal mobile 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 biological concern.
    New source means any building, structure, facility, or installation 
from which there is or may be a ``discharge of pollutants,'' the 
construction of which commenced:
    (a) After promulgation of standards of performance under section 306 
of CWA which are applicable to such source, or
    (b) After proposal of standards of 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'' includes an 
NPDES ``general permit'' (Sec. 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, partnership, 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, 
concentrated animal feeding operation, landfill leachate collection 
system, vessel or other floating craft from which pollutants are or may 
be discharged. This term does not include return flows from irrigated 
agriculture or agricultural storm water runoff. (See Sec. 122.3).
    Pollutant means dredged spoil, solid waste, incinerator residue, 
filter backwash, sewage, garbage, sewage sludge, munitions, chemical 
wastes, biological

[[Page 728]]

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 injected into a well to 
facilitate production of oil or gas, or water derived in association 
with oil and gas production and disposed of in a well, if the well used 
either to facilitate production or for disposal purposes is approved by 
authority of the State in which the well is located, and if the State 
determines that the injection or disposal will not result in the 
degradation of ground or surface water resources.
    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 appendix A of part 122.
    Privately owned treatment works means any device or system which is 
(a) used to treat wastes from any facility whose operator is not the 
operator of the treatment works and (b) not a ``POTW.''
    Process wastewater means any water which, during manufacturing or 
processing, comes into direct contact with or results from the 
production or use of any raw material, intermediate product, finished 
product, byproduct, or waste product.
    Proposed permit means a State NPDES ``permit'' prepared after the 
close of the public comment period (and, when applicable, any public 
hearing and administrative appeals) which is sent to EPA for review 
before final issuance by the State. A ``proposed permit'' is not a 
``draft permit.''
    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 Administrator of the 
appropriate Regional Office of the Environmental Protection Agency or 
the authorized representative of the Regional Administrator.
    Schedule of compliance means a schedule of remedial measures 
included in a ``permit'', including an enforceable sequence of interim 
requirements (for example, actions, operations, or milestone events) 
leading to compliance with the CWA and regulations.
    Secondary industry category means any industry category which is not 
a ``primary industry category.''
    Secretary means the Secretary of the Army, acting 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 section 312 of CWA, 
except that with respect to commercial vessels on the Great Lakes this 
term includes graywater. For the purposes of this definition, 
``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. Sewage 
sludge includes, but is not limited to, solids removed during primary, 
secondary, or advanced waste water treatment, scum, septage, portable 
toilet pumpings, type III marine sanitation device pumpings (33 CFR part 
159), and

[[Page 729]]

sewage sludge products. Sewage sludge does not include grit or 
screenings, or ash generated during the incineration of sewage sludge.
    Sewage sludge use or disposal practice means the collection, 
storage, 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 conducted, 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 Sec. 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 minimum 
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 Indian Tribe as defined in these regulations 
which meets the requirements of Sec. 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 
representative of the State Director. If responsibility is divided among 
two or more State or interstate agencies, ``State Director'' means the 
chief administrative 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 between the Regional 
Administrator and the State which coordinates EPA and State activities, 
responsibilities 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)(1) 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, regardless of 
ownership (including federal facilities), used in the storage, 
treatment, recycling, and reclamation of municipal or domestic sewage, 
including land dedicated for the disposal of sewage sludge. This 
definition does not include septic tanks or similar devices. For 
purposes of this definition, ``domestic sewage'' includes waste and 
waste water from humans or household operations that are discharged to 
or otherwise enter a treatment 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 sewage,'' where he or she finds that 
there is a potential 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 
necessary 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 
limitations guidelines'' which allows modification 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.
    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

[[Page 730]]

susceptible to use in interstate or foreign commerce, including all 
waters which are subject to the ebb and flow of the tide;
    (b) All interstate waters, including interstate ``wetlands;''
    (c) All other waters such as intrastate lakes, rivers, streams 
(including intermittent streams), mudflats, sandflats, ``wetlands,'' 
sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds 
the use, degradation, or destruction of which would affect or could 
affect interstate or foreign commerce including any such waters:
    (1) Which are or could be used by interstate or foreign travelers 
for recreational or other purposes;
    (2) From which fish or shellfish are or could be taken and sold in 
interstate or foreign commerce; or
    (3) Which are used or could be used for industrial purposes by 
industries in interstate commerce;
    (d) All impoundments of waters otherwise defined as waters of the 
United States under this definition;
    (e) Tributaries of waters identified in paragraphs (a) through (d) 
of this definition;
    (f) The territorial sea; and
    (g) ``Wetlands'' adjacent to waters (other than waters that are 
themselves wetlands) identified in paragraphs (a) through (f) of this 
definition.

Waste treatment systems, including treatment ponds or lagoons designed 
to meet the requirements of CWA (other than cooling ponds as defined 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 manmade 
bodies of water which neither were originally 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 frequency and duration sufficient to 
support, and that under normal circumstances do support, a prevalence of 
vegetation typically adapted for life in saturated soil conditions. 
Wetlands generally include 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 Environmental Protection 
Agency suspended until further notice in Sec. 122.2, the last sentence, 
beginning ``This exclusion applies . . .'' in the definition of ``Waters 
of the United States.'' This revision continues that suspension.\1\
---------------------------------------------------------------------------

    \1\ Editorial Note: The words ``This revision'' refer to the 
document published at 48 FR 14153, Apr. 1, 1983.

(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 Recovery 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]



Sec. 122.3  Exclusions.

    The following discharges do not require NPDES permits:
    (a) Any discharge of sewage from vessels, effluent from properly 
functioning marine engines, laundry, shower, and galley sink wastes, or 
any other discharge incidental to the normal operation of a vessel. This 
exclusion does not apply to rubbish, trash, garbage, or other such 
materials discharged overboard; nor to other discharges when the vessel 
is operating in a capacity other than as a means of transportation such 
as when used as an energy or mining facility, a storage facility or a 
seafood processing facility, or when secured to a storage facility or a 
seafood processing facility, or when secured to the bed of the ocean, 
contiguous zone or waters of the United States for the purpose of 
mineral or oil exploration or development.
    (b) Discharges of dredged or fill material into waters of the United 
States which are regulated under section 404 of CWA.

[[Page 731]]

    (c) The introduction of sewage, industrial wastes or other 
pollutants into publicly owned treatment works by indirect dischargers. 
Plans or agreements to switch to this method of disposal in the future 
do not relieve dischargers of the obligation to have and comply with 
permits until all discharges of pollutants to waters of the United 
States are eliminated. (See also Sec. 122.47(b)). This exclusion does 
not apply to the introduction of pollutants to privately owned treatment 
works or to other discharges through pipes, sewers, or other conveyances 
owned by a State, municipality, or other party not leading to treatment 
works.
    (d) Any discharge in compliance with the instructions of an On-Scene 
Coordinator pursuant to 40 CFR part 300 (The National Oil and Hazardous 
Substances Pollution Contingency Plan) or 33 CFR 153.10(e) (Pollution by 
Oil and Hazardous Substances).
    (e) Any introduction of pollutants from non point-source 
agricultural and silvicultural activities, including storm water runoff 
from orchards, cultivated crops, pastures, range lands, and forest 
lands, but not discharges from concentrated animal feeding operations as 
defined in Sec. 122.23, discharges from concentrated aquatic animal 
production facilities as defined in Sec. 122.24, discharges to 
aquaculture projects as defined in Sec. 122.25, and discharges from 
silvicultural point sources as defined in Sec. 122.27.
    (f) Return flows from irrigated agriculture.
    (g) Discharges into a privately owned treatment works, except as the 
Director may otherwise require under Sec. 122.44(m).

[48 FR 14153, Apr. 1, 1983, as amended at 54 FR 254, 258, Jan. 4, 1989]



Sec. 122.4  Prohibitions (applicable to State NPDES programs, see Sec. 123.25).

    No permit may be issued:
    (a) When the conditions of the permit do not provide for compliance 
with the applicable requirements of CWA, or regulations promulgated 
under CWA;
    (b) When the applicant is required to obtain a State or other 
appropriate certification under section 401 of CWA and Sec. 124.53 and 
that certification has not been obtained or waived;
    (c) By the State Director where the Regional Administrator has 
objected to issuance of the permit under Sec. 123.44;
    (d) When the imposition of conditions cannot ensure compliance with 
the applicable water quality requirements of all affected States;
    (e) When, in the judgment of the Secretary, anchorage and navigation 
in or on any of the waters of the United States would be substantially 
impaired by the discharge;
    (f) For the discharge of any radiological, chemical, or biological 
warfare agent or high-level radioactive waste;
    (g) For any discharge inconsistent with a plan or plan amendment 
approved under section 208(b) of CWA;
    (h) For any discharge to the territorial sea, the waters of the 
contiguous zone, or the oceans in the following circumstances:
    (1) Before the promulgation of guidelines under section 403(c) of 
CWA (for determining degradation of the waters of the territorial seas, 
the contiguous zone, and the oceans) unless the Director determines 
permit issuance to be in the public interest; or
    (2) After promulgation of guidelines under section 403(c) of CWA, 
when insufficient information exists to make a reasonable judgment 
whether the discharge complies with them.
    (i) To a new source or a new discharger, if the discharge from its 
construction or operation will cause or contribute to the violation of 
water quality standards. The owner or operator of a new source or new 
discharger proposing to discharge into a water segment which does not 
meet applicable water quality standards or is not expected to meet those 
standards even after the application of the effluent limitations 
required by sections 301(b)(1)(A) and 301(b)(1)(B) of CWA, and for which 
the State or interstate agency has performed a pollutants load 
allocation for the pollutant to be discharged, must demonstrate, before 
the close of the public comment period, that:
    (1) There are sufficient remaining pollutant load allocations to 
allow for the discharge; and

[[Page 732]]

    (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]



Sec. 122.5  Effect of a permit.

    (a) Applicable to State programs, see Sec. 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 
compliance, for purposes of enforcement, with sections 301, 302, 306, 
307, 318, 403, and 405 (a)-(b) of CWA. However, a permit may be 
modified, revoked and reissued, or terminated during its term for cause 
as set forth in Secs. 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 
defense in any enforcement action brought for a violation 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 Sec. 123.25. The issuance of a 
permit does not convey any property rights of any sort, or any exclusive 
privilege.
    (c) The issuance of a permit does not authorize any injury to 
persons or property or invasion of other private rights, or any 
infringement of State or local law or regulations.

[48 FR 14153, Apr. 1, 1983, as amended at 54 FR 18782, May 2, 1989]



Sec. 122.6  Continuation of expiring permits.

    (a) EPA permits. When EPA is the permit-issuing 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 Sec. 124.15) if:
    (1) The permittee has submitted a timely application under 
Sec. 122.21 which is a complete (under Sec. 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 Sec. 124.15 on 
or before the expiration date of the previous permit (for example, when 
issuance is impracticable due to time or resource constraints).
    (b) 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 permit under 
Sec. 124.6. If the permit is denied, the owner or operator would then be 
required to cease the activities authorized by the continued permit or 
be subject to enforcement action for operating without a permit;
    (3) Issue a new permit under part 124 with appropriate conditions; 
or
    (4) Take other actions authorized by these regulations.
    (d) State continuation. (1) An EPA-issued permit does not continue 
in force beyond its expiration date under Federal law if at that time a 
State is the permitting authority. States authorized to administer the 
NPDES program may continue either EPA or State-issued permits until the 
effective date of the new permits, if State law allows. Otherwise, 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]



Sec. 122.7  Confidentiality of information.

    (a) In accordance with 40 CFR part 2, any information submitted to 
EPA pursuant to these regulations may be claimed as confidential by the 
submitter. Any such claim must be asserted at the time of submission in 
the manner prescribed on the application form or instructions or, in the 
case of other submissions, by stamping the words ``confidential business 
information'' on each page containing such information. If no claim is 
made at the time of submission, EPA may make the information available 
to the public

[[Page 733]]

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 Sec. 123.25. Claims of 
confidentiality for the following information will be denied:
    (1) The name and address of any permit applicant or permittee;
    (2) Permit applications, permits, and effluent data.
    (c) Applicable to State programs, see Sec. 123.25. Information 
required by NPDES application forms provided by the Director under 
Sec. 122.21 may not be claimed confidential. This includes information 
submitted on the forms themselves and any attachments used to supply 
information required by the forms.



  Subpart B--Permit Application and Special NPDES Program Requirements



Sec. 122.21  Application for a permit (applicable to State programs, see Sec. 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 covered by 
general permits under Sec. 122.28, excluded under Sec. 122.3, or a user 
of a privately owned treatment works unless the Director requires 
otherwise under Sec. 122.44(m), shall submit a complete application 
(which shall include a BMP program if necessary 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 proposing a new discharge of storm 
water associated with industrial activity shall submit an application 
180 days before that facility commences industrial activity which may 
result in a discharge of storm water associated with that industrial 
activity. Facilities described under Sec. 122.26(b)(14)(x) shall submit 
applications at least 90 days before the date on which construction is 
to commence. Different submittal dates may be required under the terms 
of applicable general permits. Persons proposing a new discharge are 
encouraged to submit their applications well in advance of the 90 or 180 
day requirements to avoid delay. See also paragraph (k) of this section 
and Sec. 122.26 (c)(1)(i)(G) and (c)(1)(ii). New discharges composed 
entirely of storm water, other than those dischargers identified by 
Sec. 122.26(a)(1), shall apply for and obtain a permit according to the 
application requirements in Sec. 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-specific pollutant limits as provided in 40 CFR part 
503, must submit the permit application information required by 
paragraph (d)(3)(ii) of this section within 180 days after publication 
of a standard applicable 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 section, must submit the application information 
required by paragraph (d)(3)(ii) of this section at the time of its next 
NPDES permit renewal application. Such information must be submitted in 
accordance with paragraph (d) of this section.
    (iii) Any other existing ``treatment works treating domestic 
sewage'' not addressed under paragraphs (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 Director shall determine when

[[Page 734]]

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 transferred 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 sewage'');
    (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 quality 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 Director 
determines that a permit is necessary to protect public health and the 
environment from any potential adverse effects that may occur from toxic 
pollutants in sewage sludge.
    (v) Any ``treatment works treating domestic sewage'' that commences 
operations after promulgation of an applicable ``standard for sewage 
sludge use or disposal'' shall submit an application to the Director at 
least 180 days prior to the date proposed for commencing operations.
    (d) Duty to reapply. (1) Any POTW with a currently effective permit 
shall submit a new application 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 Director 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 permission 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 Sec. 122.21 and paragraphs (f), (g), and (h) of this section.
    (ii) In addition to any other applicable requirements in this part, 
all POTWs and other ``treatment 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 Director 
receives an application form and any supplemental information which are 
completed to his or her satisfaction. The completeness of any 
application for a permit shall be judged independently of the status of 
any other permit application or permit for the same facility or 
activity. For EPA administered NPDES programs, an application which is 
reviewed under Sec. 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 information to the Director, using the application 
form provided by the Director (additional information required of 
applicants is set forth in paragraphs (g) through (k) of this section).
    (1) The activities conducted by the applicant which require it to 
obtain an NPDES permit.

[[Page 735]]

    (2) Name, mailing address, and location of the facility for which 
the application is submitted.
    (3) Up to four SIC codes which best reflect the principal products 
or services provided by the facility.
    (4) The operator's name, address, telephone number, ownership 
status, and status as Federal, State, private, public, or other entity.
    (5) Whether the facility is located on Indian lands.
    (6) A listing of all permits or construction approvals received or 
applied for under any of the following programs:
    (i) Hazardous Waste Management program under RCRA.
    (ii) UIC program under SDWA.
    (iii) NPDES program under CWA.
    (iv) Prevention of Significant Deterioration (PSD) program under the 
Clean Air Act.
    (v) Nonattainment program under the Clean Air Act.
    (vi) National Emission Standards for Hazardous Pollutants (NESHAPS) 
preconstruction approval under the Clean Air Act.
    (vii) Ocean dumping permits under the Marine Protection Research and 
Sanctuaries Act.
    (viii) Dredge or fill permits under section 404 of CWA.
    (ix) Other relevant environmental permits, including State permits.
    (7) A topographic map (or other map if a topographic map is 
unavailable) extending one mile beyond the property boundaries of the 
source, depicting the facility and each of its intake and discharge 
structures; each of its hazardous waste treatment, storage, or disposal 
facilities; each well where fluids from the facility are injected 
underground; and those wells, springs, other surface water bodies, and 
drinking water wells listed in public records or otherwise known to the 
applicant in the map area.
    (8) A brief description of the nature of the business.
    (g) Application requirements for existing manufacturing, 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 
Sec. 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 receiving 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, 
operations, 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 
approximate 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 collection 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. Processes, operations, or 
production areas may be described in general terms (for example, ``dye-
making reactor'', ``distillation tower''). For a privately owned 
treatment works, this information shall include the identity of each 
user of the treatment works. The average flow of point sources composed 
of storm water may be estimated. The basis for the rainfall event and 
the method of 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 frequency, duration and flow rate of each discharge 
occurrence (except for stormwater runoff, spillage or leaks).

[[Page 736]]

    (5) Maximum production. If an effluent guideline promulgated under 
section 304 of CWA applies to the applicant and is expressed in terms of 
production (or other measure of operation), a reasonable measure of the 
applicant's actual production reported in the units used in the 
applicable effluent guideline. The reported measure must reflect the 
actual production of the facility as required by Sec. 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 
abatement 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 Sec. 122.26). 
When ``quantitative data'' for a pollutant are required, the applicant 
must collect a sample of effluent and analyze it for the pollutant in 
accordance with analytical methods approved under 40 CFR part 136. When 
no analytical method is approved 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 report 
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 pollutants 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 minimum of one grab sample may be taken for 
effluents from holding ponds or other impoundments with a retention 
period greater than 24 hours. In addition, for discharges other than 
storm water discharges, the Director may waive composite sampling for 
any outfall for which the applicant 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 
discharge may be taken with a continuous sampler or as a combination of 
a minimum of three sample aliquots taken in each hour of discharge for 
the entire discharge or for the first three hours of the discharge, with 
each aliquot being separated by a minimum period of fifteen minutes 
(applicants submitting permit applications for storm water discharges 
under Sec. 122.26(d) may collect flow weighted composite samples using 
different protocols with respect to the time duration between the 
collection of sample aliquots, subject to the approval of the Director). 
However, a minimum of one grab sample may be taken for storm water 
discharges from holding ponds or other impoundments with a retention 
period greater than 24 hours. For a flow-weighted composite sample, only 
one analysis of the composite of aliquots is required. For storm water 
discharge samples taken from discharges associated with industrial 
activities, quantitative data must be reported for the grab sample taken 
during the first thirty minutes (or as soon thereafter as practicable) 
of the discharge for all pollutants specified in Sec. 122.26(c)(1). For 
all storm water permit applicants taking flow-weighted composites, 
quantitative data must be reported for all pollutants specified in

[[Page 737]]

Sec. 122.26 except pH, temperature, cyanide, 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 maximum level of precipitation required for an appropriate storm 
event, the form of precipitation sampled (snow melt or rain fall), 
protocols for collecting samples under 40 CFR part 136, and additional 
time for submitting data on a case-by-case basis. An applicant is 
expected to ``know or have reason to believe'' that a pollutant is 
present in an effluent based on an evaluation of the expected use, 
production, or storage of the pollutant, or on any previous analyses for 
the pollutant. (For example, 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 (BOD5)
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 requirements 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 adequate to support issuance of a permit can be obtained 
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 
report quantitative data for the following pollutants in each outfall 
containing process wastewater:
    (A) The organic toxic pollutants in the fractions designated in 
table I of appendix D of this part for the applicant's industrial 
category or categories unless the applicant qualifies as a small 
business under paragraph (g)(8) of this section. Table II of appendix D 
of this part lists the organic toxic pollutants in each fraction. The 
fractions result from the sample preparation required by the analytical 
procedure which uses gas 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 pollutants in table IV of appendix D (certain 
conventional and nonconventional pollutants) is discharged from each 
outfall. If an applicable effluent limitations guideline either directly 
limits the pollutant or, by its express terms, indirectly limits the 
pollutant through limitations on an indicator, the applicant must report 
quantitative data. For every pollutant discharged which is not so 
limited in an effluent limitations guideline, the applicant must either 
report quantitative data or briefly describe the reasons the pollutant 
is expected to be discharged.
    (B) Each applicant must indicate whether it knows or has reason to 
believe that any of the pollutants listed in table II or table III of 
appendix D (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

[[Page 738]]

ppb, or in the case of acrolein, acrylonitrile, 2,4 dinitrophenol, and 
2-methyl-4,6 dinitrophenol, in concentrations less than 100 ppb, the 
applicant must either submit quantitative data or briefly describe the 
reasons the pollutant is expected to be discharged. An applicant 
qualifying as a small business under paragraph (g)(8) of this section is 
not required to analyze for pollutants listed in table II of appendix D 
(the organic toxic pollutants).
    (iv) Each applicant must indicate whether it knows or has reason to 
believe that any of the pollutants in table V of appendix D of this part 
(certain hazardous substances and asbestos) are discharged from each 
outfall. For every pollutant expected to be discharged, the applicant 
must briefly describe the reasons the pollutant is expected to be 
discharged, and report any quantitative data it has for any pollutant.
    (v) Each applicant must report qualitative data, generated using a 
screening procedure not calibrated with analytical standards, for 
2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD) if it:
    (A) Uses or manufactures 2,4,5-trichlorophenoxy acetic acid (2,4,5,-
T); 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex, 2,4,5,-TP); 2-
(2,4,5-trichlorophenoxy) ethyl, 2,2-dichloropropionate (Erbon); O,O-
dimethyl O-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel); 2,4,5-
trichlorophenol (TCP); or hexachlorophene (HCP); or
    (B) Knows or has reason to believe that TCDD is or may be present in 
an effluent.
    (8) Small business exemption. An applicant which qualifies as a 
small business under one of the following criteria is exempt from the 
requirements in paragraph (g)(7)(ii)(A) or (g)(7)(iii)(A) of this 
section to submit quantitative data for the pollutants listed in table 
II of appendix D of this part (the organic toxic pollutants):
    (i) For coal mines, a probable total annual production of less than 
100,000 tons per year.
    (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 analyses 
performed.
    (13) Additional information. In addition to the information reported 
on the application form, applicants 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 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. Except for stormwater discharges, all manufacturing, 
commercial, mining and silvicultural dischargers applying for NPDES 
permits which discharge only non-process wastewater not regulated by an 
effluent limitations guideline or new source performance standard shall 
provide the following information to the Director, using application 
forms provided by the Director:
    (1) Outfall location. Outfall number, latitude and longitude to the 
nearest 15 seconds, and the name of the receiving water.

[[Page 739]]

    (2) Discharge date (for new dischargers). Date of expected 
commencement of discharge.
    (3) Type of waste. An identification of the general type of waste 
discharged, or expected to be discharged upon commencement of 
operations, including sanitary wastes, restaurant or cafeteria wastes, 
or noncontact cooling water. An identification of cooling water 
additives (if any) that are used or expected to be used upon 
commencement of operations, along with their composition if existing 
composition is available.
    (4) Effluent characteristics. (i) Quantitative data for the 
pollutants or parameters listed below, unless testing is waived by the 
Director. The quantitative data may be data collected over the past 365 
days, if they remain representative of current operations, and must 
include maximum daily value, average daily value, and number of 
measurements taken. The applicant must collect and analyze samples in 
accordance with 40 CFR part 136. Grab samples must be used for pH, 
temperature, 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 
parameters 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 temperature.
    (A) Biochemical Oxygen Demand (BOD5).
    (B) Total Suspended Solids (TSS).
    (C) Fecal Coliform (if believed present or if sanitary waste is or 
will be discharged).
    (D) Total Residual Chlorine (if chlorine is used).
    (E) Oil and Grease.
    (F) Chemical Oxygen Demand (COD) (if non-contact cooling water is or 
will be discharged).
    (G) Total Organic Carbon (TOC) (if non-contact cooling water is or 
will be discharged).
    (H) Ammonia (as N).
    (I) Discharge Flow.
    (J) pH.
    (K) Temperature (Winter and Summer).
    (ii) The Director may waive the testing and reporting requirements 
for any of the pollutants or flow listed in paragraph (h)(4)(i) of this 
section if the applicant submits a request for such a waiver before or 
with his application which demonstrates that information adequate to 
support issuance of a permit can be obtained through less stringent 
requirements.
    (iii) If the applicant is a new discharger, he must complete and 
submit Item IV of Form 2e (see Sec. 122.21(h)(4)) by providing 
quantitative data in accordance with that section no later than two 
years after commencement of discharge. However, the applicant need not 
complete those portions of Item IV requiring tests which he has already 
performed and reported under the discharge monitoring requirements of 
his NPDES permit.
    (iv) The requirements of parts i and iii of this section that an 
applicant must provide quantitative data or estimates of certain 
pollutants do not apply to pollutants present in a discharge solely as a 
result of their presence in intake water. However, an applicant must 
report such pollutants as present. Net credit may be provided for the 
presence of pollutants in intake water if the requirements of 
Sec. 122.45(g) are met.
    (5) Flow. A description of the frequency of flow and duration of any 
seasonal or intermittent discharge (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 information the applicant 
wishes to be considered, such as influent data for the purpose of 
obtaining ``net'' credits pursuant to Sec. 122.45(g).
    (8) Certification. Signature of certifying official under 
Sec. 122.22.
    (i) Application requirements for new and existing concentrated 
animal feeding operations and aquatic animal production facilities. New 
and existing concentrated animal feeding operations (defined in 
Sec. 122.23) and concentrated aquatic animal production facilities 
(defined in Sec. 122.24) shall provide the following information to the 
Director, using the application form provided by the Director:

[[Page 740]]

    (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 storage capacity, and the design safety factor.
    (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 existing POTWs. (1) The 
following POTWs shall provide 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 programs or POTWs required 
to develop a pretreatment program;
    (2) In addition to the POTWs listed in paragraph (j)(1) of this 
section, the Director may require other POTWs to submit the results of 
toxicity 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 chemical-specific information, the type of 
treatment facility, 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 calculations for the waterbody segment and the 
relative 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 limited to the history 
of toxic impact and compliance problems at the POTW), which the Director 
determines could cause or contribute to adverse water quality impacts.
    (3) For POTWs required under paragraph (j)(1) or (j)(2) of this 
section to conduct toxicity testing, POTWs shall use EPA's methods or 
other established 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 
modification under 40 CFR 122.62(a), whichever occurred later.
    (4) All POTWs with approved pretreatment programs 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)(1).
    (k) Application requirements for new sources and new discharges. New 
manufacturing, commercial, 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 Sec. 122.26(c)(1) and this section (except as provided 
by Sec. 122.26(c)(1)(ii)) shall provide the following information 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 commencement of discharge.
    (3) Flows, sources of pollution, and treatment technologies--(i) 
Expected treatment of wastewater. Description of the treatment that the 
wastewater will receive, along with all operations contributing 
wastewater to the effluent,

[[Page 741]]

average flow contributed by each operation, and the ultimate 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 Sec. 122.21(g)(2).
    (iii) Intermittent flows. If any of the expected discharges will be 
intermittent or seasonal, a description of the frequency, duration and 
maximum daily flow rate of each discharge occurrence (except 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 
production reported in the units used in the applicable effluent 
guideline or new source performance standard as required by 
Sec. 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 applicant must report such 
pollutants as present. Net credits may be provided for the presence of 
pollutants in intake water if the requirements of Sec. 122.45(g) are 
met. All levels (except for discharge flow, temperature, and pH) must be 
estimated as concentration and as total mass.
    (i) Each applicant must report estimated daily maximum, daily 
average, and source of information for each outfall for the following 
pollutants or parameters. The Director may waive the reporting 
requirements for any of these pollutants and parameters if the applicant 
submits a request for such a waiver before or with his application which 
demonstrates that information adequate to support issuance of the permit 
can be obtained through less stringent reporting requirements.
    (A) Biochemical Oxygen Demand (BOD).
    (B) Chemical Oxygen Demand (COD).
    (C) Total Organic Carbon (TOC).
    (D) Total Suspended Solids (TSS).
    (E) Flow.
    (F) Ammonia (as N).
    (G) Temperature (winter and summer).
    (H) pH.
    (ii) Each applicant must report estimated daily maximum, daily 
average, and source of information for each outfall for the following 
pollutants, if the applicant knows or has reason to believe they will be 
present or if they are limited by an effluent limitation guideline or 
new source performance standard either directly or indirectly through 
limitations on an indicator pollutant: all pollutants in table IV of 
appendix D of part 122 (certain conventional and nonconventional 
pollutants).
    (iii) Each applicant must report estimated daily maximum, daily 
average and source of information for the following pollutants if he 
knows or has reason to believe that they will be present in the 
discharges from any outfall:
    (A) The pollutants listed in table III of appendix D (the toxic 
metals, in the discharge from any outfall: Total cyanide, and total 
phenols);
    (B) The organic toxic pollutants in table II of appendix D (except 
bis (chloromethyl) ether, dichlorofluoromethane and 
trichlorofluoromethane). This requirement is waived for applicants with 
expected gross sales of less than $100,000 per year for the next three 
years, and for coal mines with expected average production of less than 
100,000 tons of coal per year.
    (iv) The applicant is required to report that 2,3,7,8 
Tetrachlorodibenzo-P-Dioxin (TCDD) may be discharged if he uses or 
manufactures one of the following compounds, or if he knows or has 
reason to believe that TCDD will or may be present in an effluent:
    (A) 2,4,5-trichlorophenoxy acetic acid (2,4,5-T) (CAS 93-76-5);
    (B) 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex, 2,4,5-TP) 
(CAS 93-72-1);

[[Page 742]]

    (C) 2-(2,4,5-trichlorophenoxy) ethyl 2,2-dichloropropionate (Erbon) 
(CAS 136-25-4);
    (D) 0,0-dimethyl 0-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel) 
(CAS 299-84-3);
    (E) 2,4,5-trichlorophenol (TCP) (CAS 95-95-4); or
    (F) Hexachlorophene (HCP) (CAS 70-30-4);
    (v) Each applicant must report any pollutants listed in table V of 
appendix D (certain hazardous substances) if he believes they will be 
present in any outfall (no quantitative estimates are required unless 
they are already available).
    (vi) No later than two years after the commencement of discharge 
from the proposed facility, the applicant is required to complete and 
submit Items V and VI of NPDES application Form 2c (see Sec. 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 report the existence of 
any technical evaluation concerning 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 
Sec. 122.22.
    (l) Special provisions for applications from new sources. (1) The 
owner or operator of any facility which may be a new source(as defined 
in Sec. 122.2) and which is located in a State without an approved NPDES 
program must comply with the provisions of this paragaraph.
    (2)(i) Before beginning any on-site construction as defined in 
Sec. 122.29, the owner or operator of any facility which may be a new 
source must submit information to the Regional Administrator so that he 
or she can determine if the facility is a new source. The Regional 
Administrator may request any additional information needed to determine 
whether the facility is a new source.
    (ii) The Regional Administrator shall make an initial determination 
whether the facility is a new source within 30 days of receiving all 
necessary information under paragraph (k)(2)(i) of this section.
    (3) The Regional Administrator shall issue a public notice in 
accordance with Sec. 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 Regional Administrator's 
initial new source determination by requesting an evidentiary hearing 
under subpart E of part 124 within 30 days of issuance of the public 
notice of the initial determination. If all parties to the evidentiary 
hearing on the determination agree, the Regional Administrator may defer 
the hearing until after a final permit decision is made, and consolidate 
the hearing on the determination with any hearing on the permit.
    (m) Variance requests by non-POTWs. A discharger which is not a 
publicly owned treatment works (POTW) may request a variance from 
otherwise 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 request 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 
Sec. 124.10.
    (B) For a request from best available technology economically 
achievable (BAT) and/or best conventional pollutant control technology 
(BCT), by no later than:
    (1) July 3, 1989, for a request based on an effluent limitation 
guideline promulgated before February 4, 1987, to the extent July 3, 
1989 is not later than that provided under previously promulgated 
regulations; or

[[Page 743]]

    (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 limitation guideline promulgated on or after February 4, 1987.
    (ii) The request shall explain how the requirements 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 capability of the owner or operator, or 
pursuant to section 301(g) of the CWA (provided however that a 
Sec. 301(g) variance may only be requested for ammonia; chlorine; color; 
iron; total phenols (4AAP) (when determined by the Administrator to be a 
pollutant covered by section 301(b)(2)(F)) and any other pollutant which 
the Administrator lists under section 301(g)(4) of the CWA) must be made 
as follows:
    (i) For those requests for a variance from an effluent limitation 
based upon an effluent limitation guideline by:
    (A) Submitting an initial request to the Regional Administrator, as 
well as to the State Director if applicable, stating the name of the 
discharger, the permit number, the outfall number(s), the applicable 
effluent guideline, and whether the discharger is requesting a section 
301(c) or section 301(g) modification or both. This request must have 
been filed not later than:
    (1) September 25, 1978, for a pollutant which is controlled by a BAT 
effluent limitation guideline promulgated before December 27, 1977; or
    (2) 270 days after promulgation of an applicable effluent limitation 
guideline for guidelines promulgated after December 27, 1977; and
    (B) Submitting a completed request no later than the close of the 
public comment period under Sec. 124.10 demonstrating that the 
requirements of Sec. 124.13 and the applicable requirements of part 125 
have been met. Notwithstanding this provision, the complete application 
for a request under section 301(g) shall be filed 180 days before EPA 
must make a decision (unless the Regional Division Director establishes 
a shorter or longer period).
    (ii) For those requests for a variance from effluent limitations not 
based on effluent limitation guidelines, the request need only comply 
with paragraph (m)(2)(i)(B) of this section and need not be preceded by 
an initial request under paragraph (m)(2)(i)(A) of this section.
    (3)-(4) [Reserved]
    (5) Water quality related effluent limitations. A modification under 
section 302(b)(2) of requirements under section 302(a) for achieving 
water quality related effluent limitations may be requested no later 
than the close of the public comment period under Sec. 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 thermal 
effluent limitations are established under CWA section 402(a)(1) or are 
based on water quality standards the request for a variance may be filed 
by the close of the public comment period under Sec. 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 interstate certifying agency 
as required under 40 CFR part 125. (See Sec. 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)(1)(B) for 
discharges into marine waters must be filed in accordance 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 requested no 
later than the close of the public comment period under Sec. 124.10 on

[[Page 744]]

the permit from which the modification is sought.
    (o) Expedited variance procedures and time extensions. (1) 
Notwithstanding the time requirements in paragraphs (m) and (n) of this 
section, the Director may notify a permit applicant before a draft 
permit is issued under Sec. 124.6 that the draft permit will likely 
contain limitations which are eligible for variances. In the notice the 
Director may require the applicant as a condition of consideration of 
any potential variance request to submit a request explaining how the 
requirements of part 125 applicable to the variance have been met and 
may require its submission within a specified reasonable 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 effective upon final grant 
of the variance.
    (2) A discharger who cannot file a timely complete request required 
under paragraph (m)(2)(i)(B) or (m)(2)(ii) of this section may request 
an extension. The extension may be granted or denied at the discretion 
of the Director. Extensions shall be no more than 6 months in duration.
    (p) Recordkeeping. Except for information required 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 information 
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 Environmental Protection 
Agency suspended until further notice Sec. 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 suspension.]\1\
---------------------------------------------------------------------------

    \1\ Editorial Note: The words ``This revision'' refer to the 
document published at 48 FR 14153, Apr. 1, 1983.
---------------------------------------------------------------------------

    [Note 2: At 46 FR 22585, Apr. 20, 1981, the Environmental Protection 
Agency suspended until further notice Sec. 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 industry (subpart C--Low 
water use processing of 40 CFR part 410), and testing and reporting for 
the pesticide fraction in all other subcategories of this industrial 
category.
    b. Testing and reporting for the volatile, base/neutral and 
pesticide fractions in the Base and Precious Metals Subcategory of the 
Ore Mining and Dressing industry (subpart B of 40 CFR part 440), and 
testing and reporting for all four fractions in all other subcategories 
of this industrial category.
    c. Testing and reporting for all four GC/MS fractions in the 
Porcelain Enameling industry.

This revision continues that suspension.]\1\

    [Note 3: At 46 FR 35090, July 1, 1981, the Environmental Protection 
Agency suspended until further notice Sec. 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 Formulation, and Photographic 
Supplies industrial categories.
    c. Testing and reporting for the acid, base/neutral and pesticide 
fractions in the Petroleum Refining industrial category.
    d. Testing and reporting for the pesticide fraction in the 
Papergrade Sulfite subcategories (subparts J and U) of the Pulp and 
Paper industry (40 CFR part 430); testing and reporting for the base/
neutral and pesticide fractions in the following subcategories: Deink 
(subpart Q), Dissolving Kraft (subpart F), and Paperboard from Waste 
Paper (subpart E); testing and reporting for the volatile, base/neutral 
and pesticide fractions in the following subcategories: BCT Bleached 
Kraft (subpart H), Semi-Chemical (subparts B and C), and Nonintegrated-
Fine Papers (subpart R); and testing and reporting for the acid, base/
neutral, and pesticide fractions in the following subcategories: Fine 
Bleached Kraft (subpart I), Dissolving Sulfite Pulp (subpart K), 
Groundwood-Fine Papers (subpart O), Market Bleached Kraft (subpart G), 
Tissue from Wastepaper (subpart T), and Nonintegrated-Tissue Papers 
(subpart S).
    e. Testing and reporting for the base/neutral fraction in the Once-
Through Cooling Water, Fly Ash and Bottom Ash Transport

[[Page 745]]

Water process wastestreams of the Steam Electric Power Plant industrial 
category.

This revision continues that suspension.]\1\
---------------------------------------------------------------------------

    \1\ Editorial Note: The words ``This revision'' refer to the 
document published at 48 FR 14153, Apr. 1, 1983.

[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]



Sec. 122.22  Signatories to permit applications and reports (applicable to State programs, see Sec. 123.25).

    (a) Applications. All permit applications shall be signed as 
follows:
    (1) For a corporation. By a responsible corporate officer. For the 
purpose of this section, a responsible corporate officer means: (i) A 
president, secretary, treasurer, or vice-president of the corporation in 
charge of a principal business function, or any other person who perfoms 
similar policy- or decision-making functions for the corporation, or 
(ii) the manager of one or more manufacturing, production, or operating 
facilities employing more than 250 persons or having gross annual 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 procedures.
    Note: EPA does not require specific assignments or delegations of 
authority to responsible corporate officers identified in 
Sec. 122.22(a)(1)(i). The Agency will presume that these responsible 
corporate officers have the requisite authority to sign permit 
applications unless the corporation has notified the Director to the 
contrary. Corporate procedures governing authority to sign permit 
applications may provide for assignment or delegation to applicable 
corporate positions under Sec. 122.22(a)(1)(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 officer 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 having responsibility for the overall 
operations of a principal geographic unit of the agency (e.g., Regional 
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 representative only if:
    (1) The authorization is made in writing by a person described in 
paragraph (a) of this section;
    (2) The authorization specifies either an individual or a position 
having responsibility for the overall operation of the regulated 
facility or activity such as the position of plant manager, operator of 
a well or a well field, superintendent, position of equivalent 
responsibility, or an individual or position having overall 
responsibility for environmental matters for the company, (A duly 
authorized representative may thus be either a named individual or any 
individual occupying a named position.) and,
    (3) The written authorization is submitted to the Director.
    (c) Changes to authorization. If an authorization under paragraph 
(b) of this section is no longer accurate because a different individual 
or position has responsibility for the overall operation of the 
facility, a new authorization satisfying the requirements 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 document 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 supervision in 
accordance with a system designed to assure that qualified personnel 
properly gather and evaluate the information submitted. Based on my 
inquiry of the person or persons who manage the system, or those persons 
directly responsible for gathering the information, the information 
submitted is, to the best of my knowledge and belief, true, accurate, 
and

[[Page 746]]

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 Recovery 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]



Sec. 122.23  Concentrated animal feeding operations (applicable to State NPDES programs, see Sec. 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 animal production facility) where the 
following conditions 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 facility.
    (2) Two or more animal feeding operations under common ownership are 
considered, for the purposes of these regulations, to be a single animal 
feeding operation if they adjoin each other or if they use a common area 
or system for the disposal of wastes.
    (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 concentrated animal feeding operation upon determining that it is a 
significant contributor of pollution to the waters of the United States. 
In making this designation the Director shall consider the following 
factors:
    (i) The size of the animal feeding operation and the amount of 
wastes reaching waters of the United 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 waters 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 animal 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 facility 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 designated 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.



Sec. 122.24  Concentrated aquatic animal production facilities (applicable to State NPDES programs, see Sec. 123.25).

    (a) Permit requirement. Concentrated aquatic animal production 
facilities, as defined in this section, are point sources subject to the 
NPDES permit program.
    (b) Defintion. Concentrated aquatic animal production 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 Director may designate

[[Page 747]]

any warm or cold water aquatic animal production facility as a 
concentrated 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 
following factors:
    (i) The location and quality of the receiving waters of the United 
States;
    (ii) The holding, feeding, and production capacities of the 
facility;
    (iii) The quantity and nature of the pollutants reaching waters of 
the United States; and
    (iv) Other relevant factors.
    (2) A permit application shall not be required from a concentrated 
aquatic animal production facility designated under this paragraph until 
the Director has conducted on-site inspection of the facility and has 
determined that the facility should and could be regulated under the 
permit program.



Sec. 122.25  Aquaculture projects (applicable to State NPDES programs, see Sec. 123.25).

    (a) Permit requirement. Discharges into aquaculture projects, as 
defined in this section, are subject 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 freshwater, 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 scientific 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 within a defined geographic area.



Sec. 122.26  Storm water discharges (applicable to State NPDES programs, see Sec. 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 activity (see 
Sec. 122.26(a)(4));
    (iii) A discharge from a large municipal separate storm sewer 
system;
    (iv) A discharge from a medium municipal separate storm sewer 
system;
    (v) A discharge which the Director, or in States with approved NPDES 
programs, either the Director or the EPA Regional Administrator, 
determines to contribute to a violation of a water quality standard or 
is a significant contributor of pollutants to waters of the United 
States. This designation may include a discharge from any conveyance or 
system of conveyances used for collecting and conveying storm water 
runoff or a system of discharges from municipal separate storm sewers, 
except for those discharges from conveyances which do not require a 
permit under paragraph (a)(2) of this section or agricultural storm 
water runoff which is exempted from the definition of point source at 
Sec. 122.2.

The Director may designate discharges from municipal separate storm 
sewers on a system-wide or jurisdiction-wide basis. In making this 
determination the Director may consider the following factors:
    (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 operations or oil and gas exploration, 
production, processing or treatment operations or

[[Page 748]]

transmission facilities, composed entirely of flows which are from 
conveyances or systems of conveyances (including but not limited to 
pipes, conduits, ditches, and channels) used for collecting and 
conveying precipitation runoff and which are not contaminated by contact 
with or that has not come into contact with, any overburden, raw 
material, intermediate products, finished product, byproduct or waste 
products located on the site of such operations.
    (3) Large and medium municipal separate storm sewer systems. (i) 
Permits must be obtained for all discharges from large and medium 
municipal separate storm sewer systems.
    (ii) The Director may either issue one system-wide permit covering 
all discharges from municipal separate storm sewers within a large or 
medium municipal storm sewer system or issue distinct permits for 
appropriate categories of discharges within a large or medium municipal 
separate storm sewer system including, but not limited to: all 
discharges owned or operated by the same municipality; located within 
the same jurisdiction; all discharges within a system that discharge to 
the same watershed; discharges within a system that are similar in 
nature; or for individual discharges from municipal separate storm 
sewers within the system.
    (iii) The operator of a discharge from a municipal separate storm 
sewer which is part of a large or medium municipal separate storm sewer 
system must either:
    (A) Participate in a permit application (to be a permittee or a co-
permittee) with one or more other operators of discharges from the large 
or medium municipal storm sewer system which covers all, or a portion of 
all, discharges from the municipal separate storm sewer system;
    (B) Submit a distinct permit application which only covers 
discharges from the municipal separate storm sewers for which the 
operator is responsible; or
    (C) A regional authority may be responsible for submitting a permit 
application under the following guidelines:
    (1) The regional authority together with co-applicants 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 application 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 paragraphs (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 different management programs for different drainage 
areas which contribute storm water to the system.
    (vi) Co-permittees need only comply with permit conditions relating 
to discharges from the municipal separate storm sewers for which they 
are operators.
    (4) Discharges through large and medium municipal separate storm 
sewer systems. In addition to meeting the requirements of paragraph (c) 
of this section, an operator of a storm water discharge 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:

[[Page 749]]

the name of the facility; a contact person and phone number; the 
location of the discharge; 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)(1)(v) of this section on a system-wide basis, 
jurisdiction-wide basis, watershed basis or other appropriate basis, or 
may issue permits for individual 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 issued 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 individual permit, 
or a permit issued to the operator of the portion of the system that 
discharges to waters 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 industrial activity must submit applications.
    (iii) Any permit covering more than one operator shall identify the 
effluent limitations, or other permit conditions, if any, that apply to 
each operator.
    (7) Combined sewer systems. Conveyances that discharge storm water 
runoff combined with municipal sewage are point sources that must obtain 
NPDES permits in accordance with the procedures of Sec. 122.21 and are 
not subject to the provisions of this section.
    (8) Whether a discharge from a municipal separate storm sewer is or 
is not subject to regulation under this section shall have no bearing on 
whether the owner or operator of the discharge is eligible for funding 
under title II, title III or title VI of the Clean Water Act. See 40 CFR 
part 35, subpart I, appendix A(b)H.2.j.
    (9) On and after October 1, 1994, dischargers composed entirely of 
storm water, that are not otherwise already required by paragraph (a)(1) 
of this section to obtain a permit, shall be required to apply for and 
obtain a permit according to the application requirements in paragraph 
(g) of this section. The Director may not require a permit for 
discharges of storm water as provided in paragraph (a)(2) of this 
section or agricultural storm water runoff which is exempted from the 
definition of point source at Secs. 122.2 and 122.3.
    (b) Definitions. (1) Co-permittee means a permittee 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 composed 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 system means all municipal 
separate storm sewers that are either:
    (i) Located in an incorporated place with a population 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

[[Page 750]]

paragraph (b)(4) (i) or (ii) of this section and that are designated by 
the Director as part of the large or medium municipal separate storm 
sewer system due to the interrelationship between the discharges of the 
designated storm sewer and the discharges from municipal separate storm 
sewers described under paragraph (b)(4) (i) or (ii) of this section. In 
making this determination the Director may consider the following 
factors:
    (A) Physical interconnections between the municipal separate storm 
sewers;
    (B) The location of discharges from the designated municipal 
separate storm sewer relative to discharges from municipal separate 
storm sewers described in paragraph (b)(4)(i) of this section;
    (C) The quantity and nature of pollutants discharged to waters of 
the United States;
    (D) The nature of the receiving waters; and
    (E) Other relevant factors; or
    (iv) The Director may, upon petition, designate as a large municipal 
separate storm sewer system, municipal separate storm sewers located 
within the boundaries of a region defined by a storm water management 
regional authority based on a jurisdictional, watershed, or other 
appropriate basis that includes one or more of the systems described in 
paragraph (b)(4) (i), (ii), (iii) of this section.
    (5) 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 industrial 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 separate 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 population 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 Director as part of the large or medium municipal separate storm 
sewer system due to the interrelationship between the discharges of the 
designated storm sewer and the discharges from municipal separate storm 
sewers described under paragraph (b)(4) (i) or (ii) of this section. In 
making this determination the Director may consider the following 
factors:
    (A) Physical interconnections between the municipal separate storm 
sewers;
    (B) The location of discharges from the designated municipal 
separate storm sewer relative to discharges from municipal separate 
storm sewers described in paragraph (b)(7)(i) of this section;
    (C) The quantity and nature of pollutants discharged to waters of 
the United States;
    (D) The nature of the receiving waters; or
    (E) Other relevant factors; or
    (iv) The Director may, upon petition, designate as a medium 
municipal separate storm sewer system, municipal separate storm sewers 
located within the boundaries of a region defined by a storm water 
management regional authority based on a jurisdictional, watershed, or 
other appropriate basis that includes one or more of the systems 
described in paragraphs (b)(7) (i), (ii), (iii) of this section.
    (8) 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):

[[Page 751]]

    (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, including special 
districts under State law such as a sewer district, flood control 
district or drainage district, or similar entity, or an Indian tribe or 
an authorized Indian tribal organization, or a designated and approved 
management agency under section 208 of the CWA that discharges to waters 
of the United States;
    (ii) Designed or used for collecting or conveying storm water;
    (iii) Which is not a combined sewer; and
    (iv) Which is not part of a Publicly Owned Treatment Works (POTW) as 
defined at 40 CFR 122.2.
    (9) Outfall means a point source as defined by 40 CFR 122.2 at the 
point where a municipal separate storm sewer discharges to waters of the 
United States and does not include open conveyances connecting two 
municipal separate storm sewers, or pipes, tunnels or other conveyances 
which connect segments of the same stream or other waters of the United 
States and are used to convey waters of the United States.
    (10) Overburden means any material of any nature, consolidated or 
unconsolidated, that overlies a mineral deposit, excluding topsoil or 
similar naturally-occurring surface materials that are not disturbed 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 potential to be released with storm water discharges.
    (13) Storm water means storm water runoff, snow melt runoff, and 
surface runoff and drainage.
    (14) Storm water discharge associated with industrial activity means 
the discharge from any conveyance which is used for collecting and 
conveying storm water and which is directly related to manufacturing, 
processing or raw materials storage areas at an industrial plant. The 
term does not include discharges from facilities or activities excluded 
from the NPDES program under 40 CFR part 122. For the categories of 
industries identified in paragraphs (b)(14) (i) through (x) of this 
section, the term includes, but is not limited to, storm water 
discharges from industrial plant yards; immediate access roads and rail 
lines used or traveled 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 disposal 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 buildings; 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 sentence where material handling equipment or 
activities, raw materials, intermediate products, final products, waste 
materials, by-products, or industrial machinery are exposed to storm 
water. For the purposes of this paragraph, material handling activities 
include the storage, loading and unloading, transportation, or 
conveyance of any raw material, intermediate product, finished product, 
by-product or waste product. The term excludes areas located on plant 
lands separate from the plant's industrial activities, such as office 
buildings and accompanying parking lots as long as the

[[Page 752]]

drainage from the excluded areas is not mixed with storm water drained 
from the above described areas. Industrial facilities (including 
industrial facilities that are Federally, State, or municipally owned or 
operated that meet the description of the facilities listed in this 
paragraph (b)(14)(i)-(xi) of this section) include those facilities 
designated under the provisions of paragraph (a)(1)(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 limitations 
guidelines, new source performance standards, 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, 31l, 32 
(except 323), 33, 344l, 373;
    (iii) Facilities classified as Standard Industrial Classifications 
10 through 14 (mineral industry) including active or inactive mining 
operations (except for areas of coal mining operations no longer meeting 
the definition of a reclamation area under 40 CFR 434.11(1) because the 
performance bond issued to the facility by the appropriate SMCRA 
authority has been released, or except for areas of non-coal mining 
operations which have been released from applicable State or Federal 
reclamation requirements after December 17, 1990) and oil and gas 
exploration, production, processing, or treatment operations, or 
transmission facilities that discharge storm water contaminated by 
contact with or that has come into contact with, any overburden, raw 
material, intermediate products, finished products, byproducts or waste 
products located on the site of such operations; (inactive mining 
operations are mining sites that are not being actively mined, but which 
have an identifiable owner/operator; inactive mining sites do not 
include sites where mining claims are being maintained prior to 
disturbances associated with the extraction, beneficiation, or 
processing of mined materials, nor sites where minimal activities are 
undertaken for the sole purpose of maintaining a mining claim);
    (iv) Hazardous waste treatment, storage, or disposal facilities, 
including those that are operating under interim status or a permit 
under subtitle C of RCRA;
    (v) Landfills, land application sites, and open dumps that receive 
or have received any industrial wastes (waste that is received from any 
of the facilities described under this subsection) including those that 
are subject to regulation under subtitle D of RCRA;
    (vi) Facilities involved in the recycling of materials, including 
metal scrapyards, battery reclaimers, salvage yards, and automobile 
junkyards, including but limited to those classified as Standard 
Industrial Classification 5015 and 5093;
    (vii) Steam electric power generating facilities, including coal 
handling sites;
    (viii) Transportation facilities classified as Standard Industrial 
Classifications 40, 41, 42 (except 4221-25), 43, 44, 45, and 5171 which 
have vehicle maintenance shops, equipment cleaning operations, or 
airport deicing operations. Only those portions of the facility that are 
either involved in vehicle maintenance (including vehicle 
rehabilitation, mechanical repairs, painting, fueling, and lubrication), 
equipment cleaning operations, airport deicing operations, or which are 
otherwise identified under paragraphs (b)(14) (i)-(vii) or (ix)-(xi) of 
this section are associated with industrial activity;
    (ix) Treatment works treating domestic sewage or any other sewage 
sludge or wastewater treatment device or system, used in the storage 
treatment, recycling, and reclamation of municipal or domestic sewage, 
including land dedicated to the disposal of sewage sludge that are 
located within the confines of the facility, with a design flow of 1.0 
mgd or more, or required to have an approved pretreatment program under 
40 CFR part 403. Not included are farm lands, domestic gardens or lands 
used for sludge management where sludge is beneficially reused and which 
are not physically located in the confines of the facility, or areas 
that are in compliance with section 405 of the CWA;

[[Page 753]]

    (x) Construction activity including clearing, grading and excavation 
activities except: operations 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 Classifications 20, 21, 
22, 23, 2434, 25, 265, 267, 27, 283, 285, 30, 31 (except 311), 323, 34 
(except 3441), 35, 36, 37 (except 373), 38, 39, 4221-25, (and which are 
not otherwise included within categories (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)(1)(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 
requirements of Sec. 122.21 as modified and supplemented by the 
provisions of the remainder of this paragraph. Applicants for discharges 
composed entirely 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 Sec. 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 Sec. 122.26(c)(1) (ii)-(iv), the operator 
of a storm water discharge associated with industrial activity subject 
to this section shall provide:
    (A) A site map showing topography (or indicating the outline of 
drainage areas served by the outfall(s) covered in the application if a 
topographic map is unavailable) of the facility including: each of its 
drainage and discharge structures; the drainage area of each storm water 
outfall; paved areas and buildings within the drainage area of each 
storm water outfall, each past or present area used for outdoor storage 
or disposal of significant materials, each existing structural control 
measure to reduce pollutants in storm water runoff, 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 surfaces (including paved 
areas and building roofs) and the total area drained by each outfall 
(within a mile radius of the facility) and a narrative description of 
the following: Significant materials that in the three years prior to 
the submittal of this application have been treated, stored or disposed 
in a manner to allow exposure to storm water; method of treatment, 
storage or disposal of such materials; materials management practices 
employed, in the three years prior to the submittal of this application, 
to minimize contact by these materials with storm water runoff; 
materials loading and access areas; the location, manner and frequency 
in which pesticides, herbicides, soil conditioners and fertilizers are 
applied; the location and a description of existing structural and non-
structural control measures to reduce pollutants in storm water runoff; 
and a description of the treatment the storm water receives, including 
the ultimate disposal of any solid or fluid wastes other than by 
discharge;
    (C) A certification that all outfalls that should contain storm 
water discharges associated with industrial activity have been tested or 
evaluated for

[[Page 754]]

the presence of non-storm water discharges which are not covered by a 
NPDES permit; tests for such non-storm water discharges may include 
smoke tests, fluorometric dye tests, analysis of accurate schematics, as 
well as other appropriate tests. The certification shall include a 
description of the method used, the date of any testing, and the on-site 
drainage points that were directly observed during a test;
    (D) Existing information regarding significant leaks or spills of 
toxic or hazardous pollutants at the facility that have taken place 
within the three years prior to the submittal of this application;
    (E) Quantitative data based on samples collected during storm events 
and collected in accordance with Sec. 122.21 of this part from all 
outfalls containing a storm water discharge associated with industrial 
activity for the following parameters:
    (1) Any pollutant limited in an effluent guideline 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, BOD5, COD, TSS, total phosphorus, total 
Kjeldahl nitrogen, and nitrate plus nitrite nitrogen;
    (4) Any information on the discharge required under paragraph 
Sec. 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 between 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 requirements of Sec. 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 
Sec. 122.2 of this part) which are composed in part or entirely of storm 
water must include estimates for the pollutants or parameters listed in 
paragraph (c)(1)(i)(E) of this section instead of actual sampling 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)(1)(i)(E) of 
this section within two years after commencement of discharge, unless 
such data has already been reported 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 
requirements of Sec. 122.21 (k)(3)(ii), (k)(3)(iii), and (k)(5).
    (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 Sec. 122.21(g) and 
paragraph (c)(1)(i) of this section. Such operator shall provide a 
narrative description of:
    (A) The location (including a map) and the nature of the 
construction activity;
    (B) The total area of the site and the area of the site that is 
expected to undergo excavation during the life of the permit;
    (C) Proposed measures, including best management practices, to 
control pollutants in storm water discharges during construction, 
including a brief description of applicable State and local erosion and 
sediment control requirements;
    (D) Proposed measures to control pollutants in storm water 
discharges that will occur after construction operations have been 
completed, including a brief description of applicable State or local 
erosion and sediment control requirements;
    (E) An estimate of the runoff coefficient of the site and the 
increase in impervious area after the construction addressed in the 
permit application is completed, the nature of fill material and 
existing data describing the soil or the quality of the discharge; and

[[Page 755]]

    (F) The name of the receiving water.
    (iii) The operator of an existing or new discharge composed entirely 
of storm water from an oil or gas exploration, production, processing, 
or treatment operation, or transmission facility is not required to 
submit a permit application in accordance with paragraph (c)(1)(i) of 
this section, unless the facility:
    (A) Has had a discharge of storm water resulting in the discharge of 
a reportable quantity for which notification is or was required pursuant 
to 40 CFR 117.21 or 40 CFR 302.6 at anytime since November 16, 1987; or
    (B) Has had a discharge of storm water resulting in the discharge of 
a reportable quantity for which notification is or was required pursuant 
to 40 CFR 110.6 at any time since November 16, 1987; or
    (C) Contributes to a violation of a water quality standard.
    (iv) The operator of an existing or new discharge composed entirely 
of storm water from a mining operation is not required to submit a 
permit application unless the discharge has come into contact with, any 
overburden, raw material, intermediate products, finished product, 
byproduct or waste products located on the site of such operations.
    (v) Applicants shall provide such other information the Director may 
reasonably require under Sec. 122.21(g)(13) of this part to determine 
whether to issue a permit and may require any facility subject to 
paragraph (c)(1)(ii) of this section to comply with paragraph (c)(1)(i) 
of this section.
    (2) Group application for discharges associated with industrial 
activity. In lieu of individual applications or notice of intent to be 
covered by a general permit for storm water discharges associated with 
industrial activity, a group application may be filed by an entity 
representing a group of applicants (except facilities that have existing 
individual 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 inapplicable, are sufficiently similar as to be appropriate 
for general permit coverage under Sec. 122.28 of this part. The part 1 
application shall be submitted to the Office of Water Enforcement and 
Permits, 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 Office 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 application by name and 
location. Facilities participating in the group application shall be 
listed in nine subdivisions, based on the facility location relative to 
the nine precipitation zones indicated in appendix 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 practices employed to diminish contact by these materials 
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 application from which quantitative data will be submitted. 
For groups of between 21 and 99 members identify a minimum of ten 
dischargers participating in the group application from which 
quantitative data will be submitted. For groups of 4 to 20 members, 
identify a minimum of 50 percent of the dischargers participating in the 
group application from which quantitative data will be submitted. For 
groups with more than 10 members, either a minimum of two dischargers 
from each precipitation zone indicated in appendix E of this part in 
which ten or more members of the group are located, or one discharger 
from each precipitation zone indicated in appendix E of this part in 
which nine

[[Page 756]]

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 located must be identifed to submit 
quantitative data. A description of why the facilities selected to 
perform sampling and analysis are representative of the group as a whole 
in terms of the information provided in paragraphs (c)(1)(i)(B) and 
(c)(1)(i)(C) of this section, shall accompany this section. Different 
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)(1) of 
this section, so that when part 1 and part 2 of the group application 
are taken together, a complete NPDES application (Form 1, Form 2C, and 
Form 2F) can be evaluated for each discharger identified in paragraph 
(c)(2)(i)(D) of this section.
    (d) Application requirements for large and medium municipal separate 
storm sewer discharges. The operator of a discharge from a large or 
medium municipal separate storm sewer or a municipal separate storm 
sewer that is designated by the Director under paragraph (a)(1)(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 discharges from large and medium municipal storm sewers 
or municipal storm sewers designated under paragraph (a)(1)(v) of this 
section shall include;
    (1) Part 1. Part 1 of the application shall consist of;
    (i) General information. The applicants' name, address, telephone 
number of contact person, ownership status and status as a State or 
local government entity.
    (ii) Legal authority. A description of existing legal authority to 
control discharges to the municipal 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 additional 
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 Works serving 
the same area as the municipal separate 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 municipal storm sewer 
system covered by the permit application. The following information 
shall be provided:
    (1) 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, commercial, agricultural and 
industrial uses) accompanied 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 activities of the facility 
of each currently operating or closed municipal landfill or other 
treatment, storage or disposal facility for municipal waste;
    (4) 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

[[Page 757]]

    (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 municipal storm sewer, including a description of 
the outfalls sampled, sampling procedures and analytical methods used.
    (C) A list of water bodies that receive discharges from the 
municipal separate storm sewer system, including downstream segments, 
lakes and estuaries, where pollutants from the system discharges may 
accumulate and cause water degradation and a brief description of known 
water quality impacts. At a minimum, the description of impacts shall 
include a description of whether the water bodies receiving such 
discharges have been:
    (1) Assessed and reported in section 305(b) reports submitted by the 
State, the basis for the assessment (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)(1)(A)(i), section 304(l)(1)(A)(ii), 
or section 304(l)(1)(B) of the CWA that is not expected to meet water 
quality standards or water quality goals;
    (3) Listed in State Nonpoint Source Assessments required by section 
319(a) of the CWA that, without additional action to control nonpoint 
sources of pollution, cannot reasonably be expected to attain or 
maintain water quality standards due to storm sewers, construction, 
highway maintenance and runoff from municipal landfills and municipal 
sludge adding significant pollution (or contributing to a violation of 
water quality standards);
    (4) Identified and classified according to eutrophic 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 identified by the 
International Joint Commission;
    (6) Designated estuaries under the National Estuary Program under 
section 320 of the CWA;
    (7) Recognized by the applicant as highly valued or sensitive 
waters;
    (8) Defined by the State or U.S. Fish and Wildlife Services's 
National Wetlands Inventory as wetlands; and
    (9) Found to have pollutants in bottom sediments, 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 narrative description, 
for either each field screening point or major outfall, of visual 
observations made during dry weather periods. If any flow is observed, 
two grab samples shall be collected during a 24 hour period with a 
minimum period of four hours between samples. For all such samples, a 
narrative description of the color, odor, turbidity, the presence of an 
oil sheen or surface scum as well as any other relevant observations 
regarding the potential presence of non-storm water discharges or 
illegal dumping shall be provided. In addition, a narrative description 
of the results of a field analysis using suitable methods to estimate 
pH, total chlorine, total copper, total phenol, and detergents (or 
surfactants) shall be provided along with a description of the flow 
rate. Where the field analysis does not involve analytical methods 
approved 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. 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

[[Page 758]]

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 following guidelines and criteria:
    (1) A grid system consisting of perpendicular north-south and east-
west lines spaced \1/4\ 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 screening 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;
    (4) 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 
consideration; if fewer than 250 cells in medium municipal sewers are 
created, and fewer than 500 in large systems are created by the overlay 
on the municipal 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 procedures described in paragraphs (d)(1)(iv)(D) 
(1) 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 circumstances, the applicant shall 
establish a grid system consisting of north-south and east-west lines 
spaced \1/4\ mile apart as an overlay to the boundaries of the municipal 
storm sewer system, thereby creating a series of cells; the applicant 
will then select major outfalls in as many cells as possible until at 
least 500 major outfalls (large municipalities) or 250 major outfalls 
(medium municipalities) 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 
description 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 during 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 paragraph 
(d)(1)(iv)(C) of this section) to the extent practicable.
    (v) Management programs. (A) A description of the existing 
management programs to control pollutants from the municipal separate 
storm sewer system. The description shall provide information on 
existing structural and source controls, including operation and 
maintenance measures for structural controls, that are currently being 
implemented. Such controls may include, but are not limited to: 
Procedures to control pollution resulting from construction activities; 
floodplain management controls; wetland protection measures; best 
management practices for new subdivisions; and emergency spill response 
programs. The description 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 inspection

[[Page 759]]

procedures and methods for detecting and preventing illicit discharges, 
and describe areas where this program has been implemented.
    (vi) Fiscal resources. (A) A description of the financial resources 
currently available to the municipality to complete part 2 of the permit 
application. A description of the municipality's budget for existing 
storm water programs, including an overview 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 authority established by statute, ordinance or 
series of contracts which authorizes or enables the applicant at a 
minimum to:
    (A) Control through ordinance, permit, contract, order or similar 
means, the contribution of pollutants to the municipal storm sewer by 
storm water discharges associated with industrial activity and the 
quality of storm water discharged from sites of industrial activity;
    (B) Prohibit through ordinance, order or similar means, illicit 
discharges to the municipal separate storm sewer;
    (C) Control through ordinance, order or similar means the discharge 
to a municipal separate storm sewer of spills, dumping or disposal of 
materials other than storm water;
    (D) Control through interagency agreements among coapplicants the 
contribution of pollutants from one portion of the municipal system to 
another portion of the municipal system;
    (E) Require compliance with conditions in ordinances, permits, 
contracts or orders; and
    (F) Carry out all inspection, surveillance and monitoring procedures 
necessary to determine compliance and noncompliance with permit 
conditions including the prohibition on illicit discharges to the 
municipal separate storm sewer.
    (ii) Source identification. The location of any major outfall that 
discharges to waters of the United States that was not reported under 
paragraph (d)(1)(iii)(B)(1) of this section. Provide an inventory, 
organized by watershed of the name and address, and a description (such 
as SIC codes) which best reflects the principal products or services 
provided by each facility which may discharge, to the municipal separate 
storm sewer, storm water associated with industrial activity;
    (iii) Characterization data. When ``quantitative data'' for a 
pollutant are required under paragraph (d)(a)(iii)(A)(3) 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 
analytical method is approved the applicant may use any suitable method 
but must provide a description of the method. The applicant must provide 
information characterizing the quality and quantity of discharges 
covered in the permit application, including:
    (A) Quantitative data from representative outfalls designated by the 
Director (based on information received in part 1 of the application, 
the Director shall designate between five and ten outfalls or field 
screening points as representative of the commercial, residential and 
industrial land use activities of the drainage area contributing to the 
system or, where there are less than five outfalls covered in the 
application, the Director shall designate all outfalls) developed as 
follows:
    (1) For each outfall or field screening point designated 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 Sec. 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) sampled, 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;

[[Page 760]]

    (3) For samples collected and described under paragraphs (d)(2)(iii) 
(A)(1) and (A)(2) of this section, 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

    (4) 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 location, season of sample 
collection, form of precipitation (snow melt, rainfall) and other 
parameters 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 Sec. 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 
description 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 paragraph (d)(2)(ii) or (d)(1)(iii)(B)(1) 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 representative data collection 
for the term of the permit that describes the location of outfalls or 
field screening points to be sampled (or the location of instream 
stations), why the location is representative, the frequency of 
sampling, parameters to be sampled, and a description of sampling 
equipment.
    (iv) Proposed management program. A proposed management program 
covers the duration of the permit. It shall include a comprehensive 
planning process which involves public participation and where necessary 
intergovernmental coordination, 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 
provisions which are appropriate. The program shall also include a 
description of staff and equipment available to implement the program. 
Separate proposed programs may be submitted by each coapplicant. 
Proposed programs may impose controls on a systemwide basis, a watershed 
basis, a jurisdiction basis, or on individual outfalls. Proposed 
programs will be considered by the Director when developing permit 
conditions to reduce pollutants in discharges to the maximum extent 
practicable. Proposed management programs shall describe priorities for 
implementing controls. Such programs shall be based on:
    (A) A description of structural and source control measures to 
reduce pollutants from runoff from commercial and residential areas that 
are discharged from the municipal storm sewer system that are to be 
implemented during the life of the permit, accompanied with an estimate 
of the expected reduction of pollutant loads and a proposed schedule for 
implementing such controls. At a minimum, the description shall include:
    (1) A description of maintenance activities and a maintenance 
schedule for structural controls to reduce pollutants (including 
floatables) in discharges from municipal separate storm sewers;

[[Page 761]]

    (2) A description of planning procedures including a comprehensive 
master plan to develop, implement and enforce controls to reduce the 
discharge 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 pollutants 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;
    (3) 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 device to provide additional 
pollutant removal from storm water is feasible;
    (5) A description of a program to monitor pollutants in runoff from 
operating or closed municipal landfills or other treatment, storage or 
disposal facilities for municipal waste, which shall identify priorities 
and procedures for inspections and establishing and implementing control 
measures for such discharges (this program can be coordinated with the 
program 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 discharges from municipal separate storm 
sewers associated with the application of pesticides, herbicides and 
fertilizer which will include, as appropriate, controls such as 
educational activities, permits, certifications and other measures for 
commercial applicators and distributors, and controls for application in 
public right-of-ways and at municipal facilities.
    (B) A description of a program, including a schedule, to detect and 
remove (or require the discharger to the municipal separate storm sewer 
to obtain a separate NPDES permit for) illicit discharges and improper 
disposal into the storm sewer. The proposed program shall include:
    (1) A description of a program, including inspections, to implement 
and enforce an ordinance, orders or similar means to prevent illicit 
discharges to the municipal separate storm sewer system; this program 
description shall address all types of illicit discharges, however the 
following category of non-storm water discharges or flows shall be 
addressed where such discharges are identified by the municipality as 
sources of pollutants to waters of the United States: water line 
flushing, landscape irrigation, diverted stream flows, rising ground 
waters, uncontaminated ground water infiltration (as defined at 40 CFR 
35.2005(20)) to separate storm sewers, uncontaminated pumped ground 
water, discharges from potable water sources, foundation drains, air 
conditioning condensation, irrigation water, springs, water from crawl 
space pumps, footing drains, lawn watering, individual 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 
discharges 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 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 procedures may include: sampling procedures for 
constituents such as fecal coliform, fecal streptococcus, surfactants 
(MBAS), residual chlorine, fluorides and potassium; testing with

[[Page 762]]

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 evaluation);
    (4) A description of procedures to prevent, contain, and respond to 
spills that may discharge into the municipal separate storm sewer;
    (5) A description of a program to promote, publicize, and facilitate 
public reporting of the presence of illicit discharges or water quality 
impacts associated with discharges from municipal separate storm sewers;
    (6) A description of educational activities, public information 
activities, and other appropriate activities 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 municipal separate storm sewer systems 
where necessary;
    (C) A description of a program to monitor and control pollutants in 
storm water discharges to municipal systems from municipal landfills, 
hazardous waste treatment, disposal and recovery facilities, industrial 
facilities that are subject to section 313 of title III of the Superfund 
Amendments and Reauthorization Act of 1986 (SARA), and industrial 
facilities that the municipal permit applicant determines are 
contributing a substantial pollutant loading to the municipal storm 
sewer system. The program shall:
    (1) Identify priorities and procedures for inspections and 
establishing and implementing control measures for such discharges;
    (2) Describe a monitoring program for storm water discharges 
associated with the industrial facilities 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 information 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 include:
    (1) A description of procedures for site planning which incorporate 
consideration of potential water quality impacts;
    (2) A description of requirements for nonstructural and structural 
best management practices;
    (3) A description of procedures for identifying priorities for 
inspecting sites and enforcing control measures which consider the 
nature of the construction activity, topography, and the characteristics 
of soils and receiving water quality; and
    (4) 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 municipal storm sewer constituents from 
municipal storm sewer systems expected as the result of the municipal 
storm water quality management program. 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 necessary capital and operation and 
maintenance expenditures 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 
proposed to meet the necessary expenditures, including legal 
restrictions on the use of such funds.
    (vii) Where more than one legal entity submits an application, the 
application shall contain a description of the roles and 
responsibilities of each legal entity and procedures to ensure effective 
coordination.
    (viii) Where requirements under paragraph (d)(1)(iv)(E), (d)(2)(ii), 
(d)(2)(iii)(B) and (d)(2)(iv) of this section are not practicable or are 
not applicable, the Director may exclude any

[[Page 763]]

operator of a discharge from a municipal separate storm sewer which is 
designated under paragraph (a)(1)(v), (b)(4)(ii) or (b)(7)(ii) of this 
section from such requirements. The Director shall not exclude the 
operator of a discharge from a municipal separate storm sewer identified 
in appendix F, G, H or I of part 122, from any of the permit application 
requirements under this paragraph except where authorized under this 
section.
    (e) Application deadlines under paragraph (a)(1). Any operator of a 
point source required to obtain a permit under paragraph (a)(1) of this 
section that does not have an effective NPDES permit covering its storm 
water outfalls shall submit an application in accordance with the 
following deadlines:
    (1) Individual applications. (i) Except as provided in paragraph 
(e)(1)(ii) of this section, for any storm water discharge associated 
with industrial 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 population of less than 100,000 other than an airport, 
powerplant, or uncontrolled sanitary landfill, permit application 
requirements are contained in paragraph (g) of this section.
    (2) For any group application submitted in accordance 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 application shall be submitted to the Director, 
Office of Wastewater Enforcement and Compliance by September 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 population of less than 100,000 other than an airport, 
powerplant, or uncontrolled sanitary landfill, permit applications 
requirements are reserved.
    (ii) Based on information in the part 1 application, the Director 
will approve or deny the members in the group application within 60 days 
after receiving part 1 of the group application.
    (iii) Part 2. (A) Except as provided in paragraph (e)(2)(iii)(B) of 
this section, part 2 of the application shall be submittted to the 
Director, Office of Wastewater Enforcement and Compliance by October 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 population of less than 100,000 other than an airport, 
powerplant, or uncontrolled sanitary landfill, permit 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 coverage 
under an applicable general permit) no later than 12 months after the 
date of receipt of the notice 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 application submitted in accordance with 
paragraph (e)(2)(i) of this section at the discretion of the Office of 
Water Enforcement and Permits, and only upon a showing of good cause by 
the facility and the group applicant; the request for the addition of 
the facility shall be made no later than February 18, 1992; the addition 
of the facility shall not cause the percentage of the facilities that 
are required to

[[Page 764]]

submit quantitative data to be less than 10%, unless there are over 100 
facilities in the group that are submitting quantitative data; approval 
to become part of group application must be obtained from the group or 
the trade association representing the individual facilities.
    (3) For any discharge from a large municipal separate storm sewer 
system;
    (i) Part 1 of the application shall be submitted to the Director by 
November 18, 1991;
    (ii) Based on information received in the part 1 application the 
Director will approve or deny a sampling plan under paragraph 
(d)(1)(iv)(E) of this section within 90 days after receiving the part 1 
application;
    (iii) Part 2 of the application shall be submitted to the Director 
by November 16, 1992.
    (4) For any discharge from a medium municipal separate storm sewer 
system;
    (i) Part 1 of the application shall be submitted to the Director by 
May 18, 1992.
    (ii) Based on information received in the part 1 application the 
Director will approve or deny a sampling plan under paragraph 
(d)(1)(iv)(E) of this section within 90 days after receiving the part 1 
application.
    (iii) Part 2 of the application shall be submitted to the Director 
by May 17, 1993.
    (5) A permit application shall be submitted to the Director within 
60 days of notice, unless permission 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, either the Director or the EPA Regional 
Administrator, determines that the discharge contributes to a violation 
of a water quality standard or is a significant contributor of 
pollutants to waters of the United States (see paragraph (a)(1)(v) of 
this section);
    (ii) A storm water discharge subject to paragraph (c)(1)(v) of this 
section.
    (6) Facilities with existing NPDES permits for storm water 
discharges associated with industrial activity shall maintain existing 
permits. Facilities with permits for storm water discharges associated 
with industrial activity which expire on or after May 18, 1992 shall 
submit a new application in accordance with the requirements of 40 CFR 
122.21 and 40 CFR 122.26(c) (Form 1, Form 2F, and other applicable 
Forms) 180 days before the expiration of such permits.
    (7) The Director shall issue or deny permits for discharges composed 
entirely of storm water under this section in accordance with the 
following schedule:
    (i)(A) Except as provided in paragraph (e)(7)(i)(B) of this section, 
the Director shall issue or deny permits for storm water discharges 
associated with industrial activity no later than October 1, 1993, or, 
for new sources or existing sources which fail to submit a complete 
permit application by October 1, 1992, one year after receipt of a 
complete permit application;
    (B) For any municipality with a population of less than 250,000 
which submits a timely Part I group application under paragraph 
(e)(2)(i)(B) of this section, the Director shall issue or deny permits 
for storm water discharges associated with industrial activity no later 
than May 17, 1994, or, for any such municipality which fails to submit a 
complete Part II group permit application by May 17, 1993, one year 
after receipt of a complete permit application;
    (ii) The Director shall issue or deny permits for large municipal 
separate storm sewer systems no later than November 16, 1993, or, for 
new sources or existing sources which fail to submit a complete permit 
application by November 16, 1992, one year after receipt of a complete 
permit application;
    (iii) The Director shall issue or deny permits for medium municipal 
separate storm sewer systems no later than May 17, 1994, or, for new 
sources or existing sources which fail to submit a complete permit 
application by May 17, 1993, one year after receipt of a complete permit 
application.
    (f) Petitions. (1) Any operator of a municipal separate storm sewer 
system may petition the Director to require a separate NPDES permit (or 
a permit issued under an approved NPDES State program) for any discharge 
into the

[[Page 765]]

municipal separate storm sewer system.
    (2) Any person may petition the Director to require a NPDES permit 
for a discharge which is composed entirely of storm water which 
contributes to a violation of a water quality standard or is a 
significant contributor of pollutants to waters of the United States.
    (3) The owner or operator of a municipal separate storm sewer system 
may petition the Director to reduce the Census estimates of the 
population served by such separate system to account for storm water 
discharged to combined sewers as defined by 40 CFR 35.2005(b)(11) that 
is treated in a publicly owned treatment works. In municipalities in 
which combined sewers are operated, the Census estimates of population 
may be reduced proportional to the fraction, based on estimated lengths, 
of the length of combined sewers over the sum of the length of combined 
sewers and municipal 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 separate storm sewer system as defined by 
paragraphs (b)(4)(iv) or (b)(7)(iv) of this section.
    (5) The Director shall make a final determination on any petition 
received under this section within 90 days after receiving the petition.
    (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 application in accordance with the following 
requirements.
    (1) Application deadlines. The operator shall submit an application 
in accordance with the following deadlines:
    (i) A discharger which the Director determines to contribute to a 
violation of a water quality standard or is a significant contributor of 
pollutants 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 Director no later than 
August 7, 2001.
    (2) Application requirements. The operator shall submit an 
application in accordance with the following requirements, unless 
otherwise modified by the Director:
    (i) Individual application for non-municipal discharges. The 
requirements contained in paragraph (c)(1) of this section.
    (ii) Application requirements for municipal separate storm sewer 
discharges. The requirements contained in paragraph (d) of this section.
    (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]



Sec. 122.27  Silvicultural activities (applicable to State NPDES programs, see Sec. 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 conveyance related to rock crushing, 
gravel washing, log sorting, or log storage facilities which are 
operated in connection with silvicultural activities and from which 
pollutants are discharged into waters of the United States. The term 
does not include non-point source silvicultural activities such as 
nursery operations, site preparation, reforestation and subsequent 
cultural treatment, thinning, prescribed burning, pest and fire control, 
harvesting operations, surface drainage, or road construction 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).

[[Page 766]]

    (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 guidelines).
    (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 applied intentionally on the logs (wet decking). (See 40 
CFR part 429, subpart I, including the effluent limitations guidelines).



Sec. 122.28  General permits (applicable to State NPDES programs, see Sec. 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 permit under paragraph (a)(2)(ii) of this section, except those 
covered by individual permits, within a geographic area. The area shall 
correspond to existing 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 defined by the Office 
of Management and Budget;
    (vi) Urbanized areas as designated by the Bureau of the Census 
according to criteria in 30 FR 15202 (May 1, 1974); or
    (vii) Any other appropriate division or combination of boundaries.
    (2) Sources. The general permit may be written to regulate, within 
the area described in paragraph (a)(1) 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 engage in the same types 
of sludge use or disposal practices;
    (C) Require the same effluent limitations, operating conditions, or 
standards for sewage sludge use or disposal;
    (D) Require the same or similar monitoring; and
    (E) In the opinion of the Director, are more appropriately 
controlled under a general permit than under individual permits.
    (b) Administration. (1) In general. General permits may be issued, 
modified, revoked and reissued, or terminated in accordance with 
applicable requirements of part 124 or corresponding State regulations. 
Special procedures for issuance are found at Sec. 123.44 for States and 
Sec. 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 
accordance 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 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 
Secs. 122.6, 122.21 and 122.26.
    (ii) The contents of the notice of intent shall be specified in the 
general

[[Page 767]]

permit and shall require the submission of information necessary for 
adequate program implementation, including at a minimum, the legal name 
and address of the owner or operator, the facility name and address, 
type of facility or discharges, and the receiving stream(s). General 
permits for storm water discharges associated with industrial activity 
from inactive mining, inactive oil and gas operations, or inactive 
landfills occurring on Federal lands where an operator cannot be 
identified may contain alternative notice of intent requirements. All 
notices of intent shall be signed in accordance with Sec. 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 discharge under the permit;
    (iv) General permits shall specify whether a discharger (or 
treatment works treating domestic sewage) that has submitted a complete 
and timely notice of intent to be covered in accordance with the general 
permit and that is eligible for coverage under the permit, is authorized 
to discharge, (or in the case of a sludge disposal permit, to engage in 
a sludge use or disposal practice), in accordance with the permit either 
upon receipt of the notice of intent by the Director, after a waiting 
period specified in the general permit, on a date specified in the 
general permit, or upon receipt of notification of inclusion by the 
Director. Coverage may be terminated or revoked in accordance with 
paragraph (b)(3) of this section.
    (v) Discharges other than discharges from publicly owned treatment 
works, combined sewer overflows, primary industrial facilities, and 
storm water discharges associated with industrial activity, may, at the 
discretion of the Director, be authorized to discharge under a general 
permit without submitting a notice of intent where the Director finds 
that a notice of intent requirement would be inappropriate. In making 
such a finding, the Director shall consider: the type of discharge; the 
expected nature of the discharge; the potential for toxic and 
conventional pollutants in the discharges; the expected volume of the 
discharges; other means of identifying discharges covered by the permit; 
and the estimated number of discharges 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 intent.
    (vi) The Director may notify a discharger (or treatment works 
treating domestic sewage) that it is covered by a general permit, even 
if the discharger (or treatment works treating domestic sewage) has not 
submitted a notice of intent to be covered. A discharger (or treatment 
works treating domestic sewage) so notified may request an individual 
permit under paragraph (b)(3)(iii) of this section.
    (3) Requiring an individual permit. (i) The Director may require any 
discharger authorized by a general permit to apply for and obtain an 
individual NPDES permit. Any interested person may petition the Director 
to take action under this paragraph. Cases where an individual NPDES 
permit may be required include the following:
    (A) The discharger or ``treatment works treating domestic sewage'' 
is not in compliance with the conditions of the general NPDES permit;
    (B) A change has occurred in the availability of demonstrated 
technology or practices for the control or abatement of pollutants 
applicable to the point source or treatment works treating domestic 
sewage;
    (C) Effluent limitation guidelines are promulgated for point sources 
covered by the general NPDES permit;
    (D) A Water Quality Management plan containing requirements 
applicable to such point sources is approved;
    (E) Circumstances have changed since the time of the request to be 
covered so that the discharger is no longer appropriately controlled 
under the general permit, or either a temporary or permanent reduction 
or elimination of the authorized discharge is necessary;
    (F) Standards for sewage sludge use or disposal have been 
promulgated for the sludge use and disposal practice covered by the 
general NPDES permit; or
    (G) The discharge(s) is a significant contributor of pollutants. In 
making this determination, the Director may consider the following 
factors:

[[Page 768]]

    (1) The location of the discharge with respect to waters of the 
United States;
    (2) The size of the discharge;
    (3) The quantity and nature of the pollutants discharged to waters 
of the United States; and
    (4) Other relevant factors;
    (ii) For EPA issued general permits only, the Regional Administrator 
may require any owner or operator 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 
application, and a statement that on the effective date of the 
individual NPDES permit the general permit as it applies to the 
individual permittee shall automatically terminate. The Director may 
grant additional time upon request of the applicant.
    (iii) Any owner or operator authorized by a general permit may 
request to be excluded from the coverage of the general permit by 
applying for an individual permit. The owner or operator shall submit an 
application under Sec. 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 applicable State law. The request shall be processed 
under part 124 or applicable State procedures. The request shall be 
granted by issuing of any individual permit if the reasons cited by the 
owner or operator are adequate to support the request.
    (iv) When an individual NPDES permit is issued 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 applicable to State 
programs). (1) The Regional Administrator shall, except as provided 
below, issue general permits covering discharges from offshore oil and 
gas exploration and production facilities within 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 appropriate fact sheets or 
statements of basis. Any statement of basis or fact sheet for a draft 
permit shall include the Regional Administrator's tentative 
determination 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 individual 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 prospective permittee, may 
petition the Regional Administrator to issue a general permit. Unless 
the Regional Administrator determines under paragraph (c)(1) of this 
section that no general permit is appropriate, he shall promptly provide 
a project decision schedule covering the issuance of the general permit 
or permits for any lease sale area for which the Department of the 
Interior has published a draft environmental impact statement. The 
project decision schedule shall meet the requirements of Sec. 124.3(g), 
and shall include a schedule providing for the issuance of the final 
general permit or permits not later than the date of the final notice of 
sale projected by the Department of the Interior or six months after the 
date of the request, whichever is later. The Regional Administrator may, 
at his discretion, issue a project decision schedule for offshore oil 
and gas facilities in the territorial seas.

[[Page 769]]

    (3) Nothing in this paragraph (c) shall affect the authority of the 
Regional Administrator to require an individual permit under 
Sec. 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 Recovery 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]



Sec. 122.29  New sources and new dischargers.

    (a) Definitions. (1) New source and new discharger are defined in 
Sec. 122.2. [See Note 2.]
    (2) Source means any building, structure, facility, or installation 
from which there is or may be a discharge of pollutants.
    (3) Existing source means any source which is not a new source or a 
new discharger.
    (4) Site is defined in Sec. 122.2;
    (5) Facilities or equipment means buildings, structures, process or 
production equipment or machinery which form a permanent part of the new 
source and which will be used in its operation, if these facilities or 
equipment are of such value as to represent a substantial commitment to 
construct. It excludes facilities or equipment used in connection with 
feasibility, engineering, and design studies regarding the source or 
water pollution treatment 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 
Sec. 122.2, and
    (i) It is constructed at a site at which no other source is located; 
or
    (ii) It totally replaces the process or production equipment that 
causes the discharge of pollutants at an existing source; or
    (iii) Its processes are substantially independent of an existing 
source at the same site. In determining whether these processes are 
substantially independent, the Director shall consider such factors as 
the extent to which the new facility is integrated with the existing 
plant; and the extent to which the new facility is engaged in the same 
general type of activity as the existing source.
    (2) A source meeting the requirements of paragraphs (b)(1) (i), 
(ii), or (iii) of this section is a new source only if a new source 
performance standard is independently applicable to it. If there is no 
such independently applicable standard, the source is a new discharger. 
See Sec. 122.2.
    (3) Construction on a site at which an existing source is located 
results in a modification subject to Sec. 122.62 rather than a new 
source (or a new discharger) if the construction does not create a new 
building, structure, facility, or installation meeting the criteria of 
paragraph (b)(1) (ii) or (iii) of this section but otherwise alters, 
replaces, or adds to existing process or production equipment.
    (4) Construction of a new source as defined under Sec. 122.2 has 
commenced if the owner or operator has:
    (i) Begun, or caused to begin as part of a continuous on-site 
construction program:
    (A) Any placement, assembly, or installation of facilities or 
equipment; or
    (B) Significant site preparation work including clearing, excavation 
or removal of existing buildings, structures, or facilities which is 
necessary for the placement, assembly, or installation of new source 
facilities or equipment; or
    (ii) Entered into a binding contractual obligation for the purchase 
of facilities or equipment which are intended to be used in its 
operation with a reasonable time. Options to purchase or contracts which 
can be terminated or modified without substantial loss, and contracts 
for feasibility engineering, and design studies do not constitute a 
contractual obligation under the paragraph.
    (c) Requirement for an environmental impact statement. (1) The 
issuance of an NPDES permit to new source:
    (i) By EPA may be a major Federal action significantly affecting the 
quality of the human environment within the meaning of the National 
Environmental Policy Act of 1969 (NEPA), 33 U.S.C. 4321 et seq. and is 
subject to the

[[Page 770]]

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 Sec. 122.21(k) (special provisions for 
applications from new sources) and 40 CFR part 6, subpart F;
    (ii) By an NPDES approved State is not a Federal action and 
therefore does not require EPA to conduct an environmental review.
    (2) An EIS prepared under this paragraph shall include a 
recommendation either to issue or deny the permit.
    (i) If the recommendation is to deny the permit, the final EIS shall 
contain the reasons for the recommendation and list those measures, if 
any, which the applicant could take to cause the recommendation to be 
changed;
    (ii) If the recommendation is to issue the permit, the final EIS 
shall recommend the actions, if any, which the permittee should take to 
prevent or minimize any adverse environmental impacts;
    (3) The Regional Administrator, to the extent allowed by law, shall 
issue, condition (other than imposing effluent limitations), or deny the 
new source NPDES permit following a complete evaluation of any 
significant beneficial and adverse impacts of the proposed action and a 
review of the recommendations contained in the EIS or finding of no 
significant impact.
    (d) Effect of compliance with new source performance standards. (The 
provisions of this paragraph do not apply to existing sources which 
modify their pollution control facilities or construct new pollution 
control facilities and achieve performance standards, but which are 
neither new sources or new dischargers or otherwise do not meet the 
requirements of this paragraph.)
    (1) Except as provided in paragraph (d)(2) of this section, any new 
discharger, the construction of which commenced after October 18, 1972, 
or new source which meets the applicable promulgated new source 
performance standards before the commencement of discharge, may not be 
subject to any more stringent new source performance standards or to any 
more stringent technology-based standards under section 301(b)(2) of CWA 
for the soonest ending of the following periods:
    (i) Ten years from the date that construction is completed;
    (ii) Ten years from the date the source begins to discharge process 
or other nonconstruction related wastewater; or
    (iii) The period of depreciation or amortization of the facility for 
the purposes of section 167 or 169 (or both) of the Internal Revenue 
Code of 1954.
    (2) The protection from more stringent standards of performance 
afforded by paragraph (d)(1) of this section does not apply to:
    (i) Additional or more stringent permit conditions which are not 
technology based; for example, conditions based on water quality 
standards, or toxic effluent standards or prohibitions under section 
307(a) of CWA; or
    (ii) Additional permit conditions in accordance with Sec. 125.3 
controlling toxic pollutants or hazardous substances which are not 
controlled by new source performance standards. This includes permit 
conditions controlling pollutants other than those identified as toxic 
pollutants or hazardous substances when control of these pollutants has 
been specifically identified as the method to control the toxic 
pollutants or hazardous substances.
    (3) When an NPDES permit issued to a source with a ``protection 
period'' under paragraph (d)(1) of this section will expire on or after 
the expiration of the protection period, that permit shall require the 
owner or operator of the source to comply with the requirements of 
section 301 and any other then applicable requirements of CWA 
immediately upon the expiration of the protection period. No additional 
period for achieving compliance with these requirements may be allowed 
except when necessary to achieve compliance with requirements 
promulgated less than 3 years before the expiration of the protection 
period.
    (4) The owner or operator of a new source, a new discharger which 
commenced discharge after August 13, 1979, or a recommencing discharger 
shall install and have in operating condition, and shall ``start-up'' 
all pollution control equipment required to meet the

[[Page 771]]

conditions of its permits before beginning to discharge. Within the 
shortest feasible time (not to exceed 90 days), the owner or operator 
must meet all permit conditions. The requirements of this paragraph do 
not apply if the owner or operator is issued a permit containing a 
compliance schedule under Sec. 122.47(a)(2).
    (5) After the effective date of new source performance standards, it 
shall be unlawful for any owner or operator of any new source to operate 
the source in violation of those standards applicable to the source.

[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



Sec. 122.41  Conditions applicable to all permits (applicable to State programs, see Sec. 123.25).

    The following conditions apply to all NPDES permits. Additional 
conditions applicable to NPDES permits are in Sec. 122.42. All 
conditions applicable to NPDES permits shall be incorporated into the 
permits either expressly or by reference. If incorporated by reference, 
a specific citation to these regulations (or the corresponding approved 
State regulations) must be given in the permit.
    (a) Duty to comply. The permittee must comply with all conditions of 
this permit. Any permit noncompliance constitutes a violation of the 
Clean Water Act and is grounds for enforcement action; for permit 
termination, revocation and reissuance, or modification; or denial of a 
permit renewal application.
    (1) The permittee shall comply with effluent standards or 
prohibitions established under section 307(a) of the Clean Water Act for 
toxic pollutants and with standards for sewage sludge use or disposal 
established under section 405(d) of the CWA within the time 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 incorporate the requirement.
    (2) The Clean Water Act provides that any person who violates 
section 301, 302, 306, 307, 308, 318 or 405 of the Act, or any permit 
condition or limitation implementing any such sections in a permit 
issued under section 402, or any requirement imposed in a pretreatment 
program approved under sections 402(a)(3) or 402(b)(8) of the Act, is 
subject to a civil penalty not to exceed $25,000 per day for each 
violation. The Clean Water Act provides that any person who negligently 
violates sections 301, 302, 306, 307, 308, 318, or 405 of the Act, or 
any condition or limitation implementing any of such sections in a 
permit issued under section 402 of the Act, or any requirement imposed 
in a pretreatment program approved under section 402(a)(3) or 402(b)(8) 
of the Act, is subject to criminal penalties of $2,500 to $25,000 per 
day of violation, or imprisonment of not more than 1 year, or both. In 
the case of a second or subsequent 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 imprisonment of not more than 2 years, or 
both. Any person who knowingly violates such sections, or such 
conditions or limitations is subject to criminal penalties 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 conviction for a knowing 
violation, a person shall be subject to criminal penalties of not more 
than $100,000 per day of violation, or imprisonment of not more than 6 
years, or both. Any person who 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 thereby 
places another person in imminent danger of death or serious bodily 
injury, shall, upon conviction, 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 subsequent conviction for a knowing endangerment 
violation, 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

[[Page 772]]

danger provision, be subject to a fine of not more than $1,000,000 and 
can be fined up to $2,000,000 for second or subsequent convictions.
    (3) Any person may be assessed an administrative penalty by the 
Administrator for violating section 301, 302, 306, 307, 308, 318 or 405 
of this Act, or any permit condition or limitation implementing any of 
such sections in a permit issued under section 402 of this Act. 
Administrative penalties for Class I violations are not to exceed 
$10,000 per violation, with the maximum amount of any Class I penalty 
assessed not to exceed $25,000. Penalties for Class II violations are 
not to exceed $10,000 per day for each day during which the violation 
continues, with the maximum amount of any Class II penalty not to exceed 
$125,000.
    (b) 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 defense. It shall not be a 
defense for a permittee in an enforcement action that it would have been 
necessary to halt or reduce the permitted activity in order to maintain 
compliance with the conditions of this permit.
    (d) Duty to mitigate. The permittee shall take all reasonable steps 
to minimize or prevent any discharge or sludge use or disposal in 
violation of this permit which has a reasonable likelihood of adversely 
affecting human health or the environment.
    (e) Proper operation and maintenance. The permittee shall at all 
times properly operate and maintain all facilities and systems of 
treatment and control (and related appurtenances) which are installed or 
used by the permittee to achieve compliance with the conditions of this 
permit. Proper operation and maintenance also includes adequate 
laboratory controls and appropriate quality assurance procedures. This 
provision requires the operation of back-up or auxiliary facilities or 
similar systems which are installed by a permittee only when the 
operation is necessary to achieve compliance with the conditions of the 
permit.
    (f) Permit actions. This permit may be modified, 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 request to determine whether cause exists for modifying, revoking 
and reissuing, or terminating this permit or to determine compliance 
with this permit. The permittee shall also furnish to the Director 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 representative of the Administrator), upon presentation 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 conducted, or where records must be kept under 
the conditions of this permit;
    (2) Have access to and copy, at reasonable times, any records that 
must be kept under the conditions of this permit;
    (3) Inspect at reasonable times any facilities, equipment (including 
monitoring and control equipment), practices, or operations regulated or 
required under this permit; and
    (4) Sample or monitor at reasonable times, for the purposes of 
assuring permit compliance or as otherwise authorized by the Clean Water 
Act, any substances or parameters at any location.
    (j) 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 information required by this 
permit related to the permittee's sewage sludge use and disposal 
activities, which shall be retained for a period of at least five

[[Page 773]]

years (or longer as required by 40 CFR part 503), the permittee shall 
retain records of all monitoring information, including all calibration 
and maintenance records and all original strip chart recordings for 
continuous monitoring instrumentation, copies of all reports required by 
this permit, and records of all data used to complete the application 
for this permit, for a period of at least 3 years from the date of the 
sample, measurement, report or application. This period may be extended 
by request of the Director at any time.
    (3) Records of monitoring information shall include:
    (i) The date, exact place, and time of sampling or measurements;
    (ii) The individual(s) who performed the sampling or measurements;
    (iii) The date(s) analyses were performed;
    (iv) The individual(s) who performed the analyses;
    (v) The analytical techniques or methods used; and
    (vi) The results of such analyses.
    (4) Monitoring results must be conducted according to 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, unless other test procedures have been specified in 
the permit.
    (5) The Clean Water Act provides that any person who falsifies, 
tampers with, or knowingly renders inaccurate any monitoring device or 
method required to be maintained under this permit shall, upon 
conviction, be punished by a fine of not more than $10,000, or by 
imprisonment for not more than 2 years, or both. If a conviction of a 
person is for a violation committed after a first conviction of such 
person under this paragraph, punishment is a fine of not more than 
$20,000 per day of violation, or by imprisonment of not more than 4 
years, or both.
    (k) Signatory requirement. (1) All applications, reports, or 
information submitted to the Director shall be signed and certified. 
(See Sec. 122.22)
    (2) The CWA provides that any person who knowingly makes any false 
statement, representation, or certification in any record or other 
document submitted or required to be maintained under this permit, 
including monitoring reports or reports of compliance or non-compliance 
shall, upon conviction, be punished by a fine of not more than $10,000 
per violation, or by imprisonment for not more than 6 months per 
violation, or by both.
    (l) Reporting requirements. (1) Planned changes. The permittee shall 
give notice to the Director 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 facility may meet one 
of the criteria for determining whether a facility is a new source in 
Sec. 122.29(b); or
    (ii) The alteration or addition could significantly change the 
nature or increase the quantity of pollutants discharged. This 
notification applies to pollutants which are subject neither to effluent 
limitations in the permit, nor to notification requirements under 
Sec. 122.42(a)(1).
    (iii) The alteration or addition results in a significant change in 
the permittee's sludge use or disposal practices, and such alteration, 
addition, or change may justify the application of permit conditions 
that are different from or absent in the existing permit, including 
notification of additional use or disposal sites not reported during the 
permit application process or not reported pursuant to an approved land 
application plan;
    (2) Anticipated noncompliance. The permittee shall give advance 
notice to the Director of any planned changes in the permitted facility 
or activity which may result in noncompliance with permit requirements.
    (3) Transfers. This permit is not transferable to any person except 
after notice to the Director. The Director may require modification or 
revocation and reissuance of the permit to change the name of the 
permittee and incorporate such other requirements as may be necessary 
under the Clean Water Act. (See Sec. 122.61; in some cases, modification 
or revocation and reissuance is mandatory.)
    (4) Monitoring reports. Monitoring results shall be reported at the 
intervals specified elsewhere in this permit.

[[Page 774]]

    (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 require averaging of 
measurements shall utilize an arithmetic mean unless otherwise specified 
by the Director in the permit.
    (5) Compliance schedules. Reports of compliance or noncompliance 
with, or any progress reports 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 permittee shall report any 
noncompliance which may endanger health or the environment. Any 
information shall be provided orally within 24 hours from the time the 
permittee becames 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 
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.
    (ii) The following shall be included as information which must be 
reported within 24 hours under this paragraph.
    (A) Any unanticipated bypass which exceeds any effluent limitation 
in the permit. (See Sec. 122.41(g).
    (B) Any upset which exceeds any effluent limitation in the permit.
    (C) Violation of a maximum daily discharge limitation for any of the 
pollutants listed by the Director in the permit to be reported within 24 
hours. (See Sec. 122.44(g).)
    (iii) The Director may waive the written report on a case-by-case 
basis for reports under paragraph (l)(6)(ii) of this section if the oral 
report has been received within 24 hours.
    (7) Other noncompliance. The permittee shall report all instances of 
noncompliance not reported under paragraphs (l) (4), (5), and (6) of 
this section, at the time monitoring reports are submitted. The reports 
shall contain the information listed in paragraph (l)(6) of this 
section.
    (8) Other information. Where the permittee becomes aware that it 
failed to submit any relevant facts in a permit application, or 
submitted incorrect 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 treatment facilities which causes them to become 
inoperable, 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 permittee may allow any 
bypass to occur which does not cause effluent limitations to be 
exceeded, but only if it also is for essential maintenance to assure 
efficient operation. These bypasses are not subject to the provisions of 
paragraphs (m)(3) and (m)(4) of this section.
    (3) Notice--(i) Anticipated bypass. If the permittee knows in 
advance of the need for a bypass, it shall submit prior notice, if 
possible at least ten days before the date of the bypass.
    (ii) Unanticipated bypass. The permittee shall submit notice of an 
unanticipated bypass as required in paragraph (l)(6) of this section 
(24-hour notice).

[[Page 775]]

    (4) Prohibition of bypass. (i) Bypass is prohibited, 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 facilities, retention of untreated wastes, or 
maintenance during normal periods of equipment downtime. This condition 
is not satisfied if adequate back-up equipment should have been 
installed in the exercise of reasonable engineering judgment to prevent 
a bypass which occurred during normal periods of equipment downtime or 
preventive maintenance; and
    (C) The permittee submitted notices as required under paragraph 
(m)(3) of this section.
    (ii) The Director may approve an anticipated bypass, after 
considering its adverse effects, if the Director determines that it will 
meet the three conditions listed above in paragraph (m)(4)(i) of this 
section.
    (n) Upset--(1) Definition. Upset means an exceptional 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 extent caused by operational error, improperly 
designed treatment facilities, inadequate treatment facilities, 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 noncompliance with such technology based permit 
effluent 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 affirmative defense of upset shall 
demonstrate, through properly signed, contemporaneous operating 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 (1)(6)(ii)(B) of this section (24 hour notice).
    (iv) The permittee complied with any remedial measures required 
under paragraph (d) of this section.
    (4) Burden of proof. In any enforcement proceeding the permittee 
seeking to establish the occurrence 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 Recovery 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]



Sec. 122.42  Additional conditions applicable to specified categories of NPDES permits (applicable to State NPDES programs, see Sec. 123.25).

    The following conditions, in addition to those set forth in 
Sec. 122.41, apply to all NPDES permits within the categories specified 
below:
    (a) Existing manufacturing, commercial, mining, and silvicultural 
dischargers. In addition to the reporting requirements under 
Sec. 122.41(1), all existing manufacturing, commercial, mining, and 
silvicultural 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 exceed the 
highest of the following ``notification levels'':
    (i) One hundred micrograms per liter (100  g/l);
    (ii) Two hundred micrograms per liter (200  g/l) for 
acrolein and acrylonitrile; five hundred micrograms per liter (500 
 g/l) for 2,4-dinitrophenol and for 2-methyl-4,6-dinitrophenol; 
and one

[[Page 776]]

milligram per liter (1 mg/l) for antimony;
    (iii) Five (5) times the maximum concentration value reported for 
that pollutant in the permit application in accordance with 
Sec. 122.21(g)(7); or
    (iv) The level established by the Director in accordance with 
Sec. 122.44(f).
    (2) That any activity has occurred or will occur which would result 
in any discharge, on a non-routine or infrequent basis, of a toxic 
pollutant which is not limited in the permit, if that discharge will 
exceed the highest of the following ``notification levels'':
    (i) Five hundred micrograms per liter (500  g/l);
    (ii) One milligram per liter (1 mg/l) for antimony;
    (iii) Ten (10) times the maximum concentration value reported for 
that pollutant in the permit application in accordance with 
Sec. 122.21(g)(7).
    (iv) The level established by the Director in accordance with 
Sec. 122.44(f).
    (b) Publicly owned treatment works. All POTWs must provide adequate 
notice to the Director 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 notice shall include 
information on (i) the quality and quantity of effluent introduced into 
the POTW, and (ii) any anticipated impact of the change on the quantity 
or quality of effluent to be discharged from the POTW.
    (c) Municipal separate storm sewer systems. The operator of a large 
or medium municipal separate storm sewer system or a municipal separate 
storm sewer that has been designated by the Director under 
Sec. 122.26(a)(1)(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 management programs that are 
established as permit condition. Such proposed changes shall be 
consistent with Sec. 122.26(d)(2)(iii) of this part; and
    (3) Revisions, if necessary, to the assessment of controls and the 
fiscal analysis reported in the permit application under 
Sec. 122.26(d)(2)(iv) and (d)(2)(v) of this part;
    (4) A summary of data, including monitoring data, that is 
accumulated throughout the reporting year;
    (5) Annual expenditures and budget for year following each annual 
report;
    (6) A summary describing the number and nature of enforcement 
actions, inspections, and public education programs;
    (7) Identification of water quality improvements or degradation;
    (d) Storm water discharges. The initial permits for discharges 
composed entirely of storm water issued pursuant to Sec. 122.26(e)(7) of 
this part shall require compliance with the conditions of the permit 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]



Sec. 122.43  Establishing permit conditions (applicable to State programs, see Sec. 123.25).

    (a) In addition to conditions required in all permits (Secs. 122.41 
and 122.42), the Director shall establish conditions, as required on a 
case-by-case basis, to provide for and assure compliance with all 
applicable requirements of CWA and regulations. These shall include 
conditions under Secs. 122.46 (duration of permits), 122.47(a) 
(schedules of compliance), 122.48 (monitoring), and for EPA permits only 
122.47(b) (alternates schedule of compliance) and 122.49 (considerations 
under Federal law).
    (b)(1) For a State issued permit, an applicable requirement is a 
State statutory or regulatory requirement which

[[Page 777]]

takes effect prior to final administrative disposition of a permit. For 
a permit issued by EPA, an applicable requirement is a statutory or 
regulatory requirement (including any interim final regulation) which 
takes effect prior to the issuance of the permit (except as provided in 
Sec. 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 discretion 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 administered programs, an applicable requirement is 
also any requirement which takes effect prior to the modification or 
revocation and reissuance of a permit, to the extent allowed in 
Sec. 122.62.
    (2) New or reissued permits, and to the extent allowed under 
Sec. 122.62 modified or revoked and reissued permits, shall incorporate 
each of the applicable requirements referenced in Secs. 122.44 and 
122.45.
    (c) Incorporation. All permit conditions shall be incorporated 
either expressly or by reference. If incorporated by reference, a 
specific citation to the applicable regulations or requirements must be 
given in the permit.



Sec. 122.44  Establishing limitations, standards, and other permit conditions (applicable to State NPDES programs, see Sec. 123.25).

    In addition to the conditions established under Sec. 122.43(a), each 
NPDES permit shall include conditions meeting the following requirements 
when applicable.
    (a) Technology-based effluent limitations and standards based on 
effluent limitations and standards promulgated under section 301 of CWA 
or new source performance standards promulgated under section 306 of 
CWA, on case-by-case effluent limitations determined under section 
402(a)(1) of CWA, or on a combination of the two, in accordance with 
Sec. 125.3. For new sources or new dischargers, these technology based 
limitations and standards are subject to the provisions of 
Sec. 122.29(d) (protection period).
    (b)(1) 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 pollutant in the permit, the 
Director shall institute proceedings under these regulations to modify 
or revoke and reissue the permit to conform to the toxic effluent 
standard or prohibition. See also Sec. 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, 
Research, and Sanctuaries Act of 1972, or the Clean Air Act, or under 
State permit programs approved by the Administrator. When there are no 
applicable standards for sewage sludge use or disposal, the permit may 
include requirements developed on a case-by-case basis to protect public 
health and the environment from any adverse effects which may occur from 
toxic pollutants in sewage sludge. If any applicable standard for sewage 
sludge use or disposal is promulgated under section 405(d) of the CWA 
and that standard is more stringent than any limitation on the pollutant 
or 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), requirements 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 promulgated, the permit shall include a 
condition stating that, if an applicable standard or limitation is 
promulgated under sections 301(b)(2) (C) and (D), 304(b)(2), and 
307(a)(2) and that effluent standard or limitation is

[[Page 778]]

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 include those standards or limitations. (If 
EPA approves existing effluent limitations or decides not to develop new 
effluent limitations, it will publish a notice in the Federal Register 
that the limitations are ``approved'' for the purpose of this 
regulation.)
    (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 effluent limitations 
guidelines have been promulgated or approved. These permits need not 
incorporate the clause required by paragraph (c)(1) of this section.
    (3) The Director shall promptly modify or revoke and reissue any 
permit containing the clause required under paragraph (c)(1) of this 
section to incorporate an applicable effluent standard or limitation 
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 pollutant 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 controls a 
pollutant or practice not limited in the permit.
    (d) Water quality standards and State requirements: 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 
Director determines are or may be discharged at a level which will 
cause, have the reasonable potential to cause, or contribute to an 
excursion above any State water quality standard, including State 
narrative criteria for water quality.
    (ii) When determining whether a discharge causes, has the reasonable 
potential to cause, or contributes to an in-stream excursion above a 
narrative or numeric criteria within a State water quality standard, the 
permitting authority shall use procedures which account for existing 
controls on point and nonpoint sources of pollution, the variability of 
the pollutant or pollutant parameter in the effluent, the sensitivity of 
the species to toxicity testing (when evaluating whole effluent 
toxicity), and where appropriate, the dilution of the effluent in the 
receiving water.
    (iii) When the permitting authority determines, using the procedures 
in paragraph (d)(1)(ii) of this section, that a discharge causes, has 
the reasonable potential to cause, or contributes to an in-stream 
excursion above the allowable ambient concentration of a State numeric 
criteria within a State water quality standard for an individual 
pollutant, the permit must contain effluent limits for that pollutant.
    (iv) When the permitting authority determines, using the procedures 
in paragraph (d)(1)(ii) of this section, that a discharge causes, has 
the reasonable potential to cause, or contributes to an in-stream 
excursion above the numeric criterion for whole effluent toxicity, the 
permit must contain effluent limits for whole effluent toxicity.

[[Page 779]]

    (v) Except as provided in this subparagraph, when the permitting 
authority determines, using the procedures in paragraph (d)(1)(ii) of 
this section, toxicity testing data, or other information, that a 
discharge causes, has the reasonable potential to cause, or contributes 
to an in-stream excursion above a narrative criterion within an 
applicable State water quality standard, the permit must contain 
effluent limits for whole effluent toxicity. Limits on whole effluent 
toxicity are not necessary where the permitting authority demonstrates 
in the fact sheet or statement of basis of the NPDES permit, using the 
procedures in paragraph (d)(1)(ii) of this section, that chemical-
specific limits for the effluent are sufficient to attain and maintain 
applicable numeric and narrative State water quality standards.
    (vi) Where a State has not established a water quality criterion for 
a specific chemical pollutant that is present in an effluent at a 
concentration that causes, has the reasonable potential to cause, or 
contributes to an excursion above a narrative criterion within an 
applicable State water quality standard, the permitting authority must 
establish effluent limits using one or more of the following options:
    (A) Establish effluent limits using a calculated numeric water 
quality criterion for the pollutant which the permitting authority 
demonstrates will attain and maintain applicable narrative water quality 
criteria and will fully protect the designated use. Such a criterion may 
be derived using a proposed State criterion, or an explicit State policy 
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 
Administration, 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:
    (1) The permit identifies which pollutants are intended to be 
controlled by the use of the effluent limitation;
    (2) The fact sheet required by Sec. 124.56 sets forth the basis for 
the limit, including a finding that compliance with the effluent limit 
on the indicator parameter will result in controls on the pollutant 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
    (4) The permit contains a reopener clause allowing 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 effluent limits under this 
paragraph the permitting authority shall ensure that:
    (A) The level of water quality to be achieved by limits on point 
sources established under this paragraph is derived from, and complies 
with all applicable water quality standards; and
    (B) Effluent limits developed to protect a narrative water quality 
criterion, a numeric water quality criterion, or both, are consistent 
with the assumptions and requirements of any available wasteload 
allocation for the discharge prepared by the State and approved by EPA 
pursuant to 40 CFR 130.7.
    (2) Attain or maintain a specified water quality through water 
quality related effluent limits established under section 302 of CWA;
    (3) Conform to the conditions to a State certification under section 
401 of the CWA that meets the requirements of Sec. 124.53 when EPA is 
the permitting authority. If a State certification is stayed by a court 
of competent jurisdiction or an appropriate State board or agency, EPA 
shall notify the State that the Agency will deem certification waived 
unless a finally effective

[[Page 780]]

State certification is received within sixty days from the date of the 
notice. If the State does not forward a finally effective certification 
within the sixty day period, EPA shall include conditions in the permit 
that may be necessary to meet EPA's obligation under section 
301(b)(1)(C) of the CWA;
    (4) Conform to applicable water quality requirements under section 
401(a)(2) of CWA when the discharge affects a State other than the 
certifying State;
    (5) Incorporate any more stringent limitations, treatment standards, 
or schedule of compliance requirements established under Federal or 
State law or regulations in accordance with section 301(b)(1)(C) of CWA;
    (6) Ensure consistency with the requirements of a Water Quality 
Management plan approved by EPA under section 208(b) of CWA;
    (7) Incorporate section 403(c) criteria under part 125, subpart M, 
for ocean discharges;
    (8) Incorporate alternative effluent limitations or standards where 
warranted by ``fundamentally different factors,'' under 40 CFR part 125, 
subpart D;
    (9) Incorporate any other appropriate requirements, conditions, or 
limitations (other than effluent limitations) into a new source permit 
to the extent allowed by the National Environmental Policy Act, 42 
U.S.C. 4321 et seq. and section 511 of the CWA, when EPA is the permit 
issuing authority. (See Sec. 122.29(c)).
    (e) Technology-based controls for toxic pollutants. Limitations 
established under paragraphs (a), (b), or (d) of this section, to 
control pollutants meeting the criteria listed in paragraph (e)(1) of 
this section. Limitations will be established in accordance with 
paragraph (e)(2) of this section. An explanation of the development of 
these limitations shall be included in the fact sheet under 
Sec. 124.56(b)(1)(i).
    (1) Limitations must control all toxic pollutants which the Director 
determines (based on information reported in a permit application under 
Sec. 122.21(g)(7) or (10) or in a notification under Sec. 122.42(a)(1) 
or on other information) are or may be discharged at a level greater 
than the level which can be achieved by the technology-based treatment 
requirements appropriate to the permittee under Sec. 125.3(c); or
    (2) The requirement that the limitations control the pollutants 
meeting the criteria of paragraph (e)(1) of this section will be 
satisfied by:
    (i) Limitations on those pollutants; or
    (ii) Limitations on other pollutants which, in the judgment of the 
Director, will provide treatment of the pollutants under paragraph 
(e)(1) of this section to the levels required by Sec. 125.3(c).
    (f) Notification level. A ``notification level'' which exceeds the 
notification level of Sec. 122.42(a)(1)(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 Sec. 125.3(c)
    (g) Twenty-four hour reporting. Pollutants for which the permittee 
must report violations of maximum daily discharge limitations under 
Sec. 122.41(1)(6)(ii)(C) (24-hour reporting) shall be listed in the 
permit. This list shall include any toxic pollutant or hazardous 
substance, or any pollutant specifically identified as the method to 
control a toxic pollutant or hazardous substance.
    (h) Durations for permits, as set forth in Sec. 122.46.
    (i) Monitoring requirements. In addition to Sec. 122.48, the 
following monitoring requirements:
    (1) To assure compliance with permit limitations, requirements to 
monitor:
    (i) The mass (or other measurement specified in the permit) for each 
pollutant limited in the permit;
    (ii) The volume of effluent discharged from each outfall;
    (iii) Other measurements as appropriate including pollutants in 
internal waste streams under Sec. 122.45(i); pollutants in intake water 
for net limitations under Sec. 122.45(f); frequency, rate of discharge, 
etc., for noncontinuous discharges under Sec. 122.45(e); pollutants 
subject to notification requirements under Sec. 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-

[[Page 781]]

case basis pursuant to section 405(d)(4) of the CWA.
    (iv) According to test procedures approved under 40 CFR part 136 for 
the analyses of pollutants having approved methods under that part, and 
according to a test procedure specified in the permit for pollutants 
with no approved methods.
    (2) Except as provided in paragraphs (i)(4) and (i)(5) of this 
section, requirements to report monitoring results shall be established 
on a case-by-case basis with a frequency dependent on the nature and 
effect of the discharge, but in no case less than once a year. For 
sewage sludge use or disposal practices, requirements to monitor and 
report results shall be established on a case-by-case basis with a 
frequency dependent on the nature and effect of the sewage sludge use or 
disposal practice; minimally this shall be as specified in 40 CFR part 
503 (where applicable), but in no case less than once a year.
    (3) Requirements to report monitoring results for storm water 
discharges associated with industrial activity which are subject to an 
effluent limitation guideline shall be established on a case-by-case 
basis with a frequency dependent on the nature and 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 industrial activity (other than those 
addressed in paragraph (i)(3) of this section) shall be established on a 
case-by-case basis with a frequency dependent on the nature and effect 
of the discharge. At a minimum, a permit for such a discharge must 
require:
    (i) The discharger to conduct an annual inspection of the facility 
site to identify areas contributing to a storm water discharge 
associated with industrial activity and evaluate whether measures to 
reduce pollutant loadings identified in a storm water pollution 
prevention plan are adequate and properly implemented in accordance with 
the terms of the permit or whether additional control measures are 
needed;
    (ii) The discharger to maintain for a period of three years a record 
summarizing the results of the inspection and a certification that the 
facility is in compliance with the plan and the permit, and identifying 
any incidents of non-compliance;
    (iii) Such report and certification be signed in accordance with 
Sec. 122.22; and
    (iv) Permits for storm water discharges associated with industrial 
activity from inactive mining operations may, where annual inspections 
are impracticable, require certification once every three years by a 
Registered Professional Engineer that the facility is in compliance with 
the permit, or alternative requirements.
    (5) Permits which do not require the submittal of monitoring result 
reports at least annually shall require that the permittee report all 
instances of noncompliance not reported under Sec. 122.41(l) (1), (4), 
(5), and (6) at least annually.
    (j) Pretreatment program for POTWs. Requirements 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 
extent 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 facilities,'' a requirement to 
develop a pretreatment program under 40 CFR part 403 when the Director 
determines that a pretreatment program is necessary to assure compliance 
with Section 405(d) of the CWA.
    (k) 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

[[Page 782]]

and standards or to carry out the purposes and intent of CWA.
    (l) Reissued permits. (1) Except as provided in paragraph (l)(2) of 
this section when a permit is renewed or reissued, interim effluent 
limitations, standards or conditions must be at least as stringent as 
the final effluent limitations, standards, or conditions in the previous 
permit (unless the circumstances on which the previous permit was based 
have materially and substantially changed since the time the permit was 
issued and would constitute cause for permit modification or revocation 
and reissuance under Sec. 122.62.)
    (2) In the case of effluent limitations established on the basis of 
Section 402(a)(1)(B) of the CWA, a permit may not be renewed, reissued, 
or modified on the basis of effluent guidelines promulgated under 
section 304(b) subsequent to the original issuance of such permit, to 
contain effluent limitations which are less stringent than the 
comparable effluent limitations in the previous permit.
    (i) Exceptions--A permit with respect to which paragraph (l)(2) of 
this section applies may be renewed, reissued, or modified to contain a 
less stringent effluent limitation applicable to a pollutant, if--
    (A) Material and substantial alterations or additions to the 
permitted facility occurred after permit issuance which justify the 
application of a less stringent effluent limitation;
    (B)(1) 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 permit issuance; or
    (2) The Administrator determines that technical mistakes or mistaken 
interpretations of law were made in issuing the permit under section 
402(a)(1)(b);
    (C) A less stringent effluent limitation is necessary because of 
events over which the permittee has no control and for which there is no 
reasonably available remedy;
    (D) The permittee has received a permit modification under section 
301(c), 301(g), 301(h), 301(i), 301(k), 301(n), or 316(a); or
    (E) The permittee has installed the treatment facilities required to 
meet the effluent limitations in the previous permit and has properly 
operated and maintained the facilities but has nevertheless been unable 
to achieve the previous effluent limitations, in which case the 
limitations in the reviewed, reissued, or modified permit may reflect 
the level of pollutant control actually achieved (but shall not be less 
stringent than required by effluent guidelines in effect at the time of 
permit renewal, reissuance, or modification).
    (ii) Limitations. In no event may a permit with respect to which 
paragraph (l)(2) of this section applies be renewed, reissued, or 
modified to contain 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 implementation of such limitation 
would result in a violation of a water quality standard under section 
303 applicable to such waters.
    (m) Privately owned treatment works. For a privately owned treatment 
works, any conditions expressly applicable to any user, as a limited co-
permittee, that may be necessary in the permit issued to the treatment 
works to ensure compliance with applicable requirements under this part. 
Alternatively, the Director may issue separate permits to the treatment 
works and to its users, or may require a separate permit application 
from any user. The Director's decision to issue a permit with no 
conditions applicable to any user, to impose conditions on one or more 
users, to issue separate permits, 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 sections 201 and 204 of CWA which are 
reasonably necessary for the achievement of effluent limitations under 
section 301 of CWA.
    (o) Sewage sludge. Requirements under section 405 of CWA governing 
the

[[Page 783]]

disposal of sewage sludge from publicly owned treatment works or any 
other treatment works treating domestic sewage for any use for which 
regulations have been established, in accordance with any applicable 
regulations.
    (p) Coast Guard. When a permit is issued to a facility that may 
operate at certain times as a means of transportation over water, a 
condition that the discharge shall comply with any applicable 
regulations promulgated by the Secretary of the department in which the 
Coast Guard is operating, that establish specifications for safe 
transportation, handling, carriage, and storage of pollutants.
    (q) Navigation. Any conditions that the Secretary of the Army 
considers necessary to ensure that navigation and anchorage will not be 
substantially impaired, in accordance with Sec. 124.58.
    (r) Great Lakes. When a permit is issued to a facility that 
discharges into the Great Lakes System (as defined in 40 CFR 132.2), 
conditions promulgated 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]



Sec. 122.45  Calculating NPDES permit conditions (applicable to State NPDES programs, see Sec. 123.25).

    (a) Outfalls and discharge points. All permit effluent limitations, 
standards and prohibitions shall be established for each outfall or 
discharge point of the permitted facility, except as otherwise provided 
under Sec. 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 provided in paragraph 
(b)(2)(ii) of this section, calculation of any permit limitations, 
standards, or prohibitions which are based on production (or other 
measure of operation) shall be based not upon the designed production 
capacity but rather upon a reasonable measure of actual production of 
the facility. For new sources or new dischargers, actual production 
shall be estimated using projected production. The time period of the 
measure of production shall correspond to the time period of the 
calculated permit limitations; for example, monthly production shall be 
used to calculate average monthly discharge limitations.
    (ii)(A)(1) 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)(1) of this section if the applicant 
satisfactorily demonstrates to the Director at the time the application 
is submitted that its actual 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:
    (1) The permit shall require the permittee to notify the Director at 
least two business days prior to a month in which the permittee expects 
to operate at a level higher than the lowest 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 alternate 
level. If the notice covers more than one month, the notice shall 
specify the reasons for the anticipated production level increase. New 
notice of discharge at alternate levels is required to cover a period or 
production level not covered by prior notice or, if during two 
consecutive months otherwise 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 limitations, standards, or 
prohibitions that correspond to the lowest

[[Page 784]]

level of production specified in the permit, unless the permittee has 
notified the Director under paragraph (b)(2)(ii)(B)(1) 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 during 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 expressed 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 specifies the limitation for the metal in 
the dissolved or valent or total form; or
    (2) In establishing permit limitations on a case-by-case basis under 
Sec. 125.3, it is necessary to express the limitation on the metal in 
the dissolved or valent or total form to carry out the provisions of the 
CWA; or
    (3) All approved analytical methods for the metal inherently measure 
only its dissolved form (e.g., hexavalent chromium).
    (d) Continuous discharges. For continuous discharges all permit 
effluent limitations, standards, and prohibitions, including those 
necessary to achieve water quality standards, shall unless impracticable 
be stated as:
    (1) Maximum daily and average monthly discharge limitations for all 
dischargers other than publicly owned treatment works; and
    (2) Average weekly and average monthly discharge limitations for 
POTWs.
    (e) Non-continuous discharges. Discharges which are not continuous, 
as defined in Sec. 122.2, shall be particularly described and limited, 
considering the following factors, as appropriate:
    (1) Frequency (for example, a batch discharge shall not occur more 
than once every 3 weeks);
    (2) Total mass (for example, not to exceed 100 kilograms of zinc and 
200 kilograms of chromium per batch discharge);
    (3) Maximum rate of discharge of pollutants during the discharge 
(for example, not to exceed 2 kilograms of zinc per minute); and
    (4) Prohibition or limitation of specified pollutants by mass, 
concentration, or other appropriate measure (for example, shall not 
contain at any time more than 0.1 mg/1 zinc or more than 250 grams (\1/
4\ kilogram) of zinc in any discharge).
    (f) Mass limitations. (1) All pollutants limited in permits shall 
have limitations, standards or prohibitions expressed in terms of mass 
except:
    (i) For pH, temperature, radiation, or other pollutants which cannot 
appropriately be expressed by mass;
    (ii) When applicable standards and limitations are expressed in 
terms of other units of measurement; or
    (iii) If in establishing permit limitations on a case-by-case basis 
under Sec. 125.3, limitations expressed in terms of mass are infeasible 
because the mass of the pollutant discharged cannot be related to a 
measure of operation (for example, discharges of TSS from certain mining 
operations), and permit conditions ensure that dilution will not be used 
as a substitute for treatment.
    (2) Pollutants limited in terms of mass additionally may be limited 
in terms of other units of measurement, and the permit shall require the 
permittee to comply with both limitations.
    (g) Pollutants in intake water. (1) Upon request of the discharger, 
technology-based effluent limitations or standards shall be adjusted to 
reflect credit for pollutants in the discharger's intake water if:
    (i) The applicable effluent limitations and standards contained in 
40 CFR subchapter N specifically provide that they shall be applied on a 
net basis; or
    (ii) The discharger demonstrates that the control system it proposes 
or uses to meet applicable technology-based limitations and standards 
would, if properly installed and operated, meet the limitations and 
standards in the absence of pollutants in the intake waters.
    (2) Credit for generic pollutants such as biochemical oxygen demand 
(BOD) or total suspended solids (TSS) should

[[Page 785]]

not be granted unless the permittee demonstrates that the constituents 
of the generic measure in the effluent are substantially similar to the 
constituents of the generic measure in the intake water or unless 
appropriate additional limits are placed on process water pollutants 
either at the outfall or elsewhere.
    (3) Credit shall be granted only to the extent necessary to meet the 
applicable limitation or standard, up to a maximum value equal to the 
influent value. Additional monitoring may be necessary to determine 
eligibility for credits and compliance with permit limits.
    (4) Credit shall be granted only if the discharger demonstrates that 
the intake water is drawn from the same body of water into which the 
discharge is made. The Director may waive this requirement if he finds 
that no environmental degradation will result.
    (5) This section does not apply to the discharge of raw water 
clarifier sludge generated from the treatment of intake water.
    (h) Internal waste streams. (1) When permit effluent limitations or 
standards imposed at the point of discharge are impractical or 
infeasible, effluent limitations or standards for discharges of 
pollutants may be imposed on internal waste streams before mixing with 
other waste streams or cooling water streams. In those instances, the 
monitoring required by Sec. 122.44(i) shall also be applied to the 
internal waste streams.
    (2) Limits on internal waste streams will be imposed only when the 
fact sheet under Sec. 124.56 sets forth the exceptional circumstances 
which make such limitations necessary, such as when the final discharge 
point is inaccessible (for example, under 10 meters of water), the 
wastes at the point of discharge are so diluted as to make monitoring 
impracticable, or the interferences among pollutants at the point of 
discharge would make detection or analysis impracticable.
    (i) Disposal of pollutants into wells, into POTWs or by land 
application. Permit limitations and standards shall be calculated as 
provided in Sec. 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]



Sec. 122.46  Duration of permits (applicable to State programs, see Sec. 123.25).

    (a) NPDES permits shall be effective for a fixed term not to exceed 
5 years.
    (b) Except as provided in Sec. 122.6, the term of a permit shall not 
be extended by modification beyond the maximum duration specified in 
this section.
    (c) The Director may issue any permit for a duration that is less 
than the full allowable term under this section.
    (d) A permit may be issued to expire on or after the statutory 
deadline set forth in section 301(b)(2) (A), (C), and (E), if the permit 
includes effluent limitations to meet the requirements of section 
301(b)(2) (A), (C), (D), (E) and (F), whether or not applicable effluent 
limitations guidelines have been promulgated or approved.
    (e) A determination that a particular discharger falls within a 
given industrial category for purposes of setting a permit expiration 
date under paragraph (d) of this section is not conclusive as to the 
discharger's inclusion in that industrial category for any other 
purposes, and does not prejudice any rights to challenge or change that 
inclusion at the time that a permit based on that determination is 
formulated.

[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]



Sec. 122.47  Schedules of compliance.

    (a) General (applicable to State programs, see Sec. 123.25). The 
permit may, when appropriate, specify a schedule of compliance leading 
to compliance with CWA and regulations.
    (1) Time for compliance. Any schedules of compliance under this 
section shall require compliance as soon as possible, but not later than 
the applicable statutory deadline under the CWA.
    (2) The first NPDES permit issued to a new source or a new 
discharger shall contain a schedule of compliance only when necessary to 
allow a reasonable

[[Page 786]]

opportunity to attain compliance with requirements issued or revised 
after commencement of construction but less than three years before 
commencement of the relevant discharge. For recommencing dischargers, a 
schedule of compliance shall be available only when necessary to allow a 
reasonable opportunity to attain compliance with requirements issued or 
revised less than three years before recommencement of discharge.
    (3) Interim dates. Except as provided in paragraph (b)(1)(ii) of 
this section, if a permit establishes 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 exceed 1 year, except 
that in the case of a schedule for compliance with standards for sewage 
sludge use and disposal, the time between interim dates shall not exceed 
six months.
    (ii) If the time necessary for completion of any interim requirement 
(such as the construction of a control facility) is more than 1 year and 
is not readily divisible into stages for completion, the permit shall 
specify interim dates for the submission of reports of progress toward 
completion of the interim requirements and indicate a projected 
completion date.
    Note: Examples of interim requirements include: (a) Submit a 
complete Step 1 construction grant (for POTWs); (b) let a contract for 
construction of required facilities; (c) commence construction of 
required facilities; (d) complete construction of required facilities.
    (4) Reporting. The permit shall be written to require that no later 
than 14 days following each interim 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 cessation of activities; or
    (ii) The permittee shall cease conducting permitted activities 
before non-compliance with any interim or final compliance schedule 
requirement already specified in the permit.
    (2) If the decision to cease conducting regulated activities is made 
before issuance of a permit whose term will include the termination 
date, the permit shall contain a schedule leading to termination which 
will ensure timely compliance with applicable requirements no later than 
the statutory deadline.
    (3) If the permittee is undecided whether to cease conducting 
regulated activities, the Director may issue or modify a permit to 
contain two schedules as follows:
    (i) Both schedules shall contain an identical interim deadline 
requiring a final decision on whether to cease conducting regulated 
activities no later than a date which ensures sufficient time to comply 
with applicable requirements in a timely manner if the decision is to 
continue conducting regulated activities;
    (ii) One schedule shall lead to timely compliance with applicable 
requirements, no later than the statutory deadline;
    (iii) The second schedule shall lead to cessation of regulated 
activities by a date which will ensure timely compliance with applicable 
requirements no later than the statutory deadline.
    (iv) Each permit containing two schedules shall include a 
requirement that after the permittee has made a final decision under 
paragraph (b)(3)(i) of this section it shall follow the schedule leading 
to compliance if the decision is to continue conducting regulated 
activities, and follow the schedule leading to termination if the 
decision is to cease conducting regulated activities.
    (4) The applicant's or permittee's decision to cease conducting 
regulated activities shall be evidenced by a firm

[[Page 787]]

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]



Sec. 122.48  Requirements for recording and reporting of monitoring results (applicable to State programs, see Sec. 123.25).

    All permits shall specify:
    (a) Requirements concerning the proper use, maintenance, and 
installation, when appropriate, of monitoring equipment or methods 
(including biological monitoring methods when appropriate);
    (b) Required monitoring including type, intervals, and frequency 
sufficient to yield data which are representative of the monitored 
activity including, when appropriate, continuous monitoring;
    (c) Applicable reporting requirements based upon the impact of the 
regulated activity and as specified in Sec. 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]



Sec. 122.49  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 procedures must be followed. When the applicable law 
requires consideration or adoption of particular permit conditions or 
requires the denial of a permit, those requirements also must be 
followed.
    (a) The Wild and Scenic Rivers Act, 16 U.S.C. 1273 et seq. section 7 
of the Act prohibits the Regional Administrator from assisting by 
license or otherwise the construction of any water 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 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 cooperation with State Historic Preservation Officers 
and upon notice to, and when appropriate, in consultation 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 implementing regulations (50 CFR part 402) require the 
Regional 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 endangered 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) 
prohibit EPA from issuing a permit for an activity affecting 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 Administrator, before issuing a permit 
proposing or authorizing 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 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 EIS-related permit conditions (other

[[Page 788]]

than effluent limitations) as provided in Sec. 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 Recovery 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]



Sec. 122.50  Disposal of pollutants into wells, into publicly owned treatment works or by land application (applicable to State NPDES programs, see 
          Sec. 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 application thereby 
reducing the flow or level of pollutants being discharged into waters of 
the United States, applicable effluent standards and limitations for the 
discharge in an NPDES permit shall be adjusted to reflect the reduced 
raw waste resulting from such disposal. Effluent limitations and 
standards in the permit shall be calculated by one of the following 
methods:
    (1) If none of the waste from a particular process is discharged 
into waters of the United States, and effluent limitations guidelines 
provide separate allocation for wastes from that process, all 
allocations for the process shall be eliminated from calculation of 
permit effluent limitations or standards.
    (2) In all cases other than those described in paragraph (a)(1) of 
this section, effluent limitations shall be adjusted by multiplying the 
effluent limitation derived by applying effluent limitation guidelines 
to the total waste stream by the amount of wastewater flow to be treated 
and discharged into waters of the United States, and dividing the result 
by the total wastewater flow. Effluent limitations and standards so 
calculated may be further adjusted under part 125, subpart D to make 
them more or less stringent if discharges to wells, publicly owned 
treatment works, or by land application change the character or 
treatability of the pollutants being discharged to receiving waters. 
This method may be algebraically expressed as:
[GRAPHIC] [TIFF OMITTED] TR23MR95.119

where P is the permit effluent limitation, E is the limitation derived 
by applying effluent guidelines to the total wastestream, N is the 
wastewater flow to be treated and discharged to waters of the United 
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 discharged but not mass; or
    (2) Specify a different specific technique for adjusting effluent 
limitations to account for well injection, land application, or disposal 
into POTWs.
    (c) Paragraph (a) of this section does not alter a discharger's 
obligation to meet any more stringent requirements established under 
Secs. 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



Sec. 122.61  Transfer of permits (applicable to State programs, see Sec. 123.25).

    (a) Transfers by modification. Except as provided 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 Sec. 122.62(b)(2)), or a minor modification made (under 
Sec. 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 between the existing and 
new permittees containing a specific

[[Page 789]]

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 Sec. 122.63. If this notice is not received, 
the transfer is effective on the date specified in the agreement 
mentioned in paragraph (b)(2) of this section.



Sec. 122.62  Modification or revocation and reissuance of permits (applicable to State programs, see Sec. 123.25).

    When the Director receives any information (for example, inspects 
the facility, receives information submitted by the permittee as 
required in the permit (see Sec. 122.41), receives a request for 
modification or revocation and reissuance under Sec. 124.5, or conducts 
a review of the permit file) he or she may determine whether or not one 
or more of the causes listed in paragraphs (a) and (b) of this section 
for modification or revocation and reissuance or both exist. If cause 
exists, the Director may modify or revoke and reissue the permit 
accordingly, subject to the limitations of Sec. 124.5(c), and may 
request an updated application if necessary. When a permit is modified, 
only the conditions subject to modification are reopened. If a permit is 
revoked and reissued, the entire permit is reopened and subject to 
revision and the permit is reissued for a new term. See 
Sec. 124.5(c)(2). If cause does not exist under this section or 
Sec. 122.63, the Director shall not modify or revoke and reissue the 
permit. If a permit modification satisfies the criteria in Sec. 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) followed.
    (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 substantial 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 Sec. 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 methods) and would have justified 
the application of different permit conditions at the time of issuance. 
For NPDES general permits (Sec. 122.28) this cause includes any 
information indicating that cumulative effects on the environment are 
unacceptable. For new source or new discharger NPDES permits 
Secs. 122.21, 122.29), this cause shall include any significant 
information derived from effluent testing required under 
Sec. 122.21(k)(5)(vi) or Sec. 122.21(h)(4)(iii) after issuance of the 
permit.
    (3) New regulations. The standards or regulations 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:
    (i) For promulgation of amended standards or regulations, when:
    (A) The permit condition requested to be modified was based on a 
promulgated effluent limitation guideline, EPA approved or promulgated 
water quality standards, or the Secondary Treatment Regulations under 
part 133; and
    (B) EPA has revised, withdrawn, or modified that portion of the 
regulation or effluent limitation guideline on which the permit 
condition was based, or has approved a State action with regard to a 
water quality standard on which the permit condition was based; and
    (C) A permittee requests modification in accordance with Sec. 124.5 
within

[[Page 790]]

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 promulgated regulations or effluent limitation 
guidelines, if the remand and stay concern that portion of the 
regulations or guidelines on which the permit condition was based and a 
request is filed by the permittee in accordance with Sec. 124.5 within 
ninety (90) days of judicial remand.
    (iii) For changes based upon modified State certifications of NPDES 
permits, see Sec. 124.55(b).
    (4) Compliance schedules. The Director determines 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 beyond an applicable CWA statutory deadline. See 
also Sec. 122.63(c) (minor modifications) and paragraph (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 
``fundamentally different factors'' within the time specified in 
Sec. 122.21 or Sec. 125.27(a).
    (6) 307(a) toxics. When required to incorporate an applicable 307(a) 
toxic effluent standard or prohibition (see Sec. 122.44(b)).
    (7) Reopener. When required by the ``reopener'' conditions in a 
permit, which are established in the permit under Sec. 122.44(b) (for 
CWA toxic effluent limitations and standards for sewage sludge use or 
disposal, see also Sec. 122.44(c)) or 40 CFR Sec. 403.10(e) 
(pretreatment program).
    (8)(i) Net limits. Upon request of a permittee who qualifies for 
effluent limitations on a net basis under Sec. 122.45(h).
    (ii) When a discharger is no longer eligible for net limitations, as 
provided in Sec. 122.45(h)(1)(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 approved State to notify, 
as required by section 402(b)(3), another State whose waters may be 
affected by a discharge from the approved State.
    (11) Non-limited pollutants. When the level of discharge of any 
pollutant which is not limited in the permit exceeds the level which can 
be achieved by the technology-based treatment requirements appropriate 
to the permittee under Sec. 125.3(c).
    (12) Notification levels. To establish a ``notification level'' as 
provided in Sec. 122.44(f).
    (13) Compliance schedules. To modify a schedule of compliance to 
reflect the time lost during construction of an innovative or 
alternative facility, in the case of a POTW which has received a grant 
under section 202(a)(3) of CWA for 100% of the costs to modify or 
replace facilities constructed with a grant for innovative and 
alternative wastewater technology under section 202(a)(2). In no case 
shall the compliance schedule be modified to extend beyond an applicable 
CWA statutory deadline for compliance.
    (14) [Reserved]
    (15) To correct technical mistakes, such as errors in calculation, 
or mistaken interpretations of law made in determining permit 
conditions.
    (16) When the discharger has installed the treatment technology 
considered by the permit writer in setting effluent limitations imposed 
under section 402(a)(1) of the CWA and has properly operated and 
maintained the facilities but nevertheless has been unable to achieve 
those effluent limitations. In this case, the limitations in the 
modified permit may reflect the level of pollutant control actually 
achieved (but shall not be less stringent than required by a 
subsequently promulgated effluent limitations guideline).
    (17) [Reserved]
    (18) Land application plans. When required by a permit condition to 
incorporate a land application 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

[[Page 791]]

causes to modify or, alternatively, revoke and reissue a permit:
    (1) Cause exists for termination under Sec. 122.64, and the Director 
determines that modification or revocation and reissuance is 
appropriate.
    (2) The Director has received notification (as required in the 
permit, see Sec. 122.41(l)(3)) of a proposed transfer of the permit. A 
permit also may be modified to reflect a transfer after the effective 
date of an automatic transfer (Sec. 122.61(b)) but will not be revoked 
and reissued after the effective date of the transfer except upon the 
request of the new permittee.

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 25981, June 25, 1984; 49 
FR 37009, Sept. 29, 1984; 49 FR 38050, Sept. 26, 1984; 50 FR 4514, Jan. 
31, 1985; 51 FR 20431, June 4, 1986; 51 FR 26993, July 28, 1986; 54 FR 
256, 258, Jan. 4, 1989; 54 FR 18784, May 2, 1989; 60 FR 33931, June 29, 
1995]



Sec. 122.63  Minor modifications of permits.

    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 procedures of 
part 124. Any permit modification not processed as a minor modification 
under this section must be made for cause and with part 124 draft permit 
and public notice as required in Sec. 122.62. Minor modifications may 
only:
    (a) Correct typographical errors;
    (b) Require more frequent monitoring or reporting by the permittee;
    (c) Change an interim compliance date in a schedule of compliance, 
provided the new date is not more than 120 days after the date specified 
in the existing permit and does not interfere with attainment of the 
final compliance date requirement; or
    (d) Allow for a change in ownership or operational control of a 
facility where the Director determines that no other change in the 
permit is necessary, provided that a written agreement containing a 
specific date for transfer of permit responsibility, coverage, and 
liability between the current and new permittees has been submitted to 
the Director.
    (e)(1) Change the construction schedule for a discharger which is a 
new source. No such change shall affect a discharger's obligation to 
have all pollution control equipment installed and in operation prior to 
discharge under Sec. 122.29.
    (2) Delete a point source outfall when the discharge from that 
outfall is terminated and does not result in discharge of pollutants 
from other outfalls except in accordance with permit limits.
    (f) [Reserved]
    (g) Incorporate conditions of a POTW pretreatment program that has 
been approved in accordance with the procedures in 40 CFR 403.11 (or a 
modification thereto that has been approved in accordance with the 
procedures in 40 CFR 403.18) as enforceable conditions of the POTW's 
permits.

[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]



Sec. 122.64  Termination of permits (applicable to State programs, see Sec. 123.25).

    (a) The following are causes for terminating a permit during its 
term, or for denying a permit renewal application:
    (1) Noncompliance by the permittee with any condition of the permit;
    (2) The permittee's failure in the application or during the permit 
issuance process to disclose fully all relevant facts, or the 
permittee's misrepresentation of any relevant facts at any time;
    (3) A determination that the permitted activity endangers human 
health or the environment and can only be regulated to acceptable levels 
by permit modification or termination; or
    (4) A change in any condition that requires either a temporary or 
permanent reduction or elimination of any discharge or sludge use or 
disposal practice controlled by the permit (for example, plant closure 
or termination of discharge by connection to a POTW).
    (b) The Director shall follow the applicable procedures in part 124 
or State

[[Page 792]]

procedures in terminating 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 limitations and a compliance 
schedule to meet the requirements of section 301(b)(2)(A), (C), (D), (E) 
and (F) of CWA, whether or not applicable effluent limitations 
guidelines have been promulgated. See Secs. 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
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 Determining a Concentrated Animal 
                     Feeding Operation (Sec. 122.23)

    An animal feeding operation is a concentrated animal feeding 
operation for purposes of Sec. 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 (approximately 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 animals 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 (approximately 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: pollutants are 
discharged into navigable waters through a manmade 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 operation.
    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 following numbers: the number 
of slaughter and feeder cattle multiplied by 1.0, plus the number of 
mature dairy cattle 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 Determining a Concentrated Aquatic 
                Animal Production Facility (Sec. 122.24)

    A hatchery, fish farm, or other facility is a concentrated aquatic 
animal production facility for purposes of Sec. 122.24 if it contains,

[[Page 793]]

grows, or holds aquatic animals in either of the following categories:
    (a) Cold water fish species or other cold water aquatic animals in 
ponds, raceways, or other similar structures which discharge at least 30 
days per year but does not include:
    (1) Facilities which produce less than 9,090 harvest weight 
kilograms (approximately 20,000 pounds) of aquatic animals per year; and
    (2) Facilities which feed less than 2,272 kilograms (approximately 
5,000 pounds) of food during the calendar month of maximum feeding.
    (b) Warm water fish species or other warm water aquatic animals in 
ponds, raceways, or other similar structures which discharge at least 30 
days per year, but does not include:
    (1) Closed ponds which discharge only during periods of excess 
runoff; or
    (2) Facilities which produce less than 45,454 harvest weight 
kilograms (approximately 100,000 pounds) of aquatic animals per year.
    ``Cold water aquatic animals'' include, but are not limited to, the 
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 
                              (Sec. 122.21)

Table I--Testing Requirements for Organic Toxic Pollutants by Industrial
                    Category for Existing Dischargers
------------------------------------------------------------------------
                                             GC/MS Fraction \1\
                                  --------------------------------------
       Industrial category                             Base/
                                   Volatile    Acid   neutral  Pesticide
------------------------------------------------------------------------
Adhesives and Sealants...........     \2\      \2\      \2\
Aluminum Forming.................     \2\      \2\      \2\
Auto and Other Laundries.........     \2\      \2\      \2\       \2\
Battery Manufacturing............     \2\               \2\
Coal Mining......................     \2\      \2\      \2\       \2\
Coil Coating.....................     \2\      \2\      \2\
Copper Forming...................     \2\      \2\      \2\
Electric and Electronic               \2\      \2\      \2\       \2\
 Components......................
Electroplating...................     \2\      \2\      \2\
Explosives Manufacturing.........              \2\      \2\
Foundries........................     \2\      \2\      \2\
Gum and Wood Chemicals...........     \2\      \2\      \2\       \2\
Inorganic Chemicals Manufacturing     \2\      \2\      \2\
Iron and Steel Manufacturing.....     \2\      \2\      \2\
Leather Tanning and Finishing....     \2\      \2\      \2\       \2\
Mechanical Products Manufacturing     \2\      \2\      \2\
Nonferrous Metals Manufacturing..     \2\      \2\      \2\       \2\
Ore Mining.......................     \2\      \2\      \2\       \2\
Organic Chemicals Manufacturing..     \2\      \2\      \2\       \2\
Paint and Ink Formulation........     \2\      \2\      \2\       \2\
Pesticides.......................     \2\      \2\      \2\       \2\
Petroleum Refining...............     \2\      \2\      \2\       \2\
Pharmaceutical Preparations......     \2\      \2\      \2\
Photographic Equipment and            \2\      \2\      \2\       \2\
 Supplies........................
Plastic and Synthetic Materials       \2\      \2\      \2\       \2\
 Manufacturing...................
Plastic Processing...............     \2\
Porcelain Enameling..............     \2\               \2\       \2\
Printing and Publishing..........     \2\      \2\      \2\       \2\
Pulp and Paper Mills.............     \2\      \2\      \2\       \2\
Rubber Processing................     \2\      \2\      \2\
Soap and Detergent Manufacturing.     \2\      \2\      \2\
Steam Electric Power Plants......     \2\      \2\      \2\
Textile Mills....................     \2\      \2\      \2\       \2\
Timber Products Processing.......     \2\      \2\      \2\       \2\
------------------------------------------------------------------------
\1\ The toxic pollutants in each fraction are listed in Table II.
\2\ Testing required.

Table II--Organic Toxic Pollutants in Each of Four Fractions in Analysis 
by Gas Chromatography/Mass Spectroscopy (GS/MS)

                                Volatiles

 1V  acrolein
 2V  acrylonitrile
 3V  benzene
 5V  bromoform
 6V  carbon tetrachloride
 7V  chlorobenzene
 8V  chlorodibromomethane
 9V  chloroethane
10V  2-chloroethylvinyl ether
11V  chloroform
12V  dichlorobromomethane
14V  1,1-dichloroethane
15V  1,2-dichloroethane
16V  1,1-dichloroethylene
17V  1,2-dichloropropane
18V  1,3-dichloropropylene
19V  ethylbenzene
20V  methyl bromide
21V  methyl chloride
22V  methylene chloride
23V  1,1,2,2-tetrachloroethane
24V  tetrachloroethylene
25V  toluene

[[Page 794]]

26V  1,2-trans-dichloroethylene
27V  1,1,1-trichloroethane
28V  1,1,2-trichloroethane
29V  trichloroethylene
31V  vinyl chloride

                             Acid 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
10A  phenol
11A  2,4,6-trichlorophenol

                              Base/Neutral

 1B  acenaphthene
 2B  acenaphthylene
 3B  anthracene
 4B  benzidine
 5B  benzo(a)anthracene
 6B  benzo(a)pyrene
 7B  3,4-benzofluoranthene
 8B  benzo(ghi)perylene
 9B  benzo(k)fluoranthene
10B  bis(2-chloroethoxy)methane
11B  bis(2-chloroethyl)ether
12B  bis(2-chloroisopropyl)ether
13B  bis (2-ethylhexyl)phthalate
14B  4-bromophenyl phenyl ether
15B  butylbenzyl phthalate
16B  2-chloronaphthalene
17B  4-chlorophenyl phenyl ether
18B  chrysene
19B  dibenzo(a,h)anthracene
20B  1,2-dichlorobenzene
21B  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
28B  2,6-dinitrotoluene
29B  di-n-octyl phthalate
30B  1,2-diphenylhydrazine (as azobenzene)
31B  fluroranthene
32B  fluorene
33B  hexachlorobenzene
34B  hexachlorobutadiene
35B  hexachlorocyclopentadiene
36B  hexachloroethane
37B  indeno(1,2,3-cd)pyrene
38B  isophorone
39B  napthalene
40B  nitrobenzene
41B  N-nitrosodimethylamine
42B  N-nitrosodi-n-propylamine
43B  N-nitrosodiphenylamine
44B  phenanthrene
45B  pyrene
46B  1,2,4-trichlorobenzene

                               Pesticides

 1P  aldrin
 2P  alpha-BHC
 3P  beta-BHC
 4P  gamma-BHC
 5P  delta-BHC
 6P  chlordane
 7P  4,4'-DDT
 8P  4,4'-DDE
 9P  4,4'-DDD
10P  dieldrin
11P  alpha-endosulfan
12P  beta-endosulfan
13P  endosulfan sulfate
14P  endrin
15P  endrin aldehyde
16P  heptachlor
17P  heptachlor epoxide
18P  PCB-1242
19P  PCB-1254
20P  PCB-1221
21P  PCB-1232
22P  PCB-1248
23P  PCB-1260
24P  PCB-1016
25P  toxaphene
Table III--Other Toxic Pollutants (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

[[Page 795]]

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

                            Toxic Pollutants

Asbestos

                          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
Mercaptodimethur
Methoxychlor
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
Triethanolamine dodecylbenzenesulfonate
Triethylamine
Trimethylamine
Uranium
Vanadium
Vinyl acetate
Xylene
Xylenol
Zirconium

    [Note 1: The Environmental Protection Agency has suspended the 
requirements of Sec. 122.21(g)(7)(ii)(A) and Table I of Appendix D as 
they apply to certain industrial categories. The suspensions are as 
follows:
    a. At 46 FR 2046, Jan. 8, 1981, the Environmental Protection Agency 
suspended until further notice Sec. 122.21(g)(7)(ii)(A) as it applies to 
coal mines.
    b. At 46 FR 22585, Apr. 20, 1981, the Environmental Protection 
Agency suspended until further notice Sec. 122.21(g)(7)(ii)(A) and the 
corresponding portions of Item V-C of the NPDES application Form 2c as 
they apply to:
    1. Testing and reporting for all four organic fractions in the 
Greige Mills Subcategory of the Textile Mills industry (Subpart C--Low 
water use processing of 40 CFR part 410), and testing and reporting for 
the pesticide fraction in all other subcategories of this industrial 
category.
    2. Testing and reporting for the volatile, base/neutral and 
pesticide fractions in the Base and Precious Metals Subcategory of the 
Ore Mining and Dressing industry (subpart B of 40 CFR part 440), and 
testing and reporting for all four fractions in all other subcategories 
of this industrial category.
    3. Testing and reporting for all four GC/MS fractions in the 
Porcelain Enameling industry.
    c. At 46 FR 35090, July 1, 1981, the Environmental Protection Agency 
suspended until further notice Sec. 122.21(g)(7)(ii)(A) and the 
corresponding portions of Item V-C of the NPDES application Form 2c as 
they apply to:

[[Page 796]]

    1. Testing and reporting for the pesticide fraction in the Tall Oil 
Rosin Subcategory (subpart D) and Rosin-Based Derivatives Subcategory 
(subpart F) of the Gum and Wood Chemicals industry (40 CFR part 454), 
and testing and reporting for the pesticide and base/netural fractions 
in all other subcategories of this industrial category.
    2. Testing and reporting for the pesticide fraction in the Leather 
Tanning and Finishing, Paint and Ink Formulation, and Photographic 
Supplies industrial categories.
    3. Testing and reporting for the acid, base/neutral and pesticide 
fractions in the Petroleum Refining industrial category.
    4. Testing and reporting for the pesticide fraction in the 
Papergrade Sulfite subcategories (subparts J and U) of the Pulp and 
Paper industry (40 CFR part 430); testing and reporting for the base/
neutral and pesticide fractions in the following subcategories: Deink 
(subpart Q), Dissolving Kraft (subpart F), and Paperboard from Waste 
Paper (subpart E); testing and reporting for the volatile, base/neutral 
and pesticide fractions in the following subcategories: BCT Bleached 
Kraft (subpart H), Semi-Chemical (subparts B and C), and Nonintegrated-
Fine Papers (subpart R); and testing and reporting for the acid, base/
neutral, and pesticide fractions in the following subcategories: Fine 
Bleached Kraft (subpart I), Dissolving Sulfite Pulp (subpart K), 
Groundwood-Fine Papers (subpart O), Market Bleached Kraft (subpart G), 
Tissue from Wastepaper (subpart T), and Nonintegrated-Tissue Papers 
(subpart S).
    5. Testing and reporting for the base/neutral fraction in the Once-
Through Cooling Water, Fly Ash and Bottom Ash Transport Water process 
wastestreams of the Steam Electric Power Plant industrial category.

This revision continues these suspensions.]*
---------------------------------------------------------------------------

    * Editorial Note: The words ``This revision'' refer to the document 
published at 48 FR 14153, Apr. 1, 1983.
---------------------------------------------------------------------------

    For the duration of the suspensions, therefore, Table I effectively 
reads:

 Table I--Testing Requirements for Organic Toxic Pollutants by Industry
                                Category
------------------------------------------------------------------------
                                             GC/MS fraction \2\
         Industry category         -------------------------------------
                                    Volatile   Acid   Neutral  Pesticide
------------------------------------------------------------------------
Adhesives and sealants............  (\1\)     (\1\)   (\1\)
 
Aluminum forming..................  (\1\)     (\1\)   (\1\)
 
Auto and other laundries..........  (\1\)     (\1\)   (\1\)     (\1\)
 
Battery manufacturing.............  (\1\)             (\1\)
Coal mining.......................
Coil coating......................  (\1\)     (\1\)   (\1\)
 
Copper forming....................  (\1\)     (\1\)   (\1\)
 
Electric and electronic compounds.  (\1\)     (\1\)   (\1\)     (\1\)
 
Electroplating....................  (\1\)     (\1\)   (\1\)
 
Explosives manufacturing..........            (\1\)   (\1\)
 
Foundries.........................  (\1\)     (\1\)   (\1\)
 
Gum and wood (all subparts except   (\1\)     (\1\)
 D and F).........................
Subpart D--tall oil rosin.........  (\1\)     (\1\)   (\1\)
 
Subpart F--rosin-based derivatives  (\1\)     (\1\)   (\1\)
 
Inorganic chemicals manufacturing.  (\1\)     (\1\)   (\1\)
 
Iron and steel manufacturing......  (\1\)     (\1\)   (\1\)
 
Leather tanning and finishing.....  (\1\)     (\1\)   (\1\)
 
Mechanical products manufacturing.  (\1\)     (\1\)   (\1\)
 
Nonferrous metals manufacturing...  (\1\)     (\1\)   (\1\)     (\1\)
 
Ore mining (applies to the base               (\1\)
 and precious metals/Subpart B)...
Organic chemicals manufacturing...  (\1\)     (\1\)   (\1\)     (\1\)
 
Paint and ink formulation.........  (\1\)     (\1\)   (\1\)
 
Pesticides........................  (\1\)     (\1\)   (\1\)     (\1\)
 
Petroleum refining................  (\1\)
Pharmaceutical preparations.......  (\1\)     (\1\)   (\1\)
 
Photographic equipment and          (\1\)     (\1\)   (\1\)
 supplies.........................
Plastic and synthetic materials     (\1\)     (\1\)   (\1\)     (\1\)
 manufacturing....................
Plastic processing................  (\1\)
Porcelain enameling...............
Printing and publishing...........  (\1\)     (\1\)   (\1\)     (\1\)
 
Pulp and paperboard mills--see
 footnote \3\.....................
Rubber processing.................  (\1\)     (\1\)   (\1\)
 
Soap and detergent manufacturing..  (\1\)     (\1\)   (\1\)
 
Steam electric power plants.......  (\1\)     (\1\)
 
Textile mills (Subpart C--Greige    (\1\)     (\1\)   (\1\)
 Mills are exempt from this table)
Timber products processing........  (\1\)     (\1\)   (\1\)     (\1\)
 
------------------------------------------------------------------------
\1\ Testing required.
\2\ The pollutants in each fraction are listed in Item V-C.
\3\ Pulp and Paperboard Mills:


------------------------------------------------------------------------
                                               GS/MS fractions
                                    ------------------------------------
                   Subpart \3\                        Base/
                                       VOA    Acid   neutral  Pesticides
------------------------------------------------------------------------
              A....................   \2\    (\1\)     \2\     (\1\)
 
              B....................   \2\    (\1\)     \2\       \2\
 
              C....................   \2\    (\1\)     \2\       \2\
 
              D....................   \2\    (\1\)     \2\       \2\
 
              E....................  (\1\)   (\1\)     \2\     (\1\)
 
              F....................  (\1\)   (\1\)     \2\       \2\
 
              G....................  (\1\)   (\1\)     \2\       \2\
 
              H....................  (\1\)   (\1\)     \2\       \2\
 
              I....................  (\1\)   (\1\)     \2\       \2\
 
              J....................  (\1\)   (\1\)   (\1\)       \2\
 
              K....................  (\1\)   (\1\)     \2\       \2\
 

[[Page 797]]

 
              L....................  (\1\)   (\1\)     \2\       \2\
 
              M....................  (\1\)   (\1\)     \2\       \2\
 
              N....................  (\1\)   (\1\)     \2\       \2\
 
              O....................  (\1\)   (\1\)     \2\       \2\
 
              P....................  (\1\)   (\1\)     \2\       \2\
 
              Q....................  (\1\)   (\1\)     \2\     (\1\)
 
              R....................   \2\    (\1\)     \2\       \2\
 
              S....................  (\1\)   (\1\)     \2\     (\1\)
 
              T....................  (\1\)   (\1\)     \2\     (\1\)
 
              U....................  (\1\)   (\1\)   (\1\)       \2\
 
------------------------------------------------------------------------
\1\ Must test.
\2\ Do not test unless ``reason to believe'' it is discharged.
\3\ Subparts 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
      [GRAPHIC] [TIFF OMITTED] TC01MR92.016
      
[55 FR 48073, Nov. 16, 1990]

 Appendix F to Part 122-- Incorporated Places With Populations Greater 
  Than 250,000 According to Latest Decennial Census by Bureau of Census

------------------------------------------------------------------------
                   State                         Incorporated place
------------------------------------------------------------------------
Alabama...................................  Birmingham.
Arizona...................................  Phoenix.
                                            Tucson.
California................................  Long Beach.
                                            Los Angeles.
                                            Oakland.
                                            Sacramento.
                                            San Diego.
                                            San Francisco.
                                            San Jose.
Colorado..................................  Denver.
District of Columbia......................  ............................
Florida...................................  Jacksonville.
                                            Miami.
                                            Tampa.
Georgia...................................  Atlanta.
Illinois..................................  Chicago.
Indiana...................................  Indianapolis.
Kansas....................................  Wichita.
Kentucky..................................  Louisville.
Louisiana.................................  New Orleans.
Maryland..................................  Baltimore.

[[Page 798]]

 
Massachusetts.............................  Boston.
Michigan..................................  Detroit.
Minnesota.................................  Minneapolis
                                            St. Paul.
Missouri..................................  Kansas City.
                                            St. Louis.
Nebraska..................................  Omaha.
New Jersey................................  Newark.
New Mexico................................  Albuquerque.
New York..................................  Buffalo.
                                            Bronx Borough.
                                            Brooklyn Borough.
                                            Manhattan Borough.
                                            Queens Borough.
                                            Staten Island Borough.
North Carolina............................  Charlotte.
Ohio......................................  Cincinnati.
                                            Cleveland.
                                            Columbus.
                                            Toledo.
Oklahoma..................................  Oklahoma City.
                                            Tulsa.
Oregon....................................  Portland.
Pennsylvania..............................  Philadelphia.
                                            Pittsburgh.
Tennessee.................................  Memphis.
                                            Nashville/Davidson.
Texas.....................................  Austin.
                                            Dallas.
                                            El Paso.
                                            Fort Worth.
                                            Houston.
                                            San Antonio.
Virginia..................................  Norfolk.
                                            Virginia Beach.
Washington................................  Seattle.
Wisconsin.................................  Milwaukee.
------------------------------------------------------------------------


[55 FR 48073, Nov. 16, 1990]

Appendix G to Part 122--Places With Populations Greater Than 100,000 and 
  Less Than 250,000 According to Latest Decennial Census by Bureau of 
                                 Census

------------------------------------------------------------------------
                   State                         Incorporated place
------------------------------------------------------------------------
Alabama...................................  Huntsville.
                                            Mobile.
                                            Montgomery.
Alaska....................................  Anchorage.
Arizona...................................  Mesa.
                                            Tempe.
Arkansas..................................  Little Rock.
California................................  Anaheim.
                                            Bakersfield.
                                            Berkeley.
                                            Concord.
                                            Fremont.
                                            Fresno.
                                            Fullerton.
                                            Garden Grove.
                                            Glendale.
                                            Huntington Beach.
                                            Modesto.
                                            Oxnard.
                                            Pasadena.
                                            Riverside.
                                            San Bernadino.
                                            Santa Ana.
                                            Stockton.
                                            Sunnyvale.
                                            Torrance.
Colorado..................................  Aurora.
                                            Colorado Springs.
                                            Lakewood.
                                            Pueblo.
Connecticut...............................  Bridgeport.
                                            Hartford.
                                            New Haven.
                                            Stamford.
                                            Waterbury.
Florida...................................  Fort Lauderdale.
                                            Hialeah.
                                            Hollywood.
                                            Orlando.
                                            St. Petersburg.
Georgia...................................  Columbus.
                                            Macon.
                                            Savannah.
Idaho.....................................  Boise City.
Illinois..................................  Peoria.
                                            Rockford.
Indiana...................................  Evansville.
                                            Fort Wayne.
                                            Gary.
                                            South Bend.
Iowa......................................  Cedar Rapids.
                                            Davenport.
                                            Des Moines.
Kansas....................................  Kansas City.
                                            Topeka.
Kentucky..................................  Lexington-Fayette.
Louisiana.................................  Baton Rouge.
                                            Shreveport.
Massachusetts.............................  Springfield.
                                            Worcester.
Michigan..................................  Ann Arbor.
                                            Flint.
                                            Grand Rapids.
                                            Lansing.
                                            Livonia.
                                            Sterling Heights.
                                            Warren.
Mississippi...............................  Jackson.
Missouri..................................  Independence.
                                            Springfield.
Nebraska..................................  Lincoln.
Nevada....................................  Las Vegas.
                                            Reno.
New Jersey................................  Elizabeth.
                                            Jersey City.
                                            Paterson.
New York..................................  Albany.
                                            Rochester.
                                            Syracuse.
                                            Yonkers.
North Carolina............................  Durham.
                                            Greensboro.
                                            Raleigh.
                                            Winston-Salem.
Ohio......................................  Akron.
                                            Dayton.
                                            Youngstown.
Oregon....................................  Eugene.
Pennsylvania..............................  Allentown.
                                            Erie.
Rhode Island..............................  Providence.
South Carolina............................  Columbia.
Tennessee.................................  Chattanooga.
                                            Knoxville.
Texas.....................................  Amarillo.
                                            Arlington.
                                            Beaumont.
                                            Corpus Christi.

[[Page 799]]

 
                                            Garland.
                                            Irving.
                                            Lubbock.
                                            Pasadena.
                                            Waco.
Utah......................................  Salt Lake City.
Virginia..................................  Alexandria.
                                            Chesapeake.
                                            Hampton.
                                            Newport News.
                                            Portsmouth.
                                            Richmond.
                                            Roanoke.
Washington................................  Spokane.
                                            Tacoma.
Wisconsin.................................  Madison.
------------------------------------------------------------------------


[55 FR 48074, Nov. 16, 1990]

  Appendix H to Part 122--Counties with Unincorporated Urbanized Areas 
 With a Population of 250,000 or More According to the Latest Decennial 
                     Census by the Bureau of Census

------------------------------------------------------------------------
                                                          Unincorporated
               State                       County            urbanized
                                                            population
------------------------------------------------------------------------
California........................  Los Angeles.........        912,664
                                    Sacramento..........        449,056
                                    San Diego...........        304,758
Delaware..........................  New Castle..........        257,184
Florida...........................  Dade................        781,949
Georgia...........................  DeKalb..............        386,379
Hawaii............................  Honolulu............        688,178
Maryland..........................  Anne Arundel........        271,458
                                    Baltimore...........        601,308
                                    Montgomery..........        447,993
                                    Prince George's.....        450,188
Texas.............................  Harris..............        409,601
Utah..............................  Salt Lake...........        304,632
Virginia..........................  Fairfax.............        527,178
Washington........................  King................        336,800
------------------------------------------------------------------------


[55 FR 48074, Nov. 16, 1990]

  Appendix I to Part 122--Counties With Unincorporated Urbanized Areas 
  Greater Than 100,000, But Less Than 250,000 According to the Latest 
                Decennial Census by the Bureau of Census

------------------------------------------------------------------------
                                                          Unincorporated
               State                       County            urbanized
                                                            population
------------------------------------------------------------------------
Alabama...........................  Jefferson...........        102,917
Arizona...........................  Pima................        111,479
California........................  Alameda.............        187,474
                                    Contra Costa........        158,452
                                    Kern................        117,231
                                    Orange..............        210,693
                                    Riverside...........        115,719
                                    San Bernardino......        148,644
Florida...........................  Broward.............        159,370
                                    Escambia............        147,892
                                    Hillsborough........        238,292
                                    Orange..............        245,325
                                    Palm Beach..........        167,089
                                    Pinellas............        194,389
                                    Polk................        104,150
                                    Sarasota............        110,009
Georgia...........................  Clayton.............        100,742
                                    Cobb................        204,121
                                    Richmond............        118,529
Kentucky..........................  Jefferson...........        224,958
Louisiana.........................  Jefferson...........        140,836
North Carolina....................  Cumberland..........        142,727
Nevada............................  Clark...............        201,775
Oregon............................  Multnomah...........        141,100
                                    Washington..........        109,348
South Carolina....................  Greenville..........        135,398
                                    Richland............        124,684
Virginia..........................  Arlington...........        152,599
                                    Henrico.............        161,204
                                    Chesterfield........        108,348
Washington........................  Snohomish...........        103,493
                                    Pierce..............        196,113
------------------------------------------------------------------------


[55 FR 48074, Nov. 16, 1990]



PART 123--STATE PROGRAM REQUIREMENTS--Table of Contents




                           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 programs.
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 application.
123.34  Provisions for Tribal criminal enforcement authority.

[[Page 800]]

          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



Sec. 123.1  Purpose and scope.

    (a) This part specifies the procedures EPA will follow in approving, 
revising, and withdrawing State programs and the requirements State 
programs must meet to be approved by the Administrator under sections 
318, 402, and 405(a) (National Pollutant Discharge Elimination System--
NPDES) of the CWA. This part also specifies the procedures EPA will 
follow in approving, revising, and withdrawing State programs under 
section 405(f) (sludge management programs) of the CWA. The requirements 
that a State sewage sludge management program must meet for approval by 
the Administrator under section 405(f) are set out at 40 CFR part 501.
    (b) These regulations are promulgated under the authority of 
sections 304(i), 101(e), 405, and 518(e) of the CWA, and implement the 
requirements of those sections.
    (c) The Administrator will approve State programs which conform to 
the applicable requirements of this part. A State NPDES program will not 
be approved by the Administrator under section 402 of CWA unless it has 
authority to control the discharges specified in sections 318 and 405(a) 
of CWA. Permit programs under sections 318 and 405(a) will not be 
approved independent of a section 402 program.
    (d)(1) Upon approval of a State program, the Administrator shall 
suspend the issuance of Federal permits for those activities subject to 
the approved State program. After program approval EPA shall retain 
jurisdiction over any permits (including general permits) which it has 
issued unless arrangements have been made with the State in the 
Memorandum of Agreement for the State to assume responsibility for these 
permits. Retention of jurisdiction shall include the processing of any 
permit appeals, modification requests, or variance requests; the conduct 
of inspections, and the receipt and review of self-monitoring reports. 
If any permit appeal, modification request or variance request is not 
finally resolved when the federally issued permit expires, EPA may, with 
the consent of the State, retain jurisdiction until the matter is 
resolved.
    (2) The procedures outlined in the preceding paragraph (d)(1) of 
this section for suspension of permitting authority and transfer of 
existing permits will also apply when EPA approves an Indian Tribe's 
application to operate a State program and a State was the authorized 
permitting authority under Sec. 123.23(b) for activities within the 
scope of the newly approved program. The authorized State will retain 
jurisdiction over its existing permits as described in paragraph (d)(1) 
of this section absent a different arrangement stated in the Memorandum 
of Agreement executed between EPA and the Tribe.
    (e) Upon submission of a complete program, EPA will conduct a public 
hearing, if interest is shown, and determine whether to approve or 
disapprove the program taking into consideration the requirements of 
this part, the CWA and any comments received.
    (f) Any State program approved by the Administrator shall at all 
times be conducted in accordance with the requirements of this part.
    (g)(1) Except as may be authorized pursuant to paragraph (g)(2) of 
this section or excluded by Sec. 122.3, the State program must prohibit 
all point source discharges of pollutants, all discharges

[[Page 801]]

into aquaculture projects, and all disposal of sewage sludge which 
results in any pollutant from such sludge entering into any waters of 
the United States within the State's jurisdiction except as authorized 
by a permit in effect under the State program or under section 402 of 
CWA. NPDES authority may be shared by two or more State agencies but 
each agency must have Statewide jurisdiction over a class of activities 
or discharges. When more than one agency is responsible for issuing 
permits, each agency must make a submission meeting the requirements of 
Sec. 123.21 before EPA will begin formal review.
    (2) A State may seek approval of a partial or phased program in 
accordance with section 402(n) of the CWA.
    (h) In many cases, States (other than Indian Tribes) will lack 
authority to regulate activities on Indian lands. This lack of authority 
does not impair that State's ability to obtain full program approval in 
accordance with this part, i.e., inability of a State to regulate 
activities on Indian lands does not constitute a partial program. EPA 
will administer the program on Indian lands if a State (or Indian Tribe) 
does not seek or have authority to regulate activities on Indian lands.
    Note: States are advised to contact the United States Department of 
the Interior, Bureau of Indian Affairs, concerning authority over Indian 
lands.
    (i) Nothing in this part precludes a State from:
    (1) Adopting or enforcing requirements which are more stringent or 
more extensive than those required under this part;
    (2) Operating a program with a greater scope of coverage than that 
required under this part. If an approved State program has greater scope 
of coverage than required by Federal law the additional coverage is not 
part of the Federally approved program.
    Note: For example, if a State requires permits for discharges into 
publicly owned treatment works, these permits 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; 63 FR 45122, Aug. 24, 1998]



Sec. 123.2  Definitions.

    The definitions in part 122 apply to all subparts of this part.

[63 FR 45122, Aug. 24, 1998]



Sec. 123.3  Coordination with other programs.

    Issuance of State permits under this part may be coordinated with 
issuance of RCRA, UIC, NPDES, and 404 permits whether they are 
controlled by the State, EPA, or the Corps of Engineers. See Sec. 124.4.



                  Subpart B--State Program Submissions



Sec. 123.21  Elements of a program submission.

    (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 Sec. 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 Sec. 123.22, 
describing how the State intends to carry out its responsibilities under 
this part;
    (3) An Attorney General's statement as required by Sec. 123.23;
    (4) A Memorandum of Agreement with the Regional Administrator as 
required by Sec. 123.24;
    (5) Copies of all applicable State statutes and regulations, 
including those governing State administrative procedures;
    (b)(1) Within 30 days of receipt by EPA of a State program 
submission, EPA will notify the State whether its submission is 
complete. If EPA finds that a State's submission is complete, the 
statutory review period (i.e., the period of time allotted for formal 
EPA review of a proposed State program under CWA) 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 
period shall not begin

[[Page 802]]

until all the necessary information is received by EPA.
    (2) In the case of an Indian Tribe eligible under Sec. 123.33(b), 
EPA shall take into consideration the contents of the Tribe's request 
submitted under Sec. 123.32, in determining if the program submission 
required by Sec. 123.21(a) is complete.
    (c) If the State's submission is materially changed during the 
statutory review period, the statutory review period shall begin again 
upon receipt of the revised submission.
    (d) The State and EPA may extend the statutory review period by 
agreement.

[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]



Sec. 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 interstate compact. The 
program description shall include:
    (a) A description in narrative form of the scope, structure, 
coverage and processes of the State program.
    (b) A description (including organization charts) of the 
organization and structure of the State agency or agencies which will 
have responsibility for administering the program, including the 
information listed below. If more than one agency is responsible for 
administration of a program, each agency must have statewide 
jurisdiction over a class of activities. The responsibilities of each 
agency must be delineated, their procedures for coordination set forth, 
and an agency may be designated as a ``lead agency'' to facilitate 
communications between EPA and the State agencies having program 
responsibility. If the State proposes to administer a program of greater 
scope of coverage than is required by Federal law, the information 
provided under this paragraph shall indicate the resources dedicated to 
administering the Federally required portion of the program.
    (1) A description of the State agency staff who will carry out the 
State program, including the number, occupations, and general duties of 
the employees. The State need not submit complete job descriptions for 
every employee carrying out the State program.
    (2) An itemization of the estimated costs of establishing and 
administering the program for the first two years after approval, 
including cost of the personnel listed in paragraph (b)(1) of this 
section, cost of administrative support, and cost of technical support.
    (3) An itemization of the sources and amounts of funding, including 
an estimate of Federal grant money, available to the State Director for 
the first two years after approval to meet the costs listed in paragraph 
(b)(2) of this section, identifying any restrictions or limitations upon 
this funding.
    (c) A description of applicable State procedures, including 
permitting procedures and any State administrative or judicial review 
procedures;
    (d) Copies of the permit form(s), application form(s), and reporting 
form(s) the State intends to employ in its program. Forms used by States 
need not be identical to the forms used by EPA but should require the 
same basic information, except that State NPDES programs are required to 
use standard Discharge Monitoring Reports (DMR). The State need not 
provide copies of uniform national forms it intends to use but should 
note its intention to use such forms.
    Note: States are encouraged to use uniform national forms 
established by the Administrator. If uniform national forms are used, 
they may be modified to include the State Agency's name, address, logo, 
and other similar information, as appropriate, in place of EPA's.
    (e) A complete description of the State's compliance tracking and 
enforcement program.
    (f) In the case of Indian Tribes eligible under Sec. 123.33(b), if a 
State has been authorized by EPA to issue permits on the Federal Indian 
reservation in accordance with Sec. 123.23(b), a description of how 
responsibility for pending permit applications, existing permits, and 
supporting files will be transferred from the State to the eligible 
Indian Tribe. To the maximum extent practicable, this should include a 
Memorandum of Agreement negotiated between the State and the Indian 
Tribe

[[Page 803]]

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; 63 FR 45122, Aug. 24, 1998]



Sec. 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 independent 
legal counsel) that the laws of the State, or an interstate compact, 
provide adequate authority to carry out the program described under 
Sec. 123.22 and to meet the requirements of this part. This statement 
shall include citations to the specific statutes, administrative 
regulations, and, where appropriate, judicial decisions which 
demonstrate adequate authority. State statutes and regulations cited by 
the State Attorney General or independent legal counsel shall be in the 
form of lawfully adopted State statutes and regulations at the time the 
statement is signed and shall be fully effective by the time the program 
is approved. To qualify as ``independent legal counsel'' the attorney 
signing the statement required by this section must have full authority 
to independently represent the State agency in court on all matters 
pertaining to the State program.
    Note: EPA will supply States with an Attorney General's statement 
format on request.
    (b) If a State (which is not an Indian Tribe) seeks authority over 
activities on Indian lands, the statement shall contain an appropriate 
analysis of the State's authority.
    (c) The Attorney General's statement shall certify that the State 
has adequate legal authority to issue and enforce general permits if the 
State seeks to implement the general permit program under Sec. 122.28.

[48 FR 14178, Apr. 1, 1983, as amended at 58 FR 67981, Dec. 22, 1993]



Sec. 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 approved by the Administrator. In 
addition to meeting the requirements of paragraph (b) of this section, 
the Memorandum of Agreement may include other terms, conditions, or 
agreements consistent with this part and relevant to the administration 
and enforcement of the State's regulatory program. The Administrator 
shall not approve any Memorandum of Agreement which contains provisions 
which restrict EPA's statutory oversight responsibility.
    (b) The Memorandum of Agreement shall include the following:
    (1)(i) Provisions for the prompt transfer from EPA to the State of 
pending permit applications and any other information relevant to 
program operation not already in the possession of the State Director 
(e.g., support files for permit issuance, compliance reports, etc.). If 
existing permits are transferred from EPA to the State for 
administration, the Memorandum of Agreement shall contain provisions 
specifying a procedure for transferring the administration of these 
permits. If a State lacks the authority to directly administer permits 
issued by the Federal government, a procedure may be established to 
transfer responsibility for these permits.
    Note: For example, EPA and the State and the permittee could agree 
that the State would issue a permit(s) identical to the outstanding 
Federal permit which would simultaneously be terminated.
    (ii) Where a State has been authorized by EPA to issue permits in 
accordance with Sec. 123.23(b) on the Federal Indian reservation of the 
Indian Tribe seeking program approval, provisions describing how the 
transfer of pending permit applications, permits, and any other 
information relevant to the program operation not already in the 
possession of the Indian Tribe (support files for permit issuance, 
compliance reports, etc.) will be accomplished.
    (2) Provisions specifying classes and categories of permit 
applications, draft permits, and proposed permits that the State will 
send to the Regional Administrator for review, comment and, where 
applicable, objection.

[[Page 804]]

    (3) Provisions specifying the frequency and content of reports, 
documents and other information which the State is required to submit to 
EPA. The State shall allow EPA to routinely review State records, 
reports, and files relevant to the administration and enforcement of the 
approved program. State reports may be combined with grant reports where 
appropriate. These procedures shall implement the requirements of 
Sec. 123.43.
    (4) Provisions on the State's compliance monitoring and enforcement 
program, including:
    (i) Provisions for coordination of compliance monitoring activities 
by the State and by EPA. These may specify the basis on which the 
Regional Administrator will select facilities or activities within the 
State for EPA inspection. The Regional Administrator will normally 
notify the State at least 7 days before any such inspection; and
    (ii) Procedures to assure coordination of enforcement activities.
    (5) When appropriate, provisions for joint processing of permits by 
the State and EPA for facilities or activities which require permits 
from both EPA and the State under different programs. (See Sec. 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 issuance. Likewise, States are encouraged 
(but not required) to consider steps to coordinate or consolidate their 
own permit programs and activities.
    (6) Provisions for modification of the Memorandum of Agreement in 
accordance with this part.
    (c) The Memorandum of Agreement, the annual program grant and the 
State/EPA Agreement should be consistent. If the State/EPA Agreement 
indicates that a change is needed in the Memorandum of Agreement, the 
Memorandum of Agreement may be amended through the procedures set forth 
in this part. The State/EPA Agreement may not override the Memorandum of 
Agreement.
    Note: Detailed program priorities and specific arrangements for EPA 
support of the State program will change and are therefore more 
appropriately negotiated in the context of annual agreements rather than 
in the MOA. However, it may still be appropriate to specify in the MOA 
the basis for such detailed agreements, e.g., a provision in the MOA 
specifying that EPA will select facilities in the State for inspection 
annually as part of the State/EPA agreement.
    (d) The Memorandum of Agreement shall also specify the extent to 
which EPA will waive its right to review, object to, or comment upon 
State-issued permits under section 402(d)(3), (e) or (f) of CWA. While 
the Regional Administrator and the State may agree to waive EPA review 
of certain ``classes or categories'' of permits, no waiver of review may 
be granted for the following classes or categories:
    (1) Discharges into the territorial sea;
    (2) Discharges which may affect the waters of a State other than the 
one in which the discharge originates;
    (3) Discharges proposed to be regulated by general permits (see 
Sec. 122.28);
    (4) Discharges from publicly owned treatment works with a daily 
average discharge exceeding 1 million gallons per day;
    (5) Discharges of uncontaminated cooling water with a daily average 
discharge exceeding 500 million gallons per day;
    (6) Discharges from any major discharger or from any discharger 
within any of the 21 industrial categories listed in appendix A to part 
122;
    (7) Discharges from other sources with a daily average discharge 
exceeding 0.5 (one-half) million gallons per day, except that EPA review 
of permits for discharges of non-process wastewater may be waived 
regardless of flow.
    (e) Whenever a waiver is granted under paragraph (d) of this 
section, the Memorandum of Agreement shall contain:
    (1) A statement that the Regional Administrator retains the right to 
terminate the waiver as to future permit actions, in whole or in part, 
at any time by sending the State Director written notice of termination; 
and
    (2) A statement that the State shall supply EPA with copies of final 
permits.

[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; 63 FR 45122, Aug. 24, 
1998]

[[Page 805]]



Sec. 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 
conformance with each, except that States are not precluded from 
omitting or modifying any provisions to impose more stringent 
requirements:
    (1) Sec. 122.4--(Prohibitions):
    (2) Sec. 122.5(a) and (b)--(Effect of permit);
    (3) Sec. 122.7(b) and (c)--(Confidential information);
    (4) Sec. 122.21 (a)-(b), (c)(2), (e)-(k), and (m)-(p)--(Application 
for a permit);
    (5) Sec. 122.22--(Signatories);
    (6) Sec. 122.23--(Concentrated animal feeding operations);
    (7) Sec. 122.24--(Concentrated aquatic animal production 
facilities);
    (8) Sec. 122.25--(Aquaculture projects);
    (9) Sec. 122.26--(Storm water discharges);
    (10) Sec. 122.27--(Silviculture);
    (11) Sec. 122.28--(General permits), Provided that States which do 
not seek to implement the general permit program under Sec. 122.28 need 
not do so.
    (12) Section 122.41--(Applicable permit conditions)(Indian Tribes 
can satisfy enforcement authority requirements under Sec. 123.34).
    (13) Sec. 122.42--(Conditions applicable to specified categories of 
permits);
    (14) Sec. 122.43--(Establishing permit conditions);
    (15) Sec. 122.44--(Establishing NPDES permit conditions);
    (16) Sec. 122.45--(Calculating permit conditions);
    (17) Sec. 122.46--(Duration);
    (18) Sec. 122.47(a)--(Schedules of compliance);
    (19) Sec. 122.48--(Monitoring requirements);
    (20) Sec. 122.50--(Disposal into wells);
    (21) Sec. 122.61--(Permit transfer);
    (22) Sec. 122.62--(Permit modification);
    (23) Sec. 122.64--(Permit termination);
    (24) Sec. 124.3(a)--(Application for a permit);
    (25) Sec. 124.5 (a), (c), (d), and (f)--(Modification of permits);
    (26) Sec. 124.6 (a), (c), (d), and (e)--(Draft permit);
    (27) Sec. 124.8--(Fact sheets);
    (28) Sec. 124.10 (a)(1)(ii), (a)(1)(iii), (a)(1)(v), (b), (c), (d), 
and (e)--(Public notice);
    (29) Sec. 124.11--(Public comments and requests for hearings);
    (30) Sec. 124.12(a)--(Public hearings); and
    (31) Sec. 124.17 (a) and (c)--(Response to comments);
    (32) Sec. 124.56--(Fact sheets);
    (33) Sec. 124.57(a)--(Public notice);
    (34) Sec. 124.59--(Comments from government agencies);
    (35) Sec. 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, and subchapter N; and
    (38) For a Great Lakes State or Tribe (as defined 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 
another requirement more stringent; for example, by requiring that 
public hearings be held prior to issuing any permit while reducing the 
amount of advance notice of such a hearing.
    State programs may, if they have adequate legal authority, implement 
any of the provisions of parts 122 and 124. See, for example, 
Sec. 122.5(d) (continuation of permits) and Sec. 124.4 (consolidation of 
permit processing).
    For example, a State may impose more stringent requirements in an 
NPDES program by omitting the upset provision of Sec. 122.41 or by 
requiring more prompt notice of an upset.
    (b) State NPDES programs shall have an approved continuing planning 
process under 40 CFR 35.1500 and shall assure that the approved planning 
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, including the Director, 
who has or shares authority to approve all or portions of permits either 
in the first

[[Page 806]]

instance, as modified or reissued, or on appeal.
    (ii) Significant portion of income means 10 percent or more of gross 
personal income for a calendar 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 receiving 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, consultant fees, and stock 
dividends.
    (2) For the purposes of paragraph (c) of this section, income is not 
received ``directly or indirectly from permit holders or applicants for 
a permit'' when it is derived from mutual fund payments, or from other 
diversified investments for which the recipient does not know the 
identity of the primary sources of income.

[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; 63 FR 45122, Aug. 24, 1998]



Sec. 123.26  Requirements for compliance evaluation programs.

    (a) State programs shall have procedures for receipt, evaluation, 
retention and investigation for possible enforcement of all notices and 
reports required of permittees and other regulated persons (and for 
investigation for possible enforcement of failure to submit these 
notices and reports).
    (b) State programs shall have inspection and surveillance procedures 
to determine, independent of information supplied by regulated persons, 
compliance or noncompliance with applicable program requirements. The 
State shall maintain:
    (1) A program which is capable of making comprehensive surveys of 
all facilities and activities subject to the State Director's authority 
to identify persons subject to regulation who have failed to comply with 
permit application or other program requirements. Any compilation, index 
or inventory of such facilities and activities shall be made available 
to the Regional Administrator upon request;
    (2) A program for periodic inspections of the facilities and 
activities subject to regulation. These inspections shall be conducted 
in a manner designed to:
    (i) Determine compliance or noncompliance with issued permit 
conditions and other program requirements;
    (ii) Verify the accuracy of information submitted by permittees and 
other regulated persons in reporting forms and other forms supplying 
monitoring data; and
    (iii) Verify the adequacy of sampling, monitoring, and other methods 
used by permittees and other regulated persons to develop that 
information;
    (3) A program for investigating information obtained regarding 
violations of applicable program and permit requirements; and
    (4) Procedures for receiving and ensuring proper consideration of 
information submitted by the Public about violations. Public effort in 
reporting violations shall be encouraged, and the State Director shall 
make available information on reporting procedures.
    (c) The State Director and State officers engaged in compliance 
evaluation shall have authority to enter any site or premises subject to 
regulation or in which records relevant to program operation are kept in 
order to copy any records, inspect, monitor or otherwise investigate 
compliance with the State program including compliance with permit 
conditions and other program requirements. States whose law requires a 
search warrant before entry conform with this requirement.
    (d) Investigatory inspections shall be conducted, samples shall be 
taken and other information shall be gathered in a manner (e.g., using 
proper ``chain of custody'' procedures) that will produce evidence 
admissible in an enforcement proceeding or in court.
    (e) State NPDES compliance evaluation programs shall have procedures 
and ability for:
    (1) Maintaining a comprehensive inventory of all sources covered by 
NPDES permits and a schedule of reports required to be submitted by 
permittees to the State agency;

[[Page 807]]

    (2) Initial screening (i.e., pre-enforcement evaluation) of all 
permit or grant-related compliance information to identify violations 
and to establish priorities for further substantive technical 
evaluation;
    (3) When warranted, conducting a substantive technical evaluation 
following the initial screening of all permit or grant-related 
compliance information to determine the appropriate agency response;
    (4) Maintaining a management information system which supports the 
compliance evaluation activities of this part; and
    (5) Inspecting the facilities of all major dischargers at least 
annually.

[48 FR 14178, Apr. 1, 1983, as amended at 54 FR 18785, May 2, 1989; 63 
FR 45122, Aug. 24, 1998]



Sec. 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 engaging in any unauthorized activity which 
is endangering or causing damage to public health or the environment;
    Note: This paragraph (a)(1) requires that States have a mechanism 
(e.g., an administrative cease and desist order or the ability to seek a 
temporary restraining order) to stop any unauthorized activity 
endangering public health or the environment.
    (2) To sue in courts of competent jurisdiction to enjoin any 
threatened or continuing violation of any program requirement, including 
permit conditions, without the necessity of a prior revocation of the 
permit;
    (3) To assess or sue to recover in court civil penalties and to seek 
criminal remedies, including fines, as follows:
    (i) Civil penalties shall be recoverable for the violation of any 
NPDES permit condition; any NPDES filing requirement; any duty to allow 
or carry out inspection, entry or monitoring activities; or, any 
regulation or orders issued by the State Director. These penalties shall 
be assessable in at least the amount of $5,000 a day for each violation.
    (ii) Criminal fines shall be recoverable against any person who 
willfully or negligently violates any applicable standards or 
limitations; any NPDES permit condition; or any NPDES filing 
requirement. These fines shall be assessable in at least the amount of 
$10,000 a day for each violation.
    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 statement, representation or certification in 
any NPDES form, in any notice or report required by an NPDES permit, or 
who knowingly renders inaccurate 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 represented in State 
courts by the State Attorney General or other appropriate legal officer. 
Although the State Director need not appear in court actions he or she 
should have power to request that any of the above actions be brought.
    (b)(1) The maximum civil penalty or criminal fine (as provided in 
paragraph (a)(3) of this section) shall be assessable for each instance 
of violation and, if the violation is continuous, shall be assessable up 
to the maximum amount for each day of violation.
    (2) The burden of proof and degree of knowledge or intent required 
under State law for establishing violations under paragraph (a)(3) of 
this section, shall be no greater than the burden of proof or degree of 
knowledge or intent EPA must provide when it brings an action under the 
appropriate Act;
    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,

[[Page 808]]

may commence separate actions for penalties.
    Procedures for assessment by the State of the cost of 
investigations, inspections, or monitoring surveys which lead to the 
establishment of violations;
    In addition to the requirements of this paragraph, the State may 
have other enforcement remedies. The following enforcement options, 
while not mandatory, are highly recommended:
    Procedures which enable the State to assess or to sue any persons 
responsible for unauthorized activities for any expenses incurred by the 
State in removing, correcting, or terminating any adverse effects upon 
human health and the environment resulting from the unauthorized 
activity, whether or not accidental;
    Procedures which enable the State to sue for compensation for any 
loss or destruction of wildlife, fish or aquatic life, or their habitat, 
and for any other damages caused by unauthorized activity, either to the 
State or to any residents of the State who are directly aggrieved by the 
unauthorized activity, or both; and
    Procedures for the administrative assessment of penalties by the 
Director.
    (d) Any State administering a program shall provide for public 
participation in the State enforcement process by providing either:
    (1) Authority which allows intervention as of right in any civil or 
administrative action to obtain remedies specified in paragraphs (a)(1), 
(2) or (3) of this section by any citizen having an interest which is or 
may be adversely affected; or
    (2) Assurance that the State agency or enforcement authority will:
    (i) Investigate and provide written responses to all citizen 
complaints submitted pursuant to the procedures specified in 
Sec. 123.26(b)(4);
    (ii) Not oppose intervention by any citizen when permissive 
intervention may be authorized by statute, rule, or regulation; and
    (iii) Publish notice of and provide at least 30 days for public 
comment on any proposed settlement of a State enforcement action.
    (e) Indian Tribes that cannot satisfy the criminal enforcement 
authority requirements of this section may still receive program 
approval if they meet the requirement for enforcement authority 
established under Sec. 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 Recovery 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]



Sec. 123.28  Control of disposal of pollutants into wells.

    State law must provide authority to issue permits to control the 
disposal of pollutants into wells. Such authority shall enable the State 
to protect the public health and welfare and to prevent the pollution of 
ground and surface waters by prohibiting 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)(1)(D) of CWA requires 
that NPDES States have the authority ``to issue permits which * * * 
control the disposal of pollutants into wells.'' In many instances, 
therefore, NPDES States will have existing statutory authority to 
regulate well disposal which satisfies the requirements of the UIC 
program. Note, however, that CWA excludes certain types of well 
injections from the definition of ``pollutant.'' If the State's 
statutory authority contains a similar exclusion it may need to be 
modified to qualify for UIC program approval.



Sec. 123.29  Prohibition.

    State permit programs shall provide that no permit shall be issued 
when the Regional Administrator has objected in writing under 
Sec. 123.44.



Sec. 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 opportunity for judicial review in State 
Court of the final approval or denial of permits by the State that is 
sufficient to provide for,

[[Page 809]]

encourage, and assist public participation in the permitting process. A 
State will meet this standard if State law allows an opportunity for 
judicial review that is the same as that available to obtain judicial 
review in federal court of a federally-issued NPDES permit (see Sec. 509 
of the Clean Water Act). A State will not meet this standard if it 
narrowly restricts the class of persons who may challenge the approval 
or denial of permits (for example, if only the permittee can obtain 
judicial review, if persons must demonstrate injury to a pecuniary 
interest in order to obtain judicial review, or if persons must have a 
property interest in close proximity to a discharge or surface waters in 
order to obtain judicial review.) This requirement does not apply to 
Indian Tribes.

[61 FR 20980, May 8, 1996]



Sec. 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 following criteria:
    (1) The Indian Tribe is recognized by the Secretary of the Interior.
    (2) The Indian Tribe has a governing body carrying out substantial 
governmental duties and powers.
    (3) The functions to be exercised by the Indian Tribe pertain to the 
management and protection of water resources which are held by an Indian 
Tribe, held by the United States in trust for the Indians, held by a 
member of an Indian Tribe if such property interest is subject to a 
trust restriction on alienation, or otherwise within the borders of an 
Indian reservation.
    (4) The Indian Tribe is reasonably expected to be capable, in the 
Regional Administrator's judgment, of carrying out the functions to be 
exercised, in a manner consistent with the terms and purposes of the Act 
and applicable regulations, of an effective NPDES permit program.
    (b) An Indian Tribe which the Regional Administrator determines 
meets the criteria described in paragraph (a) of this section must also 
satisfy the State program requirements described in this part for 
assumption of the State program.

[58 FR 67981, Dec. 22, 1993, as amended at 59 FR 64343, Dec. 14, 1994]



Sec. 123.32  Request by an Indian Tribe for a determination of eligibility.

    An Indian Tribe may apply to the Regional Administrator for a 
determination that it qualifies pursuant to section 518 of the Act for 
purposes of seeking NPDES permit program approval. The application shall 
be concise and describe how the Indian Tribe will meet each of the 
requirements of Sec. 123.31. The application shall include the following 
information:
    (a) A statement that the Tribe is recognized by the Secretary of the 
Interior;
    (b) A descriptive statement demonstrating that the Tribal governing 
body is currently carrying out substantial governmental duties and 
powers over a defined area. This statement should:
    (1) Describe the form of the Tribal government;
    (2) Describe the types of governmental functions currently performed 
by the Tribal governing body, such as, but not limited to, the exercise 
of police powers affecting (or relating to) the health, safety, and 
welfare of the affected population; taxation; and the exercise of the 
power of eminent domain; and
    (3) Identify the source of the Tribal government's authority to 
carry out the governmental functions currently being performed.
    (c) A map or legal description of the area over which the Indian 
Tribe asserts authority under section 518(e)(2) of the Act; a statement 
by the Tribal Attorney General (or equivalent official authorized to 
represent the Tribe in all legal matters in court pertaining to the 
program for which it seeks approval) which describes the basis for the 
Tribe's assertion (including the nature or subject matter of the 
asserted regulatory authority); copies of those documents such as Tribal 
constitutions, by-laws, charters, executive orders, codes, ordinances, 
and/or resolutions which support the Tribe believes

[[Page 810]]

are relevant to its assertion under section 518(e)(2) of the Act; and a 
description of the location of the surface waters for which the Tribe 
proposes to establish an NPDES permit program.
    (d) A narrative statement describing the capability of the Indian 
Tribe to administer an effective, environmentally sound NPDES permit 
program. The statement should include:
    (1) A description of the Indian Tribe's previous management 
experience which may include the administration of programs and service 
authorized by the Indian Self-Determination and Education Assistance Act 
(25 U.S.C. 450 et seq.), the Indian Mineral Development Act (25 U.S.C. 
2101 et seq.), or the Indian Sanitation Facility Construction Activity 
Act (42 U.S.C. 2004a);
    (2) A list of existing environmental or public health programs 
administered by the Tribal governing body, and a copy of related Tribal 
laws, regulations, and policies;
    (3) A description of the entity (or entities) which exercise the 
executive, legislative, and judicial functions of the Tribal government;
    (4) A description of the existing, or proposed, agency of the Indian 
Tribe which will assume primary responsibility for establishing and 
administering an NPDES permit program (including a description of the 
relationship between the existing or proposed agency and its regulated 
entities);
    (5) A description of the technical and administrative abilities of 
the staff to administer and manage an effective, environmentally sound 
NPDES permit program or a plan which proposes how the Tribe will acquire 
additional administrative and technical expertise. The plan must address 
how the Tribe will obtain the funds to acquire the administrative and 
technical expertise.
    (e) The Regional Administrator may, at his or her discretion, 
request further documentation necessary to support a Tribe's 
eligibility.
    (f) If the Administrator or his or her delegatee has previously 
determined that a Tribe has met the prerequisites that make it eligible 
to assume a role similar to that of a state as provided by statute under 
the Safe Drinking Water Act, the Clean Water Act, or the Clean Air Act, 
then that Tribe need provide only that information unique to the NPDES 
program which is requested by the Regional Administrator.

[58 FR 67982, Dec. 22, 1993, as amended at 59 FR 64343, Dec. 14, 1994]



Sec. 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 Sec. 123.32 in a timely manner. He 
shall promptly notify the Indian Tribe of receipt of the application.
    (b) The Regional Administrator shall follow the procedures described 
in 40 CFR part 123, subpart D in processing a Tribe's request to assume 
the NPDES program.

[58 FR 67982, Dec. 22, 1993, as amended at 59 FR 64343, Dec. 14, 1994]



Sec. 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 Sec. 123.27, the 
Federal Government will exercise primary criminal enforcement 
responsibility. The Tribe, with the EPA Region, shall develop a 
procedure by which the Tribal agency will refer potential criminal 
violations to the Regional Administrator, as agreed to by the parties, 
in an appropriate and timely manner. This procedure shall encompass all 
circumstances in which the Tribe is incapable of exercising the 
enforcement requirements of Sec. 123.27. This agreement shall be 
incorporated into a joint or separate Memorandum of Agreement with the 
EPA Region, as appropriate.

[58 FR 67983, Dec. 22, 1993]



          Subpart C--Transfer of Information and Permit Review



Sec. 123.41  Sharing of information.

    (a) Any information obtained or used in the administration of a 
State program shall be available to EPA upon request without 
restriction. If the information has been submitted to the State under a 
claim of confidentiality, the State must submit that claim to EPA when 
providing information under

[[Page 811]]

this section. Any information obtained from a State and subject to a 
claim of confidentiality will be treated in accordance with the 
regulations in 40 CFR part 2. If EPA obtains from a State information 
that is not claimed to be confidential, EPA may make that information 
available to the public without further notice.
    (b) EPA shall furnish to States with approved programs the 
information in its files not submitted under a claim of confidentiality 
which the State needs to implement its approved program. EPA shall 
furnish to States with approved programs information submitted to EPA 
under a claim of confidentiality, which the State needs to implement its 
approved program, subject to the conditions in 40 CFR part 2.



Sec. 123.42  Receipt and use of Federal information.

    Upon approving a State permit program, EPA will send to the State 
agency administering the permit program any relevant information which 
was collected by EPA. The Memorandum of Agreement under Sec. 123.24 (or, 
in the case of a sewage sludge management program, Sec. 501.14 of this 
chapter) will provide for the following, in such manner as the State 
Director and the Regional Administrator agree:
    (a) Prompt transmission to the State Director from the Regional 
Administrator of copies of any pending permit applications or any other 
relevant information collected before the approval of the State permit 
program and not already in the possession of the State Director. When 
existing permits are transferred to the State Director (e.g., for 
purposes of compliance monitoring, enforcement or reissuance), relevant 
information includes support files for permit issuance, compliance 
reports and records of enforcement actions.
    (b) Procedures to ensure that the State Director will not issue a 
permit on the basis of any application received from the Regional 
Administrator which the Regional Administrator identifies as incomplete 
or otherwise deficient until the State Director receives information 
sufficient to correct the deficiency.

[48 FR 14178, Apr. 1, 1983, as amended at 63 FR 45122, Aug. 24, 1998]



Sec. 123.43  Transmission of information to EPA.

    (a) Each State agency administering a permit program shall transmit 
to the Regional Administrator copies of permit program forms and any 
other relevant information to the extent and in the manner agreed to by 
the State Director and Regional Administrator in the Memorandum of 
Agreement and not inconsistent with this part. Proposed permits shall be 
prepared by State agencies unless agreement to the contrary has been 
reached under Sec. 123.44(j). The Memorandum of Agreement shall provide 
for the following:
    (1) Prompt transmission to the Regional Administrator of a copy of 
all complete permit applications received by the State Director, except 
those for which permit review has been waived under Sec. 123.24(d). The 
State shall supply EPA with copies of permit applications for which 
permit review has been waived whenever requested by EPA;
    (2) Prompt transmission to the Regional Administrator of notice of 
every action taken by the State agency related to the consideration of 
any permit application or general permit, including a copy of each 
proposed or draft permit and any conditions, requirements, or documents 
which are related to the proposed or draft permit or which affect the 
authorization of the proposed permit, except those for which permit 
review has been waived under Sec. 123.24(d). The State shall supply EPA 
with copies of notices for which permit review has been waived whenever 
requested by EPA; and
    (3) Transmission to the Regional Administrator of a copy of every 
issued permit following issuance, along with any and all conditions, 
requirements, or documents which are related to or affect the 
authorization of the permit.
    (b) [Reserved]
    (c) The State program shall provide for transmission by the State 
Director to EPA of:
    (1) Notices from publicly owned treatment works under Sec. 122.42(b) 
and 40 CFR part 403, upon request of the Regional Administrator;
    (2) A copy of any significant comments presented in writing pursuant 
to the public notice of a draft permit and

[[Page 812]]

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 Sec. 123.24(d) and for which EPA has not 
otherwise requested receipt, if:
    (i) The Regional Administrator requests this information; or
    (ii) The proposed permit contains requirements significantly 
different from those contained in the tentative determination and draft 
permit; or
    (iii) Significant comments objecting to the tentative determination 
and draft permit have been presented at the hearing or in writing 
pursuant to the public notice.
    (d) Any State permit program shall keep such records and submit to 
the Administrator such information as the Administrator may reasonably 
require to ascertain whether the State program complies with the 
requirements of CWA or of this part.

[48 FR 14178, Apr. 1, 1983, as amended at 60 FR 33931, June 29, 1995]



Sec. 123.44  EPA review of and objections to State permits.

    (a)(1) The Memorandum of Agreement shall provide a period of time 
(up to 90 days from receipt of proposed permits) to which the Regional 
Administrator may make general comments upon, objections to, or 
recommendations with respect to proposed permits. EPA reserves the right 
to take 90 days to supply specific grounds for objection, 
notwithstanding any shorter period specified in the Memorandum of 
Agreement, when a general objection is filed within the review period 
specified in the Memorandum of Agreement. The Regional Administrator 
shall send a copy of any comment, objection or recommendation to the 
permit applicant.
    (2) In the case of general permits, EPA shall have 90 days from the 
date of receipt of the proposed general permit to comment upon, object 
to or make recommendations with respect to the proposed general permit, 
and is not bound by any shorter time limits set by the Memorandum of 
Agreement for general comments, objections or recommendations. 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)(1) Within the period of time provided under the Memorandum of 
Agreement for making general comments upon, objections to or 
recommendations with respect to proposed permits, the Regional 
Administrator shall notify the State Director of any objection to 
issuance of a proposed permit (except as provided in paragraph (a)(2) of 
this section for proposed general permits). This notification shall set 
forth in writing the general nature of the objection.
    (2) Within 90 days following receipt of a proposed permit to which 
he or she has objected under paragraph (b)(1) of this section, or in the 
case of general permits within 90 days after receipt of the proposed 
general permit, the Regional Administrator, 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 permit would include if it were issued by the 
Regional 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)(1) of this section within the time specified in the agreement. This 
general objection must be followed by a specific objection within the 
90-day period. This modification to MOA's allows EPA to provide detailed 
information concerning acceptable permit conditions, as required by 
section 402(d) of CWA. To avoid possible confusion, MOA's should be 
changed to reflect this arrangement.
    (c) The Regional Administrator's objection to the issuance of a 
proposed

[[Page 813]]

permit must be based upon one or more of the following grounds:
    (1) The permit fails to apply, or to ensure compliance with, any 
applicable requirement of this part;
    Note: For example, the Regional Administrator may object to a permit 
not requiring the achievement of required effluent limitations by 
applicable statutory deadlines.
    (2) In the case of a proposed permit for which notification to the 
Administrator is required under section 402(b)(5) of CWA, the written 
recommendations of an affected State 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 material respect to comply with procedures 
required by CWA or by regulations thereunder or by the Memorandum of 
Agreement;
    (4) Any finding made by the State Director in connection with the 
proposed permit misinterprets CWA or any guidelines or regulations under 
CWA, or misapplies them to the facts;
    (5) Any provisions of the proposed permit relating to the 
maintenance of records, reporting, monitoring, sampling, or the 
provision of any other information by the permittee are inadequate, in 
the judgment of the Regional Administrator, to assure compliance with 
permit conditions, including effluent standards and limitations or 
standards for sewage sludge use and disposal required by CWA, by the 
guidelines and regulations issued under CWA, or by the proposed permit;
    (6) In the case of any proposed permit with respect to which 
applicable effluent standards and limitations or standards for sewage 
sludge use and disposal under sections 301, 302, 306, 307, 318, 403, and 
405 of CWA have not yet been promulgated by the Agency, the proposed 
permit, in the judgment of the Regional Administrator, fails to carry 
out the provisions of CWA or of any regulations issued under CWA; the 
provisions of this paragraph apply to determinations made pursuant to 
Sec. 125.3(c)(2) in the absence of applicable guidelines, to best 
management practices under section 304(e) of CWA, which must be 
incorporated into permits as requirements under section 301, 306, 307, 
318, 403 or 405, and to sewage sludge use and disposal requirements 
developed on a case-by-case basis pursuant to section 405(d) of CWA, as 
the case may be;
    (7) Issuance of the proposed permit would in any other respect be 
outside the requirements of CWA, or regulations issued under CWA.
    (8) The effluent limits of a permit fail to satisfy the requirements 
of 40 CFR 122.44(d).
    (9) For a permit issued by a Great Lakes State or Tribe (as defined 
in 40 CFR 132.2), the permit does not satisfy the conditions promulgated 
by the State, Tribe, or EPA pursuant to 40 CFR part 132.
    (d) Prior to notifying the State Director of an objection based upon 
any of the grounds set forth in paragraph (b) of this section, the 
Regional Administrator:
    (1) Will consider all data transmitted pursuant to Sec. 123.43 (or, 
in the case of a sewage sludge management program, Sec. 501.21 of this 
chapter);
    (2) May, if the information provided is inadequate to determine 
whether the proposed permit meets the guidelines and requirements of 
CWA, request the State Director to transmit to the Regional 
Administrator the complete record of the permit proceedings before the 
State, or any portions of the record that the Regional Administrator 
determines are necessary for review. If this request is made within 30 
days of receipt of the State submittal under Sec. 123.43 (or, in the 
case of a sewage sludge management program, Sec. 501.21 of this 
chapter), it will constitute an interim objection to the issuance of the 
permit, and the full period of time specified in the Memorandum of 
Agreement for the Regional Administrator's review will recommence when 
the Regional Administrator has received such record or portions of the 
record; and
    (3) May, in his or her discretion, and to the extent feasible within 
the period of time available under the Memorandum of Agreement, afford 
to interested persons an opportunity to comment on the basis for the 
objection;
    (e) Within 90 days of receipt by the State Director of an objection 
by the Regional Administrator, the State or interstate agency or any 
interested

[[Page 814]]

person may request that a public hearing be held by the Regional 
Administrator on the objection. A public hearing in accordance with the 
procedures of Sec. 124.12 (c) and (d) of this chapter (or, in the case 
of a sewage sludge management program, Sec. 501.15(d)(7) of this 
chapter) will be held, and public notice provided in accordance with 
Sec. 124.10 of this chapter, (or, in the case of a sewage sludge 
management program, Sec. 501.15(d)(5) of this chapter), 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 
Administrator's discretion, with the assistance of an EPA panel 
designated by the Regional Administrator, in an orderly and expeditious 
manner.
    (g) Following the public hearing, the Regional Administrator shall 
reaffirm the original objection, modify the terms of the objection, or 
withdraw the objection, and shall notify the State of this decision.
    (h)(1) If no public hearing is held under paragraph (e) of this 
section and the State does not resubmit a permit revised to meet the 
Regional Administrator's objection within 90 days of receipt of the 
objection, the Regional Administrator may issue the permit in accordance 
with parts 121, 122 and 124 of this chapter and any other guidelines and 
requirements of CWA.
    (2) If a public hearing is held under paragraph (e) of this section, 
the Regional Administrator does not withdraw the objection, and the 
State does not resubmit a permit revised to meet the Regional 
Administrator's objection or modified objection within 30 days of the 
date of the Regional Administrator's notification under paragraph (g) of 
this section, the Regional Administrator may issue the permit in 
accordance with parts 121, 122 and 124 of this chapter and any other 
guidelines and requirements of CWA.
    (3) Exclusive authority to issue the permit passes to EPA when the 
times set out in this paragraph expire.
    (i) In the case of proposed general permits for discharges other 
than from separate storm sewers insert ``or the EPA Director, Office of 
Water Enforcement and Permits'' after ``Regional Administrator'' 
whenever it appears in paragraphs (c) through (h) of this section.
    (j) The Regional Administrator may agree, in the Memorandum of 
Agreement under Sec. 123.24 (or, in the case of a sewage sludge 
management program, Sec. 501.14 of this chapter), to review draft 
permits rather than proposed permits. In such a case, a proposed permit 
need not be prepared by the State and transmitted to the Regional 
Administrator for review in accordance with this section unless the 
State proposes to issue a permit which differs from the draft permit 
reviewed by the Regional Administrator, the Regional Administrator has 
objected to the draft permit, or there is significant public comment.

[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; 63 FR 45122, Aug. 
24, 1998]



Sec. 123.45  Noncompliance and program reporting by the Director.

    The Director shall prepare quarterly, semi-annual, and annual 
reports as detailed below. When the State is the permit-issuing 
authority, the State Director shall submit all reports required under 
this section to the Regional Administrator, and the EPA Region in turn 
shall submit the State reports to EPA Headquarters. When EPA is the 
permit-issuing authority, the Regional Administrator shall submit all 
reports required under this section to EPA Headquarters.
    (a) 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 permittees which shall be 
subcategorized as non-POTWs, POTWs, and Federal permittees.
    (ii) Alphabetize each list by permittee name. When two or more 
permittees have the same name, the permittee with the lowest permit 
number shall be entered first.
    (iii) For each permittee on the list, include the following 
information in the following order:

[[Page 815]]

    (A) The name, location, and permit number.
    (B) A brief description and date of each instance of noncompliance 
for which paragraph (a)(2) of this section requires reporting. Each 
listing shall indicate each specific provision of paragraph (a)(2) 
(e.g., (ii)(A) thru (iii)(G)) which describes the reason for reporting 
the violation on the quarterly report.
    (C) The date(s), and a brief description of the action(s) taken by 
the Director to ensure compliance.
    (D) The status of the instance(s) of noncompliance and the date 
noncompliance was resolved.
    (E) Any details which tend to explain or mitigate the instance(s) of 
noncompliance.
    (2) Instances of noncompliance by major dischargers 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 noncompliance is reported as 
resolved (i.e., the permittee 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 reports.
    (A) All reported violations must be listed on the QNCR for the 
reporting period when the violation occurred, even if the violation is 
resolved during that reporting period.
    (B) All permittees under current enforcement orders (i.e., 
administrative and judicial orders and consent decrees) for previous 
instances of noncompliance must be listed in the QNCR until the orders 
have been satisfied in full and the permittee is in compliance with 
permit conditions. If the permittee is in compliance with the 
enforcement order, but has not achieved full compliance with permit 
conditions, the compliance status shall be reported as ``resolved 
pending,'' but the permittee will continue to be listed on the QNCR.
    (ii) Category I noncompliance. The following instances of 
noncompliance by major dischargers are Category I noncompliance:
    (A) Violations of conditions in enforcement orders except compliance 
schedules and reports.
    (B) Violations of compliance schedule milestones for starting 
construction, completing construction, and attaining final compliance by 
90 days or more from the date of the milestone specified in an 
enforcement order or a permit.
    (C) Violations of permit effluent limits that exceed the Appendix A 
``Criteria for Noncompliance Reporting in the NPDES Program''.
    (D) Failure to provide a compliance schedule report for final 
compliance or a monitoring report. This applies when the permittee has 
failed to submit a final compliance schedule progress report, 
pretreatment report, or a Discharge Monitoring Report within 30 days 
from the due date specified in an enforcement order or a permit.
    (iii) Category II noncompliance. Category II noncompliance includes 
violations of permit conditions which the Agency believes to be of 
substantial concern and may not meet the Category I criteria. The 
following are instances of noncompliance which must be reported as 
Category II noncompliance 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 problem (e.g., fish kills, oil sheens) or 
health problems (e.g., beach closings, fishing bans, or other 
restrictions of beneficial uses).
    (B) Failure of an approved POTW to implement its approved 
pretreatment program adequately including failure to enforce industrial 
pretreatment requirements on industrial users as required in the 
approved program.
    (C) Violations of any compliance schedule milestones (except those 
milestones listed in paragraph (a)(2)(ii)(B) of this section) by 90 days 
or more from the date specified in an enforcement order or a permit.
    (D) Failure of the permittee to provide reports (other than those 
reports listed in paragraph (a)(2)(ii)(D) of this section) within 30 
days from the due

[[Page 816]]

date specified in an enforcement order or a permit.
    (E) Instances when the required reports provided by the permittee 
are so deficient or incomplete as to cause misunderstanding by the 
Director and thus impede the review of the status of compliance.
    (F) Violations of narrative requirements (e.g., requirements to 
develop Spill Prevention Control and Countermeasure Plans and 
requirements to implement Best Management Practices), which are of 
substantial concern to the regulatory agency.
    (G) Any other violation or group of permit violations which the 
Director or Regional Administrator considers to be of substantial 
concern.
    (b) 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 noncompliance report. 
Statistical reports shall be submitted by the Director on nonmajor NPDES 
permittees indicating the total number reviewed, the number of 
noncomplying nonmajor permittees, the number of enforcement actions, and 
number of permit modifications extending compliance deadlines. 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 construction 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 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 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 December.........  \1\ February 28
 
\1\ Reports must be made available to the public for inspection and
  copying on this date.

    (2) For all annual reports. The period for annual reports shall be 
for the calendar year ending December 31, with reports completed and 
available to the public no more than 60 days later.

(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; 63 FR 45123, Aug. 24, 1998]

Appendix A to Sec. 123.45-- Criteria for Noncompliance Reporting in the 
                              NPDES Program

    This appendix describes the criteria for reporting violations of 
NPDES permit effluent limits in the quarterly noncompliance report 
(QNCR) as specified under Sec. 123.45(a)(2)(ii)(c). Any violation of an 
NPDES permit is a violation of the Clean Water Act (CWA) for which the 
permittee is liable. An agency's decision as to what enforcement action, 
if any, should be taken in such cases, will be based on an analysis of 
facts and legal requirements.

                  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 
follows:

 a. Reporting Criteria for Violations of Monthly Average Permit Limits--
                         Magnitude and Frequency

    Violations of monthly average effluent limits which exceed or equal 
the product of the Technical Review Criteria (TRC) times the effluent 
limit, and occur two months in a six month period must be reported. TRCs 
are for two groups of pollutants.

Group I Pollutants--TRC=1.4
Group II Pollutants--TRC=1.2

    b. Reporting Criteria for Chronic Violations of Monthly Average 
Limits

[[Page 817]]

    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=1.4

                              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=1.2

                           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 listed under 
Group I.

[50 FR 34654, Aug. 26, 1985]



Sec. 123.46  Individual control strategies.

    (a) Not later than February 4, 1989, each State shall submit to the 
Regional Administrator for review, approval, and implementation an 
individual control strategy for each point source identified by the 
State pursuant to section 304(l)(1)(C) of the Act which discharges to a 
water identified by the State pursuant to section 304(l)(1)(B) which 
will produce a reduction in the discharge of toxic pollutants from the 
point sources identified under section 304(l)(1)(C) through the 
establishment of effluent limitations under section 402 of the CWA and 
water quality standards under section 303(c)(2)(B) of the CWA, which 
reduction is sufficient, in combination with existing controls on point 
and nonpoint sources of pollution, to achieve the applicable water 
quality standard as soon as possible, but not later than three years 
after the date of establishment of such strategy.
    (b) The Administrator shall approve or disapprove the control 
strategies submitted by any State pursuant to paragraph (a) of this 
section, not later than June 4, 1989. If a State fails to submit control 
strategies in accordance with paragraph (a) of this section or the 
Administrator does not approve the control strategies submitted by such 
State in accordance with paragraph (a), then, not later than June 4, 
1990, the Administrator in cooperation with such State and after notice 
and opportunity for public comment, shall implement the requirements of 
CWA section 304(l)(1) in such State. In the implementation of such 
requirements, the Administrator shall, at a minimum, consider for 
listing under CWA section 304(l)(1) any navigable waters for which any 
person submits a petition to the Administrator for listing not later 
than October 1, 1989.
    (c) For the purposes of this section the term individual control 
strategy, as set forth in section 304(l) of the CWA, means a final NPDES 
permit with supporting documentation showing that effluent limits are 
consistent with an approved wasteload allocation, or other documentation 
which shows that applicable water quality standards will be met not 
later than three years after the individual control strategy is 
established. Where a State is unable to

[[Page 818]]

issue a final permit on or before February 4, 1989, an individual 
control strategy may be a draft permit with an attached schedule 
(provided the State meets the schedule for issuing the final permit) 
indicating that the permit will be issued on or before February 4, 1990. 
If a point source is subject to section 304(l)(1)(C) of the CWA and is 
also subject to an on-site response action under sections 104 or 106 of 
the Comprehensive Environmental Response, Compensation, and Liability 
Act of 1980 (CERCLA), (42 U.S.C. 9601 et seq.), an individual control 
strategy may be the decision document (which incorporates the applicable 
or relevant and appropriate requirements 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(l)(3) of the CWA 
must be submitted to the appropriate Regional Administrator. Petitions 
must identify a waterbody in sufficient detail so that EPA is able to 
determine the location and boundaries of the waterbody. The petition 
must also identify the list or lists for which the waterbody qualifies, 
and the petition must explain why the waterbody satisfies the criteria 
for listing under CWA section 304(l) and 40 CFR 130.10(d)(6).
    (e) If the Regional Administrator disapproves one or more individual 
control strategies, or if a State fails to provide adequate public 
notice and an opportunity to comment on the ICSs, then, not later than 
June 4, 1989, the Regional Administrator shall give a notice of approval 
or disapproval of the individual control strategies submitted by each 
State pursuant to this section as follows:
    (1) The notice of approval or disapproval given under this paragraph 
shall include the following:
    (i) The name and address of the EPA office that reviews the State's 
submittals.
    (ii) A brief description of the section 304(l) process.
    (iii) A list of ICSs disapproved under this section and a finding 
that the ICSs will not meet all applicable review criteria under this 
section and section 304(l) of the CWA.
    (iv) If the Regional Administrator determines that a State did not 
provide adequate public notice and an opportunity to comment on the 
waters, point sources, or ICSs prepared pursuant to section 304(l), or 
if the Regional Administrator chooses to exercise his or her discretion, 
a list of the ICSs approved under this section, and a finding that the 
ICSs satisfy all applicable review criteria.
    (v) The location where interested persons may examine EPA's records 
of approval and disapproval.
    (vi) The name, address, and telephone number of the person at the 
Regional Office from whom interested persons may obtain more 
information.
    (vii) Notice that written petitions or comments are due within 120 
days.
    (2) The Regional Administrator shall provide the notice of approval 
or disapproval given under this paragraph to the appropriate State 
Director. The Regional Administrator shall publish a notice of 
availability, in a daily or weekly newspaper with State-wide circulation 
or in the Federal Register, for the notice of approval or disapproval. 
The Regional Administrator shall also provide written notice to each 
discharger identified under section 304(l)(1)(C), that EPA has listed 
the discharger under section 304(l)(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(l). The response to comments shall be given 
in the same manner as the notice described in paragraph (e) of this 
section except for the following changes:
    (i) The lists of ICSs reflecting any changes made pursuant to 
comments or petitions received.
    (ii) A brief description of the subsequent steps in the section 
304(l) process.
    (f) EPA shall review, and approve or disapprove, the individual 
control strategies prepared under section 304(l) of the CWA, using the 
applicable criteria set forth in section 304(l) of the CWA, and in 40 
CFR part 122, including Sec. 122.44(d). At any time after the Regional 
Administrator disapproves an ICS (or conditionally aproves a draft

[[Page 819]]

permit as an ICS), the Regional Office may submit a written notification 
to the State that the Regional Office intends to issue the ICS. Upon 
mailing the notification, and notwithstanding any other regulation, 
exclusive authority to issue the permit passes to EPA.

[54 FR 256, Jan. 4, 1989, as amended at 54 FR 23896, June 2, 1989; 57 FR 
33049, July 24, 1992]



          Subpart D--Program Approval, Revision, and Withdrawal



Sec. 123.61  Approval process.

    (a) After determining that a State program submission 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 
program;
    (2) Provide for a public hearing within the State to be held no less 
than 30 days after notice is published 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 submission may be reviewed 
by the public;
    (5) Indicate whom an interested member of the public should contact 
with any questions; and
    (6) Briefly outline the fundamental aspects of the State's proposed 
program, and the process for EPA review and decision.
    (b) Within 90 days of the receipt of a complete program submission 
under Sec. 123.21 the Administrator shall approve or disapprove the 
program based on the requirements of this part and of CWA and taking 
into consideration all comments received. A responsiveness summary shall 
be prepared by the Regional Office which identifies the public 
participation activities conducted, describes the matters presented to 
the public, summarizes significant comments received and explains the 
Agency's response to these comments.
    (c) If the Administrator approves the State's program he or she 
shall notify the State and publish notice in the Federal Register. The 
Regional Administrator shall suspend the issuance of permits by EPA as 
of the date of program approval.
    (d) If the Administrator disapproves the State program he or she 
shall notify the State of the reasons for disapproval and of any 
revisions or modifications to the State program which are necessary to 
obtain approval.

[48 FR 14178, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985]



Sec. 123.62  Procedures for revision of State programs.

    (a) Either EPA or the approved State may initiate program revision. 
Program revision may be necessary when the controlling Federal or State 
statutory or regulatory authority is modified or supplemented. The State 
shall keep EPA fully informed of any proposed modifications to its basic 
statutory or regulatory authority, its forms, procedures, or priorities. 
Grounds for program revision include cases where a State's existing 
approved program includes authority to issue NPDES permits for 
activities on a Federal Indian reservation and an Indian Tribe has 
subsequently been approved for assumption of the NPDES program under 40 
CFR part 123 extending to those lands.
    (b) Revision of a State program shall be accomplished as follows:
    (1) The State shall submit a modified program description, Attorney 
General's statement, Memorandum of Agreement, or such other documents as 
EPA determines to be necessary under the circumstances.
    (2) Whenever EPA determines that the proposed program revision is 
substantial, EPA shall issue public notice and provide an opportunity to 
comment for a period of at least 30 days. The public notice shall be 
mailed to interested persons and shall be published in the Federal 
Register and in enough of the largest newspapers in the State to provide 
Statewide coverage.

[[Page 820]]

The public notice shall summarize the proposed revisions and provide for 
the opportunity to request a public hearing. Such a hearing will be held 
if there is significant public interest based on requests received.
    (3) The Administrator will approve or disapprove program revisions 
based on the requirements of this part (or, in the case of a sewage 
sludge management program, 40 CFR part 501) and of the CWA.
    (4) A program revision shall become effective upon the approval of 
the Administrator. Notice of approval of any substantial revision shall 
be published in the Federal Register. Notice of approval 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 must notify EPA whenever they 
propose to transfer all or part of any program from the approved State 
agency to any other State agency, and must identify any new division of 
responsibilities among the agencies involved. The new agency is not 
authorized to administer the program until approved by the Administrator 
under paragraph (b) of this section. Organizational charts required 
under Sec. 123.22(b) (or, in the case of a sewage sludge management 
program, Sec. 501.12(b) of this chapter) must be revised and 
resubmitted.
    (d) Whenever the Administrator has reason to believe that 
circumstances have changed with respect to a State program, he may 
request, and the State shall provide, a supplemental Attorney General's 
statement, program description, or such other documents or information 
as are necessary.
    (e) State NPDES programs only. All new programs must comply with 
these regulations immediately 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 
regulations, 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 implement 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 permit forms for EPA review and 
approval. Approved States shall also assure that permit applicants, 
other than POTWs, submit, as part of their application, the information 
required under Secs. 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; 63 FR 45123, Aug. 24, 1998]



Sec. 123.63  Criteria for withdrawal of State programs.

    (a) In the case of a sewage sludge management program, references in 
this section to ``this part'' will be deemed to refer to 40 CFR part 
501. The Administrator may withdraw program approval when a State 
program no longer complies with the requirements of this part, and the 
State fails to take corrective action. Such circumstances include the 
following:
    (1) Where the State's legal authority no longer meets the 
requirements of this part, including:
    (i) Failure of the State to promulgate or enact new authorities when 
necessary; or
    (ii) Action by a State legislature or court striking down or 
limiting State authorities.
    (2) Where the operation of the State program fails to comply with 
the requirements of this part, including:
    (i) Failure to exercise control over activities required to be 
regulated under this part, including failure to issue permits;
    (ii) Repeated issuance of permits which do not conform to the 
requirements of this part; or
    (iii) Failure to comply with the public participation requirements 
of this part.
    (3) Where the State's enforcement program fails to comply with the 
requirements of this part, including:

[[Page 821]]

    (i) Failure to act on violations of permits or other program 
requirements;
    (ii) Failure to seek adequate enforcement penalties or to collect 
administrative fines when imposed; or
    (iii) Failure to inspect and monitor activities subject to 
regulation.
    (4) Where the State program fails to comply with the terms of the 
Memorandum of Agreement required under Sec. 123.24 (or, in the case of a 
sewage sludge management program, Sec. 501.14 of this chapter).
    (5) Where the State fails to develop an adequate regulatory program 
for developing water quality-based effluent limits in NPDES permits.
    (6) Where a Great Lakes State or Tribe (as defined in 40 CFR 132.2) 
fails to adequately incorporate the NPDES permitting implementation 
procedures promulgated by the State, Tribe, or EPA pursuant to 40 CFR 
part 132 into individual permits.
    (b) [Reserved]

[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; 63 FR 45123, Aug. 
24, 1998]



Sec. 123.64  Procedures for withdrawal of State programs.

    (a) A State with a program approved under this part (or, in the case 
of a sewage sludge management program, 40 CFR part 501) may voluntarily 
transfer program responsibilities required by Federal law to EPA by 
taking the following actions, or in such other manner as may be agreed 
upon with the Administrator.
    (1) The State shall give the Administrator 180 days notice of the 
proposed transfer and shall submit a plan for the orderly transfer of 
all relevant program information not in the possession of EPA (such as 
permits, permit files, compliance files, reports, permit applications) 
which are necessary for EPA to administer the program.
    (2) Within 60 days of receiving the notice and transfer plan, the 
Administrator shall evaluate the State's transfer plan and shall 
identify any additional information needed by the Federal government for 
program administration and/or identify any other deficiencies in the 
plan.
    (3) At least 30 days before the transfer is to occur the 
Administrator shall publish notice of the transfer in the 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 
appropriate EPA and State mailing lists.
    (b) The following procedures apply when the Administrator orders the 
commencement of proceedings to determine whether to withdraw approval 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 Sec. 123.63 
(or, in the case of a sewage sludge management program, Sec. 501.33 of 
this chapter). The Administrator will respond in writing to any petition 
to commence withdrawal proceedings. He may conduct an informal 
investigation of the allegations in the petition to determine whether 
cause exists to commence proceedings under this paragraph. The 
Administrator's order commencing proceedings under this paragraph will 
fix a time and place for the commencement of the hearing and will 
specify the allegations against the State which are to be considered at 
the hearing. Within 30 days the State must admit or deny these 
allegations in a written answer. The party seeking withdrawal of the 
State's program will have the burden of coming forward with the evidence 
in a hearing under this paragraph.
    (2) Definitions. For purposes of this paragraph the definitions of 
``Act,'' ``Administrative Law Judge,'' ``Hearing Clerk,'' and 
``Presiding Officer'' in 40 CFR 22.03 apply in addition to the 
following:
    (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.

[[Page 822]]

    (iii) Petitioner means any person whose petition for commencement of 
withdrawal proceedings has been granted by the Administrator.
    (3) Procedures. (i) The following provisions of 40 CFR part 22 
(Consolidated Rules of Practice) are applicable to proceedings under 
this paragraph:
    (A) Sec. 22.02--(use of number/gender);
    (B) Sec. 22.04(c)--(authorities of Presiding Officer);
    (C) Sec. 22.06--(filing/service of rulings and orders);
    (D) Sec. 22.09--(examination of filed documents);
    (E) Sec. 22.19(a), (b) and (c)--(prehearing conference);
    (F) Sec. 22.22--(evidence);
    (G) Sec. 22.23--(objections/offers of proof);
    (H) Sec. 22.25--(filing the transcript); and
    (I) Sec. 22.26--(findings/conclusions).
    (ii) The following provisions are also applicable:
    (A) Computation and extension of time--(1) 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, Regional Administrator, 
or Presiding Officer, as appropriate, may grant an extension of time for 
the filing of any pleading, document, or motion (i) upon timely motion 
of a party to the proceeding, for good cause shown, and after 
consideration of prejudice to other parties, or (ii) upon his own 
motion. Such a motion by a party may only be made after notice to all 
other parties, unless the movant can show good cause why 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.
    (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 
Administrator.
    (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 likely 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 
proceeding 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 Officer 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 opportunity to 
reply to such memorandum or communication.
    (C) Intervention--(1) 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)(3) 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 Administrator's order is first published.
    (3) Disposition. Leave to intervene may be granted only if the 
movant demonstrates that (i) his presence in the proceeding would not 
unduly prolong or otherwise prejudice that adjudication of the rights of 
the original parties; (ii) the movant will be adversely affected by a 
final order; and (iii) the interests of the movant are not

[[Page 823]]

being adequately represented by the original parties. The intervenor 
shall become a full party to the proceeding upon the granting of leave 
to intervene.
    (4) Amicus curiae. Persons not parties to the proceeding who wish to 
file briefs may so move. The motion shall identify the interest of the 
applicant and shall state the reasons why the proposed amicus brief is 
desirable. If the motion is granted, the Presiding Officer or 
Administrator shall issue an order setting the time for filing such 
brief. An amicus curiae is eligible to 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--(1) General. All motions, except those made orally on 
the record during a hearing, shall (i) be in writing; (ii) state the 
grounds therefor with particularity; (iii) set forth the relief or order 
sought; and (iv) be accompanied by any affidavit, certificate, other 
evidence, or legal memorandum 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 
additional time is allowed for such response. The response shall be 
accompanied by any affidavit, certificate, other evidence, or legal 
memorandum relied upon. If no response is filed within the designated 
period, the parties may be deemed to have waived any objection to the 
granting of the motion. The Presiding Officer, Regional Administrator, 
or Administrator, as appropriate, may set a shorter time for response, 
or make such other orders concerning the disposition of motions as they 
deem appropriate.
    (3) Decision. The Administrator shall rule on all motions filed or 
made after service of the recommended decision upon the parties. The 
Presiding Officer shall rule on all other motions. Oral argument 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 official reporter designated by the Presiding Officer;
    (ii) All orders issued by the Presiding Officer, transcripts of 
testimony, written statements of position, stipulations, exhibits, 
motions, briefs, and other written material of any kind submitted in the 
hearing shall be a part of the record and shall be available for 
inspection or copying in the Office of the Hearing Clerk, upon payment 
of costs. Inquiries may be made at the Office of the Administrative Law 
Judges, Hearing Clerk, 401 M Street, SW., Washington, DC 20460;
    (iii) Upon notice to all parties the Presiding Officer may authorize 
corrections to the transcript which involves matters of substance;
    (iv) An original and two (2) copies of all written submissions to 
the hearing shall be filed with the Hearing Clerk;
    (v) A copy of each submission shall be served by the person making 
the submission upon the Presiding Officer and each party of record. 
Service under this paragraph shall take place by mail or personal 
delivery;
    (vi) Every submission shall be accompanied by an acknowledgement of 
service by the person served or proof of service in the form of a 
statement of the date, time, and manner of service and the names of the 
persons served, certified by the person who made service, and;
    (vii) The Hearing Clerk shall maintain and furnish to any person 
upon request, a list containing the name, service address, and telephone 
number of all parties and their attorneys or duly authorized 
representatives.
    (5) 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 proceeding may:

[[Page 824]]

    (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 conclusions, and reply briefs, the Presiding 
Officer shall evaluate the record before him/her, the proposed findings 
and conclusions and any briefs filed by the parties and shall prepare a 
recommended decision, and shall 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 conformity with the appropriate Act and 
regulations he shall list the deficiencies in the program and provide 
the State a reasonable time, not to exceed 90 days, to take such 
appropriate corrective action as the Administrator determines necessary.
    (iv) Within the time prescribed by the Administrator the State shall 
take such appropriate corrective action as required by the Administrator 
and shall file with the Administrator and all parties a statement 
certified by the State Director that such appropriate corrective action 
has been taken.
    (v) The Administrator may require a further showing in addition to 
the certified statement that corrective action has been taken.
    (vi) If the State fails to take such appropriate corrective action 
and file a certified statement thereof within the time prescribed by the 
Administrator, the Administrator shall issue a supplementary order 
withdrawing approval of the State program. If the State takes such 
appropriate corrective action, the Administrator shall issue a 
supplementary order stating that approval of authority is not withdrawn.
    (vii) The Administrator's supplementary order shall constitute final 
Agency action within the meaning of 5 U.S.C. 704.
    (viii) Withdrawal of authorization under this section and the 
appropriate Act does not relieve any person from complying with the 
requirements of State law, nor does it affect the validity of actions by 
the State prior to withdrawal.

[48 FR 14178, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985, as amended at 57 
FR 5335, Feb. 13, 1992; 63 FR 45123, Aug. 24, 1998]



PART 124--PROCEDURES FOR DECISIONMAKING--Table of Contents




                 Subpart A--General Program Requirements

Sec.
124.1  Purpose and scope.
124.2  Definitions.
124.3  Application for a permit.
124.4  Consolidation of permit processing.
124.5  Modification, revocation and reissuance, or termination of 
          permits.
124.6  Draft permits.
124.7  Statement of basis.
124.8  Fact sheet.
124.9  Administrative record for draft permits when EPA is the 
          permitting authority.
124.10  Public notice of permit actions and public comment period.
124.11  Public comments and requests for public hearings.
124.12  Public hearings.
124.13  Obligation to raise issues and provide information 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.

[[Page 825]]

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 permitting 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-Issued NPDES Permits and EPA-
                         Terminated 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 comment 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 permit.
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 decision.
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 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



Sec. 124.1  Purpose and scope.

    (a) This part contains EPA procedures for issuing, modifying, 
revoking and reissuing, or terminating all RCRA, UIC, PSD and NPDES 
``permits'' (including ``sludge-only'' permits issued pursuant to 
Sec. 122.1(b)(3)), other than RCRA and UIC ``emergency permits'' (see 
Secs. 270.61 and 144.34) and RCRA ``permits by rule'' (Sec. 270.60). The

[[Page 826]]

latter kinds of permits are governed by part 270. RCRA interim status 
and UIC authorization by rule are not ``permits'' and are covered by 
specific provisions in parts 144, subpart C, and 270. This part also 
does not apply to permits issued, modified, revoked and reissued or 
terminated by the Corps of Engineers. Those procedures are specified in 
33 CFR parts 320-327. The procedures of this part also apply to denial 
of a permit for the active life of a RCRA hazardous waste management 
facility or unit under Sec. 270.29.
    (b) Part 124 is organized into six subparts. Subpart A contains 
general procedural requirements applicable to all permit programs 
covered by these regulations. Subparts B through F supplement these 
general provisions with requirements that apply to only one or more of 
the programs. Subpart A describes the steps EPA will follow in receiving 
permit applications, preparing draft permits, issuing public notice, 
inviting public comment and holding public hearings on draft permits. 
Subpart A also covers assembling an administrative record, responding to 
comments, issuing a final permit decision, and allowing for 
administrative 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 requirements for 
PSD permits. Subpart D applies to NPDES permits until an evidentiary 
hearing begins, 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 Administrative 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.

                                       Hearings Available Under This Part
----------------------------------------------------------------------------------------------------------------
                                                                        Subpart
                                     ---------------------------------------------------------------------------
              Programs                          (A)                     (E)                       (F)
                                     ---------------------------------------------------------------------------
                                          Public hearing        Evidentiary hearing          Panel hearing
----------------------------------------------------------------------------------------------------------------
RCRA................................  On draft permit, at     (1) Permit termination  (1) At RA's discretion in
                                       Director's discretion   (RCRA section 3008).    lieu of public hearing
                                       or on request (Sec.                             (Secs.  124.12 and
                                       124.12).                                        124.111(a)(3)).
                                                              (2) With NPDES          (2) When consolidated with
                                                               evidentiary hearing     NPDES draft permit
                                                               (Sec.  124.74(b)(2)).   processed under Subpart F
                                                                                       (Sec.  124.111(a)(1)(i)).
UIC.................................  On draft permit, at     With NPDES evidentiary  (1) At RA's discretion in
                                       Director's discretion   hearing (Sec.           lieu of public hearing
                                       or on request (Sec.     124.74(b)(2)).          (Secs.  124.12 and
                                       124.12).                                        124.111(a)(3)).
                                                                                      (2) When consolidated with
                                                                                       NPDES draft permit
                                                                                       processed under Subpart F
                                                                                       (Sec.  124.111(a)(1)(i)).
PSD.................................  On draft permit, at     Not available (Sec.     When consolidated with
                                       Director's discretion   124.71(c)).             NPDES draft permit
                                       or on request (Sec.                             processed under Subpart F
                                       124.12).                                        if RA determines that CAA
                                                                                       one year deadline will
                                                                                       not be violated.
NPDES (other than general permit)...  On draft permit, at     (1) On request to       (1) At RA's discretion
                                       Director's discretion   challenge any permit    when first decision on
                                       or on request (Sec.     condition or variance   permit or variance
                                       124.12).                (Sec.  124.74).         request (Sec.  124.111).
                                                              (2) At RA's discretion  (2) At RA's discretion
                                                               for any 301(h)          when request for
                                                               request (Sec.           evidentiary hearing is
                                                               124.64(b)).             granted under Sec.
                                                                                       124.75(a)(2) (Secs.
                                                                                       124.74(c)(8) and
                                                                                       124.111(a)(2)).
                                                                                      (3) At RA's discretion for
                                                                                       any 301(h) request (Sec.
                                                                                       124.64(b)).
NPDES (general permit)..............  On draft permit, at     Not available (Sec.     At RA's discretion in lieu
                                       Director's discretion   124.71(a)).             of public hearing (Sec.
                                       or on request (Sec.                             124.111(a)(3)).
                                       124.12).

[[Page 827]]

 
404.................................  On draft permit or on   Not available (Sec.     Not available (Sec.
                                       application when no     124.71).                124.111).
                                       draft permit, at
                                       Director's discretion
                                       or on request (Sec.
                                       124.12).
----------------------------------------------------------------------------------------------------------------

    (d) This part is designed to allow permits for a given facility 
under two or more of the listed programs to be processed separately or 
together at the choice of the Regional Administrator. This allows EPA to 
combine the processing of permits only when appropriate, and not 
necessarily in all cases. The Regional Administrator may consolidate 
permit processing when the permit applications are submitted, when draft 
permits are prepared, or when final permit decisions are issued. This 
part also allows consolidated permits to be subject to a single public 
hearing under Sec. 124.12, a single evidentiary hearing under 
Sec. 124.75, or a single non-adversary panel hearing under Sec. 124.120. 
Permit applicants may recommend whether or not their applications should 
be consolidated in any given case.
    (e) Certain procedural requirements set forth in part 124 must be 
adopted by States in order to gain EPA approval to operate RCRA, UIC, 
NPDES, and 404 permit programs. These requirements are listed in 
Secs. 123.25 (NPDES), 145.11 (UIC), 233,26 (404), and 271.14 (RCRA) and 
signaled by the following words at the end of the appropriate part 124 
section or paragraph heading: (applicable to State programs see 
Secs. 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 jointly processed, joint comment periods and hearings to be held, 
and final permits to be issued on a cooperative basis whenever EPA and a 
State agree to take such steps in general or in individual cases. These 
joint processing agreements may be provided in the Memorandum of 
Agreement developed under Secs. 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]



Sec. 124.2  Definitions.

    (a) In addition to the definitions given in Secs. 122.2 and 123.2 
(NPDES), 501.2 (sludge management), 144.3 and 145.2 (UIC), 233.3 (404), 
and 270.2 and 271.2 (RCRA), the definitions below apply to this part, 
except for PSD permits which are governed by the definitions in 
Sec. 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 authorized representative.
    Applicable standards and limitations means all State, interstate, 
and federal standards and limitations 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 standards 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 additions, 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 
Secs. 270.14 through 270.29 [contents of Part B of the RCRA 
application].

[[Page 828]]

    Appropriate Act and regulations means the Clean Water Act (CWA); the 
Solid Waste Disposal Act, as amended by the Resource Conservation 
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 program'' appropriate Act and 
regulations includes program requirements.
    Consultation with the Regional Administrator (Sec. 124.62(a)(2)) 
means review by the Regional Administrator following evaluation by a 
panel of the technical merits of all 301(k) applications approved by the 
Director. The panel (to be appointed by the Director of the Office of 
Water Enforcement and Permits) will consist of Headquarters, Regional, 
and State personnel familiar with the industrial category in question.
    CWA means the Clean Water Act (formerly referred to as the Federal 
Water Pollution Control Act of Federal Pollution Control Act Amendments 
of 1972) Public Law 92-500, as amended by Public 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 authority to take certain 
actions even when there is an approved State or Tribal program. (For 
example, when EPA has issued an NPDES permit prior to the approval of a 
State program, EPA may retain jurisdiction over that permit after 
program approval; see Sec. 123.1) In such cases, the term ``Director'' 
means the Regional Administrator and not the State or Tribal director.
    Draft permit means a document prepared under Sec. 124.6 indicating 
the Director's tentative decision to issue or deny, modify, revoke and 
reissue, terminate, or reissue a ``permit.'' A notice of intent to 
terminate a permit and a notice of intent to deny a permit as discussed 
in Sec. 124.5, are types of ``draft permits.'' A denial of a request for 
modification, revocation and reissuance or termination, as discussed in 
Sec. 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 Sec. 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 permits under Section 
124.5(b). An appeal directed to the Administrator, rather than to the 
Environmental Appeals Board, will not be considered. This delegation 
does not preclude the Environmental Appeals Board from referring an 
appeal or a motion under this subpart to the Administrator when the 
Environmental Appeals Board, in its discretion, 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 Administrator.
    EPA (``EPA'') means the United States ``Environmental 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 facility 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 issuance 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

[[Page 829]]

permit means a permit issued under Sec. 122.28. For 404, a general 
permit means a permit issued under Sec. 233.37.
    Indian Tribe means (in the case of UIC) any Indian Tribe having a 
federally recognized governing body carrying out substantial 
governmental duties and powers over a defined area. For the NPDES 
program, the term ``Indian Tribe'' means any Indian Tribe, band, group, 
or community recognized by the Secretary of the Interior and exercising 
governmental authority over a Federal Indian reservation.
    Interstate agency means an agency of two or more States established 
by or under an agreement or compact approved by the Congress, or any 
other agency of two or more States having substantial powers or duties 
pertaining to the control of pollution as determined and approved by the 
Administrator under the ``appropriate Act and regulations.''
    Major facility means any RCRA, UIC, NPDES, or 404 ``facility or 
activity'' classified as such by the Regional Administrator, or, in the 
case of ``approved State programs,'' the Regional Administrator in 
conjunction with the State Director.
    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'' (Sec. 270.60), UIC area 
permit (Sec. 144.33), NPDES or 404 ``general permit'' (Secs. 270.61, 
144.34, and 233.38). Permit does not include RCRA interim status 
(Sec. 270.70), UIC authorization by rule (Sec. 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, partnership, corporation, 
municipality, State, Federal, or Tribal agency, or an agency or employee 
thereof.
    RCRA means the Solid Waste Disposal Act as amended by the Resource 
Conservation and Recovery Act of 1976 (Pub. L. 94-580, as amended by 
Pub. L. 95-609, 42 U.S.C. 6901 et seq).
    Regional Administrator means the Regional Administrator of the 
appropriate Regional Office of the Environmental Protection Agency or 
the authorized representative of the Regional Administrator.
    Schedule of compliance means a schedule of remedial measures 
included in a ``permit,'' including an enforceable sequence of interim 
requirements (for example, actions, operations, or milestone events) 
leading to compliance with the ``appropriate 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 regulate the ``discharge of dredged material'' and 
the ``discharge of fill material'' under section 404 of the Clean Water 
Act in ``State regulated waters.''
    Site means the land or water area where any ``facility or activity'' 
is physically located or conducted, 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 Commonwealth of Puerto Rico, the Virgin Islands, Guam, 
American Samoa, the Trust Territory of the Pacific Islands (except in 
the case of RCRA), the Commonwealth of the Northern Mariana Islands, or 
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 
(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 responsibility 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 reference is made.

[[Page 830]]

    State Director means the chief administrative officer of any State 
or interstate agency operating an ``approved program,'' or the delegated 
representative of the state Director. If responsibility is divided among 
two or more State or interstate agencies, ``State Director'' means the 
chief administrative 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 ``effluent 
limitations guidelines'' which allows modification 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 Director means the State 
Director or Regional Administrator and is used when the accompanying 
provision is required of EPA-administered programs and of State programs 
under Secs. 123.25 (NPDES), 145.11 (UIC), 233.26 (404), and 271.14 
(RCRA). The term Regional Administrator is used when the accompanying 
provision applies exclusively 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 
Administrator.''
    (c) The term formal hearing means any evidentiary hearing under 
subpart E or any panel hearing under subpart F but does not mean a 
public hearing conducted under Sec. 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]



Sec. 124.3  Application for a permit.

    (a) Applicable to State programs, see Secs. 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 
Secs. 270.1 (RCRA), 144.1 (UIC), 40 CFR 52.21 (PSD), and 122.1 (NPDES). 
Applications are not required for RCRA permits by rule (Sec. 270.60), 
underground injections authorized by rules (Secs. 144.21 through 
144.26), NPDES general permits (Sec. 122.28) and 404 general permits 
(Sec. 233.37).
    (2) The Director shall not begin the processing of a permit until 
the applicant has fully complied with the application requirements for 
that permit. See Secs. 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 Secs. 122.22 (NPDES), 
144.32 (UIC), 233.6 (404), and 270.11 (RCRA).
    (b) [Reserved]
    (c) The Regional Administrator shall review for completeness every 
application for an EPA-issued permit. Each application for an EPA-issued 
permit submitted by a new HWM facility, a new UIC injection well, a 
major PSD stationary source or major PSD modification, or an NPDES new 
source or NPDES new discharger should be reviewed for completeness by 
the Regional Administrator within 30 days of its receipt. Each 
application for an EPA-issued permit submitted by an existing HWM 
facility (both Parts A and B of the application), existing injection 
well or existing NPDES source or sludge-only facility should be reviewed 
for completeness within 60 days of receipt. Upon completing the review, 
the Regional Administrator shall notify the applicant in writing whether 
the application is complete. If the application is incomplete, the 
Regional Administrator shall list the information necessary to make the 
application complete. When the application is for an existing HWM 
facility, an existing UIC injection well or an existing NPDES source or 
``sludge-only facility'' the Regional Administrator shall specify in the 
notice of deficiency a

[[Page 831]]

date for submitting the necessary information. The Regional 
Administrator shall notify the applicant that the application is 
complete upon receiving this information. After the application is 
completed, the Regional Administrator may request additional information 
from an applicant but only when necessary to clarify, modify, or 
supplement previously submitted material. Requests for such additional 
information will not render an application incomplete.
    (d) If an applicant fails or refuses to correct deficiencies in the 
application, the permit may be denied and appropriate enforcement 
actions may be taken under the applicable statutory provision including 
RCRA section 3008, SDWA sections 1423 and 1424, CAA section 167, and CWA 
sections 308, 309, 402(h), and 402(k).
    (e) If the Regional Administrator decides that a site visit is 
necessary for any reason in conjunction with the processing of an 
application, he or she shall notify the applicant and a date shall be 
scheduled.
    (f) The effective date of an application is the date on which the 
Regional 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 discharger, 
or a permit to be issued under provisions of Sec. 122.28(c), the 
Regional Administrator shall, no later than the effective date of the 
application, prepare and mail to the applicant a project decision 
schedule. (This paragraph does not apply to PSD permits.) The schedule 
shall specify target dates by which the Regional Administrator intends 
to:
    (1) Prepare a draft permit;
    (2) Give public notice;
    (3) Complete the public comment period, including any public 
hearing;
    (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 Recovery Act (42 U.S.C. 6901 et seq.))

[48 FR 14264, Apr. 1, 1983, as amended at 48 FR 39620, Sept. 1, 1983; 54 
FR 18785, May 2, 1989]



Sec. 124.4  Consolidation of permit processing.

    (a)(1) Whenever a facility or activity requires a permit under more 
than one statute covered by these regulations, processing of two or more 
applications for those permits may be consolidated. The first step in 
consolidation is to prepare each draft permit at the same time.
    (2) Whenever draft permits are prepared at the same time, the 
statements of basis (required under Sec. 124.7 for EPA-issued permits 
only) or fact sheets (Sec. 124.8), administrative records (required 
under Sec. 124.9 for EPA-issued permits only), public comment periods 
(Sec. 124.10), and any public hearings (Sec. 124.12) on those permits 
should also be consolidated. The final permits may be issued together. 
They need not be issued together if in the judgment of the Regional 
Administrator or State Director(s), joint processing would result in 
unreasonable delay in the issuance of one or more permits.
    (b) Whenever an existing facility or activity requires additional 
permits under one or more of the statutes covered by these regulations, 
the permitting authority may coordinate the expiration date(s) of the 
new permit(s) with the expiration date(s) of the existing permit(s) so 
that all permits expire simultaneously. Processing of the subsequent 
applications for renewal permits may then be consolidated.
    (c) Processing of permit applications under paragraph (a) or (b) of 
this section may be consolidated as follows:
    (1) The Director may consolidate permit processing at his or her 
discretion

[[Page 832]]

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 ``initial 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 permit applicant, the 
Regional Administrator shall not consolidate processing a PSD permit 
with any other permit under paragraph (a) or (b) of this section 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 
Sec. 124.3(f).



Sec. 124.5  Modification, revocation and reissuance, or termination of permits.

    (a) (Applicable to State programs, see Secs. 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 (including the permittee) or upon 
the Director's initiative. However, permits may only be modified, 
revoked and reissued, or terminated for the reasons specified in 
Sec. 122.62 or Sec. 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 supporting the request.
    (b) If the Director decides the request is not justified, 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 
appealed to the Environmental Appeals Board by a letter briefly setting 
forth the relevant facts. The Environmental Appeals Board may direct the 
Regional Administrator to begin modification, revocation and reissuance, 
or 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 
judicial review of EPA action in denying a request for modification, 
revocation and reissuance, or termination.
    (c) (Applicable to State programs, see Secs. 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 Secs. 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 Sec. 124.6 incorporating the 
proposed changes. The Director may request additional information and, 
in the case of a modified permit, may require the submission of an 
updated application. In the case of revoked and reissued permits, the 
Director shall require the submission of a new application.
    (2) In a permit modification under this section, only those 
conditions to be modified shall be reopened when a new draft permit is 
prepared. All other aspects of the existing permit shall remain in 
effect for the duration of the unmodified permit. When a permit is 
revoked and reissued under this section, the entire permit is reopened 
just as if the permit had expired and was being reissued. During any 
revocation and reissuance proceeding the permittee shall comply with all 
conditions of the existing permit until a new final permit is reissued.
    (3) ``Minor modifications'' as defined in Secs. 122.63 (NPDES), 
144.41 (UIC), and 233.16 (404), and ``Classes 1 and 2 modifications'' as 
defined in Sec. 270.42 (a) and (b) (RCRA) are not subject to the 
requirements of this section.
    (d) (Applicable to State programs, see Secs. 123.25 (NPDES), 145.11 
(UIC), 233.26 (404), and 271.14 (RCRA)). If the Director tentatively 
decides to terminate a

[[Page 833]]

permit under Secs. 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 Sec. 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 Secs. 123.24(b)(1) (NPDES), 145.24(b)(1) (UIC), 271.8(b)(6) 
(RCRA), or 501.14(b)(1) (Sludge).
    (e) When EPA is the permitting authority, all draft permits 
(including notices of intent to terminate) prepared under this section 
shall be based on the administrative record as defined in Sec. 124.9.
    (f) (Applicable to State programs, see Sec. 233.26 (404)). Any 
request by the permittee for modification to an existing 404 permit 
(other than a request for a minor modification as defined in Sec. 233.16 
(404)) shall be treated as a permit application and shall be processed 
in accordance with all requirements of Sec. 124.3.
    (g)(1) (Reserved for PSD Modification Provisions).
    (2) PSD permits may be terminated only by rescission under 
Sec. 52.21(w) or by automatic expiration under Sec. 52.21(r). 
Applications for rescission shall be precessed under Sec. 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]



Sec. 124.6  Draft permits.

    (a) (Applicable to State programs, see Secs. 123.25 (NPDES), 145.11 
(UIC), 233.26 (404), and 271.14 (RCRA).) Once an application is 
complete, the Director 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 Sec. 233.39) or to deny the 
application.
    (b) If the Director tentatively decides to deny the permit 
application, he or she shall issue a notice of intent to deny. A notice 
of intent to deny the permit application is a type of draft permit which 
follows the same procedures as any draft permit prepared under this 
section. See Sec. 124.6(e). If the Director's final decision 
(Sec. 124.15) is that the tentative decision to deny the permit 
application was incorrect, he or she shall withdraw the notice of intent 
to deny and proceed to prepare a draft permit under paragraph (d) of 
this section.
    (c) (Applicable to State programs, see Secs. 123.25 (NPDES) and 
233.26 (404).) If the Director tentatively decides to issue an NPDES or 
404 general permit, he or she shall prepare a draft general permit under 
paragraph (d) of this section.
    (d) (Applicable to State programs, see Secs. 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 Secs. 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 Secs. 122.47 (NPDES), 144.53 
(UIC), 233.10 (404), or 270.33 (RCRA) (except for PSD permits);
    (3) All monitoring requirements under Secs. 122.48 (NPDES), 144.54 
(UIC), 233.11 (404), or 270.31 (RCRA) (except for PSD permits); and
    (4) For:
    (i) RCRA permits, standards for treatment, storage, and/or disposal 
and other permit conditions under Sec. 270.30;
    (ii) UIC permits, permit conditions under Sec. 144.52;
    (iii) PSD permits, permit conditions under 40 CFR Sec. 52.21;
    (iv) 404 permits, permit conditions under Secs. 233.7 and 233.8;
    (v) NPDES permits, effluent limitations, standards, prohibitions, 
standards for sewage sludge use or disposal, and conditions under 
Secs. 122.41, 122.42, and 122.44, including when applicable any 
conditions certified by a State agency under Sec. 124.55, and all 
variances that are to be included under Sec. 124.63.
    (e) (Applicable to State programs, see Secs. 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 
(Sec. 124.7) or fact sheet

[[Page 834]]

(Sec. 124.8), and shall be based on the administrative record 
(Sec. 124.9), publicly noticed (Sec. 124.10) and made available for 
public comment (Sec. 124.11). The Regional Administrator shall give 
notice of opportunity for a public hearing (Sec. 124.12), issue a final 
decision (Sec. 124.15) and respond to comments (Sec. 124.17). For RCRA, 
UIC or PSD permits, an appeal may be taken under Sec. 124.19 and, for 
NPDES permits, an appeal may be taken under Sec. 124.74. Draft permits 
prepared by a State shall be accompanied by a fact sheet if required 
under Sec. 124.8.

[48 FR 14264, Apr. 1, 1983, as amended at 54 FR 18785, May 2, 1989]



Sec. 124.7  Statement of basis.

    EPA shall prepare a statement of basis for every draft permit for 
which a fact sheet under Sec. 124.8 is not prepared. The statement of 
basis shall briefly describe the derivation of the conditions of the 
draft permit and the reasons for them or, in the case of notices of 
intent to deny or terminate, reasons supporting the tentative decision. 
The statement of basis shall be sent to the applicant and, on request, 
to any other person.



Sec. 124.8  Fact sheet.

    (Applicable to State programs, see Secs. 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 management facility, for every 404 and NPDES general permit 
(Secs. 237.37 and 122.28), for every NPDES draft permit that 
incorporates a variance or requires an explanation under Sec. 124.56(b), 
for every draft permit that includes a sewage sludge land application 
plan under 40 CFR 501.15(a)(2)(ix), and for every draft permit which the 
Director finds is the subject of wide-spread public interest or raises 
major issues. The fact sheet shall briefly set forth the principal facts 
and the significant factual, legal, methodological and policy questions 
considered in preparing the draft permit. The Director shall send this 
fact sheet to the applicant and, on request, to any other person.
    (b) The fact sheet shall include, when applicable:
    (1) A brief description of the type of facility or activity which is 
the subject of the draft permit;
    (2) The type and quantity of wastes, fluids, or pollutants which are 
proposed to be or are being treated, stored, disposed of, injected, 
emitted, or discharged.
    (3) For a PSD permit, the degree of increment consumption expected 
to result from operation of the facility or activity.
    (4) A brief summary of the basis for the draft permit conditions 
including references to applicable statutory or regulatory provisions 
and appropriate supporting references to the administrative record 
required by Sec. 124.9 (for EPA-issued permits);
    (5) Reasons why any requested variances or alternatives to required 
standards do or do not appear justified;
    (6) A description of the procedures for reaching a final decision on 
the draft permit including:
    (i) The beginning and ending dates of the comment period under 
Sec. 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 
Sec. 124.56.

[48 FR 14264, Apr. 1, 1983, as amended at 54 FR 18786, May 2, 1989]



Sec. 124.9  Administrative record for draft permits when EPA is the permitting authority.

    (a) The provisions of a draft permit prepared by EPA under 
Sec. 124.6 shall be based on the administrative record defined in this 
section.
    (b) For preparing a draft permit under Sec. 124.6, the record shall 
consist of:
    (1) The application, if required, and any supporting data furnished 
by the applicant;
    (2) The draft permit or notice of intent to deny the application or 
to terminate the permit;

[[Page 835]]

    (3) The statement of basis (Sec. 124.7) or fact sheet (Sec. 124.8);
    (4) All documents cited in the statement of basis or fact sheet; and
    (5) Other documents contained in the supporting file for the draft 
permit.
    (6) For NPDES new source draft permits only, any environmental 
assessment, environmental impact statement (EIS), finding of no 
significant impact, or environmental information document and any 
supplement to an EIS that may have been prepared. NPDES permits other 
than permits to new sources as well as all RCRA, UIC and PSD permits 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 Regional Office or 
published material that is generally available, and that is included in 
the administrative record under paragraphs (b) and (c) of this section, 
need not be physically included with the rest of the record as long as 
it is specifically referred to in the statement of basis or the fact 
sheet.
    (d) This section applies to all draft permits when public notice was 
given after the effective date of these regulations.



Sec. 124.10  Public notice of permit actions and public comment period.

    (a) Scope. (1) The Director shall give public notice that the 
following actions have occurred:
    (i) A permit application has been tentatively denied under 
Sec. 124.6(b);
    (ii) (Applicable to State programs, see Secs. 123.25 (NPDES), 145.11 
(UIC), 233.26 (404), and 271.14 (RCRA)). A draft permit has been 
prepared under Sec. 124.6(d);
    (iii) (Applicable to State programs, see Secs. 123.25 (NPDES), 
145.11 (UIC), 233.26 (404) and 271.14 (RCRA)). A hearing has been 
scheduled under Sec. 124.12, subpart E or subpart F;
    (iv) An appeal has been granted under Sec. 124.19(c);
    (v) (Applicable to State programs, see Sec. 233.26 (404)). A State 
section 404 application has been received in cases when no draft permit 
will be prepared (see Sec. 233.39); or
    (vi) An NPDES new source determination has been made under 
Sec. 122.29.
    (2) No public notice is required when a request for permit 
modification, revocation and reissuance, or termination is denied under 
Sec. 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 Secs. 123.25 (NPDES), 
145.11 (UIC), 233.26 (404, and 271.14 (RCRA)). (1) Public notice of the 
preparation of a draft permit (including a notice of intent to deny a 
permit application) required under 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 public comment. For EPA-issued 
permits, if the Regional 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 Secs. 123.25 (NPDES), 
145.11 (UIC), 233.26 (404), and 271.14 (RCRA)). Public notice of 
activities described in paragraph (a)(1) of this section shall be given 
by the following methods:
    (1) By mailing a copy of a notice to the following persons (any 
person otherwise entitled to receive notice under this paragraph may 
waive his or her rights to receive notice for any classes and categories 
of permits);
    (i) The applicant (except for NPDES and 404 general permits when 
there is no applicant);
    (ii) Any other agency which the Director knows has issued or is 
required to issue a RCRA, UIC, PSD (or other permit under the Clean Air 
Act), NPDES, 404, sludge management permit, or ocean dumping permit 
under the Marine Research Protection and Sanctuaries Act for the same 
facility or activity (including EPA when the draft permit is prepared by 
the State);

[[Page 836]]

    (iii) Federal and State agencies with jurisdiction over fish, 
shellfish, and wildlife resources and over coastal zone management 
plans, the Advisory Council on Historic Preservation, State Historic 
Preservation Officers, including any affected States (Indian Tribes). 
(For purposes of this paragraph, and in the context of the Underground 
Injection Control Program only, the term State includes Indian Tribes 
treated as States.)
    (iv) For NPDES and 404 permits only, any State agency responsible 
for plan development under CWA section 208(b)(2), 208(b)(4) or 303(e) 
and the U.S. 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 ascertainable owner of 
property adjacent to the regulated facility or activity and the Regional 
Director of the Federal Aviation Administration if the discharge 
involves the construction of structures which may affect aircraft 
operations or for purposes associated with seaplane operations;
    (vii) For PSD permits only, affected State and local air pollution 
control agencies, the chief executives of the city and county where the 
major stationary source or major modification would be located, any 
comprehensive regional land use planning agency and any State, Federal 
Land Manager, or Indian Governing Body whose lands may be affected by 
emissions from the regulated activity;
    (viii) For Class I injection well UIC permits only, state and local 
oil and gas regulatory agencies and state agencies regulating mineral 
exploration and recovery;
    (ix) Persons on a mailing list developed by:
    (A) Including those who request in writing to be on the list;
    (B) Soliciting persons for ``area lists'' from participants in past 
permit proceedings in that area; and
    (C) Notifying the public of the opportunity to be put on the mailing 
list through periodic publication in the public press and in such 
publications as Regional and State funded newsletters, environmental 
bulletins, or State law journals. (The Director may update the mailing 
list from time to time by requesting written indication of continued 
interest from those listed. The Director may delete from the list the 
name of any person who fails to respond to such a request.)
    (x)(A) To any unit of local government having jurisdiction over the 
area where the facility is proposed to be located; and (B) to each State 
agency having any authority under State law with respect to the 
construction or operation of such facility.
    (2)(i) For major permits, NPDES and 404 general permits, and permits 
that include sewage sludge land application plans under 40 CFR 
501.15(a)(2)(ix), publication of a notice in a daily or weekly newspaper 
within the area affected by the facility or activity; and for EPA-issued 
NPDES general permits, in the 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 notice in a daily or 
weekly major local newspaper of general circulation and broadcast over 
local radio stations.
    (3) When the program is being administered by an approved State, in 
a manner constituting legal notice to the public under State law; 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 Secs. 123.25 
(NPDES), 145.11 (UIC), 233.26 (404), and 271.14 (RCRA))--(1) All public 
notices. All 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 activity regulated by the permit, except 
in the case

[[Page 837]]

of NPDES and 404 draft general permits under Secs. 122.28 and 233.37;
    (iii) A brief description of the business conducted at the facility 
or activity described in the permit application or the draft permit, for 
NPDES or 404 general permits when there is no application.
    (iv) Name, address and telephone number of a person from whom 
interested persons may obtain further information, including copies of 
the draft permit or draft general permit, as the case may be, statement 
of basis or fact sheet, and the application; and
    (v) A brief description of the comment procedures required by 
Secs. 124.11 and 124.12 and the time and place of any hearing that will 
be held, including a statement of procedures to request a hearing 
(unless a hearing has already been scheduled) and other procedures by 
which the public may participate in the final permit decision.
    (vi) For EPA-issued permits, the location of the administrative 
record required by Sec. 124.9, the times at which the record will be 
open for public inspection, and a statement that all data submitted by 
the applicant is available as part of the administrative record.
    (vii) For NPDES permits only (including those for ``sludge-only 
facilities''), a general description of the location of each existing or 
proposed discharge point and the name of the receiving water and the 
sludge use and disposal practice(s) and the location of each sludge 
treatment works treating domestic sewage and use or disposal sites known 
at the time of permit application. For 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 (including, in the case of 
fill material, activities intended to be conducted on the fill), a 
description of the type, composition, and quantity of materials to be 
discharged and means of conveyance; and any proposed conditions and 
limitations on the discharge;
    (B) The name and water quality standards classification, if 
applicable, of the receiving waters into which the discharge is 
proposed, and a general description of the site of each proposed 
discharge and the portions of the site and the discharges which are 
within State regulated waters;
    (C) A description of the anticipated environmental effects of 
activities conducted under the permit;
    (D) References to applicable statutory or regulatory authority; and
    (E) Any other available information which may assist the public in 
evaluating the likely impact of the proposed activity upon the integrity 
of the receiving water.
    (ix) Any additional information considered necessary or proper.
    (2) Public notices for hearings. In addition to the general public 
notice described in paragraph (d)(1) of this section, the public notice 
of a hearing under Sec. 124.12, subpart E, or subpart F shall contain 
the following information:
    (i) Reference to the date of previous public notices relating to the 
permit;
    (ii) Date, time, and place of the hearing;
    (iii) A brief description of the nature and purpose of the hearing, 
including the applicable rules and procedures; and
    (iv) For 404 permits only, a summary of major issues raised to date 
during the public comment period.
    (e) (Applicable to State programs, see Secs. 123.25 (NPDES), 145.11 
(UIC), 233.26 (404), and 271.14 (RCRA)). In addition to the general 
public notice described in paragraph (d)(1) of this section, all persons 
identified in paragraphs (c)(1) (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]

[[Page 838]]



Sec. 124.11  Public comments and requests for public hearings.

    (Applicable to State programs, see Secs. 123.25 (NPDES), 145.11 
(UIC), 233.26 (404), and 271.14 (RCRA)). During the public comment 
period provided under Sec. 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 Sec. 233.39) and may 
request 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 Sec. 124.17.



Sec. 124.12  Public hearings.

    (a) (Applicable to State programs, see Secs. 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 receives written notice of opposition to a 
draft permit and a request for a hearing within 45 days of public notice 
under Sec. 124.10(b)(1); (ii) whenever possible the Director shall 
schedule a hearing under this section at a location convenient to the 
nearest population center to the proposed facility;
    (4) Public notice of the hearing shall be given as specified in 
Sec. 124.10.
    (b) Whenever a public hearing will be held and EPA is the permitting 
authority, the Regional Administrator shall designate a Presiding 
Officer for the hearing who shall be responsible for its scheduling and 
orderly conduct.
    (c) Any person may submit oral or written statements and data 
concerning the draft permit. Reasonable limits may be set upon the time 
allowed for oral statements, and the submission of statements in writing 
may be required. The public comment period under Sec. 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)(1) At his or her discretion, the Regional Administrator may 
specify that RCRA or UIC permits 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 procedures in subpart F. The permit applicant may request such 
a hearing pursuant to Sec. 124.114 no one or more issues, if the 
applicant explains in his request 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 applicant's request, that would require extensive changes to the 
facility (``contested major permit conditions''). If the Regional 
Administrator decides 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]



Sec. 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 
Sec. 124.10. Any supporting materials which are submitted shall be 
included in full and may not be incorporated by reference, unless they 
are already part of the administrative

[[Page 839]]

record in the same proceeding, or consist of State or Federal statutes 
and regulations, EPA documents of general applicability, or other 
generally available reference materials. Commenters shall make 
supporting materials not already included in the administrative record 
available to EPA as directed by the Regional Administrator. (A comment 
period longer than 30 days may be necessary to give commenters a 
reasonable opportunity to comply with the requirements of this section. 
Additional time shall be granted under Sec. 124.10 to the extent that a 
commenter who requests additional time demonstrates the need for such 
time.)

[49 FR 38051, Sept. 26, 1984]



Sec. 124.14  Reopening of the public comment period.

    (a)(1) The Regional Administrator may order the public comment 
period reopened if the procedures of this paragraph could expedite the 
decisionmaking process. When the public comment period is reopened under 
this paragraph, all persons, including applicants, who believe any 
condition of a draft permit is inappropriate or that the Regional 
Administrator's tentative decision to deny an application, terminate a 
permit, or prepare a draft permit is inappropriate, must submit all 
reasonably available factual grounds supporting their position, 
including all supporting material, by a date, not less than sixty days 
after public notice under paragraph (a)(2) of this section, set by the 
Regional Administrator. Thereafter, any person may file a written 
response to the material filed by any other person, by a date, not less 
than twenty days after the date set for filing of the material, set by 
the Regional Administrator.
    (2) Public notice of any comment period under this paragraph shall 
identify the issues to which the requirements of Sec. 124.14(a) shall 
apply.
    (3) On his own motion or on the request of any person, the Regional 
Administrator may direct that the requirements of paragraph (a)(1) of 
this section shall apply during the initial comment period where it 
reasonably appears that issuance of the permit will be contested and 
that applying the requirements of paragraph (a)(1) of this section will 
substantially expedite the decisionmaking process. The notice of the 
draft permit shall state whenever this has been done.
    (4) A comment period of longer than 60 days will often be necessary 
in complicated proceedings to give commenters a reasonable opportunity 
to comply with the requirements of this section. Commenters may request 
longer comment periods and they shall be granted under Sec. 124.10 to 
the extent they appear necessary.
    (b) If any data information or arguments submitted during the public 
comment period, including information or arguments required under 
Sec. 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 
Sec. 124.6;
    (2) Prepare a revised statement of basis under Sec. 124.7, a fact 
sheet or revised fact sheet under Sec. 124.8 and reopen the comment 
period under Sec. 124.14; or
    (3) Reopen or extend the comment period under Sec. 124.10 to give 
interested persons an opportunity to comment on the information or 
arguments submitted.
    (c) Comments filed during the reopened comment period shall be 
limited to the substantial new questions that caused its reopening. The 
public notice under Sec. 124.10 shall define the scope of the reopening.
    (d) For RCRA, UIC, or NPDES permits, the Regional Administrator may 
also, in the circumstances 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 
Sec. 124.10.

[48 FR 14264, Apr. 1, 1983, as amended at 49 FR 38051, Sept. 26, 1984]



Sec. 124.15  Issuance and effective date of permit.

    (a) After the close of the public comment period under Sec. 124.10 
on a draft permit, the Regional Administrator shall issue a final permit 
decision (or a decision to deny a permit for the active

[[Page 840]]

life of a RCRA hazardous waste management facility or unit under 
Sec. 270.29). The Regional Administrator shall notify the applicant and 
each person who has submitted written comments or requested notice of 
the final permit decision. This notice shall include reference to the 
procedures for appealing a decision on a RCRA, UIC, or PSD permit or for 
contesting a decision on an NPDES permit or a decision to terminate a 
RCRA permit. For the purposes of this section, a final permit decision 
means a final decision to issue, deny, modify, revoke and reissue, or 
terminate a permit.
    (b) A final permit decision (or a decision to deny a permit for the 
active life of a RCRA hazardous waste management facility or unit under 
Sec. 270.29) shall become effective 30 days after the service of notice 
of the decision unless:
    (1) A later effective date is specified in the decision; or
    (2) Review is requested under Sec. 124.19 (RCRA, UIC, and PSD 
permits) or an evidentiary hearing is requested under Sec. 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 become effective immediately upon issuance.

[48 FR 14264, Apr. 1, 1983, as amended at 54 FR 9607, Mar. 7, 1989]



Sec. 124.16  Stays of contested permit conditions.

    (a) Stays. (1) If a request for review of a RCRA or UIC permit under 
Sec. 124.19 or an NPDES permit under Sec. 124.74 or Sec. 124.114 is 
granted or if conditions of a RCRA or UIC permit are consolidated for 
reconsideration in an evidentiary hearing on an NPDES permit under 
Secs. 124.74, 124.82 or 124.114, the effect of the contested permit 
conditions shall be stayed and shall not be subject to judicial 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 injection 
well, new source, new discharger or a recommencing discharger, the 
applicant shall be without a permit for the proposed new facility, 
injection well, source or discharger pending final agency action. See 
also Sec. 124.60.
    (2) Uncontested conditions which are not severable 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 Administrator. All other 
provisions of the permit for the existing facility, injection well, or 
source shall remain 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 Sec. 124.19 of one 
permit may result in changes to another EPA-issued permit only when each 
of the permits involved has been appealed to the Administrator and he or 
she has accepted each appeal.
    (2) No stay of an EPA-issued RCRA, UIC, or NPDES permit shall be 
granted based on the staying of any State-issued permit except at the 
discretion of the Regional Administrator and only upon written request 
from the State Director.
    (c) Any facility or activity holding an existing permit must:
    (1) Comply with the conditions of that permit during any 
modification or revocation and reissuance proceeding under Sec. 124.5; 
and
    (2) To the extent conditions of any new permit are stayed under this 
section, comply with the conditions of the existing permit which 
correspond to the stayed conditions, unless compliance with the existing 
conditions would be technologically incompatible with compliance with 
other conditions of the new permit which have not been stayed.



Sec. 124.17  Response to comments.

    (a) (Applicable to State programs, see Secs. 123.25 (NPDES), 145.11 
(UIC), 233.26 (404), and 271.14 (RCRA).) At the time that any final 
permit decision is issued under Sec. 124.15, the Director shall issue a 
response to comments. States are only required 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 decision, and the reasons for the change; 
and

[[Page 841]]

    (2) Briefly describe and respond to all significant comments on the 
draft permit or the permit application (for section 404 permits only) 
raised during the public comment period, or during any hearing.
    (b) For EPA-issued permits, any documents cited in the response to 
comments shall be included in the administrative record for the final 
permit decision as defined in Sec. 124.18. If new points are raised or 
new material supplied during the public comment period, EPA may document 
its response to those matters by adding new materials to the 
administrative record.
    (c) (Applicable to State programs, see Secs. 123.25 (NPDES), 145.11 
(UIC), 233.26 (404), and 271.14 (RCRA).) The response to comments shall 
be available to the public.



Sec. 124.18  Administrative record for final permit when EPA is the permitting authority.

    (a) The Regional Administrator shall base final permit decisions 
under Sec. 124.15 on the administrative record defined in this section.
    (b) The administrative record for any final permit shall consist of 
the administrative record for the draft permit and:
    (1) All comments received during the public comment period provided 
under Sec. 124.10 (including any extension or reopening under 
Sec. 124.14);
    (2) The tape or transcript of any hearing(s) held under Sec. 124.12;
    (3) Any written materials submitted at such a hearing;
    (4) The response to comments required by Sec. 124.17 and any new 
material placed in the record under that section;
    (5) For NPDES new source permits only, final environmental impact 
statement and any supplement to the final EIS;
    (6) Other documents contained in the supporting file for the permit; 
and
    (7) The final permit.
    (c) The additional documents required under paragraph (b) of this 
section should be added to the record as soon as possible after their 
receipt or publication by the Agency. The record shall be complete on 
the date the final permit is issued.
    (d) This section applies to all final RCRA, UIC, PSD, and NPDES 
permits when the draft permit was subject to the administrative record 
requirements of Sec. 124.9 and to all NPDES permits when the draft 
permit was included in a public notice after October 12, 1979.
    (e) Material readily available at the issuing Regional Office, or 
published materials which are generally available and which are included 
in the administrative record under the standards of this section or of 
Sec. 124.17 (``Response to comments''), need not be physically included 
in the same file as the rest of the record as long as it is specifically 
referred to in the statement of basis or fact sheet or in the response 
to comments.



Sec. 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 Sec. 270.29 to deny a permit for the active life of 
a RCRA hazardous waste management facility or unit) has been issued 
under Sec. 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 permit decision. Any person 
who failed to file comments or failed to participate in the public 
hearing on the draft permit may petition for administrative review only 
to the extent of the changes from the draft to the final permit 
decision. The 30-day period within which a person may request review 
under this section begins with the service of notice of the Regional 
Administrator's action unless a later date is specified in that notice. 
The petition shall include a statement of the reasons supporting that 
review, including a demonstration that any issues being raised were 
raised during the public comment period (including any public hearing) 
to the extent required by these regulations and when appropriate, a 
showing that the condition in question is based on:
    (1) A finding of fact or conclusion of law which is clearly 
erroneous, or
    (2) An exercise of discretion or an important policy consideration 
which the

[[Page 842]]

Environmental Appeals 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 action.
    (c) Within a reasonable time following the filing of the petition 
for review, the Environmental Appeals Board shall issue an order 
granting or denying the petition for review. To the extent review is 
denied, the conditions of the final permit decision become final agency 
action. Public notice of any grant of review by the Environmental 
Appeals Board under paragraph (a) or (b) of this section shall be given 
as provided in Sec. 124.10. Public notice shall set forth a briefing 
schedule for the appeal 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 review.
    (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 relating to an NPDES permit 
issued to the same facility or activity upon concluding that:
    (1) The NPDES permit is likely to raise issues relevant to a 
decision of the RCRA or UIC appeals;
    (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 materially adversely affected by the 
deferral; or
    (ii) Any adverse effect is outweighed by the benefits likely to 
result from a consolidated decision 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 judicial review of the final agency action.
    (f)(1) For purposes of judicial review under the appropriate Act, 
final agency action occurs when a final RCRA, UIC, 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 issues notice to the 
parties that review has been denied;
    (ii) When the Environmental Appeals Board issues a decision on the 
merits of the appeal and the decision does not include a remand of the 
proceedings; or
    (iii) Upon the completion of remand proceedings if the proceedings 
are remanded, unless the Environmental Appeals Board's remand order 
specifically provides that appeal of the remand decision will be 
required to exhaust administrative remedies.
    (2) Notice of any final agency action regarding a PSD permit shall 
promptly be published in the 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 matters claimed to have been erroneously decided and the 
nature of the alleged errors. Motions for reconsideration under this 
provision shall be directed to, and decided by, the Environmental 
Appeals Board. Motions for reconsideration directed to the 
administrator, rather than to the Environmental Appeals Board, will not 
be considered, except in cases that the Environmental Appeals Board has 
referred to the Administrator pursuant to Sec. 124.2 and in which the 
Administrator has issued the final order. A motion for reconsideration 
shall not stay the effective date of the final order unless specifically 
so ordered by the Environmental Appeals Board.

[48 FR 14264, Apr. 1, 1983, as amended at 54 FR 9607, Mar. 7, 1989; 57 
FR 5335, Feb. 13, 1992]



Sec. 124.20  Computation of time.

    (a) Any time period scheduled to begin on the occurrence of an act 
or event shall begin on the day after the act or event.
    (b) Any time period scheduled to begin before the occurrence of an 
act or event shall be computed so that the 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.

[[Page 843]]

    (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.



Sec. 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.
    (b) All provisions of part 124 pertaining to the RCRA program will 
become effective on November 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 revised NPDES 
regulations which were promulgated on June 7, 1979. See 44 FR 32948. To 
the extent this part changes the revised NPDES permit regulations, those 
changes will take effect as to all permit 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, Secs. 124.9 
and 124.18 will apply to PSD permits for which draft permits were 
prepared after the effective date of these regulations.



        Subpart B--Specific Procedures Applicable to RCRA Permits

    Source: 60 FR 63431, Dec. 11, 1995, unless otherwise noted.



Sec. 124.31  Pre-application public meeting and notice.

    (a) Applicability. The requirements of this section shall apply to 
all RCRA part B applications seeking initial permits for hazardous waste 
management units over which EPA has permit issuance authority. The 
requirements of this section shall also apply to RCRA part B 
applications seeking 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 section 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 activities or post-
closure activities and corrective action at a facility.
    (b) Prior to the submission of a part B RCRA permit application for 
a facility, the applicant must hold at least one meeting with the public 
in order to solicit questions from the community and inform the 
community of proposed hazardous waste management activities. The 
applicant shall post a sign-in sheet or otherwise provide a voluntary 
opportunity 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 permitting 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

[[Page 844]]

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 equivalent jurisdictions, where the Director determines that 
such publication is necessary to inform the affected 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 applicant shall broadcast 
a notice, fulfilling the requirements in paragraph (d)(2) of this 
section, at least once on at least one local radio station or television 
station. The applicant may employ another medium with prior approval of 
the Director.
    (iv) A notice to the permitting agency. The applicant shall send a 
copy of the newspaper notice to the permitting agency and to the 
appropriate units of State and local government, in accordance with 
Sec. 124.10(c)(1)(x).
    (2) The notices required under paragraph (d)(1) of this section must 
include:
    (i) The date, time, and location of the meeting;
    (ii) A brief description of the purpose of the meeting;
    (iii) A brief description of the facility and proposed operations, 
including the address or a map (e.g., a sketched or copied street map) 
of the facility location;
    (iv) A statement encouraging people to contact the facility at least 
72 hours before the meeting if they need special access to participate 
in the meeting; and
    (v) The name, address, and telephone number of a contact person for 
the applicant.



Sec. 124.32  Public notice requirements at the application stage.

    (a) Applicability. The requirements of this section shall apply to 
all RCRA part B applications seeking initial permits for hazardous waste 
management units over which EPA has permit issuance authority. The 
requirements of this section shall also apply to RCRA part B 
applications seeking 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 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 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 
Sec. 124.10(c)(1)(ix), and notice to appropriate units of State and 
local government as set forth in Sec. 124.10(c)(1)(x), that a part B 
permit application has been submitted to the Agency and is available for 
review.
    (2) The notice shall be published within a reasonable period of time 
after the application is received by the Director. The notice must 
include:
    (i) The name and telephone number of the applicant's contact person;
    (ii) The name and telephone number of the permitting agency's 
contact office, and a mailing address to which information, opinions, 
and inquiries may be directed throughout the permit review process;
    (iii) An address to which people can write in order to be put on the 
facility mailing list;
    (iv) The location where copies of the permit application and any 
supporting documents can be viewed and copied;
    (v) A brief description of the facility and proposed operations, 
including the address or a map (e.g., a sketched or

[[Page 845]]

copied street map) of the facility location on the front page of the 
notice; and
    (vi) The date that the application was submitted.
    (c) Concurrent with the notice required under Sec. 124.32(b) of this 
subpart, the Director must place the permit application and any 
supporting documents in a location accessible to the public in the 
vicinity of the facility or at the permitting agency's office.



Sec. 124.33  Information repository.

    (a) Applicability. The requirements of this section apply to all 
applications seeking RCRA permits 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 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.
    (b) The Director may assess the need, on a case-by-case basis, for 
an information repository. When assessing the need for an information 
repository, the Director shall consider a variety of factors, including: 
the level of public interest; the type of facility; the presence of an 
existing repository; and the proximity to the nearest copy of the 
administrative record. If the Director determines, at any time after 
submittal of a permit application, that there is a need for a 
repository, then the Director shall notify the facility that it must 
establish and maintain an information repository. (See 40 CFR 270.30(m) 
for similar provisions relating to the information repository during the 
life of a permit).
    (c) The information repository shall contain all documents, reports, 
data, and information deemed necessary by the Director to fulfill the 
purposes for which the repository is established. The Director shall 
have the discretion to limit the contents of the repository.
    (d) The information repository shall be located and maintained at a 
site chosen by the facility. If the Director finds the site unsuitable 
for the purposes and persons for which it was established, due to 
problems with the location, hours of availability, access, or other 
relevant considerations, then the Director shall specify a more 
appropriate site.
    (e) The Director shall specify requirements for informing the public 
about the information repository. At a minimum, the Director shall 
require the facility to provide a written notice about the information 
repository to all individuals on the facility mailing list.
    (f) The facility owner/operator shall be responsible for maintaining 
and updating the repository with appropriate information throughout a 
time period specified by the Director. The Director may close the 
repository at his or her discretion, based on the factors in paragraph 
(b) of this section.



        Subpart C--Specific Procedures Applicable to PSD Permits



Sec. 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 Sec. 124.2, except when EPA has delegated 
authority to administer 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 
administrative officer of the delegate agency.
    Application means an application for a PSD permit.
    Appropriate Act and Regulations means the Clean Air Act and 
applicable regulations promulgated under it.
    Approved program means a State implementation 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 Sec. 124.4 means the 
person(s) responsible for issuing PSD permits under an approved program, 
or that person's delegated representative.
    Construction has the meaning given in 40 CFR 52.21.
    Director means the Regional Administrator.

[[Page 846]]

    Draft permit shall have the meaning set forth in Sec. 124.2.
    Facility or activity means a major PSD stationary 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 modification as defined in 40 
CFR 52.21.
    Major PSD stationary source means a major stationary source as 
defined in 40 CFR 52.21(b)(1).
    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, partnership, 
association, State, municipality, political subdivision of a State, and 
any agency, department, or instrumentality of the United States and any 
officer, agent or employee thereof.
    Regulated activity or activity subject to regulation means a major 
PSD stationary source or major PSD modification.
    Site means the land or water area upon which a major PSD stationary 
source or major PSD modification is physically located or conducted, 
including 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 Islands, Guam, and American Samoa and includes 
the Commonwealth of the Northern Mariana Islands.



Sec. 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 
modification the emissions from which would affect a Class I area to the 
Federal Land Manager, and the Federal official charged with direct 
responsibility for management of any lands within such area. The 
Regional Administrator shall provide such notice promptly after 
receiving the application.
    (b) Any demonstration which the Federal Land Manager wishes to 
present under 40 CFR 52.21(q)(3), and any variances sought by an owner 
or operator under Sec. 52.21(q)(4) shall be submitted in writing, 
together with any necessary supporting analysis, by the end of the 
public comment period under Sec. 124.10 or Sec. 124.118. (40 CFR 
52.21(q)(3) provides for denial of a PSD permit to a facility or 
activity when the Federal Land Manager demonstrates that its emissions 
would adversely affect a Class I area even though the applicable 
increments would not be exceeded. 40 CFR 52.21(q)(4) conversely 
authorizes EPA, with the concurrence of the Federal Land Manager and 
State responsible, to grant certain variances from the otherwise 
applicable emission limitations to a facility or activity 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 
decisions later made in proceedings under this part concerning that 
permit shall be consistent with the conditions of that variance.



       Subpart D--Specific Procedures Applicable to NPDES Permits



Sec. 124.51  Purpose and scope.

    (a) This subpart sets forth additional requirements and procedures 
for decisionmaking for the NPDES program.
    (b) Decisions on NPDES variance requests ordinarily will be made 
during the permit issuance process. Variances and other changes in 
permit conditions ordinarily will be decided through the same notice-
and-comment and hearing procedures as the basic permit.
    (c) As stated in 40 CFR 131.4, an Indian Tribe that meets the 
statutory criteria which authorize EPA to treat the Tribe in a manner 
similar to that in which it treats a State for purposes

[[Page 847]]

of the Water Quality Standards program is likewise qualified for such 
treatment for purposes of State certification of water quality standards 
pursuant to section 401(a)(1) of the Act and subpart D of this part.

[48 FR 14264, Apr. 1, 1983, as amended at 58 FR 67983, Dec. 22, 1993; 59 
FR 64343, Dec. 14, 1994]



Sec. 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 operations (Sec. 122.23), concentrated aquatic animal production 
facilities (Sec. l22.24), storm water discharges (Sec. 122.26), and 
certain other facilities covered by general permits (Sec. 122.28) that 
do not generally require an individual permit may be required to obtain 
an individual permit because of their contributions to water pollution.
    (b) Whenever the Regional Administrator decides that an individual 
permit is required under this section, except as provided in paragraph 
(c) of this section, the Regional Administrator shall notify the 
discharger in writing of that decision and the reasons for it, and shall 
send an application form with the notice. The discharger must apply for 
a permit under Sec. 122.21 within 60 days of notice, unless permission 
for a later date is granted by the Regional Administrator. The question 
whether the designation was proper will remain open for consideration 
during the public comment period under Sec. 124.11 or Sec. 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 discharge under this section (see 40 CFR 
122.26 (a)(1)(v), (c)(1)(v), and (g)(1)(i)), the Regional Administrator 
may require the discharger to submit a permit application or other 
information regarding the discharge under section 308 of the CWA. In 
requiring such information, the Regional Administrator shall notify the 
discharger in writing and shall send an application form with the 
notice. The discharger must apply for a permit under 40 CFR 122.26 
(a)(1)(v) and (c)(1)(v) within 60 days of notice or under 40 CFR 
122.26(g)(1)(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 public comment period under Sec. 124.11 or Sec. 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]



Sec. 124.53  State certification.

    (a) Under CWA section 401(a)(1), EPA may not issue a permit until a 
certification is granted or waived in accordance with that section by 
the State in which the discharge originates or will originate.
    (b) Applications received without a State certification shall be 
forwarded by the Regional Administrator to the certifying State agency 
with a request that certification be granted or denied.
    (c) If State certification has not been received by the time the 
draft permit is prepared, the Regional Administrator shall send the 
certifying State agency:
    (1) A copy of a draft permit;
    (2) A statement that EPA cannot issue or deny the permit until the 
certifying State agency has granted or denied certification under 
Sec. 124.55, or waived its right to certify; and
    (3) A statement that the State will be deemed to have waived its 
right to certify unless that right is exercised within a specified 
reasonable time not to exceed 60 days from the date the draft permit is 
mailed to the certifying State agency unless the Regional Administrator 
finds that unusual circumstances require a longer time.
    (d) State certification shall be granted or denied within the 
reasonable time specified under paragraph (c)(3) of this section. The 
State shall send a notice of its action, including a copy of any 
certification, to the applicant and the Regional Administrator.
    (e) State certification shall be in writing and shall include:
    (1) Conditions which are necessary to assure compliance with the 
applicable provisions of CWA sections 208(e), 301, 302, 303, 306, and 
307 and with appropriate requirements of State law;

[[Page 848]]

    (2) When the State certifies a draft permit instead of a permit 
application, any conditions more stringent than those in the draft 
permit which the State finds necessary to meet the requirements listed 
in paragraph (e)(1) of this section. For each more stringent condition, 
the certifying State agency shall cite the CWA or State law references 
upon which that condition is based. Failure to provide such a citation 
waives the right to certify with respect to that condition; and
    (3) A statement of the extent to which each condition of the draft 
permit can be made less stringent without violating the requirements of 
State law, including water quality standards. Failure to provide this 
statement for any condition waives the right to certify or object to any 
less stringent condition which may be established during the EPA permit 
issuance process.



Sec. 124.54  Special provisions for State certification and concurrence on applications for section 301(h) variances.

    (a) When an application for a permit incorporating a variance 
request under CWA section 301(h) is submitted to a State, the 
appropriate State official shall either:
    (1) Deny the request for the CWA section 301(h) variance (and so 
notify the applicant and EPA) and, if the State is an approved NPDES 
State and the permit is due for reissuance, process the permit 
application under normal procedures; or
    (2) Forward a certification meeting the requirements of Sec. 124.53 
to the Regional Administrator.
    (b) When EPA issues a tentative decision on the request for a 
variance under CWA section 301(h), and no certification has been 
received under paragraph (a) of this section, the Regional Administrator 
shall forward the tentative decision to the State in accordance with 
Sec. 124.53(b) specifying a reasonable time for State certification and 
concurrence. If the State fails to deny or grant certification and 
concurrence under paragraph (a) of this section within such reasonable 
time, certification shall be waived and the State shall be deemed to 
have concurred in the issuance of a CWA section 301(h) variance.
    (c) Any certification provided by a State under paragraph (a)(2) of 
this section shall constitute the State's concurrence (as required by 
section 301(h)) in the issuance of the permit incorporating a section 
301(h) variance subject to any conditions specified therein by the 
State. CWA section 301(h) certification and concurrence under this 
section will not be forwarded to the State by EPA for recertification 
after the permit issuance process; States must specify any conditions 
required by State law, including water quality standards, in the initial 
certification.



Sec. 124.55  Effect of State certification.

    (a) When certification is required under CWA section 401(a)(1) no 
final permit shall be issued:
    (1) If certification is denied, or
    (2) Unless the final permit incorporates the requirements specified 
in the certification under Sec. 124.53(d)(1) and (2).
    (b) If there is a change in the State law or regulation upon which a 
certification is based, or if a court of competent jurisdiction or 
appropriate State board or agency stays, vacates, or remands a 
certification, a State which has issued a certification under 
Sec. 124.53 may issue a modified certification or notice of waiver and 
forward it to EPA. If the modified certification is received before 
final agency action on the permit, the permit shall be consistent with 
the more stringent conditions which are based upon State law identified 
in such certification. If the certification or notice of waiver is 
received after final agency action on the permit, the Regional 
Administrator may modify the permit on request of the permittee only to 
the extent necessary to delete any conditions based on a condition in a 
certification invalidated by a court of competent jurisdiction or by an 
appropriate State board or agency.
    (c) A State may not condition or deny a certification on the grounds 
that State law allows a less stringent

[[Page 849]]

permit condition. The Regional Administrator shall disregard any such 
certification conditions, and shall consider those conditions or denials 
as waivers of certification.
    (d) A condition in a draft permit may be changed during agency 
review in any manner consistent with a certification meeting the 
requirements of Sec. 124.53(d). No such changes shall require EPA to 
submit the permit to the State for recertification.
    (e) Review and appeals of limitations and conditions attributable to 
State certification shall be made through the applicable procedures of 
the State and may not be made through the procedures in this part.
    (f) Nothing in this section shall affect EPA's obligation to comply 
with Sec. 122.47. See CWA section 301(b)(1)(C).



Sec. 124.56  Fact sheets.

    (Applicable to State programs, see Sec. 123.25 (NPDES).) In addition 
to meeting the requirements of Sec. 124.8, NPDES fact sheets shall 
contain the following:
    (a) Any calculations or other necessary explanation of the 
derivation of specific effluent limitations and conditions or standards 
for sewage sludge use or disposal, including a citation to the 
applicable effluent limitation guideline, performance standard, or 
standard for sewage sludge use or disposal as required by Sec. 122.44 
and reasons why they are applicable or an explanation of how the 
alternate effluent limitations were developed.
    (b)(1) When the draft permit contains any of the following 
conditions, an explanation of the reasons why such conditions are 
applicable:
    (i) Limitations to control toxic pollutants under Sec. 122.44(e);
    (ii) Limitations on internal waste streams under Sec. 122.45(i); or
    (iii) Limitations on indicator pollutants under Sec. 125.3(g).
    (iv) Limitations set on a case-by-case basis under Sec. 125.3 (c)(2) 
or (c)(3), or pursuant to Section 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 decision on regulation of users under Sec. 122.44(m).
    (c) When appropriate, a sketch or detailed description of the 
location of the discharge or regulated activity described in the 
application; and
    (d) For EPA-issued NPDES permits, the requirements of any State 
certification under Sec. 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]



Sec. 124.57  Public notice.

    (a) Section 316(a) requests (applicable to State programs, see 
Sec. 123.25). In addition to the information required under 
Sec. 124.10(d)(1), public notice of an NPDES draft permit for a 
discharge where a CWA section 316(a) request has been filed under 
Sec. 122.21(l) 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 
description, including a quantitative statement, of the thermal effluent 
limitations proposed under section 301 or 306;
    (2) A statement that a section 316(a) request has been filed and 
that alternative less stringent effluent limitations may be imposed on 
the thermal component of the discharge under section 316(a) and a brief 
description, including a quantitative statement, of the alternative 
effluent limitations, if any, included in the request; and
    (3) If the applicant has filed an early screening request under 
Sec. 125.72 for a section 316(a) variance, a statement that the 
applicant has submitted such a plan.
    (b) Evidentiary hearings under subpart E. In addition to the 
information required under Sec. 124.10(d)(2), public notice of a hearing 
under subpart E shall include:
    (1) Reference to any public hearing under Sec. 124.12 on the 
disputed permit;
    (2) Name and address of the person(s) requesting 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;

[[Page 850]]

    (ii) Any person seeking to be a party may, subject to the 
requirements of Sec. 124.76, propose material 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 request 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 required under Sec. 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 decision 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 Sec. 124.117; and
    (iv) The due date for filing comments under Sec. 124.118.

[48 FR 14264, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985]



Sec. 124.58  [Reserved]



Sec. 124.59  Conditions requested by the Corps of Engineers and other government agencies.

    (Applicable to State programs, see Sec. 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 
navigation of any of the waters of the United States would be 
substantially impaired by the granting of a permit, the permit shall be 
denied and the applicant so notified. If the District Engineer advised 
the Director that imposing specified conditions upon the permit is 
necessary to avoid any substantial impairment of anchorage or 
navigation, then the Director shall include the specified conditions in 
the permit. Review or appeal of denial of a permit or of conditions 
specified by the District Engineer shall be made through the applicable 
procedures of the Corps of Engineers, and may not be made through the 
procedures provided in this part. If the conditions are stayed by a 
court of competent jurisdiction or by applicable procedures of the Corps 
of Engineers, those conditions shall be considered stayed in the NPDES 
permit for the duration of that stay.
    (b) If during the comment period the U.S. Fish and Wildlife Service, 
the National Marine Fisheries Service, or any other State or Federal 
agency with jurisdiction over fish, wildlife, or public health advises 
the Director in writing that the imposition of specified conditions upon 
the permit is necessary to avoid substantial impairment of fish, 
shellfish, or wildlife resources, the Director may include the specified 
conditions in the permit to the extent they are determined necessary to 
carry out the provisions of Sec. 122.49 and of the CWA.
    (c) In appropriate cases the Director may consult with one or more 
of the agencies referred to in this section before issuing a draft 
permit and may reflect their views in the statement of basis, the fact 
sheet, or the draft permit.

[48 FR 14264, Apr. 1, 1983, as amended at 54 FR 258, Jan. 4, 1989]



Sec. 124.60  Issuance and effective date and stays of NPDES permits.

    In addition to the requirements of Sec. 124.15, the following 
provisions apply to NPDES permits and to RCRA or UIC permits to the 
extent those permits may have been consolidated with an NPDES permit in 
a formal hearing:
    (a)(1) If a request for a formal hearing is granted under 
Sec. 124.75 or Sec. 124.114 regarding the initial permit issued for a 
new source, a new discharger, or a recommencing discharger, or if a 
petition 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 
Sec. 124.91, the applicant shall be without a permit pending final 
Agency action under Sec. 124.91.

[[Page 851]]

    (2) Whenever a source or facility subject to this paragraph or to 
paragraph (c)(7) of this section has received a final permit under 
Sec. 124.15 which is the subject of a hearing request under Sec. 124.74 
or a formal hearing under Sec. 124.75, the Presiding Officer, 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 operations) 
if it complies with all uncontested conditions of the final permit and 
all other appropriate conditions imposed by the Presiding Officer during 
the period until final agency action. The motion 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 operating 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 action is in the public interest.
    (3) For RCRA only, no order under paragraph (a)(2) may authorize a 
facility to commence construction if any party has challenged a 
construction-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 
permit and prepare a new draft permit under Sec. 124.6 addressing the 
portions so withdrawn. The new draft permit shall proceed through the 
same process of public comment and opportunity for a public hearing as 
would apply to any other draft permit subject to this part. Any portions 
of the permit which are not withdrawn and which are not stayed under 
this section shall remain in effect.
    (c)(1) If a request for a formal hearing is granted in whole or in 
part under Sec. 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 
Sec. 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 Sec. 124.75, the discharger and all parties of the 
uncontested conditions of the final permit that are enforceable 
obligations of the discharger.
    (2) When effluent limitations are contested, but the underlying 
control technology is not, the notice shall identify the installation of 
the technology in accordance with the permit compliance schedules (if 
uncontested) as an uncontested, enforceable obligation of the permit.
    (3) When a combination of technologies is contested, but a portion 
of the combination is not contested, that portion shall be identified as 
uncontested if compatible with the combination of technologies proposed 
by the requester.
    (4) Uncontested conditions, if inseverable from a contested 
condition, shall be considered contested.
    (5) Uncontested conditions shall become enforceable 30 days after 
the date of notice under paragraph (c)(1) of this section granting the 
request. If, however, a request for a formal hearing on a condition was 
denied and the denial is appealed under Sec. 124.91, then that condition 
shall become enforceable upon the date of the notice of the 
Administrator's decision on the appeal if the denial is affirmed, or 
shall be stayed, in accordance with this section, if the Administrator 
reverses the denial and grants the evidentiary hearing.
    (6) Uncontested conditions shall include:
    (i) Preliminary design and engineering studies or other requirements 
necessary to achieve the final permit conditions which do not entail 
substantial expenditures;
    (ii) Permit conditions which will have to be met regardless of which 
party prevails at the evidentiary hearing;
    (iii) When the discharger proposed a less stringent level of 
treatment than that contained in the final permit, any permit conditions 
appropriate to meet

[[Page 852]]

the levels proposed by the discharger, if the measures required to 
attain that less stringent level of treatment are consistent with the 
measures required to attain the limits proposed by any other party; and
    (iv) Construction activities, such as segregation of waste streams 
or installation of equipment, which would partially meet the final 
permit conditions and could also be used to achieve the discharger's 
proposed alternative conditions.
    (7) If for any offshore or coastal mobile exploratory drilling rig 
or coastal mobile developmental drilling rig which has never received a 
finally effective permit to discharge at a ``site,'' but which is not a 
``new discharger'' or a ``new source,'' the Regional Administrator finds 
that compliance with certain permit conditions may be necessary to avoid 
irreparable environmental harm during the administrative review, he may 
specify in the statement of basis or fact sheet that those conditions, 
even if contested, shall remain enforceable obligations of the 
discharger during administrative review 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)(1) 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 Sec. 124.75 on an 
application for a renewal of an existing permit, all provisions of the 
existing permit as well as uncontested provisions of the new permit, 
shall continue fully enforceable and effective until final agency action 
under Sec. 124.91. (See Sec. 122.6) Upon written request from the 
applicant, the Regional Administrator may delete requirements from the 
existing permit which unnecessarily duplicate uncontested provisions of 
the new permit.
    (f) When issuing a finally effective NPDES permit 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 statutory deadline; or
    (2) Cause the permit to expire more than 5 years after issuance 
under Sec. 124.15(a).

    Note: Extensions of compliance schedules under Sec. 124.60(f)(2) 
will not automatically be granted for a period equal to the period the 
stay is in effect for an effluent limitation. For example, if both the 
Agency and the discharger agree that a certain treatment technology is 
required 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 extends 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 requirements 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 
exhausted its administrative remedies under subparts E and F and 
Sec. 124.91. Any party which neglects or fails to seek review under 
Sec. 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 Recovery Act (42 U.S.C. 6901 et seq.))

[48 FR 14264, Apr. 1, 1983, as amended at 48 FR 39620, Sept. 1, 1983]



Sec. 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.

[[Page 853]]



Sec. 124.62  Decision on variances.

    (Applicable to State programs, see Sec. 123.25 (NPDES).)
    (a) The Director may grant or deny requests for the following 
variances (subject to EPA objection under Sec. 123.44 for State 
permits):
    (1) Extensions under CWA section 301(i) based on delay in completion 
of a publicly owned treatment works;
    (2) After consultation with the Regional Administrator, extensions 
under CWA section 301(k) based on the use of innovative technology; or
    (3) Variances under CWA section 316(a) for thermal pollution.
    (b) The State Director may deny, or forward to the Regional 
Administrator with a written concurrence, or submit to EPA without 
recommendation a completed request for:
    (1) A variance based on the economic capability of the applicant 
under CWA section 301(c); or
    (2) A variance based on water quality related effluent limitations 
under CWA section 302(b)(2).
    (c) The Regional Administrator may deny, forward, or submit to the 
EPA Office Director for Water Enforcement and Permits with a 
recommendation for approval, a request for a variance listed in 
paragraph (b) of this section that is forwarded by the State Director, 
or that is submitted to the Regional Administrator by the requester 
where EPA is the permitting authority.
    (d) The EPA Office Director for Water Enforcement and Permits may 
approve or deny any variance request submitted under paragraph (c) of 
this section. If the Office Director approves the variance, the Director 
may prepare a draft permit incorporating the variance. Any public notice 
of a draft permit for which a variance or modification has been approved 
or denied shall identify the applicable procedures for appealing that 
decision under Sec. 124.64.
    (e) The State Director may deny or forward to the Administrator (or 
his delegate) with a written concurrence a completed request for:
    (1) A variance based on the presence of ``fundamentally different 
factors'' from those on which an effluent limitations guideline was 
based;
    (2) A variance based upon certain water quality factors under CWA 
section 301(g).
    (f) The Administrator (or his delegate) may grant or deny a request 
for a variance listed in paragraph (e) of this section that is forwarded 
by the State Director, or that is submitted to EPA by the requester 
where EPA is the permitting authority. If the Administrator (or his 
delegate) approves the variance, the State Director or Regional 
Administrator may prepare a draft permit incorporating the variance. Any 
public notice of a draft permit for which a variance or modification has 
been approved or denied shall identify the applicable procedures for 
appealing that decision under Sec. 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]



Sec. 124.63  Procedures for variances when EPA is the permitting authority.

    (a) In States where EPA is the permit issuing authority and a 
request for a variance is filed as required by Sec. 122.21, the request 
shall be processed as follows:
    (1)(i) If, at the time, that a request for a variance based on the 
presence of fundamentally different factors or on section 301(g) of the 
CWA is submitted, the Regional Administrator has received an application 
under Sec. 124.3 for issuance or renewal of that permit, but has not yet 
prepared a draft permit under Sec. 124.6 covering the discharge in 
question, the Administrator (or his delegate) shall give notice of a 
tentative decision on the request at the time the notice of the draft 
permit is prepared as specified in Sec. 124.10, unless this would 
significantly delay the processing of the permit. In that case the 
processing of the variance request may be separated from the permit in 
accordance with paragraph (a)(3) of this section, and the processing of 
the permit shall proceed without delay.
    (ii) If, at the time, that a request for a variance under sections 
301(c) or 302(b)(2) of the CWA is submitted, the Regional Administrator 
has received an application under Sec. 124.3 for issuance or renewal of 
that permit, but has not yet prepared a draft permit under

[[Page 854]]

Sec. 124.6 covering the discharge in question, the Regional 
Administrator, after obtaining any necessary concurrence of the EPA 
Deputy Assistant Administrator for Water Enforcement under Sec. 124.62, 
shall give notice of a tentative decision on the request at the time the 
notice of the draft permit is prepared as specified in Sec. 124.10, 
unless this would significantly delay the processing of the permit. In 
that case the processing of the variance request may be separated from 
the permit in accordance with paragraph (a)(3) of this section, and the 
processing of the permit shall proceed without delay.
    (2) If, at the time that a request for a variance is filed the 
Regional Administrator has given notice under Sec. 124.10 of a draft 
permit covering the discharge in question, but that permit has not yet 
become final, administrative proceedings concerning that permit may be 
stayed and the Regional Administrator shall prepare a new draft permit 
including a tentative decision on the request, and the fact sheet 
required by Sec. 124.8. However, if this will significantly delay the 
processing of the existing draft permit or the Regional Administrator, 
for other reasons, considers combining the variance request and the 
existing draft permit 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.
    (3) If the permit has become final and no application under 
Sec. 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 Sec. 124.10. This draft permit shall 
be accompanied by the fact sheet required by Sec. 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]



Sec. 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 challenging the same 
issues in both proceedings, the Regional Administrator will decide, in 
consultation with State officials, which case will be heard first.
    (b) Variance decisions made by EPA may be appealed under 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 subpart E while the variance decision is 
eligible only for a panel hearing under subpart F, the issues relating 
to both the basic permit decision and the variance decision shall be 
considered in the subpart E proceeding. No subpart F hearing may be held 
if a subpart E hearing would be held in addition. See Sec. 124.111(b).
    (c) Stays for section 301(g) variances. If a request 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 Sec. 124.91, any otherwise applicable standards 
and limitations under CWA section 301 shall not be stayed unless:
    (1) In the judgment of the Regional Administrator, the stay or the 
variance sought will not result in the discharge of pollutants in 
quantities which may reasonably be anticipated to pose an unacceptable 
risk to human health or the environment because of bioaccumulation, 
persistency in the environment, acute toxicity, chronic toxicity, or 
synergistic propensities; and
    (2) In the judgment of the Regional Administrator, there is a 
substantial likelihood that the discharger will succeed on the merits of 
its appeal; and
    (3) The discharger files a bond or other appropriate security which 
is required by the Regional Administrator to assure timely compliance 
with the requirements from which a variance is sought in the event that 
the appeal is unsuccessful.
    (d) Stays for variances other than section 301(g) are governed by 
Sec. 124.60.

[[Page 855]]



Sec. 124.65  [Reserved]



Sec. 124.66  Special procedures for decisions on thermal variances under section 316(a).

    (a) Except as provided in Sec. 124.65, the only issues connected 
with issuance of a particular permit on which EPA will make a final 
Agency decision before the final permit is issued under Secs. 124.15 and 
124.60 are whether alternative effluent limitations would be justified 
under CWA section 316(a) and whether cooling water intake structures 
will use the best available technology under section 316(b). Permit 
applicants who wish an early decision on these issues should request it 
and furnish supporting reasons at the time their permit applications are 
filed under Sec. 122.21. The Regional Administrator will then decide 
whether or not to make an early decision. If it is granted, both the 
early decision on CWA section 316 (a) or (b) issues and the grant of the 
balance of the permit shall be considered permit issuance under these 
regulations, and shall be subject to the same requirements of public 
notice and comment and the same opportunity for an evidentiary or panel 
hearing under subpart E or F.
    (b) If the Regional Administrator, on review of the administrative 
record, determines that the information necessary to decide whether or 
not the CWA section 316(a) issue is not likely to be available in time 
for a decision on permit issuance, the Regional Administrator may issue 
a permit under Sec. 124.15 for a term up to 5 years. This permit shall 
require achievement of the effluent limitations initially proposed for 
the thermal component of the discharge no later than the date otherwise 
required by law. However, the permit shall also afford the permittee an 
opportunity to file a demonstration under CWA section 316(a) after 
conducting such studies as are required under 40 CFR part 125, subpart 
H. A new discharger may not exceed the thermal effluent limitation which 
is initially 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 Sec. 124.10 and shall be conducted at a 
time allowing the permittee to take necessary measures to meet the final 
compliance date in the event its request for modification of thermal 
limits is denied.
    (d) Whenever the Regional Administrator defers the decision under 
CWA section 316(a), any decision under section 316(b) may be deferred.



  Subpart E--Evidentiary Hearings for EPA-Issued NPDES Permits and EPA-
                         Terminated RCRA Permits



Sec. 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 permit. 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 Sec. 124.15 
except for a general permit. Persons affected by a general permit may 
not challenge the conditions of a general permit as of right in further 
agency proceedings. They may instead either challenge the general permit 
in court, or apply for an individual NPDES permit under Sec. 122.21 as 
authorized in Sec. 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 Sec. 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 
Sec. 124.74(b)(2). Any interested person may challenge the Regional 
Administrator's initial new source determination by requesting an

[[Page 856]]

evidentiary hearing under this part. See Sec. 122.29.
    (c) PSD permits may never be subject to an evidentiary 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]



Sec. 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 Sec. 1.25 of this title. The Administrator delegates 
authority to the Environmental Appeals Board to issue final decisions in 
NPDES appeals filed under this subpart. An appeal directed to the 
Administrator, rather than to the Environmental Appeals Board, will not 
be considered. This delegation does not preclude the Environmental 
Appeals Board from referring an appeal or a motion to the Administrator 
when the Environmental Appeals Board, in its discretion, 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 Administrator.
    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 Sec. 124.78 and any person 
whose request for a hearing under Sec. 124.74 or whose request to be 
admitted as a party or to intervene under Sec. 124.79 or Sec. 124.117 
has been granted.
    Presiding Officer for the purposes of this subpart means an 
Administrative Law Judge appointed under 5 U.S.C. 3105 and designated to 
preside at the hearing. Under subpart F other persons may also serve as 
hearing officers. See Sec. 124.119.
    Regional Hearing Clerk means an employee of the Agency designated by 
a Regional Administrator 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]



Sec. 124.73  Filing and submission of documents.

    (a) All submissions authorized or required to be filed with the 
Agency under this subpart shall be filed with the Regional Hearing 
Clerk, unless otherwise 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 person making the 
submission, or by an attorney or other authorized agent or 
representative.
    (c)(1) 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 Federal statutes and regulations, judicial decisions 
published in a national reporter system, officially issued EPA documents 
of general applicability, and any other generally available reference 
material which may be incorporated by reference. Any party incorporating 
materials by reference shall provide copies upon request by the Regional 
Administrator or the Presiding Officer.
    (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 complete and accurate, together with the name, address, 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 contained 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 subpart may result in the noncomplying 
portions of the

[[Page 857]]

submission being excluded from consideration. If the Regional 
Administrator or the Presiding Officer, on motion by any party or sua 
sponte, determines that a submission fails to meet any requirement 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 requirements 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 information shall be signed in ink and shall 
state the name, address, and the representative capacity of the person 
making the submission.



Sec. 124.74  Requests for evidentiary hearing.

    (a) Within 30 days following the service of notice of the Regional 
Administrator's final permit decision under Sec. 124.15, any interested 
person may submit a request to the Regional Administrator under 
paragraph (b) of this section for an evidentiary hearing to reconsider 
or contest that decision. If such a request is submitted by a person 
other than the permittee, the person shall simultaneously serve a copy 
of the request on the permittee.
    (b)(1) In accordance with Sec. 124.76, such requests shall state 
each legal or factual question alleged to be at issue, and their 
relevance to the permit decision, together with a designation of the 
specific factual areas to be adjudicated and the hearing time estimated 
to be necessary for adjudication. Information supporting the request or 
other written documents relied upon to support the request shall be 
submitted as required by Sec. 124.73 unless they are already part of the 
administrative record required by Sec. 124.18.

    Note: This paragraph allows the submission of requests 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 
required to deny the request. However, on review of the denial the 
Environmental Appeals Board is authorized by Sec. 124.91(a)(1) 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 
Environmental 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 request an evidentiary hearing on a RCRA or 
UIC permit, PSD permits may never be made part of an evidentiary hearing 
under subpart E. This request is subject to all the requirements of 
paragraph (b)(1) 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 Sec. 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 modification 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 Administrator 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 motion of any party 
granted by the Presiding Officer, or upon order of the Presiding Officer 
sua sponte

[[Page 858]]

without cost or expense to any other party, the requester 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, consultants, and agents of 
the requester and the persons represented by the requester.
    (5) Specific references to the contested permit conditions, as well 
as suggested revised or alternative 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 requirements 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 Sec. 124.111.
    (d) If the Regional Administrator grants an evidentiary hearing 
request, in whole or in part, the Regional Administrator shall identify 
the permit conditions which have been contested by the requester and for 
which the evidentiary hearing has been granted. Permit conditions which 
are not contested or for which the Regional Administrator has denied the 
hearing request shall not be affected by, or considered at, the 
evidentiary hearing. The Regional Administrator shall specify these 
conditions in writing in accordance with Sec. 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 requests) may extend the time allowed for 
submitting hearing requests under this section for good cause.

[48 FR 14264, Apr. 1, 1983, as amended at 57 FR 5336, Feb. 13, 1992]



Sec. 124.75  Decision on request for a hearing.

    (a)(1) Within 30 days following the expiration of the time allowed 
by Sec. 124.74 for submitting an evidentiary hearing request, the 
Regional Administrator shall decide the extent to which, if at all, the 
request shall be granted, provided that the request conforms to the 
requirements of Sec. 124.74, and sets forth material issues of fact 
relevant to the issuance of the permit.
    (2) When an NPDES permit for which a hearing request has been 
granted constitutes ``initial licensing'' under Sec. 124.111, the 
Regional Administrator may elect to hold a formal hearing under the 
procedures of subpart F rather than under the procedures of this subpart 
even if no person has requested that subpart F be applied. If the 
Regional Administrator makes such a decision, he or she shall issue a 
notice of hearing under Sec. 124.116. All subsequent proceedings shall 
then be governed by Secs. 124.117 through 124.121, except that any 
reference to a draft permit shall mean the final permit.
    (3) Whenever the Regional Administrator grants a request made under 
Sec. 124.74(c)(8) for a formal hearing under subpart F on an NPDES 
permit that does not constitute an initial license under Sec. 124.111, 
the Regional Administrator shall issue a notice of hearing under 
Sec. 124.116 including a statement that the permit will be processed 
under the procedures of subpart F unless a written objection is received 
within 30 days. If no valid objection is received, the application shall 
be processed in accordance with Secs. 124.117 through 124.121, except 
that any reference to a draft permit shall mean the final permit. If a 
valid objection is received, this subpart shall be applied instead.

[[Page 859]]

    (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 Sec. 124.91.

[48 FR 14264, Apr. 1, 1983, as amended at 57 FR 5336, Feb. 13, 1992]



Sec. 124.76  Obligation to submit evidence and raise issues before a final permit is issued.

    In any case where the Regional Administrator elected to apply the 
requirements of Sec. 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 Sec. 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 administrative record required by Sec. 124.18 as 
part of the preparation of and comment on a draft permit unless 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 reasonably have ascertained the 
issues or made the information available within the time required by 
Sec. 124.15; or that it could not have reasonably anticipated the 
relevance or materiality of the information sought to be introduced. 
Good cause exists for the introduction of data available on operation 
authorized under Sec. 124.60(a)(2).

[49 FR 38051, Sept. 26, 1984]



Sec. 124.77  Notice of hearing.

    Public notice of the grant of an evidentiary hearing regarding a 
permit shall be given as provided in Sec. 124.57(b) and by mailing a 
copy to all persons who commented on the draft permit, testified 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 
Sec. 124.78).



Sec. 124.78  Ex parte communications.

    (a) For purposes of this section, the following definitions shall 
apply:
    (1) Agency trial staff means those Agency employees, whether 
temporary or permanent, who have been designated by the Agency under 
Sec. 124.77 or Sec. 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 employee, 
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 
subject of the hearing, shall be designated as a member of the Agency 
trial staff;
    (2) Decisional body means any Agency employee who is or may 
reasonably be expected to be involved in the decisional process of the 
proceeding 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, whether or not permanently 
employed by the Agency;
    (3) Ex parte communication means any communication, written or oral, 
relating to the merits of the proceeding between the decisional body and 
an interested person outside the Agency or the Agency trial staff which 
was not originally filed or stated 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, if all parties have received prior 
written notice of the proposed communications and have been given the 
opportunity to be present and participate therein.

[[Page 860]]

    (4) Interested person outside the Agency includes the permit 
applicant, any person who filed written comments in the proceeding, any 
person who requested the hearing, any person who requested to 
participate or intervene in the hearing, any participant in the hearing 
and any other interested person not employed by the Agency at the time 
of the communications, and any attorney of record for those persons.
    (b)(1) 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 interested 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 receives or who makes or who 
knowingly causes to be made a communication prohibited by this 
subsection 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 decisionmaking 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 dismissed, denied, disregarded, or otherwise adversely 
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 Sec. 124.77 or Sec. 124.116. 
This prohibition 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]



Sec. 124.79  Additional parties and issues.

    (a) Any person may submit a request to be admitted 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 
Secs. 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 Secs. 124.74 and 124.76 
and set forth the grounds for the proposed intervention. No factual or 
legal issues, besides those raised by timely hearing requests, may be 
proposed except for good cause. A motion for leave to intervene must 
also contain a verified statement showing good cause for the failure 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 proceedings; and
    (3) Intervention will not cause undue delay or prejudice the rights 
of the existing parties.



Sec. 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 Presiding 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

[[Page 861]]

the name, service address, and telephone number of all parties and their 
attorneys or duly authorized representatives to any person upon request.



Sec. 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 Administrator 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.



Sec. 124.82  Consolidation and severance.

    (a) The Administrator, Regional Administrator, or Presiding Officer 
has the discretion to consolidate, 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 consolidation is not 
conducive to an expeditious, full, and fair hearing, any party or issues 
may be severed and heard in a separate proceeding.



Sec. 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 appear at a specified time and place for one or more 
conferences before or during a hearing, or to submit written proposals 
or correspond for the purpose of considering any of the matters set 
forth in paragraph (c) of this section.
    (b) The Presiding Officer shall allow a reasonable period before the 
hearing begins for the orderly completion of all prehearing procedures 
and for the submission and disposition of all prehearing motions. Where 
the circumstances warrant, the Presiding Officer may call a prehearing 
conference to inquire into the use of available procedures contemplated 
by the parties and the time required for their completion, to establish 
a schedule for their completion, and to set a tentative date for 
beginning the hearing.
    (c) In conferences held, or in suggestions submitted, under 
paragraph (a) of this section, the following 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, documents, papers, exhibits, or other submissions 
proposed by a party, except that the administrative record required by 
Sec. 124.19 shall be received in evidence subject to the provisions of 
Sec. 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 Officer:
    (i) Submission of narrative statements of position on each factual 
issue in controversy;
    (ii) Submission of written testimony and documentary evidence (e.g., 
affidavits, data, studies, reports, and any other type of written 
material) in support of those statements; or
    (iii) Requests by any party for the production of additional 
documentation, data, or other information 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

[[Page 862]]

Officer, a party may include a brief narrative summary of any witness's 
anticipated testimony. Copies of any written testimony, documents, 
papers, exhibits, or materials which a party expects to introduce into 
evidence, and the administrative record required by Sec. 124.18 shall be 
marked for identification as ordered by the Presiding Officer. 
Witnesses, proposed written testimony, and other evidence may be added 
or amended upon order of the Presiding Officer for good cause shown. 
Agency employees and consultants shall be made available as witnesses by 
the Agency to the same extent that production of such witnesses is 
required of other parties under Sec. 124.74(c)(4). (See also 
Sec. 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 schedule 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 parties in connection therewith. This order 
shall control the subsequent course of the hearing unless modified by 
the Presiding Officer for good cause shown.



Sec. 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 
subject to consideration by the Presiding Officer, that there is a 
genuine issue of material fact for determination at the hearing.
    (c) Affidavits shall be made on personal knowledge, 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 proposed findings, conclusions, briefs, or 
memoranda of law. The Presiding Officer shall rule on the motion not 
more than 30 days after the date responses 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 Presiding Officer shall prepare an initial 
decision under Sec. 124.89. If summary determination is denied or if 
partial summary determination is granted, the Presiding Officer shall 
issue a memorandum opinion and order, interlocutory in character, and 
the hearing will proceed on the remaining issues. Appeals from 
interlocutory rulings are governed by Sec. 124.90.
    (f) Should it appear from the affidavits of a party opposing a 
motion for summary determination 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.



Sec. 124.85  Hearing procedure.

    (a)(1) The permit applicant always bears the burden of persuading 
the Agency that a permit authorizing pollutants to be discharged should 
be issued 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 statement of basis and the 
response to comments, should adequately discharge this burden.

    (2) The Agency has the burden of going forward to present an 
affirmative

[[Page 863]]

case in support of any challenged condition of a final permit.
    (3) Any hearing participant who, by raising material issues of fact, 
contends:
    (i) That particular conditions or requirements in the permit are 
improper or invalid, and who desires either:
    (A) The inclusion of new or different conditions or requirements; or
    (B) The deletion of those conditions or requirements; or
    (ii) That the denial or issuance of a permit is otherwise improper 
or invalid, shall have the burden 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 unnecessary delay in the disposition of 
the proceedings, and maintain order. For these purposes, the Presiding 
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, determine, 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 govern the conduct of 
participants;
    (7) Examine witnesses;
    (8) Identify and refer issues for interlocutory decision under 
Sec. 124.90;
    (9) Rule on, admit, exclude, or limit evidence;
    (10) Establish the time for filing motions, testimony, and other 
written evidence, briefs, findings, and other submissions;
    (11) Rule on motions and other procedural matters pending before 
him, including but not limited to motions for summary determination in 
accordance with Sec. 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 witnesses to be heard 
simultaneously or for such witnesses to meet outside the hearing to 
resolve or isolate issues or conflicts;
    (15) Order that trade secrets be treated as confidential business 
information in accordance with Secs. 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 
questions of policy except 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 an evidentiary hearing. 
No Agency witnesses shall be required to testify or be made available 
for cross-examination on such matters. In deciding whether or not to 
allow cross-examination, the Presiding Officer shall consider the 
likelihood of clarifying or resolving a disputed issue of material fact 
compared to other available methods. The party seeking cross-examination 
has the burden of demonstrating that this standard has been met.
    (c) All direct and rebuttal evidence at an evidentiary hearing shall 
be submitted in written form, unless, upon motion and good cause shown, 
the Presiding Officer determines that oral presentation 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)(1) The Presiding Officer shall admit all relevant, competent, 
and material evidence, except evidence that is unduly repetitious. 
Evidence may be received at any hearing even though

[[Page 864]]

inadmissible under the rules of evidence applicable to judicial 
proceedings. The weight to be given evidence shall be determined by its 
reliability and probative value.
    (2) The administrative record required by Sec. 124.18 shall be 
admitted and received in evidence. 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 Sec. 124.85(b)(3) have been met, 
shall direct the appropriate party to produce the witness for cross-
examination. If a sponsoring witness cannot be provided, the Presiding 
Officer may reduce the weight accorded the appropriate portion of the 
record.

    Note: Receiving the administrative record into evidence 
automatically serves several purposes: (1) It documents 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 excluded 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 Officer 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 relevant to matters 
not adequately covered by previous cross-examination.
    (5) Rulings of the Presiding Officer on the admissibility of 
evidence or testimony, the propriety of cross-examination, and other 
procedural matters shall appear in the record and shall control further 
proceedings, unless reversed as a result of an interlocutory appeal 
taken under Sec. 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 impacts. If a hearing is 
granted under this subpart for a new source subject to NEPA, the 
Presiding Officer may admit evidence relevant to any environmental 
impacts of the permitted facility if the evidence would be relevant to 
the Agency's obligation under Sec. 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 Protection, 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 management 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 relevant 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]



Sec. 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 relating to the proceeding. All motions shall be in writing and 
served as provided in Sec. 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 response to the motion. The time for response 
may be shortened to 3 days or extended for an additional 10 days by the 
Presiding Officer for good cause shown.
    (c) Notwithstanding Sec. 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 issuance of 
the permit under Sec. 124.15.

[[Page 865]]

The Presiding Officer shall grant any motion to apply a new statutory 
provision unless he or she finds it contrary to legislative intent. The 
Presiding Officer may grant a motion to apply a new regulatory 
requirement when appropriate to carry out the purpose of CWA, and when 
no party would be unduly prejudiced thereby.



Sec. 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 material 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 Secs. 122.7 
(NPDES) and 270.12 (RCRA), in the Office of the Regional Hearing Clerk, 
as soon as it is received in that office.
    (b) Evidentiary hearings shall be either stenographically 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 evidence at the hearing.
    (c) The Regional Hearing Clerk shall promptly notify each of the 
parties of the filing of the certified transcript of proceedings. Any 
party who desires 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, pointing out 
errors that may have been made in transcribing the testimony, as are 
required to make the transcript conform to the testimony. Except in 
unusual cases, no more than 30 days shall be allowed for submitting such 
corrections from the day a complete transcript of the hearing becomes 
available.



Sec. 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 Hearing Clerk proposed findings of fact and 
conclusions 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.



Sec. 124.89  Decisions.

    (a) The Presiding Officer shall review and evaluate the record, 
including the proposed findings and conclusions, any briefs filed by the 
parties, and any interlocutory decisions under Sec. 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 counsel 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 Sec. 124.91; or
    (2) The Environmental Appeals Board sua sponte files a notice that 
it will review the decision pursuant to Sec. 124.91.

[48 FR 14264, Apr. 1, 1983, as amended at 57 FR 5336, Feb. 13, 1992]



Sec. 124.90  Interlocutory appeal.

    (a) Except as provided in this section, appeals to the Environmental 
Appeals Board may be taken only under Sec. 124.91. Appeals from orders 
or rulings may be taken under this section only if the Presiding 
Officer, upon motion of a party, certifies those orders or rulings to 
the Environmental Appeals 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.

[[Page 866]]

    (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 completion 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 Appeals Board shall accept or decline all interlocutory 
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 review 
would not be in the public interest. Such motion shall be made within 5 
days after receipt of notification that the Presiding Officer has 
refused to certify an order or ruling for interlocutory appeal to the 
Environmental Appeals Board. Ordinarily, 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 decision 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 Sec. 124.91.

[48 FR 14264, Apr. 1, 1983, as amended at 57 FR 5336, Feb. 13, 1992]



Sec. 124.91  Appeal to the Administrator.

    (a)(1) Within 30 days after service of an initial decision, or a 
denial in whole or in part of a request for an evidentiary hearing, any 
party or requester, as the case may be, may appeal any matter 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 
Environmental Appeals Board notice of appeal and petition for review. 
The petition shall include a statement of the supporting reasons and, 
when appropriate, 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)(1) 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 denial of a request for 
an evidentiary hearing, the Environmental Appeals Board may, sua sponte, 
review such decision. Within 7 days after the Environmental 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 affected parties and the 
Regional Administrator.
    (c)(1) 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 Environmental 
Appeals Board grants a petition for review or determines under paragraph 
(b) of this 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 Regional Hearing Clerk 
shall

[[Page 867]]

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 Environmental 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 review of any initial decision or the denial of 
an evidentiary hearing is, under 5 U.S.C. 704, a prerequisite 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 review, 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 Sec. 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 Environmental Appeals Board's original decision, shall be reissued 
and served upon all parties to the appeal.
    (3) If the Environmental Appeals Board issues a decision remanding 
the proceeding, then final Agency action occurs upon completion of the 
remanded 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 Environmental Appeals Board determines, sua sponte, 
to review an initial Regional Administrator's decision 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, except that after notice 
to all the parties, the Environmental 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 matters claimed to have been erroneously decided and the 
nature of the alleged errors. Motions for reconsideration under this 
provision shall be directed to, and decided by, the Environmental 
Appeals Board. Motions for reconsideration directed to the 
Administrator, rather than to the Environmental Appeals Board, will not 
be considered, except in cases that the Environmental Appeals Board has 
referred to the Administrator pursuant to Sec. 124.72 and in which the 
Administrator has issued the final order. A motion for reconsideration 
shall not stay the effective date of the final order unless specifically 
so ordered by the Environmental Appeals Board.

[48 FR 14264, Apr. 1, 1983, as amended at 57 FR 5336, Feb. 13, 1992]



                Subpart F--Non-Adversary Panel Procedures



Sec. 124.111  Applicability.

    (a) Except as set forth in this subpart, this subpart applies in 
lieu of, and to complete exclusion of, subparts A through E in the 
following cases:
    (1)(i) In any proceedings for the issuance of any NPDES permit under 
CWA sections 402 and 405(f) which constitute ``initial licensing'' under 
the

[[Page 868]]

Administrative Procedure Act, when the Regional Administrator elects to 
apply this subpart and explicitly so states in the public notice of the 
draft permit under Sec. 124.10 or in a supplemental notice under 
Sec. 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 Sec. 124.4 shall likewise be processed under this 
subpart, except for PSD permits when the Regional Administrator makes a 
finding under Sec. 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 discharger.
    (iii) To the extent this subpart is used to process a request for a 
variance under CWA section 301(h), the term ``Administrator or a person 
designated 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 Sec. 124.75 following a request for a formal hearing under 
Sec. 124.74. See Secs. 124.74(c)(8) and 124.75(a)(2).
    (3) Whenever the Regional Administrator determines as a matter of 
discretion that the more formalized mechanisms of this subpart should be 
used to process draft NPDES general permits (for which evidentiary 
hearings are unavailable under Sec. 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 proceedings are simultaneously pending on the other 
conditions of the permit. See Sec. 124.64(b).

[48 FR 14264, Apr. 1, 1983, as amended at 54 FR 18786, May 2, 1989]



Sec. 124.112  Relation to other subparts.

    The following provisions of subparts A through E apply to 
proceedings under this subpart:
    (a)(1) Sections 124.1 through 124.10.
    (2) Section 124.14 ``Reopening of comment period.''
    (3) Section 124.16 ``Stays of contested permit conditions.''
    (4) Section 124.20 ``Computation of time.''
    (b)(1) Section 124.41 ``Definitions applicable to PSD Permits.''
    (2) Section 124.42 ``Additional procedures for PSD permits affecting 
Class I Areas.''
    (c)(1) Sections 124.51 through 124.56.
    (2) Section 124.57(c) ``Public notice.''
    (3) Sections 124.58 through 124.66.
    (d)(1) Section 124.72 ``Definitions,'' except for the definition of 
``Presiding Officer,'' see section 124.119.
    (2) Section 124.73 ``Filing.''
    (3) Section 124.78 ``Ex parte 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 issued under Sec. 124.15, either by the 
grant under Sec. 124.75 of a hearing request under Sec. 124.74, or by 
notice of supplemental proceedings under Sec. 124.14, Secs. 124.13 and 
124.76 shall also apply.



Sec. 124.113  Public notice of draft permits and public comment period.

    Public notice of a draft permit under this subpart shall be given as 
provided in Secs. 124.10 and 124.57. At the discretion of the Regional 
Administrator, the public comment period specified in this notice may 
include an opportunity for a public hearing under Sec. 124.12.



Sec. 124.114  Request for hearing.

    (a) By the close of the comment period under Sec. 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 person 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

[[Page 869]]

    (4) Statements meeting the requirements of Sec. 124.74(c)(1)-(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 Sec. 124.57(c). If the Regional Administrator determines 
that a request does not meet the requirements of paragraph (a) of this 
section 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 
hearing.
    (c) The Regional Administrator may also decide before a draft permit 
is prepared under Sec. 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 information required by 
Sec. 124.57(c). This notice may also provide for a hearing under 
Sec. 124.12 before a hearing is conducted under this section.



Sec. 124.115  Effect of denial of or absence of request for hearing.

    If no request for a hearing is made under Sec. 124.114, or if all 
such requests are denied under that section, the Regional Administrator 
shall then prepare a recommended decision under Sec. 124.124. Any person 
whose hearing request has been denied may then appeal that recommended 
decision to the Environmental Appeals Board as provided in Sec. 124.91.

[48 FR 14264, Apr. 1, 1983, as amended at 57 FR 5337, Feb. 13, 1992]



Sec. 124.116  Notice of hearing.

    (a) Upon granting a request for a hearing under Sec. 124.114 the 
Regional Administrator shall promptly publish a notice of the hearing as 
required under Sec. 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 Sec. 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 
Sec. 124.113. In that case the comment periods under Secs. 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 Sec. 124.74 as 
provided in Sec. 124.75.



Sec. 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 becomes a party to the 
proceedings within the meaning of the Administrative Procedure Act. The 
request shall include:
    (1) A brief statement of the interest of the person 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 Sec. 124.74(c)(1)-(5).
    (5) If the request is submitted by an organization, 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.



Sec. 124.118  Submission of written comments 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

[[Page 870]]

have been available to that party. All comments shall include any 
affidavits, studies, data, tests, or other materials relied upon for 
making any factual statements in the comments.
    (b)(1) 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 comments, 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 comments 
orally at the hearing in lieu of submitting written comments and the 
Presiding Officer shall, within one week, grant such motion if the 
Presiding 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 hearing under 
Sec. 124.120.



Sec. 124.119  Presiding Officer.

    (a)(1)(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 Officer. 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 Administrative Law Judge named as the 
Presiding Officer in a hearing subject to this subparagraph the Regional 
Administrator may name a Presiding Officer 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 connection with the proceeding to serve as Presiding 
Officer;
    (iii) If the Chief Administrative Law Judge declines 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 Presiding Officer shall have the authority:
    (1) Conferred by Sec. 124.85(b)(1)-(15), Sec. 124.83 (b) and (c), 
and;
    (2) To receive relevant evidence, provided that all comments under 
Secs. 124.113 and 124.118, the record of the panel hearing under 
Sec. 124.120, and the administrative record, as defined in Sec. 124.9 or 
in Sec. 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 Sec. 124.120, or to recess such a hearing until a future 
date. In any such case the notice required by Sec. 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 
Presiding 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 discharging in compliance

[[Page 871]]

with the conditions of the Presiding 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 exploratory drilling rig 
or coastal mobile developmental drilling rig which has never received a 
finally effective 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 
conditions, 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 Recovery Act (42 U.S.C. 6901 et seq.))

[48 FR 14264, Apr. 1, 1983, as amended at 48 FR 39620, Sept. 1, 1983]



Sec. 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 permanent 
employees having special expertise or responsibility 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 Regional Administrator, may change or may include persons not 
employed by EPA.
    (b) At the time of the hearing notice under Sec. 124.116, the 
Regional Administrator shall designate the persons who shall serve as 
panel members for the hearing and the Regional Administrator shall file 
with the Regional Hearing Clerk the name and address of each person so 
designated. The Regional Administrator may also designate EPA employees 
who will provide staff support 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 Sec. 124.78. The Regional Administrator may also 
designate Agency trial staff as defined in Sec. 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 knowledge concerning the issues raised in the hearing and not 
then scheduled to participate therein appear and testify at the hearing.
    (d) The panel members may question any person participating in the 
panel hearing. Cross-examination 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-examination would expedite consideration of the issues. 
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 person appearing or testifying in the hearing. The Presiding 
Officer, after consultation with the panel may, at his sole discretion, 
ask the written question so submitted.
    (f) Within 10 days after the close of the hearing, any party shall 
submit such additional written testimony, 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]



Sec. 124.121  Opportunity for cross-examination.

    (a) Any party to a panel hearing may submit a written request to 
cross-examine any issue of material fact. The motion shall be submitted 
to the Presiding Officer within 15 days after a full

[[Page 872]]

transcript of the panel hearing is filed with the Regional 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 decision 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-examination under 
paragraph (a) of this section, the Presiding Officer, after consultation 
with the hearing panel, shall promptly issue an order either granting or 
denying each request. No cross-examination shall be allowed on questions 
of policy except 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. Orders 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-examination;
    (4) Time limits for the examination of witnesses by each cross-
examiner; and
    (5) The date, time, and place of the supplementary 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 unduly repetitious cross-examination, they should be required to 
choose a single representative for purposes 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 representative, 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 possible, 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 Sec. 124.87.
    (e)(1) No later than the time set for requesting cross-examination, 
a party may request that alternative methods of clarifying the record 
(such as the submission of additional written information) be used in 
lieu of or in addition to cross-examination. 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 granting 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-examination submitted under 
paragraph (a) of this section, the Presiding Officer may, as a 
precondition to ruling on the merits of the request, require alternative 
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 comments the Presiding Officer shall issue an order 
granting or denying the request for cross-examination.
    (f) The provisions of Secs. 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]



Sec. 124.122  Record for final permit.

    The record on which the final permit shall be based in any 
proceeding under this subpart consists of:

[[Page 873]]

    (a) The administrative record compiled under Sec. 124.9 or 
Sec. 124.18 as the case may be;
    (b) Any material submitted under Sec. 124.78 relating to ex parte 
contacts;
    (c) All notices issued under Sec. 124.113;
    (d) All requests for hearings, and rulings on those requests, 
received or issued under Sec. 124.114;
    (e) Any notice of hearing issued under Sec. 124.116;
    (f) Any request to participate in the hearing received under 
Sec. 124.117;
    (g) All comments submitted under Sec. 124.118, any motions made 
under that section and the rulings on them, and any comments filed under 
Sec. 124.113;
    (h) The full transcript and other material received into the record 
of the panel hearing under Sec. 124.120;
    (i) Any motions for, or rulings on, cross-examination filed or 
issued under Sec. 124.121;
    (j) Any motions for, orders for, and the results of, any 
alternatives to cross-examination under Sec. 124.121; and
    (k) The full transcript of any cross-examination held.



Sec. 124.123  Filing of brief, proposed findings of fact and conclusions of law and proposed modified permit.

    Unless otherwise ordered by the Presiding Officer, each party may, 
within 20 days after all requests 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 issues of law, fact, or discretion; a proposed 
modified 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; conclusions regarding material issues of law, fact, or discretion; 
and a proposed modified permit where appropriate. Oral argument may be 
held at the discretion of the Presiding Officer on motion of any party 
or sua sponte.



Sec. 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 decision, and may delegate the preparation of the 
recommended decision to the panel or to any member or members of it. 
This decision shall contain findings of fact, conclusions regarding all 
material issues of law, and a recommendation as to whether and in what 
respect the draft or final permit 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]



Sec. 124.125  Appeal from or review of recommended decision.

    Within 30 days after service of the recommended 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 Sec. 124.91, except that references to the initial 
decision will mean recommended decision under Sec. 124.124.

[57 FR 5337, Feb. 13, 1992]



Sec. 124.126  Final decision.

    As soon as practicable after all appeal proceedings have been 
completed, the Environmental Appeals Board shall issue a final decision. 
The Environmental 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 Sec. 124.78 in preparing the 
final decision. The Hearing Clerk shall file a copy of the decision on 
all parties.

[57 FR 5337, Feb. 13, 1992]


[[Page 874]]





Sec. 124.127  Final decision if there is no review.

    If no party appeals a recommended decision to the Environmental 
Appeals Board, and if the Environmental 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]



Sec. 124.128  Delegation of authority; time limitations.

    (a) The Administrator delegates authority to the Environmental 
Appeals Board (which is described in Sec. 1.25 of this title) to issue 
final decisions in appeals filed under this subpart. An appeal directed 
to the Administrator, rather than to the Environmental Appeals Board, 
will not be considered. This delegation does not preclude the 
Environmental Appeals Board from referring an appeal or a motion filed 
under this subpart to the Administrator when the Environmental Appeals 
Board, in its discretion, 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 Administrator.
    (b) The failure of the Environmental Appeals Board, the Regional 
Administrator, or the Presiding Officer to do any act within the time 
periods specified under this part shall not waive or diminish 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 periods specified 
under this part, the Environmental Appeals Board, the Regional 
Administrator, and 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 Decisionmaking Under Part 124

    This appendix is designed to assist in reading the procedural 
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 noticed 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 decisions are eligible for which types of appeal.
    Part 124 also contains special ``non-adversary panel hearing'' 
procedures based on the ``initial licensing'' provisions of the 
Administrative Procedure Act. These procedures 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 applicable 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 depicted on this chart are as follows:
    1. The permit process can begin in any one of the following ways:
    a. Normally, the process will begin when a person applies for a 
permit under Secs. 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 Sec. 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 Secs. 122.62, 122.64 (NPDES), 144.39, 
144.40 (UIC), 233.14, 233.15, (404), 270.41, 270.43 (RCRA), and 124.5.

[[Page 875]]

    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, preparing a draft permit also 
requires preparation of either a statement of basis (Sec. 124.7), a fact 
sheet (Sec. 124.5) or, compilation of an ``administrative record'' 
(Sec. 124.9), and public notice (Sec. 124.10).
    3. The next stage is the public comment period (Sec. 124.11). A 
public hearing under Sec. 124.12 may be requested 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 period. 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 connection with a particular 
permit must be placed in the record by the close of the public comment 
period (Sec. 124.13).
    4. Section 124.14 states that EPA, at any time before issuing a 
final permit decision may decide to either reopen 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 constitute 
``initial licensing'', to begin ``panel hearing'' proceedings 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 (Sec. 124.15). As the chart 
shows, the final permit must be accompanied by a response to comments 
(Sec. 124.17) and be based on the administrative record (Sec. 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 Sec. 124.9.
    b. NPDES permits which do not involve ``initial licensing'' may be 
appealed in an evidentiary hearing under subpart E. The regulations 
provide (Sec. 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 Sec. 124.4 then closely related conditions of those RCRA or 
UIC permits may be reexamined in an evidentiary hearing. PSD permits, 
however, may never be reexamined 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 permits 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 Appeals Board under 
Sec. 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 provisions of 
Sec. 124.60(b), which allows EPA, even after a formal hearing has begun, 
to ``recycle'' a permit back to the draft permit stage at any time 
before that hearing has resulted in an initial decision.

                Figure 2--Non-Adversary Panel Procedures

    This chart outlines the procedures for processing permits 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 previously 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 
consolidated 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 Sec. 124.12 during this 
period.
    4. Requests for a panel hearing must be received by the end of the 
public comment period under Sec. 124.113. The recommended decision may 
then be appealed to the Environmental Appeals Board. See Sec. 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 decision may then be appealed to the 
Administrator. See Sec. 124.115.

[[Page 876]]

    5. If a hearing is granted, notice of the hearing will be published 
in accordance with Sec. 124.116 and will be followed by a second comment 
period during which requests to participate and the bulk of the 
remaining evidence for the final decision will be received 
(Secs. 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 Sec. 124.113 and the 
prehearing comment period under Sec. 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 Sec. 124.14 or in response 
to a request for a formal hearing under Sec. 124.74.
    6. After the close of the comment period, a panel hearing will be 
held under Sec. 124.120, followed by any cross-examination granted under 
Sec. 124.121. The recommended decision will then be prepared 
(Sec. 124.124) and an opportunity for appeal provided under 
Sec. 124.125. A final decision will be issued after appeal proceedings, 
if any, are concluded.

[[Page 877]]

[GRAPHIC] [TIFF OMITTED] TC01MR92.017


[[Page 878]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.018


[[Page 879]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.019

[48 FR 14264, Apr. 1, 1983, as amended at 57 FR 5337, 5338, Feb. 13, 
1992]

[[Page 880]]



PART 125--CRITERIA AND STANDARDS FOR THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM--Table of Contents




    Subpart A--Criteria and Standards for Imposing 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 permits.

   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 Determining Fundamentally 
Different Factors 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 
Technology Economically Achievable Under Section 301(c) of the Act 
[Reserved]

Subpart F--Criteria for Granting Water Quality Related Variances Under 
Section 301(g) of the Act [Reserved]

 Subpart G--Criteria for Modifying the Secondary 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 pollutants 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 Alternative Effluent Limitations 
                     Under Section 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 Imposing 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 applicant.

    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.

[[Page 881]]



    Subpart A--Criteria and Standards for Imposing Technology-Based 
     Treatment Requirements Under Sections 301(b) and 402 of the Act



Sec. 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 promulgated effluent 
limitations and case-by-case determinations of effluent limitations 
under section 402(a)(1) of the Act.



Sec. 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]




Sec. 125.3  Technology-based treatment requirements in permits.

    (a) General. Technology-based treatment requirements under section 
301(b) of the Act represent the minimum level of control that must be 
imposed in a permit issued under section 402 of the Act. (See 
Secs. 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 requirements in accordance with 
the following statutory deadlines;
    (1) For POTW's, effluent limitations based upon:
    (i) Secondary treatment--from date of permit issuance; and
    (ii) The best practicable waste treatment technology--not later than 
July 1, 1983; and
    (2) For dischargers other than POTWs except as provided in 
Sec. 122.29(d), effluent limitations requiring:
    (i) The best practicable control technology currently available 
(BPT)--
    (A) For effluent limitations promulgated under Section 304(b) after 
January 1, 1982 and requiring a level of control substantially greater 
or based on fundamentally different control technology than under 
permits for an industrial category issued before such date, compliance 
as expeditiously as practicable but in no case later than three years 
after the date such limitations are promulgated under section 304(b) and 
in no case later than March 31, 1989;
    (B) For effluent limitations established on a case-by-case basis 
based on Best Professional Judgment (BPJ) under Section 402(a)(1)(B) of 
the Act in a permit issued after February 4, 1987, compliance as 
expeditiously as practicable but in no case later than three years after 
the date such limitations are established and in no case later than 
March 31, 1989;
    (C) For all other BPT effluent limitations compliance is required 
from the date of permit issuance.
    (ii) For conventional pollutants, the best conventional pollutant 
control technology (BCT)--
    (A) For effluent limitations promulgated under section 304(b), as 
expeditiously as practicable but in no case later than three years after 
the date such limitations are promulgated under section 304(b), and in 
no case later than March 31, 1989.
    (B) For effluent limitations established on a case-by-case (BPJ) 
basis under section 402(a)(1)(B) of the Act in a permit issued after 
February 4, 1987, compliance as expeditiously as practicable but in no 
case later than three years after the date such limitations are 
established and in no case later than March 31, 1989;
    (iii) For all toxic pollutants referred to in Committee Print No. 
95-30, House Committee on Public Works and Transportation, the best 
available technology economically achievable (BAT)--
    (A) For effluent limitations established under section 304(b), as 
expeditiously as practicable but in no case later than three years after 
the date such limitations are promulgated under section 304(b), and in 
no case later than March 31, 1989.
    (B) For permits issued on a case-by-case (BPJ) basis under section 
402(a)(1)(B) of the Act after February 4, 1987 establishing BAT effluent 
limitations, compliance is required as expeditiously as practicable but 
in no case later than three years after the

[[Page 882]]

date such limitations are promulgated under section 304(b), and in no 
case later than March 31, 1989.
    (iv) For all toxic pollutants other than those listed in Committee 
Print No. 95-30, effluent limitations based on BAT--
    (A) For effluent limitations promulgated under section 304(b) 
compliance is required as expeditiously as practicable, but in no case 
later than three years after the date such limitations are promulgated 
under section 304(b) and in no case later than March 31, 1989.
    (B) For permits issued on a case-by-case (BPJ) basis under Section 
402(a)(1)(B) of the Act after February 4, 1987 establishing BAT effluent 
limitations, 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--
    (A) For effluent limitations promulgated under section 304(b), 
compliance is required as expeditiously as practicable but in no case 
later than 3 years after the date such limitations are established and 
in no case later than March 31, 1989.
    (B) For permits issued on a case-by-case (BPJ) basis under section 
402(a)(1)(B) of the Act after February 4, 1987 establishing BAT effluent 
limitations compliance is required as expeditiously as practicable but 
in no case later than three years after the date such limitations are 
established and in no case later than March 31, 1989.
    (b) Statutory variances and extensions. (1) The following variances 
from technology-based treatment requirements are authorized by the Act 
and may be applied for under Sec. 122.21;
    (i) For POTW's, a section 301(h) marine discharge variance from 
secondary treatment (subpart G);
    (ii) For dischargers other than POTW's;
    (A) A section 301(c) economic variance from BAT (subpart E);
    (B) A section 301(g) water quality related variance from BAT 
(subpart F); and
    (C) A section 316(a) thermal variance from BPT, BCT and BAT (subpart 
H).
    (2) The following extensions of deadlines for compliance with 
technology-based treatment requirements are authorized by the Act and 
may be applied for under Sec. 124.53:
    (i) For POTW's a section 301(i) extension of the secondary treatment 
deadline (subpart J);
    (ii) For dischargers other than POTW's:
    (A) A section 301(i) extension of the BPT deadline (subpart J); and
    (B) A section 301(k) extension of the BAT deadline (subpart C).
    (c) Methods of imposing technology-based treatment 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. However, in the case of a court remand, 
determinations underlying effluent limitations shall be binding in 
permit issuance proceedings where those determinations are not required 
to be reexamined by a court remanding the regulations. In addition, 
dischargers may seek fundamentally different factors variances from 
these effluent limitations under Sec. 122.21 and subpart D of this part.
    (2) On a case-by-case basis under section 402(a)(1) of the Act, to 
the extent that EPA-promulgated effluent limitations are inapplicable. 
The permit writer shall apply the appropriate factors listed in 
Sec. 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

[[Page 883]]

this section. Where promulgated effluent limitations guidelines only 
apply to certain aspects of the discharger's operation, or to certain 
pollutants, other aspects or activities are subject to regulation on a 
case-by-case basis in order to carry out the provisions of the Act.
    (4) Limitations developed under paragraph (d)(2) of this section may 
be expressed, where appropriate, in terms of toxicity (e.g., ``the 
LC50 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 requirements (for example, technology-based or 
water-quality-based standards) of the Act.
    (d) In setting case-by-case limitations pursuant to Sec. 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 application;
    (ii) The age of equipment and facilities involved;
    (iii) The process employed;
    (iv) The engineering aspects of the application of various types of 
control techniques;
    (v) Process changes; and
    (vi) Non-water quality environmental impact (including energy 
requirements).
    (2) For BCT requirements: (i) The reasonableness of the relationship 
between the costs of attaining a reduction in effluent and the effluent 
reduction benefits derived;
    (ii) The comparison of the cost and level of reduction of such 
pollutants from the discharge from publicly owned treatment works to the 
cost and level of reduction of such pollutants from a class or category 
of industrial sources;
    (iii) The age of equipment and facilities involved;
    (iv) The process employed;
    (v) The engineering aspects of the application of various types of 
control techniques;
    (vi) Process changes; and
    (vii) Non-water quality environmental impact (including energy 
requirements).
    (3) For BAT requirements: (i) The age of equipment and facilities 
involved;
    (ii) The process employed;
    (iii) The engineering aspects of the application of various types of 
control techniques;
    (iv) Process changes;
    (v) The cost of achieving such effluent reduction; and
    (vi) Non-water quality environmental impact (including energy 
requirements).
    (e) Technology-based treatment requirements are applied prior to or 
at the point of discharge.
    (f) Technology-based treatment requirements cannot be satisfied 
through the use of ``non-treatment'' techniques such as flow 
augmentation and in-stream mechanical aerators. However, these 
techniques may be considered as a method of achieving water quality 
standards on a case-by-case basis when:
    (1) The technology-based treatment requirements applicable to the 
discharge are not sufficient to achieve the standards;
    (2) The discharger agrees to waive any opportunity to request a 
variance under section 301 (c), (g) or (h) of the Act; and
    (3) The discharger demonstrates that such a technique is the 
preferred environmental and economic method to achieve the standards 
after consideration of alternatives such as advanced waste treatment, 
recycle and reuse, land disposal, changes in operating methods, and 
other available methods.
    (g) Technology-based effluent limitations shall be established under 
this subpart for solids, sludges, filter backwash, and other pollutants 
removed in the course of treatment or control of wastewaters in the same 
manner as for other pollutants.
    (h)(1) The Director may set a permit limit for a conventional 
pollutant at a level more stringent than the best conventional pollution 
control technology (BCT), or a limit for a nonconventional pollutant 
which shall not be subject to modification under section 301 (c) or (g) 
of the Act where:
    (i) Effluent limitations guidelines specify the pollutant as an 
indicator for a toxic pollutant, or
    (ii)(A) The limitation reflects BAT-level control of discharges of 
one or

[[Page 884]]

more toxic pollutants which are present in the waste stream, and a 
specific BAT limitation upon the toxic pollutant(s) is not feasible for 
economic or technical reasons;
    (B) The permit identifies which toxic pollutants are intended to be 
controlled by use of the limitation; and
    (C) The fact sheet required by Sec. 124.56 sets forth the basis for 
the limitation, including a finding that compliance with the limitation 
will result in BAT-level control of the toxic pollutant discharges 
identified in paragraph (h)(1)(ii)(B) of this section, and a finding 
that it would be economically or technically infeasible to directly 
limit the toxic pollutant(s).
    (2) The Director may set a permit limit for a conventional pollutant 
at a level more stringent than BCT when:
    (i) Effluent limitations guidelines specify the pollutant as an 
indicator for a hazardous substance, or
    (ii)(A) The limitation reflects BAT-level control of discharges (or 
an appropriate level determined under section 301(c) or (g) of the Act) 
of one or more hazardous substance(s) which are present in the waste 
stream, and a specific BAT (or other appropriate) limitation upon the 
hazardous substance(s) is not feasible for economic or technical 
reasons;
    (B) The permit identifies which hazardous substances are intended to 
be controlled by use of the limitation; and
    (C) The fact sheet required by Sec. 124.56 sets forth the basis for 
the limitation, including a finding that compliance with the limitations 
will result in BAT-level (or other appropriate level) control of the 
hazardous substances discharges identified in paragraph (h)(2)(ii)(B) of 
this section, and a finding that it would be economically or technically 
infeasible to directly limit the hazardous substance(s).
    (iii) Hazardous substances which are also toxic pollutants are 
subject to paragraph (h)(1) of this section.
    (3) The Director may not set a more stringent limit under the 
preceding paragraphs if the method of treatment required to comply with 
the limit differs from that which would be required if the toxic 
pollutant(s) or hazardous substance(s) controlled by the limit were 
limited directly.
    (4) Toxic pollutants identified under paragraph (h)(1) of this 
section remain subject to the requirements of Sec. 122.42(a)(1) 
(notification of increased discharges of toxic pollutants above levels 
reported 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



Sec. 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 otherwise be unlawful under the Act in order to 
determine the feasibility of using pollutants to grow aquatic organisms 
which can be harvested and used beneficially. EPA policy is to encourage 
such projects, while at the same time protecting other beneficial uses 
of the waters.
    (c) Permits issued for discharges into aquaculture projects under 
this subpart are NPDES permits and are subject to the applicable 
requirements of parts 122, 123 and 124. Any permit shall include such 
conditions (including monitoring and reporting requirements) as are 
necessary to comply with those parts. Technology-based effluent 
limitations need not be applied to discharges into the approved project 
except with respect to toxic pollutants.




Sec. 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 indirect commercial value (or is intended to be 
operated for research

[[Page 885]]

into possible production of such a crop); and
    (ii) Does not occupy a designated project area which is larger than 
can be economically operated for the crop under cultivation or than is 
necessary for research purposes.
    (2) The applicant has demonstrated, to the satisfaction of the 
Director, that the use of the pollutant to be discharged to the 
aquaculture project will result in an increased harvest of organisms 
under culture over what would naturally occur in the area;
    (3) The applicant has demonstrated, to the satisfaction of the 
Director, that if the species to be cultivated in the aquaculture 
project is not indigenous to the immediate geographical area, there will 
be minimal adverse effects on the flora and fauna indigenous to the 
area, and the total commercial value of the introduced species is at 
least equal to that of the displaced or affected indigenous flora and 
fauna;
    (4) The Director determines that the crop will not have a 
significant potential for human health hazards resulting from its 
consumption;
    (5) The Director determines that migration of pollutants from the 
designated project area to water outside of the aquaculture project will 
not cause or contribute to a violation of water quality standards or a 
violation of the applicable standards and limitations applicable to the 
supplier of the pollutant that would govern if the aquaculture project 
were itself a point source. The approval of an aquaculture project shall 
not result in the enlargement of a pre-existing mixing zone area beyond 
what had been designated by the State for the original discharge.
    (b) No permit shall be issued for any aquaculture project in 
conflict with a plan or an amendment to a plan approved under section 
208(b) of the Act.
    (c) No permit shall be issued for any aquaculture project located in 
the territorial sea, the waters of the contiguous zone, or the oceans, 
except in conformity with guidelines issued under section 403(c) of the 
Act.
    (d) Designated project areas shall not include a portion of a body 
of water large enough to expose a substantial portion of the indigenous 
biota to the conditions within the designated project area. For example, 
the designated project area shall not include the entire width of a 
watercourse, since all organisms indigenous to that watercourse might be 
subjected to discharges of pollutants that would, except for the 
provisions of section 318 of the Act, violate section 301 of the Act.
    (e) Any modifications caused by the construction or creation of a 
reef, barrier or containment structure shall not unduly alter the tidal 
regimen of an estuary or interfere with migrations of unconfined aquatic 
species.

[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 requirements 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 designated project area.

Subpart C [Reserved]



    Subpart D--Criteria and Standards for Determining Fundamentally 
Different Factors Under Sections 301(b)(1)(A), 301(b)(2) (A) and (E) of 
                                 the Act



Sec. 125.30  Purpose and scope.

    (a) This subpart establishes the criteria and standards to be used 
in determining whether effluent limitations alternative to those 
required by promulgated EPA effluent limitations guidelines under 
sections 301 and 304 of the Act (hereinafter referred to as ``national 
limits'') should be imposed on a discharger because factors relating to 
the discharger's facilities, equipment, processes or other factors 
related to the discharger are fundamentally different from the factors 
considered by EPA in development of the national limits. This subpart 
applies to all national limitations promulgated under sections 301 and 
304 of the Act, except for the BPT limits contained in 40 CFR 423.12 
(steam electric generating point source category).

[[Page 886]]

    (b) In establishing national limits, EPA takes into account all the 
information it can collect, develop and solicit regarding the factors 
listed in sections 304(b) and 304(g) of the Act. In some cases, however, 
data which could affect these national limits as they apply to a 
particular discharge may not be available or may not be considered 
during their development. As a result, it may be necessary on a case-by-
case basis to adjust the national limits, and make them either more or 
less stringent as they apply to certain dischargers within an industrial 
category or subcategory. This will only be done if data specific to that 
discharger indicates it presents factors fundamentally different from 
those considered by EPA in developing the limit at issue. Any interested 
person believing that factors relating to a discharger's facilities, 
equipment, processes or other facilities related to the discharger are 
fundamentally different from the factors considered during development 
of the national limits may request a fundamentally different factors 
variance under Sec. 122.21(l)(1). In addition, such a variance may be 
proposed by the Director in the draft permit.

(Secs. 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]



Sec. 125.31  Criteria.

    (a) A request for the establishment of effluent limitations under 
this subpart (fundamentally different factors variance) shall be 
approved only if:
    (1) There is an applicable national limit which is applied in the 
permit and specifically controls the pollutant for which alternative 
effluent limitations or standards have been requested; and
    (2) Factors relating to the discharge controlled by the permit are 
fundamentally different from those considered by EPA in establishing the 
national limits; and
    (3) The request for alternative effluent limitations or standards is 
made in accordance with the procedural requirements of part 124.
    (b) A request for the establishment of effluent limitations less 
stringent than those required by national limits guidelines shall be 
approved only if:
    (1) The alternative effluent limitation or standard requested is no 
less stringent than justified by the fundamental difference; and
    (2) The alternative effluent limitation or standard will ensure 
compliance with sections 208(e) and 301(b)(1)(C) of the Act; and
    (3) Compliance with the national limits (either by using the 
technologies upon which the national limits are based or by other 
control alternatives) would result in:
    (i) A removal cost wholly out of proportion to the removal cost 
considered during development of the national limits; or
    (ii) A non-water quality environmental impact (including energy 
requirements) fundamentally more adverse than the impact considered 
during development of the national limits.
    (c) A request for alternative limits more stringent than required by 
national limits shall be approved only if:
    (1) The alternative effluent limitation or standard requested is no 
more stringent than justified by the fundamental difference; and
    (2) Compliance with the alternative effluent limitation or standard 
would not result in:
    (i) A removal cost wholly out of proportion to the removal cost 
considered during development of the national limits; or
    (ii) A non-water quality environmental impact (including energy 
requirements) fundamentally more adverse than the impact considered 
during development of the national limits.
    (d) Factors which may be considered fundamentally different are:
    (1) The nature or quality of pollutants contained in the raw waste 
load of the applicant's process wastewater;

[Comment: (1) In determining whether factors concerning the discharger 
are fundamentally different, EPA will consider, where relevant,

[[Page 887]]

the applicable development document for the national limits, associated 
technical and economic data collected for use in developing each 
respective national limit, records of legal proceedings, and written and 
printed documentation including records of communication, 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 development of the national 
limits will not ordinarily be treated as fundamentally different under 
paragraph (a) of this section. Instead, national limits should be 
applied to the other streams, and the unique stream(s) should be subject 
to limitations based on section 402(a)(1) of the Act. See 
Sec. 125.2(c)(2).]

    (2) The volume of the discharger's process wastewater and effluent 
discharged;
    (3) Non-water quality environmental impact of control and treatment 
of the discharger's raw waste load;
    (4) Energy requirements of the application of control and treatment 
technology;
    (5) Age, size, land availability, and configuration as they relate 
to the discharger's equipment or facilities; processes employed; process 
changes; and engineering aspects of the application of control 
technology;
    (6) Cost of compliance with required control technololgy.
    (e) A variance request or portion of such a request under this 
section shall not be granted on any of the following grounds:
    (1) The infeasibility of installing the required waste treatment 
equipment within the time the Act allows.

[Comment: Under this section a variance request may be approved if it is 
based on factors which relate to the discharger's ability ultimately to 
achieve national limits but not if it is based on factors which merely 
affect the discharger's ability to meet the statutory deadlines of 
sections 301 and 307 of the Act such as labor difficulties, construction 
schedules, or unavailability of equipment.]

    (2) The assertion that the national limits cannot be achieved with 
the 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 promulgating national 
limits is available only through the judicial review procedures set 
forth in section 509(b) of the Act.]

    (3) The discharger's ability to pay for the required waste 
treatment; or
    (4) The impact of a discharge on local receiving water quality.
    (f) Nothing in this section shall be construed to impair the right 
of any State or locality under section 510 of the Act to impose more 
stringent limitations than those required by Federal law.



Sec. 125.32  Method of application.

    (a) A written request for a variance under this subpart shall be 
submitted in duplicate to the Director 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 Sec. 125.31(b) regarding the discharger's 
facility are fundamentally different from the factors EPA considered in 
establishing the national limits. The requester should refer to all 
relevant material and information, such as the published guideline 
regulations development document, all associated technical and economic 
data collected for use in developing each national limit, all records of 
legal proceedings, and all written and printed documentation including 
records of communication, etc., relevant to the regulations which are 
kept on public file by the EPA;
    (2) The alternative limitations requested are justified by the 
fundamental difference alleged in paragraph (b)(1) of this section; and
    (3) The appropriate requirements of Sec. 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 Variances Under 
Section 301(g) of the Act [Reserved]

[[Page 888]]



 Subpart G--Criteria for Modifying the Secondary Treatment Requirements 
               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.



Sec. 125.56  Scope and purpose.

    This subpart establishes the criteria to be applied by EPA in acting 
on section 301(h) requests for modifications to the secondary treatment 
requirements. It also establishes special permit conditions which must 
be included in any permit incorporating a section 301(h) modification of 
the secondary treatment requirements (``section 301(h) modified 
permit'').



Sec. 125.57  Law governing issuance of a section 301(h) modified permit.

    (a) Section 301(h) of the Clean Water Act provides that:

    Administrator, with the concurrence of the State, may issue a permit 
under section 402 which modifies the requirements of paragraph (b)(1)(B) 
of this section with respect to the discharge of any pollutant from a 
publicly owned treatment works into marine waters, if the applicant 
demonstrates to the satisfaction of the Administrator that--
    (1) There is an applicable water quality standard specific to the 
pollutant for which the modification is requested, which has been 
identified under section 304(a)(6) of this Act;
    (2) The discharge of pollutants in accordance with such modified 
requirements will not interfere, alone or in combination with pollutants 
from other sources, with the attainment or maintenance of that water 
quality which assures protection of public water supplies and protection 
and propagation of a balanced indigenous population of shellfish, fish, 
and wildlife, and allows recreational activities, in and on the water;
    (3) The applicant has established a system for monitoring the impact 
of such discharge on a representative sample of aquatic biota, to the 
extent practicable, and the scope of such monitoring is limited to 
include only those scientific investigations which are necessary to 
study the effects of the proposed discharge;
    (4) Such modified requirements will not result in any additional 
requirements on any other point or nonpoint source;
    (5) All applicable pretreatment requirements for sources introducing 
waste into such treatment works will be enforced;
    (6) In the case of any treatment works serving a population of 
50,000 or more, with respect to any toxic pollutant introduced into such 
works by an industrial discharger for which pollutant there is no 
applicable pretreatment requirement in effect, sources introducing waste 
into such works are in compliance with all applicable pretreatment 
requirements, the applicant will enforce such requirements, and the 
applicant has in effect a pretreatment program which, in combination 
with the treatment of discharges from such works, removes the same 
amount of such pollutant as would be removed if such works were to apply 
secondary treatment to discharges and if such works had no pretreatment 
program with respect to such pollutant;
    (7) To the extent practicable, the applicant has established a 
schedule of activities designed to eliminate the entrance of toxic 
pollutants from nonindustrial sources into such treatment works;
    (8) There will be no new or substantially increased discharges from 
the point source of the pollutant to which the modification applies 
above that volume of discharge specified in the permit;
    (9) The applicant at the time such modification becomes effective 
will be discharging effluent which has received at least primary or 
equivalent treatment and which meets the criteria established under 
section 304(a)(1) of this Act after initial mixing in the waters 
surrounding or adjacent to the point at which such effluent is 
discharged.
    For the purposes of this section, the phrase ``the discharge of any 
pollutant into marine waters'' refers to a discharge into deep waters of 
the territorial sea or the waters of the contiguous zone, or into saline 
estuarine waters where there is strong tidal movement and other 
hydrological and geological characteristics which the Administrator 
determines necessary to allow compliance with paragraph (2) of this 
section, and section 101(a)(2) of this Act. For the purposes of 
paragraph (9), ``primary or equivalent treatment'' means treatment by 
screening, sedimentation, and skimming adequate to remove at least 30 
percent of the biological oxygen demanding material and of the suspended 
solids in the treatment works influent, and disinfection, where 
appropriate. A municipality which applies secondary treatment shall be 
eligible to receive a permit pursuant to this subsection which modifies 
the requirements of paragraph (b)(1)(B) of this section with respect to 
the discharge of any pollutant from any treatment works owned by such 
municipality into marine waters. No permit issued under this subsection 
shall authorize the discharge of sewage

[[Page 889]]

sludge into marine waters. In order for a permit to be issued under this 
subsection for the discharge of a pollutant into marine waters, such 
marine waters must exhibit characteristics assuring that water providing 
dilution does not contain significant amounts of previously discharged 
effluent from such treatment works. No permit issued under this 
subsection shall authorize the discharge of any pollutant into saline 
estuarine waters which at the time of application do not support a 
balanced indigenous population of shellfish, fish, and wildlife, or 
allow recreation in and on the waters or which exhibit ambient water 
quality below applicable water quality standards adopted for the 
protection of public water supplies, shellfish, fish, and wildlife or 
recreational activities or such other standards necessary to assure 
support and protection of such uses. The prohibition contained in the 
preceding sentence shall apply without regard to the presence or absence 
of a causal relationship between such characteristics and the 
applicant's current or proposed discharge. 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)(1) of the Clean Water Act provides that:

    Any application filed under this section for a modification of the 
provisions of--
    (A) subsection (b)(1)(B) under subsection (h) of this section shall 
be filed not later than the 365th day which begins after the date of 
enactment of the Municipal Wastewater Treatment Construction Grant 
Amendments of 1981, except that a publicly owned treatment works which 
prior to December 31, 1982, had a contractual arrangement to use a 
portion of the capacity of an ocean outfall operated by another publicly 
owned treatment works which has applied for or received modification 
under subsection (h) may apply for a modification of subsection (h) in 
its own right not later than 30 days after the date of the enactment of 
the Water Quality Act of 1987.

    (c) Section 22(e) of the Municipal Wastewater Treatment Construction 
Grant Amendments of 1981, Public Law 97-117, provides that:

    The amendments made by this section shall take effect on the date of 
enactment of this Act except that no applicant, other than the city of 
Avalon, California, who applies after the date of enactment of this Act 
for a permit pursuant to subsection (h) of section 301 of the Federal 
Water Pollution Control Act which modifies the requirements of 
subsection (b)(1)(B) of section 301 of such Act shall receive such 
permit during the one-year period which begins on the date of enactment 
of this Act.

    (d) Section 303(b)(2) of the Water Quality Act, Public Law 100-4, 
provides that:

    Section 301(h)(3) shall only apply to modifications and renewals of 
modifications which are tentatively or finally approved after the date 
of the enactment of this Act.

    (e) Section 303(g) of the Water Quality Act provides that:

    The amendments made to sections 301(h) and (h)(2), as well as 
provisions of (h)(6) and (h)(9), shall not apply to an application for a 
permit under section 301(h) of the Federal Water Pollution Control Act 
which has been tentatively or finally approved by the Administrator 
before the date of the enactment of this Act; except that such 
amendments shall apply to all renewals of such permits after such date 
of enactment.



Sec. 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 applicants 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 
contributing 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 contributing population and flows shall be based on projections for 
the end of the five-year permit term. Average dry weather flows shall be 
the average daily total discharge flows for the maximum month of the dry 
weather season.
    (d) Application means a final application previously submitted in 
accordance with the June 15, 1979, section 301(h) regulations (44 FR 
34784); an application submitted between December

[[Page 890]]

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 Secondary 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 comparable but unpolluted environmental 
conditions; or
    (2) May reasonably be expected to become re-established in the 
polluted water body segment from adjacent waters if sources of pollution 
were removed.
    (g) Categorical pretreatment standard means a standard promulgated 
by EPA under 40 CFR Chapter I, Subchapter N.
    (h) Current discharge means the volume, composition, and location of 
an applicant's discharge at the time of permit application.
    (i) Improved discharge means the volume, composition, and location 
of an applicant's discharge following:
    (1) Construction of planned outfall improvements, including, without 
limitation, outfall relocation, outfall repair, or diffuser 
modification; or
    (2) Construction of planned treatment system improvements to 
treatment levels or discharge characteristics; or
    (3) Implementation of a planned program to improve operation and 
maintenance of an existing treatment system or to eliminate or control 
the introduction of pollutants into the applicant's treatment works.
    (j) Industrial discharger or industrial source means any source of 
nondomestic pollutants regulated under section 307(b) or (c) of the 
Clean Water Act which discharges into a POTW.
    (k) Modified discharge means the volume, composition, and location 
of the discharge proposed by the applicant for which a modification 
under section 301(h) of the Act is requested. A modified discharge may 
be a current discharge, improved discharge, or altered discharge.
    (l) New York Bight Apex means the ocean waters of the Atlantic Ocean 
westward of 73 degrees 30 minutes west longitude and northward of 40 
degrees 10 minutes north latitude.
    (m) 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'' excludes saline 
estuarine waters.
    (o) Permittee means an NPDES permittee with an effective section 
301(h) modified permit.
    (p) Pesticides means demeton, guthion, malathion, 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 properties in wastewater prior to or in lieu of discharging or 
otherwise introducing such pollutants into a POTW. The reduction or 
alteration may be obtained by physical, chemical, or biological 
processes, process changes, or by other means, except as prohibited by 
40 CFR part 403.
    (r) Primary or equivalent treatment for the purposes of this subpart 
means treatment by screening, sedimentation, and skimming adequate to 
remove at least 30 percent of the biochemical oxygen demanding material 
and of the suspended solids in the treatment works influent, and 
disinfection, where appropriate.
    (s) Public water supplies means water distributed 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 includes: (1) Any collection, 
treatment, storage, and distribution facilities under the control of the 
operator of the system and used primarily in connection with the system, 
and (2) Any collection or pretreatment storage facilities not under the 
control of the operator of the system which are used

[[Page 891]]

primarily 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, 
municipality, or intermunicipal or interstate agency.
    (v) Saline estuarine waters means those semi-enclosed coastal waters 
which have a free connection to the territorial sea, undergo net seaward 
exchange 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 defined in 40 CFR part 
133.
    (y) Shellfish, fish, and wildlife means any biological population or 
community that might be adversely affected by the applicant's modified 
discharge.
    (z) Stressed waters means those ocean waters for which an applicant 
can demonstrate to the satisfaction 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)(1) 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 region of initial 
mixing surrounding or adjacent to the end of the outfall pipe or 
diffuser ports, provided that the ZID may not be larger than allowed by 
mixing zone restrictions in applicable water quality standards.



Sec. 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 estuarine waters.
    (b) Prohibitions. No section 301(h) modified permit shall be issued:
    (1) Where such issuance would not assure compliance with all 
applicable requirements of this subpart and part 122;
    (2) For the discharge of sewage sludge;
    (3) Where such issuance would conflict with applicable provisions of 
State, local, or other Federal laws or Executive Orders. This includes 
compliance with the Coastal Zone Management Act of 1972, as amended, 16 
U.S.C. 1451 et seq.; the Endangered 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 proposed 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 application 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;

[[Page 892]]

    (2) A completed Application Questionnaire;
    (3) The certification in accordance with 40 CFR 122.22(d);
    (4) In addition to the requirements of Sec. 125.59(c) (1) through 
(3), applicants for permit renewal shall support continuation of the 
modification by supplying to EPA the results of studies and monitoring 
performed in accordance with Sec. 125.63 during the life of the permit. 
Upon a demonstration meeting the statutory criteria and requirements of 
this subpart, the permit may be renewed under the applicable procedures 
of 40 CFR part 124.
    (d) Revisions to applications. (1) POTWs which submitted 
applications in accordance with the June 15, 1979, regulations (44 FR 
34784) may revise their applications one time following a tentative 
decision to propose changes to treatment levels and/or outfall and 
diffuser location and design in accordance with Sec. 125.59(f)(2)(i); 
and
    (2) Other applicants may revise their applications one time 
following a tentative decision to propose changes to treatment levels 
and/or outfall and diffuser location and design in accordance with 
Sec. 125.59(f)(2)(i). Revisions by such applicants which propose 
downgrading treatment levels and/or outfall and diffuser location and 
design must be justified on the basis of substantial changes in 
circumstances beyond the applicant's control since the time of 
application submission.
    (3) Applicants authorized or requested to submit additional 
information under Sec. 125.59(g) may submit a revised application in 
accordance with Sec. 125.59(f)(2)(ii) where such additional information 
supports changes in proposed treatment levels and/or outfall location 
and diffuser design. The opportunity for such revision shall be in 
addition to the one-time revision allowed under Sec. 125.59(d) (1) and 
(2).
    (4) POTWs which revise their applications must:
    (i) Modify their NPDES form and Application Questionnaire as needed 
to ensure that the information filed with their application is correct 
and complete;
    (ii) Provide additional analysis and data as needed to demonstrate 
compliance with this subpart;
    (iii) Obtain new State determinations under Secs. 125.61(b)(2) and 
125.64(b); and
    (iv) Provide the certification described in paragraph (c)(3) of this 
section.
    (5) Applications for permit renewal may not be revised.
    (e) Submittal of additional information to demonstrate compliance 
with Secs. 125.60 and 125.65. (1) On or before the deadline established 
in paragraph (f)(3) of this section, applicants shall submit a letter of 
intent to demonstrate compliance with Secs. 125.60 and 125.65. The 
letter of intent is subject to approval by the Administrator based on 
the requirements of this paragraph and paragraph (f)(3) of this section. 
The letter of intent shall consist of the following:
    (i) For compliance with Sec. 125.60: (A) A description of the 
proposed treatment system which upgrades treatment to satisfy the 
requirements of Sec. 125.60.
    (B) A project plan, including a schedule for data collection and for 
achieving compliance with Sec. 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 Sec. 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 Sec. 125.65: (A) A determination of what 
approach will be used to achieve compliance with Sec. 125.65.
    (B) A project plan for achieving compliance. The project plan shall 
include any necessary data collection activities, submittal of 
additional information, and/or development of appropriate pretreatment 
limits to demonstrate compliance with Sec. 125.65. The Administrator 
will review the project plan and may require revisions prior to 
submission of the additional information.
    (iii) POTWs which submit additional information must:
    (A) Modify their NPDES form and Application Questionnaire as needed 
to ensure that the information filed with their application is correct 
and complete;
    (B) Obtain new State determinations under Secs. 125.61(b)(2) and 
125.64(b); and

[[Page 893]]

    (C) Provide the certification described in paragraph (c)(3) of this 
section.
    (2) The information required under this paragraph must be submitted 
in accordance with the schedules in Sec. 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) Applications.(i) The 
application for an original 301(h) permit for POTWs which directly 
discharges effluent into saline waters shall be submitted to the 
appropriate 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 
existing permit.)
    (iii) A copy of the application shall be provided to the State and 
interstate agency(s) authorized to provide certification/concurrence 
under Secs. 124.53 through 124.55 on or before the date the application 
is submitted to EPA.
    (2) Revisions to Applications. (i) Applicants desiring to revise 
their applications under Sec. 125.59 (d)(1) or (d)(2) must:
    (A) Submit to the appropriate Regional Administrator a letter of 
intent to revise their application either within 45 days of the date of 
EPA's tentative decision on their original application or within 45 days 
of November 26, 1982, whichever is later. Following receipt by EPA of a 
letter of intent, further EPA proceedings on the tentative decision 
under 40 CFR part 124 will be stayed.
    (B) Submit the revised application as described for new applications 
in Sec. 125.59(f)(1) either within one year of the date of EPA's 
tentative decision on their original application or within one year of 
November 26, 1982, if a tentative decision has already been made, 
whichever is later.
    (ii) Applicants desiring to revise their applications under 
Sec. 125.59(d)(3) must submit the revised application as described for 
new applications in Sec. 125.59(f)(1) concurrent with submission of the 
additional information under Sec. 125.59(g).
    (3) Deadline for additional information to demonstrate compliance 
with Secs. 125.60 and 125.65.
    (i) A letter of intent required under Sec. 125.59(e)(1) must be 
submitted by the following dates: for permittees with 301(h) 
modifications or for applicants to which a tentative or final decision 
has been issued, November 7, 1994; for all others, within 90 days after 
the Administrator issues a tentative decision on an application. 
Following receipt by EPA of a letter of intent containing the 
information required in Sec. 125.59(e)(1), further EPA proceedings on 
the tentative decision under 40 CFR part 124 will be stayed.
    (ii) The project plan submitted under Sec. 125.59(e)(1) shall ensure 
that the applicant meets all the requirements of Secs. 125.60 and 125.65 
by the following deadlines:
    (A) By August 9, 1996 for applicants that are not grandfathered 
under Sec. 125.59(j).
    (B) At the time of permit renewal or by August 9, 1996, whichever is 
later, for applicants that are grandfathered under Sec. 125.59(j).
    (4) State determination deadline. State determinations, as required 
by Secs. 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 application or additional information 
to EPA. Extensions to this deadline may be provided by EPA upon request. 
However, EPA will not begin review of the revision to the application or 
additional information until a favorable State determination is received 
by EPA. Failure to provide the State determination within the timeframe 
required by this paragraph (f)(4) is a basis for denial of the 
application.
    (g)(1) The Administrator may authorize or request an applicant to 
submit additional information by a specified date not to exceed one year 
from the date of authorization or request.
    (2) Applicants seeking authorization to submit additional 
information on

[[Page 894]]

current/modified discharge characteristics, water quality, biological 
conditions or oceanographic characteristics must:
    (i) Demonstrate that they made a diligent effort to provide such 
information with their application and were unable to do so, and
    (ii) Submit a plan of study, including a schedule, for data 
collection and submittal of the additional information. EPA will review 
the plan of study and may require revisions prior to authorizing 
submission of the additional information.
    (h) Tentative decisions on section 301(h) modifications. The 
Administrator shall grant a tentative approval or a tentative denial of 
a section 301(h) modified permit application. To qualify for a tentative 
approval, the applicant shall demonstrate to the satisfaction of the 
Administrator that it is using good faith means to come into compliance 
with all the requirements of this subpart and that it will meet all such 
requirements based on a schedule approved by the Administrator. For 
compliance with Secs. 125.60 and 125.65, such schedule shall be in 
accordance with Sec. 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 demonstration that 
it has met all the requirements of Secs. 125.59 through 125.68.
    (2) No section 301(h) modified permit shall be issued until the 
appropriate State certification/concurrence is granted or waived 
pursuant to Sec. 124.54 or if the State denies certification/ 
concurrence pursuant to Sec. 124.54.
    (3) In the case of a modification issued to an applicant in a State 
administering an approved permit program under 40 CFR part 123, the 
State Director may:
    (i) Revoke an existing permit as of the effective date of the EPA 
issued section 301(h) modified permit; and
    (ii) Cosign the section 301(h) modified permit if the Director has 
indicated an intent to do so in the written concurrence.
    (4) Any section 301(h) modified permit shall:
    (i) Be issued in accordance with the procedures set forth in 40 CFR 
part 124, except that, because section 301(h) permits may be issued only 
by EPA, the terms ``Administrator or a person designated by the 
Administrator'' shall be substituted for the term ``Director'' as 
appropriate; and
    (ii) Contain all applicable terms and conditions set forth in 40 CFR 
part 122 and Sec. 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 received tentative or 
final approval for a section 301(h) modified permit prior to February 4, 
1987, are not subject to Sec. 125.60, the water quality criteria 
provisions of Sec. 125.62(a)(1), or Sec. 125.65 until the time of permit 
renewal. In addition, if permit renewal will occur prior to August 9, 
1996, applicants may have additional time to come into compliance with 
Secs. 125.60 and 125.65, as determined 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 approved, but as to which EPA withdrew its 
tentative approval or issued a tentative denial prior to February 4, 
1987.



Sec. 125.60  Primary or equivalent treatment requirements.

    (a) The applicant shall demonstrate that, at the time its 
modification becomes effective, it will be discharging effluent that has 
received at least primary or equivalent treatment.
    (b) The applicant shall perform monitoring to ensure, based on the 
monthly average results of the monitoring, that the effluent it 
discharges has received primary or equivalent treatment.
    (c)(1) An applicant may request that the demonstration of compliance 
with the requirement under paragraph (b) of this section to provide 30 
percent removal of BOD be allowed on an averaging basis different from 
monthly (e.g., quarterly), subject to the demonstrations provided in 
paragraphs (c)(1)(i), (ii) and (iii) of this section. The Administrator 
may approve such requests if the applicant demonstrates

[[Page 895]]

to the Administrator's satisfaction that:
    (i) The applicant's POTW is adequately designed and well operated;
    (ii) The applicant will be able to meet all requirements under 
section 301(h) of the CWA and these subpart G regulations with the 
averaging basis selected; and
    (iii) The applicant cannot achieve 30 percent removal on a monthly 
average basis because of circumstances beyond the applicant's control. 
Circumstances beyond the applicant's control may include seasonally 
dilute influent BOD concentrations due to relatively high (although 
nonexcessive) inflow and infiltration; relatively high soluble to 
insoluble BOD ratios on a fluctuating basis; or cold climates resulting 
in cold influent. Circumstances beyond the applicant's control shall not 
include less concentrated wastewater due to excessive inflow and 
infiltration (I&I). The determination 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 infiltration) is less than 275 
gallons per capita per day.
    (2) In no event shall averaging on a less frequent basis than 
annually be allowed.

[59 FR 40658, Aug. 9, 1994, as amended at 61 FR 45833, Aug. 29, 1996]



Sec. 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, including:
    (1) Water quality standards for biochemical oxygen demand or 
dissolved oxygen;
    (2) Water quality standards for suspended solids, turbidity, light 
transmission, light scattering, or maintenance of the euphotic zone; and
    (3) Water quality standards for pH.
    (b) The applicant must: (1) Demonstrate that the modified discharge 
will comply with the above water quality standard(s); and
    (2) Provide a determination signed by the State or interstate 
agency(s) authorized to provide certification under Secs. 124.53 and 
124.54 that the proposed modified discharge will comply with applicable 
provisions of State law including water quality standards. This 
determination shall include a discussion of the basis for the conclusion 
reached.



Sec. 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.

    (a) Physical characteristics of discharge. (1) At the time the 
301(h) modification becomes effective, 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 beyond the zone of initial dilution:
    (i) All applicable water quality standards; and
    (ii) All applicable EPA water quality criteria for pollutants for 
which there is no applicable EPA-approved water quality standard that 
directly corresponds to the EPA water quality criterion for the 
pollutant.
    (iii) For purposes of paragraph (a)(1)(ii) of this section, a State 
water quality standard ``directly corresponds'' to an EPA water quality 
criterion only if:
    (A) The State water quality standard addresses the same pollutant as 
the EPA water quality criterion and
    (B) The State water quality standard specifies a numeric criterion 
for that pollutant or State objective methodology for deriving such a 
numeric criterion.
    (iv) The evaluation of compliance with paragraphs (a)(1) (i) and 
(ii) of this section shall be based upon conditions reflecting periods 
of maximum stratification and during other periods when discharge 
characteristics, water quality, biological seasons, or oceanographic 
conditions indicate more critical situations may exist.
    (2) The evaluation under paragraph (a)(1)(ii) of this section as to 
compliance with applicable section 304(a)(1)

[[Page 896]]

water quality criteria shall be based on the following:
    (i) For aquatic life criteria: The pollutant concentrations that 
must not be exceeded are the numeric ambient values, if any, specified 
in the EPA section 304(a)(1) water quality criteria documents as the 
concentrations at which acute and chronic toxicity to aquatic life 
occurs or that are otherwise identified as the criteria to protect 
aquatic life.
    (ii) For human health criteria for carcinogens: (A) For a known or 
suspected carcinogen, the Administrator shall determine the pollutant 
concentration that shall not be exceeded. To make this determination, 
the Administrator shall first determine a level of risk associated with 
the pollutant that is acceptable for purposes of this section. The 
Administrator shall then use the information in the section 304(a)(1) 
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 single level that has been consistently 
used, as determined by the Administrator, as the basis of the State's 
EPA-approved water quality standards for carcinogenic pollutants. 
Alternatively, the Administrator may consider a State's recommendation 
to use a risk level that has been otherwise adopted or formally proposed 
by the State. The State recommendation must demonstrate, to the 
satisfaction of the Administrator, that the recommended level is 
sufficiently protective of human health in light of the exposure and 
uncertainty factors associated with the estimate of the actual risk 
posed by the applicant's discharge. The State must include with its 
demonstration a showing that the risk level selected is based on the 
best information available and that the State has held a public hearing 
to review the selection of the risk level, in accordance with provisions 
of State law and public participation requirements of 40 CFR part 25. If 
the Administrator neither determines that there is a consistently used 
single risk level nor accepts a risk level recommended by the State, 
then the Administrator shall otherwise determine an acceptable risk 
level based on all relevant information.
    (iii) For human health criteria for noncarcinogens: 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)(1) water quality criteria documents as protective against 
the potential toxicity of the contaminant through ingestion of 
contaminated aquatic organisms.
    (3) The requirements of paragraphs (a)(1) and (a)(2) of this section 
apply in addition to, and do not waive or substitute for, the 
requirements of Sec. 125.61.
    (b) Impact of discharge on public water supplies. (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 applicant's modified 
discharge must allow for the attainment or maintenance of water quality 
which assures protection and propagation of a balanced indigenous 
population of shellfish, fish, and wildlife.
    (2) A balanced indigenous population of shellfish, fish, and 
wildlife must exist:
    (i) Immediately beyond the zone of initial dilution of the 
applicant's modified discharge; and
    (ii) In all other areas beyond the zone of initial dilution where 
marine life is actually or potentially affected by the applicant's 
modified discharge.
    (3) Conditions within the zone of initial dilution must not 
contribute to extreme adverse biological impacts, including, but not 
limited to, the destruction of distinctive habitats of limited 
distribution, the presence of disease epicenter, or the stimulation of

[[Page 897]]

phytoplankton blooms which have adverse effects beyond the zone of 
initial dilution.
    (4) In addition, for modified discharges into saline estuarine 
water:
    (i) Benthic populations within the zone of initial dilution must not 
differ substantially from the balanced indigenous populations which 
exist immediately beyond the boundary of the zone of initial dilution;
    (ii) The discharge must not interfere with estuarine migratory 
pathways within the zone of initial dilution; and
    (iii) The discharge must not result in the accumulation of toxic 
pollutants or pesticides at levels which exert adverse effects on the 
biota within the zone of initial dilution.
    (d) Impact of discharge on recreational activities. (1) The 
applicant's modified discharge must allow for the attainment or 
maintenance of water quality which allows for recreational activities 
beyond the zone of initial dilution, including, without limitation, 
swimming, diving, boating, fishing, and picnicking, and sports 
activities along shorelines and beaches.
    (2) There must be no Federal, State, or local restrictions on 
recreational activities within the vicinity of the applicant's modified 
outfall unless such restrictions are routinely imposed around sewage 
outfalls. This exception shall not apply where the restriction would be 
lifted or modified, in whole or in part, if the applicant were 
discharging a secondary treatment effluent.
    (e) Additional requirements for applications based on improved or 
altered discharges. An application for a section 301(h) modified permit 
on the basis of an improved or altered discharge must include:
    (1) A demonstration that such improvements or alterations have been 
thoroughly planned and studied and can be completed or implemented 
expeditiously;
    (2) Detailed analyses projecting changes in average and maximum 
monthly flow rates and composition of the applicant's discharge which 
are expected to result from proposed improvements or alterations;
    (3) The assessments required by paragraphs (a) through (d) of this 
section based on its current discharge; and
    (4) A detailed analysis of how the applicant's planned improvements 
or alterations will comply with the requirements of paragraphs (a) 
through (d) of this section.
    (f) Stressed waters. An applicant must demonstrate compliance with 
paragraphs (a) through (e) of this section not only on the basis of the 
applicant'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 
resulting from human perturbations other than its modified 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 perturbation from other sources increases; and
    (3) Retard the recovery of the biota or water quality if the level 
of human perturbation from other sources decreases.



Sec. 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 investigations 
necessary to

[[Page 898]]

study the effects of the proposed discharge;
    (ii) Describe the sampling techniques, schedules and locations 
(including appropriate control sites), analytical techniques, quality 
control and verification procedures to be used in the monitoring 
program;
    (iii) Demonstrate that it has the resources necessary to implement 
the program upon issuance of the modified permit and to carry it out for 
the life of the modified permit; and
    (iv) Determine the frequency and extent of the monitoring program 
taking into consideration the applicant's rate of discharge, quantities 
of toxic pollutants discharged, and potentially significant impacts on 
receiving water 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 modified permit.
    (b) Biological monitoring program. The biological monitoring program 
for both small and large applicants shall provide data adequate to 
evaluate the impact of the modified discharge on the marine biota.
    (1) Biological monitoring shall include to the extent practicable:
    (i) Periodic surveys of the biological communities and populations 
which are most likely affected by the discharge to enable comparisons 
with baseline conditions described in the application and verified by 
sampling at the control stations/reference sites during the periodic 
surveys;
    (ii) Periodic determinations of the accumulation of toxic pollutants 
and pesticides in organisms and examination of adverse effects, such as 
disease, growth abnormalities, physiological stress, or death;
    (iii) Sampling of sediments in areas of solids deposition in the 
vicinity of the ZID, in other areas of expected impact, and at 
appropriate reference sites to support the water quality and biological 
surveys and to measure the accumulation of toxic pollutants and 
pesticides; and
    (iv) Where the discharge would affect commercial or recreational 
fisheries, periodic assessments of the conditions and productivity of 
fisheries.
    (2) Small applicants are not subject to the requirements of 
paragraph (b)(1) (ii) through (iv) of this section if they discharge at 
depths greater than 10 meters and can demonstrate through a suspended 
solids deposition analysis that there will be negligible seabed 
accumulation in the vicinity of the modified discharge.
    (3) For applicants seeking a section 301(h) modified permit based 
on:
    (i) A current discharge, biological monitoring shall be designed to 
demonstrate ongoing compliance with the requirements of Sec. 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 
Sec. 125.62(c) are met; or
    (iii) An improved or altered discharge involving outfall relocation, 
the biological monitoring shall:
    (A) Include the current discharge site until such discharge ceases; 
and
    (B) Provide baseline data at the relocation site to demonstrate the 
impact of the discharge and to provide the basis for demonstrating that 
requirements of Sec. 125.62(c) will be met.
    (c) Water quality monitoring program. The water quality monitoring 
program shall to the extent practicable:
    (1) Provide adequate data for evaluating compliance with water 
quality standards or water quality criteria, as applicable under 
Sec. 125.62(a)(1);
    (2) Measure the presence of toxic pollutants which have been 
identified or reasonably may be expected to be present in the discharge.
    (d) Effluent monitoring program. (1) In addition to the requirements 
of 40 CFR part 122, to the extent practicable, monitoring of the POTW 
effluent shall provide quantitative and qualitative data which measure 
toxic substances and pesticides in the effluent and the effectiveness of 
the toxic control program.
    (2) The permit shall require the collection of data on a frequency 
specified in the permit to provide adequate data for evaluating 
compliance with the

[[Page 899]]

percent removal efficiency requirements under Sec. 125.60.



Sec. 125.64  Effect of the discharge on other point and nonpoint sources.

    (a) No modified discharge may result in any additional pollution 
control requirements on any other point or nonpoint source.
    (b) The applicant shall obtain a determination from the State or 
interstate agency(s) having authority to establish wasteload allocations 
indicating whether the applicant's discharge will result in an 
additional treatment pollution control, or other requirement on any 
other point or nonpoint sources. The State determination shall include a 
discussion of the basis for its conclusion.



Sec. 125.65  Urban area pretreatment program.

    (a) Scope and applicability. (1) The requirements 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 addition to any 
applicable requirements of 40 CFR part 403, and do not waive or 
substitute for the part 403 requirements in any way.
    (b) 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 secondary removal 
equivalency in accordance with paragraph (d) of this section.
    (2) Each applicant shall demonstrate that industrial sources 
introducing waste into the applicant's treatment works are in compliance 
with all applicable pretreatment requirements, including numerical 
standards set by local limits, and that it will enforce those 
requirements.
    (c) Applicable pretreatment requirement. (1) An applicable 
pretreatment requirement under paragraph (b)(1)(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 discharger for which there is no 
applicable categorical pretreatment standard for the toxic pollutant, a 
local limit or limits on the toxic pollutant as necessary to satisfy the 
requirements of 40 CFR part 403; and
    (ii) As to a toxic pollutant introduced into the applicant's 
treatment works by an industrial discharger that is subject to a 
categorical pretreatment standard for the toxic pollutant, the 
categorical standard and a local limit or limits as necessary to satisfy 
the requirements of 40 CFR part 403;
    (iii) As to a toxic pollutant introduced into the applicant's 
treatment works by an industrial discharger for which there is no 
applicable categorical pretreatment standard for the toxic pollutant, 
and the 40 CFR part 403 analysis on the toxic pollutant shows that no 
local limit is necessary, the applicant shall demonstrate to EPA on an 
annual basis during the term of the permit through continued monitoring 
and appropriate technical review that a local limit is not necessary, 
and, where appropriate, require industrial management practices plans 
and other pollution prevention activities to reduce or control the 
discharge of each such pollutant by industrial dischargers to the POTW. 
If such monitoring and technical review of data indicate that a local 
limit is needed, the POTW shall establish and implement a local limit.
    (2) Any local limits developed to meet the requirements of 
paragraphs (b)(1)(i) and (c)(1) of this section shall be:
    (i) Consistent with all applicable requirements of 40 CFR part 403 
and
    (ii) Subject to approval by the Administrator as part of the 301(h) 
application review. The Administrator may require such local limits to 
be revised as necessary to meet the requirements of this section or 40 
CFR part 403.
    (d) Secondary removal equivalency. An applicant shall demonstrate 
that it achieves secondary removal equivalency through the use of a 
secondary treatment pilot (demonstration) plant

[[Page 900]]

at the applicant's facility which provides an empirical determination of 
the amount of a toxic pollutant removed by the application of secondary 
treatment to the applicant's influent where the applicant's influent has 
not been pretreated. Alternatively, an applicant may make this 
determination using influent that has received industrial pretreatment, 
notwithstanding the definition of secondary removal equivalency in 
Sec. 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 
required to assure that all applicable environmental protection criteria 
are met. Once such effluent limits are established in the NPDES permit, 
the POTW may either establish local limits or perform additional 
treatment at the POTW or a combination of the two to achieve the permit 
limit.



Sec. 125.66  Toxics control program.

    (a) Chemical analysis. (1) The applicant shall submit at the time of 
application a chemical analysis of its current discharge for all toxic 
pollutants and pesticides as defined in Sec. 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 supplemental or substitute 
samples typifies that which occurs during dry and wet weather 
conditions.
    (2) Unless required by the State, this requirement shall not apply 
to any small section 301(h) applicant which certifies that there are no 
known or suspected sources of toxic pollutants or pesticides and 
documents the certification with an industrial user survey as described 
by 40 CFR 403.8(f)(2).
    (b) 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 Sec. 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 applicant which has no 
known or suspected industrial sources of toxic pollutants or pesticides 
and so certifies to the Administrator.
    (3) The pretreatment program submitted by the applicant under this 
section shall be subject to revision as required by the Administrator 
prior to issuing or renewing any section 301(h) modified permit and 
during the term of any such permit.
    (4) Implementation of all existing pretreatment requirements and 
authorities must be maintained through the period of development of any 
additional pretreatment requirements that may be necessary to comply 
with the requirements of this subpart.
    (d) Nonindustrial source control program. (1) The applicant shall 
submit a proposed public education 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) modified permit.
    (2) The applicant shall also develop and implement additional 
nonindustrial source control programs on the earliest possible schedule. 
This requirement shall not apply to a small applicant which certifies 
that there are no known or suspected water quality, sediment 
accumulation, or biological problems related to toxic pollutants or 
pesticides in its discharge.
    (3) The applicant's nonindustrial source control programs under 
paragraph (d)(2) of this section shall include the following schedules 
which are to be implemented no later than 18 months after issuance of a 
section 301(h) modified permit:
    (i) A schedule of activities for identifying nonindustrial sources 
of toxic pollutants and pesticides; and
    (ii) A schedule for the development and implementation of control 
programs, to the extent practicable, for

[[Page 901]]

nonindustrial sources of toxic pollutants and pesticides.
    (4) Each proposed nonindustrial source control program and/or 
schedule submitted by the applicant under this section shall be subject 
to revision as determined by the Administrator prior to issuing or 
renewing any section 301(h) modified permit and during the term of any 
such permit.



Sec. 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) modified permit.
    (b) Where pollutant discharges are attributable in part to combined 
sewer overflows, the applicant shall minimize existing overflows and 
prevent increases in the amount of pollutants discharged.
    (c) The applicant shall provide projections of effluent volume and 
mass loadings for any pollutants to which the modification applies in 5-
year increments for the design life of its facility.



Sec. 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 Sec. 125.66(c);
    (2) Nonindustrial toxics control program required by Sec. 125.66(d); 
and
    (3) Control of combined sewer overflows required by Sec. 125.67.
    (c) Monitoring program requirements that include:
    (1) Biomonitoring requirements of Sec. 125.63(b);
    (2) Water quality requirements of Sec. 125.63(c);
    (3) Effluent monitoring requirements of Secs. 125.60(b), 125.62(c) 
and (d), and 125.63(d).
    (d) Reporting requirements that include the results of the 
monitoring programs required by paragraph (c) of this section at such 
frequency as prescribed in the approved monitoring program.

     Appendix to part 125 to subpart G--Applicant 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 aspect of this 
collection, including suggestions for reducing the burden, to Chief, 
Information Policy Branch, U.S. Environmental 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 treatment requirements under 
section 301(h) of the Clean Water Act (CWA). A small applicant is 
defined as a POTW that has a contributing population to its wastewater 
treatment facility of less than 50,000 and a projected average dry 
weather flow of less than 5.0 million gallons per day (mgd, 0.22 cubic 
meters/sec) [40 CFR 125.58(c)]. A large applicant is defined as a POTW 
that has a population contributing to its wastewater treatment facility 
of at least 50,000 or a projected average dry weather flow of its 
discharge of at least 5.0 million gallons per day (mgd, 0.22 cubic 
meters/sec) [40 CFR 125.58(c)]. The questionnaire is in two sections, a 
general information and basic requirements section (part II) and a 
technical evaluation section (part III). Satisfactory completion by 
small and large dischargers of the appropriate questions of this 
questionnaire is necessary to enable EPA to determine whether the 
applicant's modified discharge meets the criteria of section 301(h) and 
EPA regulations (40 CFR part 125, subpart G).
    2. Most small applicants should be able to complete the 
questionnaire using available information. However, small POTWs with low 
initial dilution discharging into shallow waters or waters with poor 
dispersion and transport characteristics, discharging near distinctive 
and susceptible biological habitats, or discharging substantial 
quantities of

[[Page 902]]

toxics should anticipate the need to collect additional information and/
or conduct additional analyses to demonstrate compliance with section 
301(h) criteria. If there are questions in this regard, applicants 
should contact the appropriate EPA Regional Office for guidance.
    3. Guidance for responding to this questionnaire is provided by the 
newly amended section 301(h) technical support document. Where available 
information is incomplete and the applicant needs to collect additional 
data during the period it is preparing the application or a letter of 
intent, EPA encourages the applicant to consult with EPA prior to data 
collection and submission. Such consultation, particularly if the 
applicant provides a project plan, will help ensure that the proper data 
are gathered in the most efficient matter.
    4. The notation (L) means large applicants must respond to the 
question, and (S) means small applicants must respond.

           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 propose to satisfy the 
requirements of section 301(h) and 40 CFR part 125, subpart G. What is 
the total discharge design flow upon which this application is based?
    b. Provide a map showing the geographic location of proposed 
outfall(s) (i.e., discharge). What is the latitude and longitude of the 
proposed outfall(s)?
    c. For a modification based on an improved or altered discharge, 
provide a description and diagram of your current treatment system and 
outfall configuration. Include the current outfall's latitude and 
longitude, if different from the proposed outfall.
    3. (L,S) Primary or equivalent treatment requirements [40 CFR 
125.60]
    a. Provide data to demonstrate that your effluent meets at least 
primary or equivalent treatment requirements as defined in 40 CFR 
125.58(r) [40 CFR 125.60]
    b. If your effluent does not meet the primary or equivalent 
treatment requirements, when do you plan to meet them? Provide a 
detailed schedule, including design, construction, start-up and full 
operation, with your application. This requirement must be met by the 
effective date of the new section 301(h) modified permit.
    4. (L,S) Effluent Limitations and Characteristics [40 CFR 125.61(b) 
and 125.62(e)(2)]
    a. Identify the final effluent limitations for five-day biochemical 
oxygen demand (BOD5), 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 discharge if different 
from the current discharge:

Flow (m3/sec):
--minimum
--average dry weather
--average wet weather
--maximum
--annual average

    BOD5 (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)(1) criteria and toxic pollutant and pesticide

    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 effluent volume 
(annual average, m3/sec) and mass loadings (mt/yr) of 
BOD5 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 discharge, the projections must be provided 
with and without the proposed improvements or alterations.
    b. Provide projections for the end of your five-year permit term for 
1) the treatment facility contributing population and 2) the average 
daily total discharge flow for the maximum month of the dry weather 
season.
    6. (L,S) Average Daily Industrial Flow (m3/sec). Provide 
or estimate the average daily

[[Page 903]]

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 include combined 
sewer overflows?
    b. If yes, provide a description of your plan for minimizing 
combined sewer overflows to the receiving water.
    8. (L,S) Outfall/Diffuser Design. Provide the following data for 
your current discharge as well as for the modified discharge, if 
different from the current discharge: [40 CFR 125.62(a)(1)]

--Diameter and length of the outfall(s) (meters)
--Diameter and length of the diffuser(s) (meters)
--Angle(s) of port orientation(s) from horizontal (degrees)
--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 (meters)
--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 saline estuary [40 CFR 125.58(v)]? 
[40 CFR 125.59(a)].
    2. (L,S) Is your current discharge or modified discharge to stressed 
waters as defined in 40 CFR 125.58(z)? If yes, what are the pollution 
sources contributing to the stress? [40 CFR 125.59(b)(4) and 125.62(f)].
    3. (L,S) Provide a description and data on the seasonal circulation 
patterns in the vicinity of your current and modified discharge(s). [40 
CFR 125.62(a)].
    4. (L) Oceanographic conditions in the vicinity of the current and 
proposed modified discharge(s). Provide data on the following: [40 CFR 
125.62(a)].

--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 frequency, months)
--Density profiles during period(s) of maximum stratification

    5. (L,S) Do the receiving waters for your discharge contain 
significant amounts of effluent previously discharged from the treatment 
works for which you are applying for a section 301(h) modified permit? 
[40 CFR 125.57(a)(9)]
    6. Ambient water quality conditions during the period(s) of maximum 
stratification: at the zone of initial dilution (ZID) boundary, at other 
areas of potential impact, and at control stations. [40 CFR 125.62(a)]
    a. (L) Provide profiles (with depth) on the following for the 
current discharge location and for the modified discharge location, if 
different from the current discharge:

--BOD5 (mg/L)
--Dissolved oxygen (mg/L)
--Suspended solids (mg/L)
--pH
--Temperature (  deg.C)
--Salinity (ppt)
--Transparency (turbidity, percent light transmittance)
--Other significant variables (e.g., nutrients, 304(a)(1) criteria and 
toxic pollutants and pesticides, fecal coliform bacteria)

    b. (S) Provide available data on the following in the vicinity of 
the current discharge location and for the modified discharge location, 
if different from the current discharge: [40 CFR 125.61(b)(1)]

--Dissolved oxygen (mg/L)
--Suspended solids (mg/L)
--pH
--Temperature (  deg.C)
--Salinity (ppt)
--Transparency (turbidity, percent light transmittance)
--Other significant variables (e.g., nutrients, 304(a)(1) criteria and 
toxic pollutants and pesticides, fecal coliform 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 period(s). [40 CFR 
125.62(a)(1)].
    7. (L) Provide data on steady state sediment dissolved oxygen demand 
and dissolved oxygen demand due to resuspension of sediments in the 
vicinity of your current and modified discharge(s) (mg/L/day).

                        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 boundary, at other areas of potential discharge-related impact, 
and at reference (control) sites. Community characteristics to be 
described shall include (but not be limited to) species composition; 
abundance; dominance and diversity; spatial/temporal distribution; 
growth and reproduction; disease frequency; trophic structure and 
productivity patterns; presence of opportunistic species; 
bioaccumulation of toxic materials; and the occurrence of mass 
mortalities.

[[Page 904]]

    2. (L,S)a. Are distinctive habitats of limited distribution (such as 
kelp beds or coral reefs) located in areas potentially affected by the 
modified discharge? [40 CFR 125.62(c)]
    b. If yes, provide information on type, extent, and location of 
habitats.
    3. (L,S)a. Are commercial or recreational fisheries located in areas 
potentially affected by the discharge? [40 CFR 125.62 (c) and (d)]
    b. If yes, provide information on types, location, and value of 
fisheries.

       D. State and Federal Laws [40 CFR 125.61 and 125.62(a)(1)]

    1. (L,S) Are there water quality standards applicable to the 
following pollutants for which a modification is requested:

--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 management 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, provide sufficient information to demonstrate that your modified 
discharge will comply with such law(s), regulation(s), or order(s). [40 
CFR 125.59 (b)(3)].

                        III. Technical Evaluation

       A. Physical Characteristics of Discharge [40 CFR 125.62(a)]

    1. (L,S) What is the critical initial dilution for your current and 
modified discharge(s) during (1) the period(s) of maximum 
stratification? and (2) any other critical period(s) of discharge 
volume/composition, water quality, biological seasons, or oceanographic 
conditions?
    2. (L,S) What are the dimensions of the zone of initial dilution for 
your modified discharge(s)?
    3. (L) What are the effects of ambient currents and stratification 
on dispersion and transport of the discharge plume/wastefield?
    4. (S) Will there be significant sedimentation of suspended solids 
in the vicinity of the modified discharge?
    5. (L) Sedimentation of suspended solids
    a. What fraction of the modified discharge's suspended solids will 
accumulate within the vicinity of the modified discharge?
    b. What are the calculated area(s) and rate(s) of sediment 
accumulation within the vicinity of the modified discharge(s) (g/
m2/yr)?
    c. What is the fate of settleable solids transported beyond the 
calculated sediment accumulation area?

     B. Compliance with Applicable Water Quality Standards and CWA 
 Sec. 304(a)(1) 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 depression and 
resulting concentration due to BOD exertion of the wastefield during the 
period(s) of maximum stratification and any other critical period(s)?
    3. (L) What are the dissolved oxygen depressions and resulting 
concentrations near the bottom due to steady sediment demand and 
resuspension of sediments?
    4. (L,S) What is the increase in receiving water suspended solids 
concentration immediately following initial dilution of the modified 
discharge(s)?
    5. (L) What is the change in receiving water pH immediately 
following initial dilution of the modified discharge(s)?
    6. (L,S) Does (will) the modified discharge comply with applicable 
water quality standards for:


[[Page 905]]


--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)(1) of the Clean Water Act for which there are no 
directly corresponding numerical applicable water quality standards 
approved by EPA, are met at and beyond the boundary of the ZID under 
critical environmental and treatment plant conditions in the waters 
surrounding or adjacent to the point at which your effluent is 
discharged. [40 CFR 125.62(a)(1)]
    8. (L,S) Provide the determination required by 40 CFR 125.61(b)(2) 
for compliance with all applicable provisions of State law, including 
water quality standards or, if the determination has not yet been 
received, a copy of a letter to the appropriate agency(s) requesting the 
required determination.

          C. Impact on Public Water Supplies [40 CFR 125.62(b)]

    1. (L,S) Is there a planned or existing public water supply 
(desalinization facility) intake in the vicinity of the current or 
modified discharge?
    2. (L,S) If yes:
    a. What is the location of the intake(s) (latitude and longitude)?
    b. Will the modified discharge(s) prevent the use of intake(s) for 
public water supply?
    c. Will the modified discharge(s) cause increased treatment 
requirements for public water supply(s) to meet local, State, and EPA 
drinking water standards?

          D. Biological Impact of Discharge [40 CFR 125.62(c)]

    1. (L,S) Does (will) a balanced indigenous population of shellfish, 
fish, and wildlife exist:

--Immediately beyond the ZID of the current and modified 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 discharge?
    3. (L,S) Have commercial or recreational fisheries been impacted 
adversely by the current discharge (e.g., warnings, restrictions, 
closures, or mass mortalities) or will they be impacted adversely by the 
modified discharge?
    4. (L,S*) Does the current or modified discharge cause the following 
within or beyond the ZID: [40 CFR 125.62(c)(3)]

--Mass mortality of fishes or invertebrates due to oxygen depletion, 
high concentrations of toxics, or other conditions?
--An increased incidence of disease in marine organisms?
--An abnormal body burden of any toxic material in marine 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 levels 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 improved 
discharge(s) comply with the requirements of 40 CFR 125.62(a) through 
125.62(d)? [40 CFR 125.62(e)]
    7. (L,S) For altered discharge(s), will the altered discharge(s) 
comply with the requirements of 40 CFR 125.62(a) through 125.62(d)? [40 
CFR 125.62(e)]
    8. (L,S) If your current discharge is to stressed ocean waters, does 
or will your current or modified discharge: [40 CFR 125.62(f)]

--Contribute to, increase, or perpetuate such stressed condition?
--Contribute to further degradation of the biota or water quality if the 
level of human perturbation from other sources increases?
--Retard the recovery of the biota or water quality if human 
perturbation from other sources decreases?

  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 discharge(s) beyond the zone of 
initial dilution.
    2. (L,S) What are the existing and potential impacts of the modified 
discharge(s) on recreational activities? Your answer should include, but 
not be limited to, a discussion of fecal coliform bacteria.
    3. (L,S) Are there any Federal, State, or local restrictions on 
recreational activities in the vicinity of the modified discharge(s)? If 
yes, describe the restrictions and provide citations to available 
references.
    4. (L,S) If recreational restrictions exist, would such restrictions 
be lifted or modified

[[Page 906]]

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 effluent 
monitoring programs which you propose to meet the criteria of 40 CFR 
125.63. Only those scientific investigations that are necessary to study 
the effects of the proposed discharge should be included in the scope of 
the 301(h) monitoring program [40 CFR 125.63(a)(1)(i)(B)].
    2. (L,S) Describe the sampling techniques, schedules, and locations, 
analytical techniques, quality control and verification procedures to be 
used.
    3. (L,S) Describe the personnel and financial resources available to 
implement the monitoring programs upon issuance of a 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 received, a copy of a letter to 
the appropriate agency(s) requesting 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 industrial sources of 
toxic pollutants or pesticides?
    b. (L,S) If no, provide the certification required by 40 CFR 
125.66(a)(2) for small dischargers, and required by 40 CFR 125.66(c)(2) 
for large dischargers.
    c. (L,S*) Provide the results of wet and dry weather effluent 
analyses for toxic pollutants and pesticides as required by 40 CFR 
125.66(a)(1). (* to the extent practicable)
    d. (L,S*) Provide an analysis of known or suspected industrial 
sources of toxic pollutants and pesticides identified in (1)(c) above as 
required by 40 CFR 125.66(b). (* to the extent practicable)
    2. (S)a. Are there any known or suspected water quality, sediment 
accumulation, or biological problems related to toxic pollutants or 
pesticides from your modified discharge(s)?
    (S)b. If no, provide the certification required by 40 CFR 
125.66(d)(2) together with available supporting data.
    (S)c. If yes, provide a schedule for development and implementation 
of nonindustrial toxics control programs to meet the requirements of 40 
CFR 126.66(d)(3).
    (L)d. Provide a schedule for development and implementation of a 
nonindustrial toxics control program to meet the requirements of 40 CFR 
125.66(d)(3).
    3. (L,S) Describe the public education program you propose to 
minimize the entrance of nonindustrial toxic pollutants and pesticides 
into your treatment system. [40 CFR 125.66(d)(1)]
    4. (L,S) Do you have an approved industrial pretreatment program?
    a. If yes, provide the date of EPA approval.
    b. If no, and if required by 40 CFR part 403 to have an industrial 
pretreatment program, provide a proposed schedule for development and 
implementation of your industrial pretreatment program to meet the 
requirements of 40 CFR part 403.
    5. Urban area pretreatment requirement [40 CFR 125.65] Dischargers 
serving a population of 50,000 or more must respond.
    a. Provide data on all toxic pollutants introduced into the 
treatment works from industrial sources (categorical and 
noncategorical).
    b. Note whether applicable pretreatment requirements are in effect 
for each toxic pollutant. Are the industrial sources introducing such 
toxic pollutants in compliance with all of their pretreatment 
requirements? Are these pretreatment requirements being enforced? [40 
CFR 125.65(b)(2)]
    c. If applicable pretreatment requirements do not exist for each 
toxic pollutant in the POTW effluent introduced by industrial sources,

--provide a description and a schedule for your development and 
implementation of applicable pretreatment requirements [40 CFR 
125.65(c)], or
--describe how you propose to demonstrate secondary removal equivalency 
for each of those toxic pollutants, including a schedule for compliance, 
by using a secondary treatment pilot plant. [40 CFR 125.65(d)]



  Subpart H--Criteria for Determining Alternative Effluent Limitations 
                     Under Section 316(a) of the Act



Sec. 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 satisfaction of the Administrator (or, if 
appropriate, the State) that any effluent limitation proposed for the 
control of the thermal component of any discharge

[[Page 907]]

from such source will require effluent limitations more stringent than 
necessary to assure the projection [sic] and propagation of a balanced, 
indigenous population of shellfish, fish and wildlife in and on the body 
of water into which the discharge is to be made, the Administrator (or, 
if appropriate, the State) may impose an effluent limitation under such 
sections on such plant, with respect to the thermal component of such 
discharge (taking into account the interaction of such thermal component 
with other pollutants), that will assure the protection and propagation 
of a balanced indigenous population of shellfish, fish and wildlife in 
and on that body of water.''


This subpart describes the factors, criteria and standards for the 
establishment of alternative thermal effluent limitations under section 
316(a) of the Act in permits issued under section 402(a) of the Act.



Sec. 125.71  Definitions.

    For the purpose of this subpart:
    (a) Alternative effluent limitations means all effluent limitations 
or standards of performance for the control of the thermal component of 
any discharge which are established under section 316(a) and this 
subpart.
    (b) Representative important species means species which are 
representative, in terms of their biological needs, of a balanced, 
indigenous community of shellfish, fish and wildlife in the body of 
water into which a discharge of heat is made.
    (c) The term balanced, indigenous community is synonymous with the 
term balanced, indigenous population in the Act and means a biotic 
community typically characterized by diversity, the capacity to sustain 
itself through cyclic seasonal changes, presence of necessary food chain 
species and by a lack of domination by pollution tolerant species. Such 
a community may include historically non-native species introduced in 
connection with a program of wildlife management and species whose 
presence or abundance results from substantial, irreversible 
environmental modifications. 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 include species 
whose presence or abundance is attributable to alternative effluent 
limitations imposed pursuant to section 316(a).



Sec. 125.72  Early screening of applications for section 316(a) variances.

    (a) Any initial application for a section 316(a) variance shall 
include the following early screening information:
    (1) A description of the alternative effluent limitation requested;
    (2) A general description of the method by which the discharger 
proposes to demonstrate that the otherwise applicable thermal discharge 
effluent limitations are more stringent than necessary;
    (3) A general description of the type of data, studies, experiments 
and other information which the discharger intends to submit for the 
demonstration; and
    (4) Such data and information as may be available to assist the 
Director in selecting the appropriate representative important species.
    (b) After submitting the early screening information under paragraph 
(a) of this section, the discharger shall consult with the Director at 
the earliest practicable time (but not later than 30 days after the 
application is filed) to discuss the discharger's early screening 
information. Within 60 days after the application is filed, the 
discharger shall submit for the Director's approval a detailed plan of 
study which the discharger will undertake to support its section 316(a) 
demonstration. The discharger shall specify the nature and extent of the 
following type of information to be included in the plan of study: 
Biological, hydrographical and meteorological data; physical monitoring 
data; engineering or diffusion models; laboratory studies; 
representative important species; and other relevant information. In 
selecting representative important species, special consideration shall 
be given to species mentioned in applicable water quality standards. 
After the discharger submits its detailed plan of study, the Director 
shall either approve the plan or specify any necessary revisions to the 
plan. The discharger shall provide any additional information or studies

[[Page 908]]

which the Director subsequently determines necessary to support the 
demonstration, including such studies or inspections as may be necessary 
to select representative important species. The discharger may provide 
any additional information or studies which the discharger feels are 
appropriate to support the demonstration.
    (c) Any application for the renewal of a section 316(a) variance 
shall include only such information described in paragraphs (a) and (b) 
of this section and Sec. 124.73(c)(1) as the Director requests within 60 
days after receipt of the permit application.
    (d) The Director shall promptly notify the Secretary of Commerce and 
the Secretary of the Interior, and any affected State of the filing of 
the request and shall consider any timely recommendations they submit.
    (e) In making the demonstration the discharger shall consider any 
information or guidance published by EPA to assist in making such 
demonstrations.
    (f) If an applicant desires a ruling on a section 316(a) application 
before the ruling on any other necessary permit terms and conditions, 
(as provided by Sec. 124.65), it shall so request upon filing its 
application under paragraph (a) of this section. This request shall be 
granted or denied at the discretion of the Director.

    Note: At the expiration of the permit, any discharger holding a 
section 316(a) variance should be prepared to support the continuation 
of the variance with studies based on the discharger's actual operation 
experience.

[44 FR 32948, June 7, 1979, as amended at 45 FR 33513, May 19, 1980]



Sec. 125.73  Criteria and standards for the determination of alternative effluent limitations under section 316(a).

    (a) Thermal discharge effluent limitations or standards established 
in permits may be less stringent than those required by applicable 
standards and limitations if the discharger demonstrates to the 
satisfaction of the director that such effluent limitations are more 
stringent than necessary to assure the protection and propagation of a 
balanced, indigenous community of shellfish, fish and wildlife in and on 
the body of water into which the discharge is made. This demonstration 
must show that the alternative effluent limitation desired by the 
discharger, considering the cumulative impact of its thermal discharge 
together with all other significant impacts on the species affected, 
will assure the protection and propagation of a balanced indigenous 
community of shellfish, fish and wildlife in and on the body of water 
into which the discharge is to be made.
    (b) In determining whether or not the protection and propagation of 
the affected species will be assured, the Director may consider any 
information contained or referenced in any applicable thermal water 
quality criteria and thermal water quality information published by the 
Administrator under section 304(a) of the Act, or any other information 
he deems relevant.
    (c) (1) Existing dischargers may base their demonstration upon the 
absence of prior appreciable harm in lieu of predictive studies. Any 
such demonstrations shall show:
    (i) That no appreciable harm has resulted from the normal component 
of the discharge (taking into account the interaction of such thermal 
component with other pollutants and the additive effect of other thermal 
sources to a balanced, indigenous community of shellfish, fish and 
wildlife in and on the body of water into which the discharge has been 
made; or
    (ii) That despite the occurrence of such previous harm, the desired 
alternative effluent limitations (or appropriate modifications thereof) 
will nevertheless assure the protection and propagation of a balanced, 
indigenous community of shellfish, fish and wildlife in and on the body 
of water into which the discharge is made.
    (2) In determining whether or not prior appreciable harm has 
occurred, the Director shall consider the length of time in which the 
applicant has been discharging and the nature of the discharge.

Subpart I--Criteria Applicable to Cooling Water Intake Structures Under 
Section 316(b) of the Act [Reserved]

Subpart J [Reserved]

[[Page 909]]



    Subpart K--Criteria and Standards for Best Management Practices 
               Authorized Under Section 304(e) of the Act



Sec. 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 permits under section 402(a)(1) of the Act. Best management 
practices authorized by section 304(e) are included in permits as 
requirements for the purposes of section 301, 302, 306, 307, or 403 of 
the Act, as the case may be.



Sec. 125.101  Definition.

    Manufacture means to produce as an intermediate or final product, or 
by-product.




Sec. 125.102  Applicability of best management practices.

    Dischargers who use, manufacture, store, handle or discharge any 
pollutant listed as toxic under section 307(a)(1) of the Act or any 
pollutant listed as hazardous under section 311 of the Act are subject 
to the requirements of this Subpart for all activities 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 
runoff; and sludge and waste disposal areas.




Sec. 125.103  Permit terms and conditions.

    (a) Best management practices shall be expressly incorporated into a 
permit where required by an applicable EPA promulgated effluent 
limitations guideline under section 304(e);
    (b) Best management practices may be expressly 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)(1). In issuing a permit 
containing BMP requirements, the Director shall consider the following 
factors:
    (1) Toxicity of the pollutant(s);
    (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 established in permits under 
paragraph (b) of this section alone or in combination with those 
required under paragraph (a) of this section.
    (d) In addition to the requirements of paragraphs (a) and (b) of 
this section, dischargers covered under Sec. 125.102 shall develop and 
implement a best management practices program in accordance with 
Sec. 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.



Sec. 125.104  Best management practices programs.

    (a) BMP programs shall be developed in accordance 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 pollutants to waters of the United States due to equipment 
failure, improper operation, natural phenomena such as rain or snowfall, 
etc.
    (ii) Where experience indicates a reasonable potential for equipment 
failure (e.g., a tank overflow or leakage), natural condition (e.g., 
precipitation), or

[[Page 910]]

other circumstances to result in significant amounts of toxic or 
hazardous pollutants reaching surface waters, the program should include 
a prediction 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 significant 
amounts of toxic or hazardous pollutants to the waters of the United 
States;
    (4) The BMP program: (i) May reflect requirements for Spill 
Prevention Control and Countermeasure (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)(1)(c) regulations (43 FR 
39276) which require facilities subject to NPDES to develop and 
implement SPCC plans to prevent discharges of reportable quantities of 
designated hazardous substances. While subpart K requires only 
procedural activities and minor construction, the proposed 40 CFR part 
151 (SPCC regulations) are more stringent and comprehensive with respect 
to their requirements for spill prevention. 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 regulations 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 Sec. 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 publication 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)(1) The BMP program must be clearly described and submitted as 
part of the permit application. 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 program as 
approved or modified shall be included in the draft permit (Sec. 124.6). 
The BMP program shall be subject to the applicable permit issuance 
requirements of part 124, resulting in the incorporation 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 shall be submitted to the Director for 
approval. If the Director approves the proposed BMP program 
modification, the permit shall be modified in accordance with 
Sec. 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 significant. The BMP 
program, or modification thereof, 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 facility's 
BMP or SPCC program.


[[Page 911]]


    (d) The discharger shall maintain a description of the BMP program 
at the facility and shall make the description available to the Director 
upon request.
    (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, construction, 
operation, or maintenance which materially affects the facility's 
potential for discharge of significant amounts of hazardous or toxic 
pollutants 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 hazardous 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 revised 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.



Sec. 125.120  Scope and purpose.

    This subpart establishes guidelines for issuance of National 
Pollutant Discharge Elimination System (NPDES) permits for the discharge 
of pollutants from a point source into the territorial seas, the 
contiguous zone, and the oceans.




Sec. 125.121  Definitions.

    (a) Irreparable harm means significant undesirable effects occurring 
after the date of permit issuance 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 specific 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 preferable to other 
alternative means of disposal after consideration of:
    (i) The relative environmental harm of disposal on-site, in disposal 
sites located on land, from discharge point(s) within internal waters, 
or in approved ocean dumping sites, and
    (ii) The risk to the environment and human safety posed by the 
transportation of the pollutants.
    (e) Unreasonable degradation of the marine environment 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 exposure to pollutants or 
through consumption of exposed aquatic organisms, or
    (3) Loss of esthetic, recreational, scientific or economic values 
which is unreasonable in relation to the benefit derived from the 
discharge.



[[Page 912]]





Sec. 125.122  Determination of unreasonable degradation of the marine environment.

    (a) The director shall determine whether a discharge will cause 
unreasonable degradation of the marine environment based on 
consideration of:
    (1) The quantities, composition and potential for bioaccumulation or 
persistence of the pollutants to be discharged;
    (2) The potential transport of such pollutants by biological, 
physical or chemical processes;
    (3) The composition and vulnerability of the biological communities 
which may be exposed to such pollutants, including the presence of 
unique species or communities of species, the presence of species 
identified as endangered or threatened pursuant to the Endangered 
Species Act, or the presence of those species critical to the structure 
or function of the ecosystem, such as those important for the food 
chain;
    (4) The importance of the receiving water area to the surrounding 
biological community, including the presence of spawning sites, nursery/
forage areas, migratory pathways, or areas necessary for other functions 
or critical stages in the life cycle of an organism.
    (5) The existence of special aquatic sites including, but not 
limited to marine sanctuaries and refuges, parks, national and historic 
monuments, national seashores, wilderness areas and coral reefs;
    (6) The potential impacts on human health through direct and 
indirect pathways;
    (7) Existing or potential recreational and commercial fishing, 
including finfishing and shellfishing;
    (8) Any applicable requirements of an approved Coastal Zone 
Management plan;
    (9) Such other factors relating to the effects of the discharge as 
may be appropriate;
    (10) Marine water quality criteria developed pursuant to section 
304(a)(1).
    (b) Discharges in compliance with section 301(g), 301(h), or 316(a) 
variance requirements or State water quality standards shall be presumed 
not to cause unreasonable degradation of the marine environment, for any 
specific pollutants or conditions specified in the variance or the 
standard.



Sec. 125.123  Permit requirements.

    (a) If the director on the basis of available information including 
that supplied by the applicant pursuant to Sec. 125.124 determines prior 
to permit issuance that the discharge will not cause unreasonable 
degradation of the marine environment after application of any necessary 
conditions specified in Sec. 125.123(d), he may issue an NPDES permit 
containing such conditions.
    (b) If the director, on the basis of available information including 
that supplied by the applicant pursuant to Sec. 125.124 determines prior 
to permit issuance that the discharge will cause unreasonable 
degradation of the marine environment after application of all possible 
permit conditions specified in Sec. 125.123(d), he may not issue an 
NPDES permit 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 environment pursuant to Sec. 125.122, there shall be no discharge 
of pollutants into the marine environment unless the director on the 
basis of available information, including that supplied by the applicant 
pursuant to Sec. 125.124 determines that:
    (1) Such discharge will not cause irreparable harm to the marine 
environment during the period in which monitoring is undertaken, and
    (2) There are no reasonable alternatives to the on-site disposal of 
these materials, and
    (3) The discharge will be in compliance with all permit conditions 
established pursuant to paragraph (d) of this section.
    (d) All permits which authorize the discharge of pollutants pursuant 
to paragraph (c) of this section shall:
    (1) Require that a discharge of pollutants will: (i) Following 
dilution as measured at the boundary of the mixing zone not exceed the 
limiting permissible concentration for the liquid and suspended 
particulate phases of the waste material as described in Sec. 227.27(a) 
(2) and (3), Sec. 227.27(b), and

[[Page 913]]

Sec. 227.27(c) of the Ocean Dumping Criteria; and (ii) not exceed the 
limiting permissible concentration for the solid phase of the waste 
material or cause an accumulation of toxic materials in the human food 
chain as described in Sec. 227.27 (b) and (d) of the Ocean Dumping 
Criteria;
    (2) Specify a monitoring program, which is sufficient to assess the 
impact of the discharge on water, sediment, and biological quality 
including, where appropriate, analysis of the bioaccumulative and/or 
persistent impact on aquatic life of the discharge;
    (3) Contain any other conditions, such as performance of liquid or 
suspended particulate phase bioaccumulation tests, seasonal restrictions 
on discharge, process modifications, dispersion of pollutants, or 
schedule of compliance for existing discharges, which are determined to 
be necessary because of local environmental conditions, and
    (4) Contain the following clause: In addition to any other grounds 
specified herein, this permit shall be modified or revoked at any time 
if, on the basis of any new data, the director determines that continued 
discharges may cause unreasonable degradation of the marine environment.




Sec. 125.124  Information required to be submitted by applicant.

    The applicant is responsible for providing information which the 
director may request to make the determination required by this subpart. 
The director may require the following information as well as any other 
pertinent information:
    (a) An analysis of the chemical constituents of any discharge;
    (b) Appropriate bioassays necessary to determine the limiting 
permissible concentrations for the discharge;
    (c) An analysis of initial dilution;
    (d) Available process modifications which will reduce the quantities 
of pollutants which will be discharged;
    (e) Analysis of the location where pollutants are sought to be 
discharged, including the biological community and the physical 
description of the discharge facility;
    (f) Evaluation of available alternatives to the discharge of the 
pollutants including an evaluation of the possibility of land-based 
disposal or disposal in an approved ocean dumping site.



PART 129--TOXIC POLLUTANT EFFLUENT STANDARDS--Table of Contents




     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  Aldrin/dieldrin.
129.101  DDT, DDD and DDE.
129.102  Endrin.
129.103  Toxaphene.
129.104  Benzidine.
129.105  Polychlorinated biphenyls (PCBs).

    Authority: Secs. 307, 308, 501, Federal Water Pollution 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



Sec. 129.1  Scope and purpose.

    (a) The provisions of this subpart apply to owners or operators of 
specified facilities discharging into navigable waters.
    (b) The effluent standards or prohibitions for toxic pollutants 
established in this subpart shall be applicable to the sources and 
pollutants hereinafter set forth, and may be incorporated in any NPDES 
permit, modification or renewal thereof, in accordance with the 
provisions of this subpart.
    (c) The provisions of 40 CFR parts 124 and 125 shall apply to any 
NPDES permit proceedings for any point source discharge containing any 
toxic pollutant for which a standard or prohibition is established under 
this part.

[[Page 914]]



Sec. 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 Control Act, as amended 
(Pub. L. 92-500, 86 Stat. 816 et seq., 33 U.S.C. 1251 et seq.). Specific 
references to sections within the Act will be according to Pub. L. 92-
500 notation.
    (b) Administrator means the Administrator of the Environmental 
Protection Agency or any employee of the Agency to whom the 
Administrator may by order delegate the authority to carry out his 
functions under section 307(a) of the Act, or any person who shall by 
operation of law be authorized to carry out such functions.
    (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 standards, 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 established 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 calendar day in which a 
facility discharges effluents subject to this part.
    (g) Ambient water criterion means that concentration 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 reproductive 
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, epidemiological 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 commenced after proposal of an effluent 
standard or prohibition applicable to such source if such effluent 
standard or prohibition is thereafter promulgated in accordance with 
section 307.
    (i) Existing source means any source which is not a new source as 
defined above.
    (j) Source means any building, structure, facility, or installation 
from which there is or may be the discharge of toxic pollutants 
designated as such by the Administration under section 307(a)(1) of the 
Act.
    (k) Owner or operator means any person who owns, leases, operates, 
controls, or supervises a source as defined above.
    (l) Construction means any placement, assembly, or installation of 
facilities or equipment (including 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 engaged in the mechanical 
or chemical transformation of materials or substances into new products 
including but not limited to the blending 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 
resulting 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 navigable waters.
    (o) Air emissions means the release or discharge of a toxic 
pollutant by an owner or operator into the ambient air either (1) by 
means of a stack or (2) as a fugitive dust, mist or vapor as a result 
inherent to the manufacturing or formulating process.
    (p) Fugitive dust, mist or vapor means dust, mist or vapor 
containing a toxic pollutant regulated under this part which is emitted 
from any source other than through a stack.

[[Page 915]]

    (q) Stack means any chimney, flue, conduit, or duct arranged to 
conduct emissions to the ambient air.
    (r) Ten year 24-hour rainfall event means the maximum precipitation 
event with a probable recurrence 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 
information developed therefrom.
    (s) State Director means the chief administrative officer of a State 
or interstate water pollution control agency operating an approved HPDES 
permit program. In the event responsibility for water pollution control 
and enforcement is divided among two or more State or interstate 
agencies, the term State Director means the administrative officer 
authorized to perform the particular procedure to which reference is 
made.



Sec. 129.3  Abbreviations.

    The abbreviations used in this part represent the following terms:

lb=pound (or pounds)
g=gram
 g/l=micrograms per liter (1 one-millionth gram/liter)
kg=kilogram(s)
kkg=1000 kilogram(s)



Sec. 129.4  Toxic pollutants.

    The following are the pollutants subject to regulation under the 
provisions of this subpart:
    (a) Aldrin/Dieldrin--Aldrin means the compound aldrin as identified 
by the chemical name, 1,2,3,4,10,10-hexachloro-1,4,4a,5,8,8a-hexahydro - 
1,4 -endo-5,8-exo-dimethanonaphthalene; ``Dieldrin'' means the compound 
the dieldrin as identified by the chemical name 1,2,3,4,10,10-
hexachloro-6,7 - epoxy - 1,4,4a,5,6,7,8,8a-octahydro-1,4-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) -1,1 - 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 - 1,4,4a,5,6,7,8,8a - 
octahydro - 1,4-endo-5,8-endodimethanonaphthalene.
    (d) Toxaphene--Toxaphene means a material consisting of technical 
grade chlorinated camphene having the approximate formula of C10 
H10 Cl8 and normally containing 67-69 percent 
chlorine by weight.
    (e) Benzidine--Benzidine means the compound benzidine and its salts 
as identified by the chemical name 4,4'-diaminobiphenyl.
    (f) Polychlorinated Biphenyls (PCBs) polychlorinated 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]



Sec. 129.5  Compliance.

    (a)(1) Within 60 days from the date of promulgation of any toxic 
pollutant effluent standard or prohibition each owner or operator with a 
discharge subject to that standard or prohibition must notify the 
Regional Administrator (or State Director, if appropriate) of such 
discharge. Such notification shall include such information and follow 
such procedures as the Regional Administrator (or State Director, if 
appropriate) may require.
    (2) Any owner or operator who does not have a discharge subject to 
any toxic pollutant effluent standard at the time of such promulgation 
but who thereafter commences or intends to commence any activity which 
would result in such a discharge shall first notify the Regional 
Administrator (or State Director, if appropriate) in the manner herein 
provided at least 60 days prior to any such discharge.
    (b) Upon receipt of any application for issuance or reissuance of a 
permit or for a modification of an existing permit for a discharge 
subject to a toxic pollutant effluent standard or prohibition the 
permitting authority shall proceed thereon in accordance with 40 CFR 
part 124 or 125, whichever is applicable.
    (c)(1) Every permit which contains limitations based upon a toxic 
pollutant effluent standard or prohibition

[[Page 916]]

under this part is subject to revision following the completion of any 
proceeding revising such toxic pollutant effluent standard or 
prohibition regardless of the duration specified on the permit.
    (2) For purposes of this section, all toxic pollutants for which 
standards are set under this part are deemed to be injurious to human 
health within the meaning of section 402(k) of the Act unless otherwise 
specified in the standard established for any particular pollutant.
    (d)(1) Upon the compliance date for any section 307(a) toxic 
pollutant effluent standard or prohibition, each owner or operator of a 
discharge subject to such standard or prohibition shall comply with such 
monitoring, sampling, recording, and reporting conditions as the 
Regional Administrator (or State Director, if appropriate) may require 
for that discharge. Notice of such conditions shall be provided in 
writing to the owner or operator.
    (2) In addition to any conditions required pursuant to paragraph 
(d)(1) of this section and to the extent not required in conditions 
contained in NPDES permits, within 60 days following the close of each 
calendar year each owner or operator of a discharge subject to any toxic 
standard or prohibition shall report to the Regional Administrator (or 
State Director, if appropriate) concerning the compliance of such 
discharges. Such report shall include, as a minimum, information 
concerning (i) relevant identification of the discharger such as name, 
location of facility, discharge points, receiving waters, and the 
industrial process or operation emitting the toxic pollutant; (ii) 
relevant conditions (pursuant to paragraph (d)(1) of this section or to 
an NPDES permit) as to flow, section 307(a) toxic pollutant 
concentrations, and section 307(a) toxic pollutant mass emission rate; 
(iii) compliance by the discharger with such conditions.
    (3) When samples collected for analysis are composited, such samples 
shall be composited in proportion to the flow at time of collection and 
preserved in compliance with requirements of the Regional Administrator 
(or State Director, if appropriate), but shall include at least five 
samples, collected at approximately equal intervals throughout the 
working day.
    (e)(1) Nothing in these regulations shall preclude a Regional 
Administrator from requiring in any permit a more stringent effluent 
limitation or standard pursuant to section 301(b)(1)(C) of the Act and 
implemented in 40 CFR 125.11 and other related provisions of 40 CFR part 
125.
    (2) Nothing in these regulations shall preclude the Director of a 
State Water Pollution Control Agency or interstate agency operating a 
National Pollutant Discharge Elimination System Program which has been 
approved by the Administrator pursuant to section 402 of the Act from 
requiring in any permit a more stringent effluent limitation or standard 
pursuant to section 301(b)(1)(C) of the Act and implemented in 40 CFR 
124.42 and other related provisions of 40 CFR part 124.
    (f) Any owner or operator of a facility which discharges a toxic 
pollutant to the navigable waters and to a publicly owned treatment 
system shall limit the summation of the mass emissions from both 
discharges to the less restrictive standard, either the direct discharge 
standard or the pretreatment standard; but in no case will this 
paragraph allow a discharge to the navigable waters greater than the 
toxic pollutant effluent standard established for a direct discharge to 
the navigable waters.
    (g) In any permit hearing or other administrative proceeding 
relating to the implementation or enforcement of these standards, or any 
modification thereof, or in any judicial proceeding other than a 
petition for review of these standards pursuant to section 509(b)(1)(C) 
of the Act, the parties thereto may not contest the validity of any 
national standards established in this part, or the ambient water 
criterion established herein for any toxic pollutant.

[[Page 917]]



Sec. 129.6  Adjustment of effluent standard 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 
appropriate) shall give credit, and shall adjust the effluent 
standard(s) in such permit to reflect credit for the toxic pollutant(s) 
in the owner's or operator's water supply if (1) the source of the 
owner's or operator's water supply is the same body of water into which 
the discharge is made and if (2) it is demonstrated to the Regional 
Administrator (or State Director, if appropriate) that the toxic 
pollutant(s) present in the owner's or operator's intake water will not 
be removed by any wastewater treatment systems whose design capacity and 
operation were such as to reduce toxic pollutants to the levels required 
by the applicable toxic pollutant effluent standards in the absence of 
the toxic pollutant in the intake water.
    (b) Effluent limitations established pursuant to this section shall 
be calculated on the basis of the amount of section 307(a) toxic 
pollutant(s) present in the water after any water supply treatment steps 
have been performed by or for the owner or operator.
    (c) Any permit which includes toxic pollutant effluent limitations 
established pursuant to this section shall also contain conditions 
requiring the permittee to conduct additional monitoring in the manner 
and locations determined by the Regional Administrator (or State 
Director, if appropriate) for those toxic pollutants for which the toxic 
pollutant effluent standards have been adjusted.



Sec. 129.7  Requirement and procedure for establishing a more stringent effluent limitation.

    (a) In exceptional cases: (1) Where the Regional Administrator (or 
State Director, if appropriate) 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 resulting in or may 
cause or contribute to significant adverse effects on aquatic or other 
organisms usually or potentially present, or on human health, he may 
issue to an owner or operator a permit or a permit modification 
containing a toxic pollutant effluent limitation at a more stringent 
level than that required by the standard set forth in these regulations. 
Any such action shall be taken pursuant to the procedural provisions of 
40 CFR parts 124 and 125, as appropriate. In any proceeding in 
connection with such action the burden of proof and of going forward 
with evidence with regard to such more stringent effluent limitation 
shall be upon the Regional Administrator (or State Director, if 
appropriate) as the proponent of such more stringent effluent 
limitation.
    (3) Evidence in such proceeding shall include at a minimum: An 
analysis using data and other information to demonstrate receiving water 
concentrations of the specified toxic pollutant, projections of the 
anticipated effects of the proposed modification on such receiving water 
concentrations, and the hydrologic and hydrographic characteristics of 
the receiving waters including the occurrence of dispersion of the 
effluent. Detailed specifications for presenting relevant information by 
any interested party may be prescribed in guidance documents published 
from time to time, whose availability will be announced in the Federal 
Register.
    (b) Any effluent limitation in an NPDES permit which a State 
proposes to issue which is more stringent than the toxic pollutant 
effluent standards promulgated by the Administrator is subject to review 
by the Administrator under section 402(d) of the Act. The Administrator 
may approve or disapprove such limitation(s) or specify another 
limitation(s) upon review of any record of any proceedings held in 
connection with the permit issuance or modification and any other 
evidence available to him. If he takes no action within ninety days of 
his receipt of the notification of the action of the permit issuing 
authority and any record thereof, the action of the State permit issuing 
authority shall be deemed to be approved.

[[Page 918]]



Sec. 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 industrial 
subcategory in the promulgation of the standards or prohibitions.
    (b) Toxic pollutant effluent standards or prohibitions set forth 
herein shall become enforceable under sections 307(d) and 309 of the Act 
on the date established in paragraph (a) of this section regardless of 
proceedings in connection with the issuance of any NPDES permit or 
application therefor, or modification or renewal thereof.



Secs. 129.9-129.99  [Reserved]



Sec. 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, preparation 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 registered under the Federal 
Insecticide, Fungicide and Rodenticide Act, as amended (7 U.S.C. 135, et 
seq.).
    (3) The ambient water criterion for aldrin/dieldrin in navigable 
waters is 0.003  g/l.
    (b) Aldrin/dieldrin 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 contamination by aldrin/dieldrin as a result of the manufacturing 
process, including but not limited to:
    (1) Stormwater and other runoff except as hereinafter provided in 
paragraph (b)(1)(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 aldrin/dieldrin; or to stormwater runoff that exceeds 
that from the ten year 24-hour rainfall event.
    (2) Analytical method acceptable. Environmental Protection Agency 
method specified in 40 CFR part 136, except that a 1-liter sample size 
is required to increase 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 prohibited 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 
contamination by aldrin/dieldrin as a result of the formulating process, 
including but not limited to:
    (1) Stormwater and other runoff except as hereinafter provided in 
paragraph (c)(1)(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 aldrin/dieldrin; or to stormwater runoff that exceeds 
that from the ten year 24-hour rainfall event.
    (2) Analytical method acceptable. Environmental Protection Agency 
method specified in 40 CFR part 136, except that a 1-liter sample size 
is required to increase the analytical sensitivity.
    (3) Effluent standard--(i) Existing sources. Aldrin or dieldrin is 
prohibited in any discharge from any aldrin/dieldrin formulator.
    (ii) New sources. Aldrin or dieldrin is prohibited in any discharge 
from any aldrin/dieldrin formulator.

[[Page 919]]



Sec. 129.101  DDT, DDD and DDE.

    (a) Specialized definitions. (1) DDT Manufacturer means a 
manufacturer, excluding any source which is exclusively a DDT 
formulator, who produces, prepares or processes technical DDT, or who 
uses DDT as a material in the production, preparation or processing of 
another synthetic organic substance.
    (2) DDT formulator means a person who produces, prepares or 
processes a formulated product comprising a mixture of DDT 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 DDT in navigable waters is 0.001 
 g/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 contamination by DDT as a result of the manufacturing process, 
including but not limited to:
    (1) Stormwater and other runoff except as hereinafter provided in 
paragraph (b)(1)(ii) of this section; and
    (2) Water used for routine cleanup or cleanup of spills.
    (ii) These standards do not apply to stormwater runoff or other 
discharges from areas subject to contamination solely by fallout from 
air emissions of DDT; or to stormwater runoff that exceeds that from the 
ten year 24-hour rainfall event.
    (2) Analytical method acceptable. Environmental Protection Agency 
method specified in 40 CFR part 136, except that a 1-liter sample size 
is required to increase 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 discharge 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 
contamination by DDT as a result of the formulating process, including 
but not limited to:
    (1) Stormwater and other runoff except as hereinafter provided in 
paragraph (c)(1)(ii) of this section; and
    (2) Water used for routine cleanup or cleanup of spills.
    (ii) These standards do not apply to stormwater runoff or other 
discharges from areas subject to contamination solely by fallout from 
air emissions of DDT; or to stormwater runoff that exceeds that from the 
ten year 24-hour rainfall event.
    (2) Analytical method acceptable. Environmental Protection Agency 
method specified in 40 CFR part 136, except that a 1-liter sample size 
is required to increase 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 discharge from any DDT 
formulator.



Sec. 129.102  Endrin.

    (a) Specialized definitions. (1) Endrin Manufacturer 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, preparation or processing 
of another synthetic organic substance.
    (2) Endrin Formulator means a person who produces, prepares or 
processes a formulated product comprising a mixture of endrin 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 endrin in navigable waters is 
0.004  g/l.
    (b) Endrin manufacturer--(1) Applicability. (i) These standards or 
prohibitions apply to:

[[Page 920]]

    (A) All discharges of process wastes; and
    (B) All discharges from the manufacturing areas, loading and 
unloading areas, storage areas and other areas which are subject to 
direct contamination by endrin as a result of the manufacturing process, 
including but not limited to:
    (1) Stormwater and other runoff except as hereinafter provided in 
paragraph (b)(1)(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 stormwater runoff that exceeds that from 
the ten year 24-hour rainfall event.
    (2) Analytical method acceptable-- Environmental Protection Agency 
method specified in 40 CFR part 136.
    (3) Effluent standard--(i) Existing sources. Discharges from an 
endrin manufacturer shall not contain endrin concentrations exceeding an 
average per working day of 1.5  g/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  g/l 
in a sample(s) representing any working day.
    (ii) New sources. Discharges from an endrin manufacturer shall not 
contain endrin concentrations exceeding an average per working day of 
0.1  g/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  g/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 section, 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 production value shall be 
deemed to be the average monthly production level for the most recent 
preceding 360 days of actual operation of the plant or facility.
    (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 
contamination by endrin as a result of the formulating process, 
including but not limited to: (1) Stormwater and other runoff except as 
hereinafter provided in paragraph (c)(1)(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-- Environmental 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 concentration of endrin, excluding any associated 
element or compound.



Sec. 129.103  Toxaphene.

    (a) Specialized definitions. (1) Toxaphene manufacturer means a 
manufacturer, excluding any source which is exclusively a toxaphene 
formulator, who produces, prepares or processes toxaphene or who uses 
toxaphene as a material in the production, preparation or processing of 
another synthetic organic substance.
    (2) Toxaphene formulator means a person who produces, prepares or 
processes a formulated product 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.).

[[Page 921]]

    (3) The ambient water criterion for toxaphene in navigable waters is 
0.005  g/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 contamination by toxaphene as a result of the manufacturing 
process, including but not limited to: (1) Stormwater and other runoff 
except as hereinafter provided in paragraph (b)(1)(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-- Environmental Protection Agency 
method specified in 40 CFR part 136.
    (3) Effluent standard--(i) Existing sources. Discharges from a 
toxaphene manufacturer shall not contain toxaphene concentrations 
exceeding an average per working day of 1.5  g/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  g/l in a sample(s) representing any working day.
    (ii) New sources. Discharges from a toxaphene manufacturer shall not 
contain toxaphene concentrations exceeding an average per working day of 
0.1  g/l calculated over any calendar month; and shall not 
exceed a monthly average daily loading of 0.000002 kg/kkg of toxaphene 
produced, and shall not exceed 0.5 /l in a sample(s) 
representing any working day.
    (iii) Mass emission during shutdown of production. In computing the 
allowable monthly average daily loading figure required under the 
preceding 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 production value shall be 
deemed to be the average monthly production level for the most recent 
preceding 360 days of actual operation of the plant or facility.
    (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 
contamination by toxaphene as a result of the formulating process, 
including but not limited to: (1) Stormwater and other runoff except as 
hereinafter provided in paragraph (c)(1)(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-- Environmental 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 concentration of toxaphene, excluding any associated 
element or compound.



Sec. 129.104  Benzidine.

    (a) Specialized definitions. (1) Benzidine Manufacturer means a 
manufacturer who produces benzidine or who produces benzidine as an 
intermediate 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.

[[Page 922]]

    (3) The ambient water criterion for benzidine in navigable waters is 
0.1  g/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 manufacturing areas, loading and unloading areas, 
storage areas, and other areas subject to direct contamination by 
benzidine or benzidine-containing product as a result of the 
manufacturing process, including but not limited to:
    (1) Stormwater and other runoff except as hereinafter provided in 
paragraph (b)(1)(ii) of this section, and
    (2) Water used for routine cleanup or cleanup of spills.
    (ii) These standards do not apply to stormwater runoff or other 
discharges from areas subject to contamination solely by fallout from 
air emissions of benzidine; or to stormwater runoff that exceeds that 
from the ten year 24-hour rainfall event.
    (2) Analytical method acceptable--Environmental Protection Agency 
method specified in 40 CFR part 136.
    (3) Effluent standards--(i) Existing sources. Discharges from a 
benzidine manufacturer shall not contain benzidine concentrations 
exceeding an average per working day of 10  g/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  
g/l in a sample(s) representing any working day.
    (ii) New sources. Discharges from a benzidine manufacturer shall not 
contain benzidine concentrations exceeding an average per working day of 
10  g/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  g/l in a sample(s) 
representing any working day.
    (4) The standards set forth in this paragraph (b) shall apply to the 
total combined weight or concentration of benzidine, excluding any 
associated element or compound.
    (c) Benzidine-based dye applicators--(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 manufacturing areas, loading and unloading areas, 
storage areas, and other areas subject to direct contamination by 
benzidine or benzidine-containing product as a result of the 
manufacturing process, including but not limited to:
    (1) Stormwater and other runoff except as hereinafter provided in 
paragraph (c)(1)(ii) of this section, and
    (2) Water used for routine cleanup or cleanup of spills.
    (ii) These standards do not apply to stormwater runoff or other 
discharges from areas subject to contamination solely by fallout from 
air emissions of benzidine; or to stormwater that exceeds that from the 
ten year 24-hour rainfall event.
    (2) Analytical method acceptable. (i) Environmental Protection 
Agency method specified in 40 CFR part 136; or
    (ii) Mass balance monitoring approach which requires the calculation 
of the benzidine concentration by dividing the total benzidine contained 
in dyes used during a working day (as certified in writing by the 
manufacturer) by the total quantity of water discharged during the 
working day.

[Comment: The Regional Administrator (or State Director, if appropriate) 
shall rely entirely upon the method specified 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 exceeding an average per working day of 10  g/l 
calculated over any calendar month; and shall not exceed 25  g/
l in a sample(s) or calculation(s) representing 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  g/l calculated over any calendar month; and 
shall not exceed 25  g/l in a sample(s) or calculation(s) 
representing any working day.

[[Page 923]]

    (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 FR 2620, Jan. 12, 1977]



Sec. 129.105  Polychlorinated biphenyls (PCBs).

    (a) Specialized definitions. (1) PCB Manufacturer means a 
manufacturer who produces polychlorinated biphenyls.
    (2) Electrical capacitor manufacturer means a manufacturer who 
produces or assembles electrical capacitors in which PCB or PCB-
containing compounds 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  g/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:
    (1) Stormwater and other runoff except as hereinafter provided in 
paragraph (b)(1)(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 PCBs; or to stormwater runoff that exceeds that from 
the ten-year 24-hour rainfall event.
    (2) Analytical Method Acceptable--Environmental Protection Agency 
method specified in 40 CFR part 136 except that a 1-liter sample size is 
required to increase analytical sensitivity.
    (3) 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) 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:
    (1) Stormwater and other runoff except as hereinafter provided in 
paragraph (c)(1)(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 PCBs; or to stormwater runoff that exceeds that from 
the ten-year 24-hour rainfall event.
    (2) Analytical method acceptable. Environmental Protection Agency 
method specified in 40 CFR part 136, except that a 1-liter sample size 
is required to increase analytical sensitivity.
    (3) 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 manufacturer.
    (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:
    (1) Stormwater and other runoff except as hereinafter provided in 
paragraph (d)(1)(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

[[Page 924]]

solely by fallout from air emissions of PCBs; or to stormwater runoff 
that exceeds that from the ten-year 24-hour rainfall event.
    (2) Analytical method acceptable. Environmental Protection Agency 
method specified in 40 CFR part 136, except that a 1-liter sample size 
is required to increase analytical sensitivity.
    (3) 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 manufacturer.
    (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 appropriate), for a credit pursuant to the provisions of 
Sec. 129.6, where the source of the water supply is the same body of 
water into which the discharge is made. The requirement of paragraph (1) 
of Sec. 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 
Sec. 129.6, upon a showing by the owner or operator of such facility to 
the Regional Administrator (or State Director, 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 effluent.

[42 FR 6555, Feb. 2, 1977]



PART 130--WATER QUALITY PLANNING AND MANAGEMENT--Table of Contents




Sec.
130.0  Program summary and purpose.
130.1  Applicability.
130.2  Definitions.
130.3  Water quality standards.
130.4  Water quality monitoring.
130.5  Continuing planning process.
130.6  Water quality management plans.
130.7  Total maximum daily loads (TMDL) and individual water quality-
          based effluent limitations.
130.8  Water quality report.
130.9  Designation and de-designation.
130.10  State submittals to EPA.
130.11  Program management.
130.12  Coordination with other programs.
130.15  Processing application for Indian tribes.

    Authority: 33 U.S.C. 1251 et seq.

    Source: 50 FR 1779, Jan. 11, 1985, unless otherwise noted.



Sec. 130.0  Program summary and purpose.

    (a) This subpart establishes policies and program requirements for 
water quality planning, management and implementation under sections 
106, 205(j), non-construction management 205(g), 208, 303 and 305 of the 
Clean Water Act. The Water Quality Management (WQM) process described in 
the Act and in this regulation provides the authority for a consistent 
national approach for maintaining, improving and protecting water 
quality while allowing States to implement the most effective individual 
programs. The process is implemented jointly by EPA, the States, 
interstate agencies, and areawide, local and regional planning 
organizations. This regulation explains the requirements of the Act, 
describes the relationships between the several components of the WQM 
process and outlines the roles of the major participants in the process. 
The components of the WQM process are discussed below.
    (b) Water quality standards (WQS) are the State's goals for 
individual water bodies and provide the legal basis for control 
decisions under the Act. Water quality monitoring activities provide the 
chemical, physical and biological data needed to determine the present 
quality of a State's waters and to identify the sources of pollutants in 
those waters. The primary assessment of the quality of a State's water 
is contained in its biennial Report to Congress required by section 
305(b) of the Act.
    (c) This report and other assessments of water quality are used in 
the State's WQM plans to identify priority water quality problems. These 
plans also contain the results of the State's analyses and management 
decisions which are necessary to control specific sources of pollution. 
The plans recommend control measures and designated management agencies 
(DMAs) to attain the

[[Page 925]]

goals established in the State's water quality standards.
    (d) These control measures are implemented by issuing permits, 
building publicly-owned treatment works (POTWs), instituting best 
management practices for nonpoint sources of pollution and other means. 
After control measures are in place, the State evaluates the extent of 
the resulting improvements in water quality, conducts additional data 
gathering and planning to determine needed modifications in control 
measures and again institutes control measures.
    (e) This process is a dynamic one, in which requirements and 
emphases vary over time. At present, States have completed WQM plans 
which are generally comprehensive in geographic and programmatic scope. 
Technology based controls are being implemented for most point sources 
of pollution. However, WQS have not been attained in many water bodies 
and are threatened in others.
    (f) Present continuing planning requirements serve to identify these 
critical water bodies, develop plans for achieving higher levels of 
abatement and specify additional control measures. Consequently, this 
regulation reflects a programmatic emphasis on concentrating planning 
and abatement activities on priority water quality issues and geographic 
areas. EPA will focus its grant funds on activities designed to address 
these priorities. Annual work programs negotiated between EPA and State 
and interstate agencies will reflect this emphasis.



Sec. 130.1  Applicability.

    (a) This subpart applies to all State, eligible Indian Tribe, 
interstate, areawide and regional and local CWA water quality planning 
and management activities undertaken on or after February 11, 1985 
including all updates and continuing certifications for approved Water 
Quality Management (WQM) plans developed under sections 208 and 303 of 
the Act.
    (b) Planning and management activities undertaken prior to February 
11, 1985 are governed by the requirements of the regulations in effect 
at the time of the last grant award.

[50 FR 1779, Jan. 11, 1985, as amended at 54 FR 14359, Apr. 11, 1989; 59 
FR 13817, Mar. 23, 1994]



Sec. 130.2  Definitions.

    (a) The Act. The Clean Water Act, as amended, 33 U.S.C. 1251 et seq.
    (b) Indian Tribe. Any Indian Tribe, band, group, or community 
recognized by the Secretary of the Interior and exercising governmental 
authority over a Federal Indian reservation.
    (c) Pollution. The man-made or man-induced alteration of the 
chemical, physical, biological, and radiological integrity of water.
    (d) Water quality standards (WQS). Provisions of State or Federal 
law which consist of a designated use or uses for the waters of the 
United States and water quality criteria for such waters based upon such 
uses. Water quality standards are to protect the public health or 
welfare, enhance the quality of water and serve the purposes of the Act.
    (e) Load or loading. An amount of matter or thermal energy that is 
introduced into a receiving water; to introduce matter or thermal energy 
into a receiving water. Loading may be either man-caused (pollutant 
loading) or natural (natural background loading).
    (f) Loading capacity. The greatest amount of loading that a water 
can receive without violating water quality standards.
    (g) Load allocation (LA). The portion of a receiving water's loading 
capacity that is attributed either to one of its existing or future 
nonpoint sources of pollution or to natural background sources. Load 
allocations are best estimates of the loading, which may range from 
reasonably accurate estimates to gross allotments, depending on the 
availability of data and appropriate techniques for predicting the 
loading. Wherever possible, natural and nonpoint source loads should be 
distinguished.
    (h) Wasteload allocation (WLA). The portion of a receiving water's 
loading capacity that is allocated to one of its existing or future 
point sources of pollution. WLAs constitute a type of

[[Page 926]]

water quality-based effluent limitation.
    (i) Total maximum daily load (TMDL). The sum of the individual WLAs 
for point sources and LAs for nonpoint sources and natural background. 
If a receiving water has only one point source discharger, the TMDL is 
the sum of that point source WLA plus the LAs for any nonpoint sources 
of pollution and natural background sources, tributaries, or adjacent 
segments. TMDLs can be expressed in terms of either mass per time, 
toxicity, or other appropriate measure. If Best Management Practices 
(BMPs) or other nonpoint source pollution controls make more stringent 
load allocations practicable, then wasteload allocations can be made 
less stringent. Thus, the TMDL process provides for nonpoint source 
control tradeoffs.
    (j) Water quality limited segment. Any segment where it is known 
that water quality does not meet applicable water quality standards, 
and/or is not expected to meet applicable water quality standards, even 
after the application of the technology-based effluent limitations 
required by sections 301(b) and 306 of the Act.
    (k) Water quality management (WQM) plan. A State or areawide waste 
treatment management plan developed and updated in accordance with the 
provisions of sections 205(j), 208 and 303 of the Act and this 
regulation.
    (l) Areawide agency. An agency designated under section 208 of the 
Act, which has responsibilities for WQM planning within a specified area 
of a State.
    (m) Best Management Practice (BMP). Methods, measures or practices 
selected by an agency to meet its nonpoint source control needs. BMPs 
include but are not limited to structural and nonstructural controls and 
operation and maintenance procedures. BMPs can be applied before, during 
and after pollution-producing activities to reduce or eliminate the 
introduction of pollutants into receiving waters.
    (n) Designated management agency (DMA). An agency identified by a 
WQM plan and designated by the Governor to implement specific control 
recommendations.

[50 FR 1779, Jan. 11, 1985, as amended at 54 FR 14359, Apr. 11, 1989]



Sec. 130.3  Water quality standards.

    A water quality standard (WQS) defines the water quality goals of a 
water body, or portion thereof, by designating the use or uses to be 
made of the water and by setting criteria necessary to protect the uses. 
States and EPA adopt WQS to protect public health or welfare, enhance 
the quality of water and serve the purposes of the Clean Water Act 
(CWA). Serve the purposes of Act (as defined in sections 101(a)(2) and 
303(c) of the Act) means that WQS should, wherever attainable, provide 
water quality for the protection and propagation of fish, shellfish and 
wildlife and for recreation in and on the water and take into 
consideration their use and value for public water supplies, propagation 
of fish, shellfish, wildlife, recreation in and on the water, and 
agricultural, industrial and other purposes including navigation.

Such standards serve the dual purposes of establishing the water quality 
goals for a specific water body and serving as the regulatory basis for 
establishment of water quality-based treatment controls and strategies 
beyond the technology-based level of treatment required by sections 
301(b) and 306 of the Act. States shall review and revise WQS in 
accordance with applicable regulations and, as appropriate, update their 
Water Quality Management (WQM) plans to reflect such revisions. Specific 
WQS requirements are found in 40 CFR part 131.



Sec. 130.4  Water quality monitoring.

    (a) In accordance with section 106(e)(1), States must establish 
appropriate monitoring methods and procedures (including biological 
monitoring) necessary to compile and analyze data on the quality of 
waters of the United States and, to the extent practicable, ground-
waters. This requirement need not be met by Indian Tribes. However, any 
monitoring and/or analysis activities undertaken by a Tribe must be 
performed in accordance with EPA's

[[Page 927]]

quality assurance/quality control guidance.
    (b) The State's water monitoring program shall include collection 
and analysis of physical, chemical and biological data and quality 
assurance and control programs to assure scientifically valid data. The 
uses of these data include determining abatement and control priorities; 
developing and reviewing water quality standards, total maximum daily 
loads, wasteload allocations and load allocations; assessing compliance 
with National Pollutant Discharge Elimination System (NPDES) permits by 
dischargers; reporting information to the public through the section 
305(b) report and reviewing site-specific monitoring efforts.

[50 FR 1779, Jan. 11, 1985, as amended at 54 FR 14359, Apr. 11, 1989]



Sec. 130.5  Continuing planning process.

    (a) General. Each State shall establish and maintain a continuing 
planning process (CPP) as described under section 303(e)(3)(A)--(H) of 
the Act. Each State is responsible for managing its water quality 
program to implement the processes specified in the continuing planning 
process. EPA is responsible for periodically reviewing the adequacy of 
the State's CPP.
    (b) Content. The State may determine the format of its CPP as long 
as the mininum requirements of the CWA and this regulation are met. The 
following processes must be described in each State CPP, and the State 
may include other processes at its discretion.
    (1) The process for developing effluent limitations and schedules of 
compliance at least as stringent as those required by sections 301(b) 
(1) and (2), 306 and 307, and at least stringent as any requirements 
contained in applicable water quality standards in effect under 
authority of section 303 of the Act.
    (2) The process for incorporating elements of any applicable 
areawide waste treatment plans under section 208, and applicable basin 
plans under section 209 of the Act.
    (3) The process for developing total maximum daily loads (TMDLs) and 
individual water quality based effluent limitations for pollutants in 
accordance with section 303(d) of the Act and Sec. 130.7(a) of this 
regulation.
    (4) The process for updating and maintaining Water Quality 
Management (WQM) plans, including schedules for revision.
    (5) The process for assuring adequate authority for 
intergovernmental cooperation in the implementation of the State WQM 
program.
    (6) The process for establishing and assuring adequate 
implementation of new or revised water quality standards, including 
schedules of compliance, under section 303(c) of the Act.
    (7) The process for assuring adequate controls over the disposition 
of all residual waste from any water treatment processing.
    (8) The process for developing an inventory and ranking, in order of 
priority of needs for construction of waste treatment works required to 
meet the applicable requirements of sections 301 and 302 of the Act.
    (9) The process for determining the priority of permit issuance.
    (c) Regional Administrator review. The Regional Administrator shall 
review approved State CPPs from time to time to ensure that the planning 
processes are consistent with the Act and this regulation. The Regional 
Administrator shall not approve any permit program under Title IV of the 
Act for any State which does not have an approved continuing planning 
process.



Sec. 130.6  Water quality management plans.

    (a) Water quality management (WQM) plans. WQM plans consist of 
initial plans produced in accordance with sections 208 and 303(e) of the 
Act and certified and approved updates to those plans. Continuing water 
quality planning shall be based upon WQM plans and water quality 
problems identified in the latest 305(b) reports. State water quality 
planning should focus annually on priority issues and geographic areas 
and on the development of water quality controls leading to 
implementation measures. Water quality planning directed at the removal 
of conditions placed on previously certified and approved WQM plans 
should focus on removal of conditions which will lead to control 
decisions.

[[Page 928]]

    (b) Use of WQM plans. WQM plans are used to direct implementation. 
WQM plans draw upon the water quality assessments to identify priority 
point and nonpoint water quality problems, consider alternative 
solutions and recommend control measures, including the financial and 
institutional measures necessary for implementing recommended solutions. 
State annual work programs shall be based upon the priority issues 
identified in the State WQM plan.
    (c) WQM plan elements. Sections 205(j), 208 and 303 of the Act 
specify water quality planning requirements. The following plan elements 
shall be included in the WQM plan or referenced as part of the WQM plan 
if contained in separate documents when they are needed to address water 
quality problems.
    (1) Total maximum daily loads. TMDLs in accordance with sections 
303(d) and (e)(3)(C) of the Act and Sec. 130.7 of this part.
    (2) Effluent limitations. Effluent limitations including water 
quality based effluent limitations and schedules of compliance in 
accordance with section 303(e)(3)(A) of the Act and Sec. 130.5 of this 
part.
    (3) Municipal and industrial waste treatment. Identification of 
anticipated municipal and industrial waste treatment works, including 
facilities for treatment of stormwater-induced combined sewer overflows; 
programs to provide necessary financial arrangements for such works; 
establishment of construction priorities and schedules for initiation 
and completion of such treatment works including an identification of 
open space and recreation opportunities from improved water quality in 
accordance with section 208(b)(2) (A) and (B) of the Act.
    (4) Nonpoint source management and control. (i) The plan shall 
describe the regulatory and non-regulatory programs, activities and Best 
Management Practices (BMPs) which the agency has selected as the means 
to control nonpoint source pollution where necessary to protect or 
achieve approved water uses. Economic, institutional, and technical 
factors shall be considered in a continuing process of identifying 
control needs and evaluating and modifying the BMPs as necessary to 
achieve water quality goals.
    (ii) Regulatory programs shall be identified where they are 
determined to be necessary by the State to attain or maintain an 
approved water use or where non-regulatory approaches are inappropriate 
in accomplishing that objective.
    (iii) BMPs shall be identified for the nonpoint sources identified 
in section 208(b)(2)(F)-(K) of the Act and other nonpoint sources as 
follows:
    (A) Residual waste. Identification of a process to control the 
disposition of all residual waste in the area which could affect water 
quality in accordance with section 208(b)(2)(J) of the Act.
    (B) Land disposal. Identification of a process to control the 
disposal of pollutants on land or in subsurface excavations to protect 
ground and surface water quality in accordance with section 208(b)(2)(K) 
of the Act.
    (C) Agricultural and silvicultural. Identification of procedures to 
control agricultural and silvicultural sources of pollution in 
accordance with section 208(b)(2)(F) of the Act.
    (D) Mines. Identification of procedures to control mine-related 
sources of pollution in accordance with section 208(b)(2)(G) of the Act.
    (E) Construction. Identification of procedures to control 
construction related sources of pollution in accordance with section 
208(b)(2)(H) of the Act.
    (F) Saltwater intrusion. Identification of procedures to control 
saltwater intrusion in accordance with section 208(b)(2)(I) of the Act.
    (G) Urban stormwater. Identification of BMPs for urban stormwater 
control to achieve water quality goals and fiscal analysis of the 
necessary capital and operations and maintenance expenditures in 
accordance with section 208(b)(2)(A) of the Act.
    (iv) The nonpoint source plan elements outlined in Sec. 130.6(c) 
(4)(iii)(A)(G) of this regulation shall be the basis of water quality 
activities implemented through agreements or memoranda of understanding 
between EPA and other departments, agencies or instrumentalities of the 
United States in accordance with section 304(k) of the Act.

[[Page 929]]

    (5) Management agencies. Identification of agencies necessary to 
carry out the plan and provision for adequate authority for 
intergovernmental cooperation in accordance with sections 208(b)(2)(D) 
and 303(e)(3)(E) of the Act. Management agencies must demonstrate the 
legal, institutional, managerial and financial capability and specific 
activities necessary to carry out their responsibilities in accordance 
with section 208(c)(2)(A) through (I) of the Act.
    (6) Implementation measures. Identification of implementation 
measures necessary to carry out the plan, including financing, the time 
needed to carry out the plan, and the economic, social and environmental 
impact of carrying out the plan in accordance with section 208(b)(2)(E).
    (7) Dredge or fill program. Identification and development of 
programs for the control of dredge or fill material in accordance with 
section 208(b)(4)(B) of the Act.
    (8) Basin plans. Identification of any relationship to applicable 
basin plans developed under section 209 of the Act.
    (9) Ground water. Identification and development of programs for 
control of ground-water pollution including the provisions of section 
208(b)(2)(K) of the Act. States are not required to develop ground-water 
WQM plan elements beyond the requirements of section 208(b)(2)(K) of the 
Act, but may develop a ground-water plan element if they determine it is 
necessary to address a ground-water quality problem. If a State chooses 
to develop a ground-water plan element, it should describe the 
essentials of a State program and should include, but is not limited to:
    (i) Overall goals, policies and legislative authorities for 
protection of ground-water.
    (ii) Monitoring and resource assessment programs in accordance with 
section 106(e)(1) of the Act.
    (iii) Programs to control sources of contamination of ground-water 
including Federal programs delegated to the State and additional 
programs authorized in State statutes.
    (iv) Procedures for coordination of ground-water protection programs 
among State agencies and with local and Federal agencies.
    (v) Procedures for program management and administration including 
provision of program financing, training and technical assistance, 
public participation, and emergency management.
    (d) Indian Tribes. An Indian Tribe is eligible for the purposes of 
this rule and the Clean Water Act assistance programs under 40 CFR part 
35, subparts A and H if:
    (1) The Indian Tribe has a governing body carrying out substantial 
governmental duties and powers;
    (2) The functions to be exercised by the Indian Tribe pertain to the 
management and protection of water resources which are held by an Indian 
Tribe, held by the United States in trust for Indians, held by a member 
of an Indian Tribe if such property interest is subject to a trust 
restriction on alienation, or otherwise within the borders of an Indian 
reservation; and
    (3) The Indian Tribe is reasonably expected to be capable, in the 
Regional Administrator's judgment, of carrying out the functions to be 
exercised in a manner consistent with the terms and purposes of the 
Clean Water Act and applicable regulations.
    (e) Update and certification. State and/or areawide agency WQM plans 
shall be updated as needed to reflect changing water quality conditions, 
results of implementation actions, new requirements or to remove 
conditions in prior conditional or partial plan approvals. Regional 
Administrators may require that State WQM plans be updated as needed. 
State Continuing Planning Processes (CPPs) shall specify the process and 
schedule used to revise WQM plans. The State shall ensure that State and 
areawide WQM plans together include all necessary plan elements and that 
such plans are consistent with one another. The Governor or the 
Governor's designee shall certify by letter to the Regional 
Administrator for EPA approval that WQM plan updates are consistent with 
all other parts of the plan. The certification may be contained in the 
annual State work program.
    (f) Consistency. Construction grant and permit decisions must be 
made in accordance with certified and approved

[[Page 930]]

WQM plans as described in Secs. 130.12(a) and 130.12(b).

[50 FR 1779, Jan. 11, 1985, as amended at 54 FR 14360, Apr. 11, 1989; 59 
FR 13818, Mar. 23, 1994]



Sec. 130.7  Total maximum daily loads (TMDL) and individual water quality-based effluent limitations.

    (a) General. The process for identifying water quality limited 
segments still requiring wasteload allocations, load allocations and 
total maximum daily loads (WLAs/LAs and TMDLs), setting priorities for 
developing these loads; establishing these loads for segments 
identified, including water quality monitoring, modeling, data analysis, 
calculation methods, and list of pollutants to be regulated; submitting 
the State's list of segments identified, priority ranking, and loads 
established (WLAs/LAs/TMDLs) to EPA for approval; incorporating the 
approved loads into the State's WQM plans and NPDES permits; and 
involving the public, affected dischargers, designated areawide 
agencies, and local governments in this process shall be clearly 
described in the State Continuing Planning Process (CPP).
    (b) Identification and priority setting for water quality-limited 
segments still requiring TMDLs.
    (1) Each State shall identify those water quality-limited segments 
still requiring TMDLs within its boundaries for which:
    (i) Technology-based effluent limitations required by sections 
301(b), 306, 307, or other sections of the Act;
    (ii) More stringent effluent limitations (including prohibitions) 
required by either State or local authority preserved by section 510 of 
the Act, or Federal authority (law, regulation, or treaty); and
    (iii) Other pollution control requirements (e.g., best management 
practices) required by local, State, or Federal authority are not 
stringent enough to implement any water quality standards (WQS) 
applicable to such waters.
    (2) Each State shall also identify on the same list developed under 
paragraph (b)(1) of this section those water quality-limited segments 
still requiring TMDLs or parts thereof within its boundaries for which 
controls on thermal discharges under section 301 or State or local 
requirements are not stringent enough to assure protection and 
propagation of a balanced indigenous population of shellfish, fish and 
wildlife.
    (3) For the purposes of listing waters under Sec. 130.7(b), the term 
``water quality standard applicable to such waters'' and ``applicable 
water quality standards'' refer to those water quality standards 
established under section 303 of the Act, including numeric criteria, 
narrative criteria, waterbody uses, and antidegradation requirements.
    (4) The list required under Secs. 130.7(b)(1) and 130.7(b)(2) of 
this section shall include a priority ranking for all listed water 
quality-limited segments still requiring TMDLs, taking into account the 
severity of the pollution and the uses to be made of such waters and 
shall identify the pollutants causing or expected to cause violations of 
the applicable water quality standards. The priority ranking shall 
specifically include the identification of waters targeted for TMDL 
development in the next two years.
    (5) Each State shall assemble and evaluate all existing and readily 
available water quality-related data and information to develop the list 
required by Secs. 130.7(b)(1) and 130.7(b)(2). At a minimum ``all 
existing and readily available water quality-related data and 
information'' includes but is not limited to all of the existing and 
readily available data and information about the following categories of 
waters:
    (i) Waters identified by the State in its most recent section 305(b) 
report as ``partially meeting'' or ``not meeting'' designated uses or as 
``threatened'';
    (ii) Waters for which dilution calculations or predictive models 
indicate nonattainment of applicable water quality standards;
    (iii) Waters for which water quality problems have been reported by 
local, state, or federal agencies; members of the public; or academic 
institutions. These organizations and groups should be actively 
solicited for research they may be conducting or reporting. For example, 
university researchers, the

[[Page 931]]

United States Department of Agriculture, the National Oceanic and 
Atmospheric Administration, the United States Geological Survey, and the 
United States Fish and Wildlife Service are good sources of field data; 
and
    (iv) Waters identified by the State as impaired or threatened in a 
nonpoint assessment submitted to EPA under section 319 of the CWA or in 
any updates of the assessment.
    (6) Each State shall provide documentation to the Regional 
Administrator to support the State's determination to list or not to 
list its waters as required by Secs. 130.7(b)(1) and 130.7(b)(2). This 
documentation shall be submitted to the Regional Administrator together 
with the list required by Secs. 130.7(b)(1) and 130.7(b)(2) and shall 
include at a minimum:
    (i) A description of the methodology used to develop the list; and
    (ii) A description of the data and information used to identify 
waters, including a description of the data and information used by the 
State as required by Sec. 130.7(b)(5); and
    (iii) A rationale for any decision to not use any existing and 
readily available data and information for any one of the categories of 
waters as described in Sec. 130.7(b)(5); and
    (iv) Any other reasonable information requested by the Regional 
Administrator. Upon request by the Regional Administrator, each State 
must demonstrate good cause for not including a water or waters on the 
list. Good cause includes, but is not limited to, more recent or 
accurate data; more sophisticated water quality modeling; flaws in the 
original analysis that led to the water being listed in the categories 
in Sec. 130.7(b)(5); or changes in conditions, e.g., new control 
equipment, or elimination of discharges.
    (c) Development of TMDLs and individual water quality based effluent 
limitations.
    (1) Each State shall establish TMDLs for the water quality limited 
segments identified in paragraph (b)(1) of this section, and in 
accordance with the priority ranking. For pollutants other than heat, 
TMDLs shall be established at levels necessary to attain and maintain 
the applicable narrative and numerical WQS with seasonal variations and 
a margin of safety which takes into account any lack of knowledge 
concerning the relationship between effluent limitations and water 
quality. Determinations of TMDLs shall take into account critical 
conditions for stream flow, loading, and water quality parameters.
    (i) TMDLs may be established using a pollutant-by-pollutant or 
biomonitoring approach. In many cases both techniques may be needed. 
Site-specific information should be used wherever possible.
    (ii) TMDLs shall be established for all pollutants preventing or 
expected to prevent attainment of water quality standards as identified 
pursuant to paragraph (b)(1) of this section. Calculations to establish 
TMDLs shall be subject to public review as defined in the State CPP.
    (2) Each State shall estimate for the water quality limited segments 
still requiring TMDLs identified in paragraph (b)(2) of this section, 
the total maximum daily thermal load which cannot be exceeded in order 
to assure protection and propagation of a balanced, indigenous 
population of shellfish, fish and wildlife. Such estimates shall take 
into account the normal water temperatures, flow rates, seasonal 
variations, existing sources of heat input, and the dissipative capacity 
of the identified waters or parts thereof. Such estimates shall include 
a calculation of the maximum heat input that can be made into each such 
part and shall include a margin of safety which takes into account any 
lack of knowledge concerning the development of thermal water quality 
criteria for protection and propagation of a balanced, indigenous 
population of shellfish, fish and wildlife in the identified waters or 
parts thereof.
    (d) Submission and EPA approval. (1) Each State shall submit 
biennially to the Regional Administrator beginning in 1992 the list of 
waters, pollutants causing impairment, and the priority ranking 
including waters targeted for TMDL development within the next two years 
as required under paragraph (b) of this section. For the 1992 biennial 
submission, these lists are due no later than October 22, 1992. 
Thereafter, each

[[Page 932]]

State shall submit to EPA lists required under paragraph (b) of this 
section on April 1 of every even-numbered year. The list of waters may 
be submitted as part of the State's biennial water quality report 
required by Sec. 130.8 of this part and section 305(b) of the CWA or 
submitted under separate cover. All WLAs/LAs and TMDLs established under 
paragraph (c) for water quality limited segments shall continue to be 
submitted to EPA for review and approval. Schedules for submission of 
TMDLs shall be determined by the Regional Administrator and the State.
    (2) The Regional Administrator shall either approve or disapprove 
such listing and loadings not later than 30 days after the date of 
submission. The Regional Administrator shall approve a list developed 
under Sec. 130.7(b) that is submitted after the effective date of this 
rule only if it meets the requirements of Sec. 130.7(b). If the Regional 
Administrator approves such listing and loadings, the State shall 
incorporate them into its current WQM plan. If the Regional 
Administrator disapproves such listing and loadings, he shall, not later 
than 30 days after the date of such disapproval, identify such waters in 
such State and establish such loads for such waters as determined 
necessary to implement applicable WQS. The Regional Administrator shall 
promptly issue a public notice seeking comment on such listing and 
loadings. After considering public comment and making any revisions he 
deems appropriate, the Regional Administrator shall transmit the listing 
and loads to the State, which shall incorporate them into its current 
WQM plan.
    (e) For the specific purpose of developing information and as 
resources allow, each State shall identify all segments within its 
boundaries which it has not identified under paragraph (b) of this 
section and estimate for such waters the TMDLs with seasonal variations 
and margins of safety, for those pollutants which the Regional 
Administrator identifies under section 304(a)(2) as suitable for such 
calculation and for thermal discharges, at a level that would assure 
protection and propagation of a balanced indigenous population of fish, 
shellfish and wildlife. However, there is no requirement for such loads 
to be submitted to EPA for approval, and establishing TMDLs for those 
waters identified in paragraph (b) of this section shall be given higher 
priority.

[50 FR 1779, Jan. 11, 1985, as amended at 57 FR 33049, July 24, 1992]



Sec. 130.8  Water quality report.

    (a) Each State shall prepare and submit biennially to the Regional 
Administrator a water quality report in accordance with section 305(b) 
of the Act. The water quality report serves as the primary assessment of 
State water quality. Based upon the water quality data and problems 
identified in the 305(b) report, States develop water quality management 
(WQM) plan elements to help direct all subsequent control activities. 
Water quality problems identified in the 305(b) report should be 
analyzed through water quality management planning leading to the 
development of alternative controls and procedures for problems 
identified in the latest 305(b) report. States may also use the 305(b) 
report to describe ground-water quality and to guide development of 
ground-water plans and programs. Water quality problems identified in 
the 305(b) report should be emphasized and reflected in the State's WQM 
plan and annual work program under sections 106 and 205(j) of the Clean 
Water Act.
    (b) Each such report shall include but is not limited to the 
following:
    (1) A description of the water quality of all waters of the United 
States and the extent to which the quality of waters provides for the 
protection and propagation of a balanced population of shellfish, fish, 
and wildlife and allows recreational activities in and on the water.
    (2) An estimate of the extent to which CWA control programs have 
improved water quality or will improve water quality for the purposes of 
paragraph (b)(1) of this section, and recommendations for future actions 
necessary and identifications of waters needing action.
    (3) An estimate of the environmental, economic and social costs and 
benefits needed to achieve the objectives of the

[[Page 933]]

CWA and an estimate of the date of such achievement.
    (4) A description of the nature and extent of nonpoint source 
pollution and recommendations of programs needed to control each 
category of nonpoint sources, including an estimate of implementation 
costs.
    (5) An assessment of the water quality of all publicly owned lakes, 
including the status and trends of such water quality as specified in 
section 314(a)(1) of the Clean Water Act.
    (c) States may include a description of the nature and extent of 
ground-water pollution and recommendations of State plans or programs 
needed to maintain or improve ground-water quality.
    (d) In the years in which it is prepared the biennial section 305(b) 
report satisfies the requirement for the annual water quality report 
under section 205(j). In years when the 305(b) report is not required, 
the State may satisfy the annual section 205(j) report requirement by 
certifying that the most recently submitted section 305(b) report is 
current or by supplying an update of the sections of the most recently 
submitted section 305(b) report which require updating.

[50 FR 1779, Jan.11, 1985, as amended at 57 FR 33050, July 24, 1992]



Sec. 130.9  Designation and de-designation.

    (a) Designation. Areawide planning agencies may be designated by the 
Governor in accordance with section 208(a) (2) and (3) of the Act or may 
self-designate in accordance with section 208(a)(4) of the Act. Such 
designations shall subject to EPA approval in accordance with section 
208(a)(7) of the Act.
    (b) De-designation. The Governor may modify or withdraw the planning 
designation of a designated planning agency other than an Indian tribal 
organization self-designated Sec. 130.6(c)(2) if:
    (1) The areawide agency requests such cancellation; or
    (2) The areawide agency fails to meet its planning requirements as 
specified in grant agreements, contracts or memoranda of understanding; 
or
    (3) The areawide agency no longer has the resources or the 
commitment to continue water quality planning activities within the 
designated boundaries.
    (c) Impact of de-designation. Once an areawide planning agency's 
designation has been withdrawn the State agency shall assume direct 
responsibility for continued water quality planning and oversight of 
implementation within the area.
    (d) Designated management agencies (DMA). In accordance with section 
208(c)(1) of the Act, management agencies shall be designated by the 
Governor in consultation with the designated planning agency. EPA shall 
approve such designations unless the DMA lacks the legal, financial and 
managerial authority required under section 208(c)(2) of the Act. 
Designated management agencies shall carry out responsibilities 
specified in Water Quality Management (WQM) plans. Areawide planning 
agencies shall monitor DMA activities in their area and recommend 
necessary plan changes during the WQM plan update. Where there is no 
designated areawide planning agency, States shall monitor DMA activities 
and make any necessary changes during the WQM plan update.



Sec. 130.10  State submittals to EPA.

    (a) The following must be submitted regularly by the States to EPA:
    (1) The section 305(b) report, in FY 84 and every two years 
thereafter, and the annual section 205(j) certification or update of the 
305(b) water quality report; (Approved by OMB under the control number 
2040-0071)
    (2) The annual State work program(s) under sections 106 and 205(j) 
of the Act; and (Approved by OMB under the control number 2010-0004)
    (3) Revisions or additions to water quality standards (WQS) 
(303(c)). (Approved by OMB under 2040-0049)
    (b) The Act also requires that each State initially submit to EPA 
and revise as necessary the following:
    (1) Continuing planning process (CPP) (303(e));
    (2) Identification of water quality-limited waters still requiring 
TMDLs (section 303(d)), pollutants, and the priority ranking including 
waters targeted for TMDL development within the next two years as 
required under

[[Page 934]]

Sec. 130.7(b) in accordance with the schedule set for in 
Sec. 130.7(d)(1).

(Approved by the Office of Management and Budget under control number 
2040-0071)
    (3) Total maximum daily loads (TMDLs) (303(d)); and
    (4) Water quality management (WQM) plan and certified and approved 
WQM plan updates (208, 303(e)). (Paragraph (b)(1), (4) approved by OMB 
under the control number 2010-0004).
    (c) The form and content of required State submittals to EPA may be 
tailored to reflect the organization and needs of the State, as long as 
the requirements and purposes of the Act, this part and, where 
applicable, 40 CFR parts 29, 30, 33 and 35, subparts A and J are met. 
The need for revision and schedule of submittals shall be agreed to 
annually with EPA as the States annual work program is developed.
    (d) Not later than February 4, 1989, each State shall submit to EPA 
for review, approval, and implementation--
    (1) A list of those waters within the State which after the 
application of effluent limitations required under section 301(b)(2) of 
the CWA cannot reasonably be anticipated to attain or maintain (i) water 
quality standards for such waters reviewed, revised, or adopted in 
accordance with section 303(c)(2)(B) of the CWA, due to toxic 
pollutants, or (ii) that water quality which shall assure protection of 
public health, public water supplies, agricultural and industrial uses, 
and the protection and propagation of a balanced population of 
shellfish, fish and wildlife, and allow recreational activities in and 
on the water;
    (2) A list of all navigable waters in such State for which the State 
does not expect the applicable standard under section 303 of the CWA 
will be achieved after the requirements of sections 301(b), 306, and 
307(b) are met, due entirely or substantially to discharges from point 
sources of any toxic pollutants listed pursuant to section 307(a);
    (3) For each segment of navigable waters included on such lists, a 
determination of the specific point source discharging any such toxic 
pollutant which is believed to be preventing or impairing such water 
quality and the amount of each such toxic pollutant discharged by each 
such source.

(Approved by the Office of Management and Budget under control number 
2040-0152)
    (4) For the purposes of listing waters under Sec. 130.10(d)(2), 
applicable standard means a numeric criterion for a priority pollutant 
promulgated as part of a state water quality standard. Where a state 
numeric criterion for a priority pollutant is not promulgated as part of 
a state water quality standard, for the purposes of listing waters 
``applicable standard'' means the state narrative water quality 
criterion to control a priority pollutant (e.g., no toxics in toxic 
amounts) interpreted on a chemical-by-chemical basis by applying a 
proposed state cirterion, an explicit state policy or regulation, or an 
EPA national water quality criterion, supplemented with other relevant 
information.
    (5) If a water meets either of the two conditions listed below the 
water must be listed under Sec. 130.10(d)(2) on the grounds that the 
applicable standard is not achieved or expected to be achieved due 
entirely or substantially to discharges from point sources.
    (i) Existing or additional water quality-based limits on one or more 
point sources would result in the achievement of an applicable water 
quality standard for a toxic pollutant; or
    (ii) The discharge of a toxic pollutant from one or more point 
sources, regardless of any nonpoint source contribution of the same 
pollutant, is sufficient to cause or is expected to cause an excursion 
above the applicable water quality standard for the toxic pollutant.
    (6) Each state shall assemble and evaluate all existing and readily 
available water quality-related data and information and each state 
shall develop the lists required by paragraphs (d)(1), (2), and (3) of 
this section based upon this data and information. At a minimum, all 
existing and readily available water quality-related data and 
information includes, but is not limited to, all of the existing and 
readily available data about the following categories of waters in the 
state:
    (i) Waters where fishing or shellfish bans and/or advisories are 
currently in effect or are anticipated.

[[Page 935]]

    (ii) Waters where there have been repeated fishkills or where 
abnormalities (cancers, lesions, tumors, etc.) have been observed in 
fish or other aquatic life during the last ten years.
    (iii) Waters where there are restrictions on water sports or 
recreational contact.
    (iv) Waters identified by the state in its most recent state section 
305(b) report as either ``partially achieving'' or ``not achieving'' 
designated uses.
    (v) Waters identified by the states under section 303(d) of the CWA 
as waters needing water quality-based controls.
    (vi) Waters identified by the state as priority waterbodies. (State 
Water Quality Management plans often include priority waterbody lists 
which are those waters that most need water pollution control decisions 
to achieve water quality standards or goals.)
    (vii) Waters where ambient data indicate potential or actual 
exceedances of water quality criteria due to toxic pollutants from an 
industry classified as a primary industry in appendix A of 40 CFR part 
122.
    (viii) Waters for which effluent toxicity test results indicate 
possible or actual exceedances of state water quality standards, 
including narrative ``free from'' water quality criteria or EPA water 
quality criteria where state criteria are not available.
    (ix) Waters with primary industrial major dischargers where dilution 
analyses indicate exceedances of state narrative or numeric water 
quality criteria (or EPA water quality criteria where state standards 
are not available) for toxic pollutants, ammonia, or chlorine. These 
dilution analyses must be based on estimates of discharge levels derived 
from effluent guidelines development documents, NPDES permits or permit 
application data (e.g., Form 2C), Discharge Monitoring Reports (DMRs), 
or other available information.
    (x) Waters with POTW dischargers requiring local pretreatment 
programs where dilution analyses indicate exceedances of state water 
quality criteria (or EPA water quality criteria where state water 
quality criteria are not available) for toxic pollutants, ammonia, or 
chlorine. These dilution analyses must be based upon data from NPDES 
permits or permit applications (e.g., Form 2C), Discharge Monitoring 
Reports (DMRs), or other available information.
    (xi) Waters with facilities not included in the previous two 
categories such as major POTWs, and industrial minor dischargers where 
dilution analyses indicate exceedances of numeric or narrative state 
water quality criteria (or EPA water quality criteria where state water 
quality criteria are not available) for toxic pollutants, ammonia, or 
chlorine. These dilution analyses must be based upon estimates of 
discharge levels derived from effluent guideline development documents, 
NPDES permits or permit application data, Discharge Monitoring Reports 
(DMRs), or other available information.
    (xii) Waters classified for uses that will not support the 
``fishable/swimmable'' goals of the Clean Water Act.
    (xiii) Waters where ambient toxicity or adverse water quality 
conditions have been reported by local, state, EPA or other Federal 
Agencies, the private sector, public interest groups, or universities. 
These organizations and groups should be actively solicited for research 
they may be conducting or reporting. For example, university 
researchers, the United States Department of Agriculture, the National 
Oceanic and Atmospheric Administration, the United States Geological 
Survey, and the United States Fish and Wildlife Service are good sources 
of field data and research.
    (xiv) Waters identified by the state as impaired in its most recent 
Clean Lake Assessments conducted under section 314 of the Clean Water 
Act.
    (xv) Waters identified as impaired by nonpoint sources in the 
America's Clean Water: The States' Nonpoint Source Assessments 1985 
(Association of State and Interstate Water Pollution Control 
Administrators (ASIWPCA)) or waters identified as impaired or threatened 
in a nonpoint source assessment submitted by the state to EPA under 
section 319 of the Clean Water Act.
    (xvi) Surface waters impaired by pollutants from hazardous waste 
sites on the National Priority List prepared under section 105(8)(A) of 
CERCLA.

[[Page 936]]

    (7) Each state shall provide documentation to the Regional 
Administrator to support the state's determination to list or not to 
list waters as required by paragraphs (d)(1), (d)(2) and (d)(3) of this 
section. This documentation shall be submitted to the Regional 
Administrator together with the lists required by paragraphs (d)(1), 
(d)(2), and (d)(3) of this section and shall include as a minimum:
    (i) A description of the methodology used to develop each list;
    (ii) A description of the data and information used to identify 
waters and sources including a description of the data and information 
used by the state as required by paragraph (d)(6) of this section;
    (iii) A rationale for any decision not to use any one of the 
categories of existing and readily available data required by paragraph 
(d)(6) of this section; and
    (iv) Any other information requested by the Regional Administrator 
that is reasonable or necessary to determine the adequacy of a state's 
lists. Upon request by the Regional Administrator, each state must 
demonstrate good cause for not including a water or waters on one or 
more lists. Good cause includes, but is not limited to, more recent or 
accurate data; more accurate water quality modeling; flaws in the 
original analysis that led to the water being identified in a category 
in Sec. 130.10(d)(6); or changes in conditions, e.g., new control 
equipment, or elimination of discharges.
    (8) The Regional Administrator shall approve or disapprove each list 
required by paragraphs (d)(1), (d)(2), and (d)(3) of this section no 
later than June 4, 1989. The Regional Administrator shall approve each 
list required under paragraphs (d)(1), (d)(2), and (d)(3) of this 
section only if it meets the regulatory requirements for listing under 
paragraphs (d)(1), (d)(2), and (d)(3) of this section and if the state 
has met all the requirements of paragraphs (d)(6) and (d)(7) of this 
section.
    (9) If a state fails to submit lists in accordance with paragraph 
(d) of this section or the Regional Administrator does not approve the 
lists submitted by such state in accordance with this paragraph, then 
not later than June 4, 1990, the Regional Administrator, in cooperation 
with such state, shall implement the requirements of CWA section 304(l) 
(1) and (2) in such state.
    (10) If the Regional Administrator disapproves a state's decision 
with respect to one or more of the waters required under paragraph (d) 
(1), (2), or (3) of this section, or one or more of the individual 
control strategies required pursuant to section 304(l)(1)(D), then not 
later than June 4, 1989, the Regional Administrator shall distribute the 
notice of approval or disapproval given under this paragraph to the 
appropriate state Director. The Regional Administrator shall also 
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 disapproval. The Regional Administrator shall also provide 
written notice to each discharger identified under section 304(l)(1)(C), 
that EPA has listed the discharger under section 304(l)(1)(C). The 
notice of approval and disapproval shall include the following:
    (i) The name and address of the EPA office that reviews the state's 
submittals.
    (ii) A brief description of the section 304(l) process.
    (iii) A list of waters, point sources and pollutants disapproved 
under this paragraph.
    (iv) If the Regional Administrator determines that a state did not 
provide adequate public notice and an opportunity to comment on the 
lists prepared under this section, or if the Regional Administrator 
chooses to exercise his or her discretion, a list of waters, point 
sources, or pollutants approved under this paragraph.
    (v) The name, address, and telephone number of the person at the 
Regional Office from whom interested persons may obtain more 
information.
    (vi) Notice that written petitions or comments are due within 120 
days.
    (11) As soon as practicable, but not later than June 4, 1990, the 
Regional Office shall issue a response to petitions or comments received 
under paragraph (d)(10) of this section. Notice shall be given in the 
same manner as notice described in paragraph (d)(10) of this section, 
except for the following

[[Page 937]]

changes to the notice of approvals and disapprovals:
    (i) The lists of waters, point sources and pollutants must reflect 
any changes made pursuant to comments or petitions received.
    (ii) A brief description of the subsequent steps in the section 
304(l) process shall be included.

[50 FR 1779, Jan. 11, 1985, as amended at 54 FR 258, Jan. 4, 1989; 54 FR 
23897, June 2, 1989; 57 FR 33050, July 24, 1992]



Sec. 130.11  Program management.

    (a) State agencies may apply for grants under sections 106, 205(j) 
and 205(g) to carry out water quality planning and management 
activities. Interstate agencies may apply for grants under section 106 
to carry out water quality planning and management activities. Local or 
regional planning organizations may request 106 and 205(j) funds from a 
State for planning and management activities. Grant administrative 
requirements for these funds appear in 40 CFR parts 25, 29, 30, 33 and 
35, subparts A and J.
    (b) Grants under section 106 may be used to fund a wide range of 
activities, including but not limited to assessments of water quality, 
revision of water quality standards (WQS), development of alternative 
approaches to control pollution, implementation and enforcement of 
control measures and development or implementation of ground water 
programs. Grants under section 205(j) may be used to fund water quality 
management (WQM) planning activities but may not be used to fund 
implementation of control measures (see part 35, subpart A). Section 
205(g) funds are used primarily to manage the wastewater treatment works 
construction grants program pursuant to the provisions of 40 CFR part 
35, subpart J. A State may also use part of the 205(g) funds to 
administer approved permit programs under sections 402 and 404, to 
administer a statewide waste treatment management program under section 
208(b)(4) and to manage waste treatment construction grants for small 
communities.
    (c) Grant work programs for water quality planning and management 
shall describe geographic and functional priorities for use of grant 
funds in a manner which will facilitate EPA review of the grant 
application and subsequent evaluation of work accomplished with the 
grant funds. A State's 305(b) Report, WQM plan and other water quality 
assessments shall identify the State's priority water quality problems 
and areas. The WQM plan shall contain an analysis of alternative control 
measures and recommendations to control specific problems. Work programs 
shall specify the activities to be carried out during the period of the 
grant; the cost of specific activities; the outputs, for example, 
permits issued, intensive surveys, wasteload allocations, to be produced 
by each activity; and where applicable, schedules indicating when 
activities are to be completed.
    (d) State work programs under sections 106, 205(j) and 205(g) shall 
be coordinated in a manner which indicates the funding from these grants 
dedicated to major functions, such as permitting, enforcement, 
monitoring, planning and standards, nonpoint source implementation, 
management of construction grants, operation and maintenance of 
treatment works, ground-water, emergency response and program 
management. States shall also describe how the activities funded by 
these grants are used in a coordinated manner to address the priority 
water quality problems identified in the State's water quality 
assessment under section 305(b).
    (e) EPA, States, areawide agencies, interstate agencies, local and 
Regional governments, and designated management agencies (DMAs) are 
joint participants in the water pollution control program. States may 
enter into contractual arrangements or intergovernmental agreements with 
other agencies concerning the performance of water quality planning and 
management tasks. Such arrangements shall reflect the capabilities of 
the respective agencies and shall efficiently utilize available funds 
and funding eligibilities to meet Federal requirements commensurate with 
State and local priorities. State work programs under section 205(j) 
shall be developed jointly with local, Regional and other comprehensive 
planning organizations.

[[Page 938]]



Sec. 130.12  Coordination with other programs.

    (a) Relationship to the National Pollutant Discharge Elimination 
System (NPDES) program. In accordance with section 208(e) of the Act, no 
NPDES permit may be issued which is in conflict with an approved Water 
Quality Management (WQM) plan. Where a State has assumed responsibility 
for the administration of the permit program under section 402, it shall 
assure consistency with the WQM plan.
    (b) Relationship to the municipal construction grants program. In 
accordance with sections 205(j), 216 and 303(e)(3)(H) of the Act, each 
State shall develop a system for setting priorities for funding 
construction of municipal wastewater treatment facilities under section 
201 of the Act. The State, or the agency to which the State has 
delegated WQM planning functions, shall review each facility plan in its 
area for consistency with the approved WQM plan. Under section 208(d) of 
the Act, after a waste treatment management agency has been designated 
and a WQM plan approved, section 201 construction grant funds may be 
awarded only to those agencies for construction of treatment works in 
conformity with the approved WQM plan.
    (c) Relationship to Federal activities--Each department, agency or 
instrumentality of the executive, legislative and judicial branches of 
the Federal Government having jurisdiction over any property or facility 
or engaged in any activity resulting, or which may result, in the 
discharge or runoff of pollutants shall comply with all Federal, State, 
interstate and local requirements, administrative authority, and process 
and sanctions respecting the control and abatement of water pollution in 
the same manner and extent as any non-governmental entity in accordance 
with section 313 of the CWA.



Sec. 130.15  Processing application for Indian tribes.

    The Regional Administrator shall process an application of an Indian 
Tribe submitted under Sec. 130.6(d) in a timely manner. He shall 
promptly notify the Indian Tribe of receipt of the application.

[54 FR 14360, Apr. 11, 1989, as amended at 59 FR 13818, Mar. 23, 1994]



PART 131--WATER QUALITY STANDARDS--Table of Contents




                      Subpart A--General Provisions

Sec.
131.1  Scope.
131.2  Purpose.
131.3  Definitions.
131.4  State authority.
131.5  EPA authority.
131.6  Minimum requirements for water quality standards submission.
131.7  Dispute resolution mechanism.
131.8  Requirements for Indian Tribes to administer a water quality 
          standards program.

           Subpart B--Establishment of Water Quality Standards

131.10  Designation of uses.
131.11  Criteria.
131.12  Antidegradation policy.
131.13  General policies.

Subpart C--Procedures for Review and Revision of Water Quality Standards

131.20  State review and revision of water quality standards.
131.21  EPA review and approval of water quality standards.
131.22  EPA promulgation of water quality standards.

        Subpart D--Federally Promulgated Water Quality Standards

131.31  Arizona.
131.32  Pennsylvania.
131.33  Idaho.
131.34  [Reserved]
131.35  Colville Confederated Tribes Indian Reservation.
131.36  Toxics criteria for those states not complying with Clean Water 
          Act section 303(c)(2)(B).
131.37  California.

    Authority: 33 U.S.C. 1251 et seq.

    Source: 48 FR 51405, Nov. 8, 1983, unless otherwise noted.

[[Page 939]]



                      Subpart A--General Provisions



Sec. 131.1  Scope.

    This part describes the requirements and procedures for developing, 
reviewing, revising, and approving water quality standards by the States 
as authorized by section 303(c) of the Clean Water Act. Additional 
specific procedures for developing, reviewing, revising, and approving 
water quality standards for Great Lakes States or Great Lakes Tribes (as 
defined in 40 CFR 132.2) to conform to section 118 of the Clean Water 
Act and 40 CFR part 132, are provided in 40 CFR part 132.

[60 FR 15386, Mar. 23, 1995]



Sec. 131.2  Purpose.

    A water quality standard defines the water quality goals of a water 
body, or portion thereof, by designating the use or uses to be made of 
the water and by setting criteria necessary to protect the uses. States 
adopt water quality standards to protect public health or welfare, 
enhance the quality of water and serve the purposes of the Clean Water 
Act (the Act). ``Serve the purposes of the Act'' (as defined in sections 
101(a)(2) and 303(c) of the Act) means that water quality standards 
should, wherever attainable, provide water quality for the protection 
and propagation of fish, shellfish and wildlife and for recreation in 
and on the water and take into consideration their use and value of 
public water supplies, propagation of fish, shellfish, and wildlife, 
recreation in and on the water, and agricultural, industrial, and other 
purposes including navigation.

Such standards serve the dual purposes of establishing the water quality 
goals for a specific water body and serve as the regulatory basis for 
the establishment of water-quality-based treatment controls and 
strategies beyond the technology-based levels of treatment required by 
sections 301(b) and 306 of the Act.



Sec. 131.3  Definitions.

    (a) The Act means the Clean Water Act (Pub. L. 92-500, as amended 
(33 U.S.C. 1251 et seq.)).
    (b) Criteria are elements of State water quality standards, 
expressed as constituent concentrations, levels, or narrative 
statements, representing a quality of water that supports a particular 
use. When criteria are met, water quality will generally protect the 
designated use.
    (c) Section 304(a) criteria are developed by EPA under authority of 
section 304(a) of the Act based on the latest scientific information on 
the relationship that the effect of a constituent concentration has on 
particular aquatic species and/or human health. This information is 
issued periodically to the States as guidance for use in developing 
criteria.
    (d) Toxic pollutants are those pollutants listed by the 
Administrator under section 307(a) of the Act.
    (e) Existing uses are those uses actually attained in the water body 
on or after November 28, 1975, whether or not they are included in the 
water quality standards.
    (f) Designated uses are those uses specified in water quality 
standards for each water body or segment whether or not they are being 
attained.
    (g) Use attainability analysis is a structured scientific assessment 
of the factors affecting the attainment of the use which may include 
physical, chemical, biological, and economic factors as described in 
Sec. 131.10(g).
    (h) Water quality limited segment means any segment where it is 
known that water quality does not meet applicable water quality 
standards, and/or is not expected to meet applicable water quality 
standards, even after the application of the technology-bases effluent 
limitations required by sections 301(b) and 306 of the Act.
    (i) Water quality standards are provisions of State or Federal law 
which consist of a designated use or uses for the waters of the United 
States and water quality criteria for such waters based upon such uses. 
Water quality standards are to protect the public health or welfare, 
enhance the quality of water and serve the purposes of the Act.
    (j) States include: The 50 States, the District of Columbia, Guam, 
the Commonwealth of Puerto Rico, Virgin Islands, American Samoa, the 
Trust Territory of the Pacific Islands, the Commonwealth of the Northern 
Mariana

[[Page 940]]

Islands, and Indian Tribes that EPA determines to be eligible for 
purposes of water quality standards program.
    (k) Federal Indian Reservation, Indian Reservation, or Reservation 
means all land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and including rights-of-way running through the 
reservation.''
    (l) Indian Tribe or Tribe means any Indian Tribe, band, group, or 
community recognized by the Secretary of the Interior and exercising 
governmental authority over a Federal Indian reservation.

[48 FR 51405, Nov. 8, 1983, as amended at 56 FR 64893, Dec. 12, 1991; 59 
FR 64344, Dec. 14, 1994]



Sec. 131.4  State authority.

    (a) States (as defined in Sec. 131.3) are responsible for reviewing, 
establishing, and revising water quality standards. As recognized by 
section 510 of the Clean Water Act, States may develop water quality 
standards more stringent than required by this regulation. Consistent 
with section 101(g) and 518(a) of the Clean Water Act, water quality 
standards shall not be construed to supersede or abrogate rights to 
quantities of water.
    (b) States (as defined in Sec. 131.3) may issue certifications 
pursuant to the requirements of Clean Water Act section 401. Revisions 
adopted by States shall be applicable for use in issuing State 
certifications consistent with the provisions of Sec. 131.21(c).
    (c) Where EPA determines that a Tribe is eligible to the same extent 
as a State for purposes of water quality standards, the Tribe likewise 
is eligible to the same extent as a State for purposes of certifications 
conducted under Clean Water Act section 401.

[56 FR 64893, Dec. 12, 1991, as amended at 59 FR 64344, Dec. 14, 1994]



Sec. 131.5  EPA authority.

    (a) Under section 303(c) of the Act, EPA is to review and to approve 
or disapprove State-adopted water quality standards. The review involves 
a determination of:
    (1) Whether the State has adopted water uses which are consistent 
with the requirements of the Clean Water Act;
    (2) Whether the State has adopted criteria that protect the 
designated water uses;
    (3) Whether the State has followed its legal procedures for revising 
or adopting standards;
    (4) Whether the State standards which do not include the uses 
specified in section 101(a)(2) of the Act are based upon appropriate 
technical and scientific data and analyses, and
    (5) Whether the State submission meets the requirements included in 
Sec. 131.6 of this part and, for Great Lakes States or Great Lakes 
Tribes (as defined in 40 CFR 132.2) to conform to section 118 of the 
Act, the requirements of 40 CFR part 132.
    (b) If EPA determines that the State's or Tribe's water quality 
standards are consistent with the factors listed in paragraphs (a)(1) 
through (a)(5) of this section, EPA approves the standards. EPA must 
disapprove the State's or Tribe's water quality standards and promulgate 
Federal standards under section 303(c)(4), and for Great Lakes States or 
Great Lakes Tribes under section 118(c)(2)(C) of the Act, if State or 
Tribal adopted standards are not consistent with the factors listed in 
paragraphs (a)(1) through (a)(5) of this section. EPA may also 
promulgate a new or revised standard when necessary to meet the 
requirements of the Act.
    (c) Section 401 of the Clean Water Act authorizes EPA to issue 
certifications pursuant to the requirements of section 401 in any case 
where a State or interstate agency has no authority for issuing such 
certifications.

[48 FR 51405, Nov. 8, 1983, as amended at 56 FR 64894, Dec. 12, 1991; 60 
FR 15387, Mar. 23, 1995]



Sec. 131.6  Minimum requirements for water quality standards submission.

    The following elements must be included in each State's water 
quality standards submitted to EPA for review:
    (a) Use designations consistent with the provisions of sections 
101(a)(2) and 303(c)(2) of the Act.

[[Page 941]]

    (b) Methods used and analyses conducted to support water quality 
standards revisions.
    (c) Water quality criteria sufficient to protect the designated 
uses.
    (d) An antidegradation policy consistent with Sec. 131.12.
    (e) Certification by the State Attorney General or other appropriate 
legal authority within the State that the water quality standards were 
duly adopted pursuant to State law.
    (f) General information which will aid the Agency in determining the 
adequacy of the scientific basis of the standards which do not include 
the uses specified in section 101(a)(2) of the Act as well as 
information on general policies applicable to State standards which may 
affect their application and implementation.



Sec. 131.7  Dispute resolution mechanism.

    (a) Where disputes between States and Indian Tribes arise as a 
result of differing water quality standards on common bodies of water, 
the lead EPA Regional Administrator, as determined based upon OMB 
circular A-105, shall be responsible for acting in accordance with the 
provisions of this section.
    (b) The Regional Administrator shall attempt to resolve such 
disputes where:
    (1) The difference in water quality standards results in 
unreasonable consequences;
    (2) The dispute is between a State (as defined in Sec. 131.3(j) but 
exclusive of all Indian Tribes) and a Tribe which EPA has determined is 
eligible to the same extent as a State for purposes of water quality 
standards;
    (3) A reasonable effort to resolve the dispute without EPA 
involvement has been made;
    (4) The requested relief is consistent with the provisions of the 
Clean Water Act and other relevant law;
    (5) The differing State and Tribal water quality standards have been 
adopted pursuant to State and Tribal law and approved by EPA; and
    (6) A valid written request has been submitted by either the Tribe 
or the State.
    (c) Either a State or a Tribe may request EPA to resolve any dispute 
which satisfies the criteria of paragraph (b) of this section. Written 
requests for EPA involvement should be submitted to the lead Regional 
Administrator and must include:
    (1) A concise statement of the unreasonable consequences that are 
alleged to have arisen because of differing water quality standards;
    (2) A concise description of the actions which have been taken to 
resolve the dispute without EPA involvement;
    (3) A concise indication of the water quality standards provision 
which has resulted in the alleged unreasonable consequences;
    (4) Factual data to support the alleged unreasonable consequences; 
and
    (5) A statement of the relief sought from the alleged unreasonable 
consequences.
    (d) Where, in the Regional Administrator's judgment, EPA involvement 
is appropriate based on the factors of paragraph (b) of this section, 
the Regional Administrator shall, within 30 days, notify the parties in 
writing that he/she is initiating an EPA dispute resolution action and 
solicit their written response. The Regional Administrator shall also 
make reasonable efforts to ensure that other interested individuals or 
groups have notice of this action. Such efforts shall include but not be 
limited to the following:
    (1) Written notice to responsible Tribal and State Agencies, and 
other affected Federal agencies,
    (2) Notice to the specific individual or entity that is alleging 
that an unreasonable consequence is resulting from differing standards 
having been adopted on a common body of water,
    (3) Public notice in local newspapers, radio, and television, as 
appropriate,
    (4) Publication in trade journal newsletters, and
    (5) Other means as appropriate.
    (e) If in accordance with applicable State and Tribal law an Indian 
Tribe and State have entered into an agreement that resolves the dispute 
or establishes a mechanism for resolving a dispute, EPA shall defer to 
this agreement where it is consistent with the Clean Water Act and where 
it has been approved by EPA.
    (f) EPA dispute resolution actions shall be consistent with one or a 
combination of the following options:

[[Page 942]]

    (1) Mediation. The Regional Administrator may appoint a mediator to 
mediate the dispute. Mediators shall be EPA employees, employees from 
other Federal agencies, or other individuals with appropriate 
qualifications.
    (i) Where the State and Tribe agree to participate in the dispute 
resolution process, mediation with the intent to establish Tribal-State 
agreements, consistent with Clean Water Act section 518(d), shall 
normally be pursued as a first effort.
    (ii) Mediators shall act as neutral facilitators whose function is 
to encourage communication and negotiation between all parties to the 
dispute.
    (iii) Mediators may establish advisory panels, to consist in part of 
representatives from the affected parties, to study the problem and 
recommend an appropriate solution.
    (iv) The procedure and schedule for mediation of individual disputes 
shall be determined by the mediator in consultation with the parties.
    (v) If formal public hearings are held in connection with the 
actions taken under this paragraph, Agency requirements at 40 CFR 25.5 
shall be followed.
    (2) Arbitration. Where the parties to the dispute agree to 
participate in the dispute resolution process, the Regional 
Administrator may appoint an arbitrator or arbitration panel to 
arbitrate the dispute. Arbitrators and panel members shall be EPA 
employees, employees from other Federal agencies, or other individuals 
with appropriate qualifications. The Regional administrator shall select 
as arbitrators and arbitration panel members individuals who are 
agreeable to all parties, are knowledgeable concerning the requirements 
of the water quality standards program, have a basic understanding of 
the political and economic interests of Tribes and States involved, and 
are expected to fulfill the duties fairly and impartially.
    (i) The arbitrator or arbitration panel shall conduct one or more 
private or public meetings with the parties and actively solicit 
information pertaining to the effects of differing water quality permit 
requirements on upstream and downstream dischargers, comparative risks 
to public health and the environment, economic impacts, present and 
historical water uses, the quality of the waters subject to such 
standards, and other factors relevant to the dispute, such as whether 
proposed water quality criteria are more stringent than necessary to 
support designated uses, more stringent than natural background water 
quality or whether designated uses are reasonable given natural 
background water quality.
    (ii) Following consideration of relevant factors as defined in 
paragraph (f)(2)(i) of this section, the arbitrator or arbitration panel 
shall have the authority and responsibility to provide all parties and 
the Regional Administrator with a written recommendation for resolution 
of the dispute. Arbitration panel recommendations shall, in general, be 
reached by majority vote. However, where the parties agree to binding 
arbitration, or where required by the Regional Administrator, 
recommendations of such arbitration panels may be unanimous decisions. 
Where binding or non-binding arbitration panels cannot reach a unanimous 
recommendation after a reasonable period of time, the Regional 
Administrator may direct the panel to issue a non-binding decision by 
majority vote.
    (iii) The arbitrator or arbitration panel members may consult with 
EPA's Office of General Counsel on legal issues, but otherwise shall 
have no ex parte communications pertaining to the dispute. Federal 
employees who are arbitrators or arbitration panel members shall be 
neutral and shall not be predisposed for or against the position of any 
disputing party based on any Federal Trust responsibilities which their 
employers may have with respect to the Tribe. In addition, arbitrators 
or arbitration panel members who are Federal employees shall act 
independently from the normal hierarchy within their agency.
    (iv) The parties are not obligated to abide by the arbitrator's or 
arbitration panel's recommendation unless they voluntarily entered into 
a binding agreement to do so.
    (v) If a party to the dispute believes that the arbitrator or 
arbitration panel has recommended an action contrary to or inconsistent 
with the Clean Water Act, the party may appeal the

[[Page 943]]

arbitrator's recommendation to the Regional Administrator. The request 
for appeal must be in writing and must include a description of the 
statutory basis for altering the arbitrator's recommendation.
    (vi) The procedure and schedule for arbitration of individual 
disputes shall be determined by the arbitrator or arbitration panel in 
consultation with parties.
    (vii) If formal public hearings are held in connection with the 
actions taken under this paragraph, Agency requirements at 40 CFR 25.5 
shall be followed.
    (3) Dispute resolution default procedure. Where one or more parties 
(as defined in paragraph (g) of this section) refuse to participate in 
either the mediation or arbitration dispute resolution processes, the 
Regional Administrator may appoint a single official or panel to review 
available information pertaining to the dispute and to issue a written 
recommendation for resolving the dispute. Review officials shall be EPA 
employees, employees from other Federal agencies, or other individuals 
with appropriate qualifications. Review panels shall include appropriate 
members to be selected by the Regional Administrator in consultation 
with the participating parties. Recommendations of such review officials 
or panels shall, to the extent possible given the lack of participation 
by one or more parties, be reached in a manner identical to that for 
arbitration of disputes specified in paragraphs (f)(2)(i) through 
(f)(2)(vii) of this section.
    (g) Definitions. For the purposes of this section:
    (1) Dispute Resolution Mechanism means the EPA mechanism established 
pursuant to the requirements of Clean Water Act section 518(e) for 
resolving unreasonable consequences that arise as a result of differing 
water quality standards that may be set by States and Indian Tribes 
located on common bodies of water.
    (2) Parties to a State-Tribal dispute include the State and the 
Tribe and may, at the discretion of the Regional Administrator, include 
an NPDES permittee, citizen, citizen group, or other affected entity.

[56 FR 64894, Dec. 12, 1991, as amended at 59 FR 64344, Dec. 14, 1994]



Sec. 131.8  Requirements for Indian Tribes to administer a water quality standards program.

    (a) The Regional Administrator, as determined based on OMB Circular 
A-105, may accept and approve a tribal application for purposes of 
administering a water quality standards program if the Tribe meets the 
following criteria:
    (1) The Indian Tribe is recognized by the Secretary of the Interior 
and meets the definitions in Sec. 131.3 (k) and (l),
    (2) The Indian Tribe has a governing body carrying out substantial 
governmental duties and powers,
    (3) The water quality standards program to be administered by the 
Indian Tribe pertains to the management and protection of water 
resources which are within the borders of the Indian reservation and 
held by the Indian Tribe, within the borders of the Indian reservation 
and held by the United States in trust for Indians, within the borders 
of the Indian reservation and held by a member of the Indian Tribe if 
such property interest is subject to a trust restriction on alienation, 
or otherwise within the borders of the Indian reservation, and
    (4) The Indian Tribe is reasonably expected to be capable, in the 
Regional Administrator's judgment, of carrying out the functions of an 
effective water quality standards program in a manner consistent with 
the terms and purposes of the Act and applicable regulations.
    (b) Requests by Indian Tribes for administration of a water quality 
standards program should be submitted to the lead EPA Regional 
Administrator. The application shall include the following information:
    (1) A statement that the Tribe is recognized by the Secretary of the 
Interior.
    (2) A descriptive statement demonstrating that the Tribal governing 
body is currently carrying out substantial governmental duties and 
powers over a defined area. The statement should:

[[Page 944]]

    (i) Describe the form of the Tribal government;
    (ii) Describe the types of governmental functions currently 
performed by the Tribal governing body such as, but not limited to, the 
exercise of police powers affecting (or relating to) the health, safety, 
and welfare of the affected population, taxation, and the exercise of 
the power of eminent domain; and
    (iii) Identify the source of the Tribal government's authority to 
carry out the governmental functions currently being performed.
    (3) A descriptive statement of the Indian Tribe's authority to 
regulate water quality. The statement should include:
    (i) A map or legal description of the area over which the Indian 
Tribe asserts authority to regulate surface water quality;
    (ii) A statement by the Tribe's legal counsel (or equivalent 
official) which describes the basis for the Tribes assertion of 
authority and which may include a copy of documents such as Tribal 
constitutions, by-laws, charters, executive orders, codes, ordinances, 
and/or resolutions which support the Tribe's assertion of authority; and
    (iii) An identification of the surface waters for which the Tribe 
proposes to establish water quality standards.
    (4) A narrative statement describing the capability of the Indian 
Tribe to administer an effective water quality standards program. The 
narrative statement should include:
    (i) A description of the Indian Tribe's previous management 
experience which may include the administration of programs and services 
authorized by the Indian Self-Determination and Education Assistance Act 
(25 U.S.C. 450 et seq.), the Indian Mineral Development Act (25 U.S.C. 
2101 et seq.), or the Indian Sanitation Facility Construction Activity 
Act (42 U.S.C. 2004a);
    (ii) A list of existing environmental or public health programs 
administered by the Tribal governing body and copies of related Tribal 
laws, policies, and regulations;
    (iii) A description of the entity (or entities) which exercise the 
executive, legislative, and judicial functions of the Tribal government;
    (iv) A description of the existing, or proposed, agency of the 
Indian Tribe which will assume primary responsibility for establishing, 
reviewing, implementing and revising water quality standards;
    (v) A description of the technical and administrative capabilities 
of the staff to administer and manage an effective water quality 
standards program or a plan which proposes how the Tribe will acquire 
additional administrative and technical expertise. The plan must address 
how the Tribe will obtain the funds to acquire the administrative and 
technical expertise.
    (5) Additional documentation required by the Regional Administrator 
which, in the judgment of the Regional Administrator, is necessary to 
support a Tribal application.
    (6) Where the Tribe has previously qualified for eligibility or 
``treatment as a state'' under a Clean Water Act or Safe Drinking Water 
Act program, the Tribe need only provide the required information which 
has not been submitted in a previous application.
    (c) Procedure for processing an Indian Tribe's application.
    (1) The Regional Administrator shall process an application of an 
Indian Tribe submitted pursuant to Sec. 131.8(b) in a timely manner. He 
shall promptly notify the Indian Tribe of receipt of the application.
    (2) Within 30 days after receipt of the Indian Tribe's application 
the Regional Administrator shall provide appropriate notice. Notice 
shall:
    (i) Include information on the substance and basis of the Tribe's 
assertion of authority to regulate the quality of reservation waters; 
and
    (ii) Be provided to all appropriate governmental entities.
    (3) The Regional Administrator shall provide 30 days for comments to 
be submitted on the Tribal application. Comments shall be limited to the 
Tribe's assertion of authority.
    (4) If a Tribe's asserted authority is subject to a competing or 
conflicting claim, the Regional Administrator, after due consideration, 
and in consideration of other comments received, shall determine whether 
the Tribe has adequately demonstrated that it meets the requirements of 
Sec. 131.8(a)(3).

[[Page 945]]

    (5) Where the Regional Administrator determines that a Tribe meets 
the requirements of this section, he shall promptly provide written 
notification to the Indian Tribe that the Tribe is authorized to 
administer the Water Quality Standards program.

[56 FR 64895, Dec. 12, 1991, as amended at 59 FR 64344, Dec. 14, 1994]



           Subpart B--Establishment of Water Quality Standards



Sec. 131.10  Designation of uses.

    (a) Each State must specify appropriate water uses to be achieved 
and protected. The classification of the waters of the State must take 
into consideration the use and value of water for public water supplies, 
protection and propagation of fish, shellfish and wildlife, recreation 
in and on the water, agricultural, industrial, and other purposes 
including navigation. In no case shall a State adopt waste transport or 
waste assimilation as a designated use for any waters of the United 
States.
    (b) In designating uses of a water body and the appropriate criteria 
for those uses, the State shall take into consideration the water 
quality standards of downstream waters and shall ensure that its water 
quality standards provide for the attainment and maintenance of the 
water quality standards of downstream waters.
    (c) States may adopt sub-categories of a use and set the appropriate 
criteria to reflect varying needs of such sub-categories of uses, for 
instance, to differentiate between cold water and warm water fisheries.
    (d) At a minimum, uses are deemed attainable if they can be achieved 
by the imposition of effluent limits required under sections 301(b) and 
306 of the Act and cost-effective and reasonable best management 
practices for nonpoint source control.
    (e) Prior to adding or removing any use, or establishing sub-
categories of a use, the State shall provide notice and an opportunity 
for a public hearing under Sec. 131.20(b) of this regulation.
    (f) States may adopt seasonal uses as an alternative to 
reclassifying a water body or segment thereof to uses requiring less 
stringent water quality criteria. If seasonal uses are adopted, water 
quality criteria should be adjusted to reflect the seasonal uses, 
however, such criteria shall not preclude the attainment and maintenance 
of a more protective use in another season.
    (g) States may remove a designated use which is not an existing use, 
as defined in Sec. 131.3, or establish sub-categories of a use if the 
State can demonstrate that attaining the designated use is not feasible 
because:
    (1) Naturally occurring pollutant concentrations prevent the 
attainment of the use; or
    (2) Natural, ephemeral, intermittent or low flow conditions or water 
levels prevent the attainment of the use, unless these conditions may be 
compensated for by the discharge of sufficient volume of effluent 
discharges without violating State water conservation requirements to 
enable uses to be met; or
    (3) Human caused conditions or sources of pollution prevent the 
attainment of the use and cannot be remedied or would cause more 
environmental damage to correct than to leave in place; or
    (4) Dams, diversions or other types of hydrologic modifications 
preclude the attainment of the use, and it is not feasible to restore 
the water body to its original condition or to operate such modification 
in a way that would result in the attainment of the use; or
    (5) Physical conditions related to the natural features of the water 
body, such as the lack of a proper substrate, cover, flow, depth, pools, 
riffles, and the like, unrelated to water quality, preclude attainment 
of aquatic life protection uses; or
    (6) Controls more stringent than those required by sections 301(b) 
and 306 of the Act would result in substantial and widespread economic 
and social impact.
    (h) States may not remove designated uses if:
    (1) They are existing uses, as defined in Sec. 131.3, unless a use 
requiring more stringent criteria is added; or
    (2) Such uses will be attained by implementing effluent limits 
required under sections 301(b) and 306 of the Act

[[Page 946]]

and by implementing cost-effective and reasonable best management 
practices for nonpoint source control.
    (i) Where existing water quality standards specify designated uses 
less than those which are presently being attained, the State shall 
revise its standards to reflect the uses actually being attained.
    (j) A State must conduct a use attainability analysis as described 
in Sec. 131.3(g) whenever:
    (1) The State designates or has designated uses that do not include 
the uses specified in section 101(a)(2) of the Act, or
    (2) The State wishes to remove a designated use that is specified in 
section 101(a)(2) of the Act or to adopt subcategories of uses specified 
in section 101(a)(2) of the Act which require less stringent criteria.
    (k) A State is not required to conduct a use attainability analysis 
under this regulation whenever designating uses which include those 
specified in section 101(a)(2) of the Act.



Sec. 131.11  Criteria.

    (a) Inclusion of pollutants: (1) States must adopt those water 
quality criteria that protect the designated use. Such criteria must be 
based on sound scientific rationale and must contain sufficient 
parameters or constituents to protect the designated use. For waters 
with multiple use designations, the criteria shall support the most 
sensitive use.
    (2) Toxic pollutants. States must review water quality data and 
information on discharges to identify specific water bodies where toxic 
pollutants may be adversely affecting water quality or the attainment of 
the designated water use or where the levels of toxic pollutants are at 
a level to warrant concern and must adopt criteria for such toxic 
pollutants applicable to the water body sufficient to protect the 
designated use. Where a State adopts narrative criteria for toxic 
pollutants to protect designated uses, the State must provide 
information identifying the method by which the State intends to 
regulate point source discharges of toxic pollutants on water quality 
limited segments based on such narrative criteria. Such information may 
be included as part of the standards or may be included in documents 
generated by the State in response to the Water Quality Planning and 
Management Regulations (40 CFR part 35).
    (b) Form of criteria: In establishing criteria, States should:
    (1) Establish numerical values based on:
    (i) 304(a) Guidance; or
    (ii) 304(a) Guidance modified to reflect site-specific conditions; 
or
    (iii) Other scientifically defensible methods;
    (2) Establish narrative criteria or criteria based upon 
biomonitoring methods where numerical criteria cannot be established or 
to supplement numerical criteria.



Sec. 131.12  Antidegradation policy.

    (a) The State shall develop and adopt a statewide antidegradation 
policy and identify the methods for implementing such policy pursuant to 
this subpart. The antidegradation policy and implementation methods 
shall, at a minimum, be consistent with the following:
    (1) Existing instream water uses and the level of water quality 
necessary to protect the existing uses shall be maintained and 
protected.
    (2) Where the quality of the waters exceed levels necessary to 
support propagation of fish, shellfish, and wildlife and recreation in 
and on the water, that quality shall be maintained and protected unless 
the State finds, after full satisfaction of the intergovernmental 
coordination and public participation provisions of the State's 
continuing planning process, that allowing lower water quality is 
necessary to accommodate important economic or social development in the 
area in which the waters are located. In allowing such degradation or 
lower water quality, the State shall assure water quality adequate to 
protect existing uses fully. Further, the State shall assure that there 
shall be achieved the highest statutory and regulatory requirements for 
all new and existing point sources and all cost-effective and reasonable 
best management practices for nonpoint source control.

[[Page 947]]

    (3) Where high quality waters constitute an outstanding National 
resource, such as waters of National and State parks and wildlife 
refuges and waters of exceptional recreational or ecological 
significance, that water quality shall be maintained and protected.
    (4) In those cases where potential water quality impairment 
associated with a thermal discharge is involved, the antidegradation 
policy and implementing method shall be consistent with section 316 of 
the Act.



Sec. 131.13  General policies.

    States may, at their discretion, include in their State standards, 
policies generally affecting their application and implementation, such 
as mixing zones, low flows and variances. Such policies are subject to 
EPA review and approval.



Subpart C--Procedures for Review and Revision of Water Quality Standards



Sec. 131.20  State review and revision of water quality standards.

    (a) State review. The State shall from time to time, but at least 
once every three years, hold public hearings for the purpose of 
reviewing applicable water quality standards and, as appropriate, 
modifying and adopting standards. Any water body segment with water 
quality standards that do not include the uses specified in section 
101(a)(2) of the Act shall be re-examined every three years to determine 
if any new information has become available. If such new information 
indicates that the uses specified in section 101(a)(2) of the Act are 
attainable, the State shall revise its standards accordingly. Procedures 
States establish for identifying and reviewing water bodies for review 
should be incorporated into their Continuing Planning Process.
    (b) Public participation. The State shall hold a public hearing for 
the purpose of reviewing water quality standards, in accordance with 
provisions of State law, EPA's water quality management regulation (40 
CFR 130.3(b)(6)) and public participation regulation (40 CFR part 25). 
The proposed water quality standards revision and supporting analyses 
shall be made available to the public prior to the hearing.
    (c) Submittal to EPA. The State shall submit the results of the 
review, any supporting analysis for the use attainability analysis, the 
methodologies used for site-specific criteria development, any general 
policies applicable to water quality standards and any revisions of the 
standards to the Regional Administrator for review and approval, within 
30 days of the final State action to adopt and certify the revised 
standard, or if no revisions are made as a result of the review, within 
30 days of the completion of the review.



Sec. 131.21  EPA review and approval of water quality standards.

    (a) After the State submits its officially adopted revisions, the 
Regional Administrator shall either:
    (1) Notify the State within 60 days that the revisions are approved, 
or
    (2) Notify the State within 90 days that the revisions are 
disapproved. Such notification of disapproval shall specify the changes 
needed to assure compliance with the requirements of the Act and this 
regulation, and shall explain why the State standard is not in 
compliance with such requirements. Any new or revised State standard 
must be accompanied by some type of supporting analysis.
    (b) The Regional Administrator's approval or disapproval of a State 
water quality standard shall be based on the requirements of the Act as 
described in Secs. 131.5 and 131.6, and, with respect to Great Lakes 
States or Tribes (as defined in 40 CFR 132.2), 40 CFR part 132.
    (c) A State water quality standard remains in effect, even though 
disapproved by EPA, until the State revises it or EPA promulgates a rule 
that supersedes the State water quality standard.
    (d) EPA shall, at least annually, publish in the Federal Register a 
notice of approvals under this section.

[48 FR 51405, Nov. 8, 1983, as amended at 60 FR 15387, Mar. 23, 1995]

[[Page 948]]



Sec. 131.22  EPA promulgation of water quality standards.

    (a) If the State does not adopt the changes specified by the 
Regional Administrator within 90 days after notification of the Regional 
Administrator's disapproval, the Administrator shall promptly propose 
and promulgate such standard.
    (b) The Administrator may also propose and promulgate a regulation, 
applicable to one or more States, setting forth a new or revised 
standard upon determining such a standard is necessary to meet the 
requirements of the Act.
    (c) In promulgating water quality standards, the Administrator is 
subject to the same policies, procedures, analyses, and public 
participation requirements established for States in these regulations.



        Subpart D--Federally Promulgated Water Quality Standards



Sec. 131.31  Arizona.

    (a) Article 6, part 2 is amended as follows:
    (1) Reg. 6-2-6.11 shall read:

    Reg. 6-2-6.11 Nutrient Standards. A. The mean annual total phosphate 
and mean annual total nitrate concentrations of the following waters 
shall not exceed the values given below nor shall the total phosphate or 
total nitrate concentrations of more than 10 percent of the samples in 
any year exceed the 90 percent values given below. Unless otherwise 
specified, indicated values also apply to tributaries to the named 
waters.

------------------------------------------------------------------------
                                                    Mean 90 pct annual
                                                           value
                                                 -----------------------
                                                     Total       Total
                                                  phosphates   nitrates
                                                  as PO4mg/l  as NO3mg/l
------------------------------------------------------------------------
1. Colorado River from Utah border to Willow       0.04-0.06         4-7
 Beach (main stem)..............................
2. Colorado River from Willow Beach to Parker      0.06-0.10           5
 Dam (main stem)................................
3. Colorado River from Parker Dam to Imperial      0.08-0.12         5-7
 Dam (main stem)................................
4. Colorado River from Imperial Dam to Morelos     0.10-0.10         5-7
 Dam (main stem)................................
5. Gila River from New Mexico border to San        0.50-0.80  ..........
 Carlos Reservoir (excluding San Carlos
 Reservoir).....................................
6. Gila River from San Carlos Reservoir to         0.30-0.50  ..........
 Ashurst Hayden Dam (including San Carlos
 Reservoir).....................................
7. San Pedro River..............................   0.30-0.50  ..........
8. Verde River (except Granite Creek)...........   0.20-0.30  ..........
9. Salt River above Roosevelt Lake..............   0.20-0.30  ..........
10. Santa Cruz River from international boundary   0.50-0.80  ..........
 near Nogales to Sahuarita......................
11. Little Colorado River above Lyman Reservoir.   0.30-0.50  ..........
------------------------------------------------------------------------

    B. The above standards are intended to protect the beneficial uses 
of the named waters. Because regulation of nitrates and phosphates alone 
may not be adequate to protect waters from eutrophication, no substance 
shall be added to any surface water which produces aquatic growth to the 
extent that such growths create a public nuisance or interference with 
beneficial uses of the water defined and designated in Reg. 6-2-6.5.

    (2) Reg. 6-2-6.10  Subparts A and B are amended to include Reg. 6-2-
6.11 in series with Regs. 6-2-6.6, 6-2-6.7 and 6-2-6.8.
    (b) The following waters have, in addition to the uses designated by 
the State, the designated use of fish consumption as defined in R18-11-
101 (which is available from the Arizona Department of Environmental 
Quality, Water Quality Division, 3033 North Central Ave., Phoenix, AZ 
85012):

COLORADO MAIN STEM RIVER BASIN:
    Hualapai Wash
MIDDLE GILA RIVER BASIN:
    Agua Fria River (Camelback Road to Avondale WWTP)
    Galena Gulch
    Gila River (Felix Road to the Salt River)
    Queen Creek (Headwaters to the Superior WWTP)
    Queen Creek (Below Potts Canyon)
SAN PEDRO RIVER BASIN:
    Copper Creek
SANTA CRUZ RIVER BASIN:
    Agua Caliente Wash
    Nogales Wash
    Sonoita Creek (Above the town of Patagonia)
    Tanque Verde Creek
    Tinaja Wash

[[Page 949]]

    Davidson Canyon
UPPER GILA RIVER BASIN
    Chase Creek

    (c) To implement the requirements of R18-11-108.A.5 with respect to 
effects of mercury on wildlife, EPA (or the State with the approval of 
EPA) shall implement a monitoring program to assess attainment of the 
water quality standard.

(Sec. 303, Federal Water Pollution Control Act, as amended, 33 U.S.C. 
1313, 86 Stat. 816 et seq., Pub. L. 92-500; Clean Water Act, Pub. L. 92-
500, as amended; 33 U.S.C. 1251 et seq.)

[41 FR 25000, June 22, 1976; 41 FR 48737, Nov. 5, 1976. Redesignated and 
amended at 42 FR 56740, Oct. 28, 1977. Further redesignated and amended 
at 48 FR 51408, Nov. 8, 1983; 61 FR 20693, May 7, 1996]



Sec. 131.32  Pennsylvania.

    (a) Antidegradation policy. This antidegradation policy shall be 
applicable to all waters of the United States within the Commonwealth of 
Pennsylvania, including wetlands.
    (1) Existing in-stream uses and the level of water quality necessary 
to protect the existing uses shall be maintained and protected.
    (2) Where the quality of the waters exceeds levels necessary to 
support propagation of fish, shellfish, and wildlife and recreation in 
and on the water, that quality shall be maintained and protected unless 
the Commonwealth finds, after full satisfaction of the inter-
governmental coordination and public participation provisions of the 
Commonwealth's continuing planning process, that allowing lower water 
quality is necessary to accommodate important economic or social 
development in the area in which the waters are located. In allowing 
such degradation or lower water quality, the Commonwealth shall assure 
water quality adequate to protect existing uses fully. Further, the 
Commonwealth shall assure that there shall be achieved the highest 
statutory and regulatory requirements for all new and existing point 
sources and all cost-effective and reasonable best management practices 
for nonpoint sources.
    (3) Where high quality waters are identified as constituting an 
outstanding National resource, such as waters of National and State 
parks and wildlife refuges and water of exceptional recreational and 
ecological significance, that water quality shall be maintained and 
protected.
    (b) [Reserved]

[61 FR 64822, Dec. 9, 1996]



Sec. 131.33  Idaho.

    (a) Temperature criteria for bull trout. (1) Except for those 
streams or portions of streams located in Indian country, or as may be 
modified by the Regional Administrator, EPA Region X, pursuant to 
paragraph (a)(3) of this section, a temperature criterion of 10  deg.C, 
expressed as an average of daily maximum temperatures over a seven-day 
period, applies to the waterbodies identified in paragraph (a)(2) of 
this section during the months of June, July, August and September.
    (2) The following waters are protected for bull trout spawning and 
rearing:
    (i) BOISE-MORE BASIN: Devils Creek, East Fork Sheep Creek, Sheep 
Creek.
    (ii) BROWNLEE RESERVOIR BASIN: Crooked River, Indian Creek.
    (iii) CLEARWATER BASIN: Big Canyon Creek, Cougar Creek, Feather 
Creek, Laguna Creek, Lolo Creek, Orofino Creek, Talapus Creek, West Fork 
Potlatch River.
    (iv) COEUR D'ALENE LAKE BASIN: Cougar Creek, Fernan Creek, Kid 
Creek, Mica Creek, South Fork Mica Creek, Squaw Creek, Turner Creek.
    (v) HELLS CANYON BASIN: Dry Creek, East Fork Sheep Creek, Getta 
Creek, Granite Creek, Kurry Creek, Little Granite Creek, Sheep Creek.
    (vi) LEMHI BASIN: Adams Creek, Alder Creek, Basin Creek, Bear Valley 
Creek, Big Eightmile Creek, Big Springs Creek, Big Timber Creek, Bray 
Creek, Bull Creek, Cabin Creek, Canyon Creek, Carol Creek, Chamberlain 
Creek, Clear Creek, Climb Creek, Cooper Creek, Dairy Creek, Deer Creek, 
Deer Park Creek, East Fork Hayden Creek, Eighteenmile Creek, Falls 
Creek, Ferry Creek, Ford Creek, Geertson Creek, Grove Creek, Hawley 
Creek, Hayden Creek, Kadletz Creek, Kenney Creek, Kirtley Creek, Lake 
Creek, Lee Creek, Lemhi River (above Big Eightmile Creek), Little 
Eightmile Creek, Little Mill Creek, Little Timber

[[Page 950]]

Creek, Middle Fork Little Timber Creek, Milk Creek, Mill Creek, Mogg 
Creek, North Fork Kirtley Creek, North Fork Little Timber Creek, 
Paradise Creek, Patterson Creek, Payne Creek, Poison Creek, Prospect 
Creek, Rocky Creek, Short Creek, Squaw Creek, Squirrel Creek, Tobias 
Creek, Trail Creek, West Fork Hayden Creek, Wright Creek.
    (vii) LITTLE LOST BASIN: Badger Creek, Barney Creek, Bear Canyon, 
Bear Creek, Bell Mountain Creek, Big Creek, Bird Canyon, Black Creek, 
Buck Canyon, Bull Creek, Cedar Run Creek, Chicken Creek, Coal Creek, 
Corral Creek, Deep Creek, Dry Creek, Dry Creek Canal, Firbox Creek, 
Garfield Creek, Hawley Canyon, Hawley Creek, Horse Creek, Horse Lake 
Creek, Iron Creek, Jackson Creek, Little Lost River (above Badger 
Creek), Mahogany Creek, Main Fork Sawmill Creek, Massacre Creek, Meadow 
Creek, Mill Creek, Moffett Creek, Moonshine Creek, Quigley Creek, Red 
Rock Creek, Sands Creek, Sawmill Creek, Slide Creek, Smithie Fork, Squaw 
Creek, Summerhouse Canyon, Summit Creek, Timber Creek, Warm Creek, Wet 
Creek, Williams Creek.
    (viii) LITTLE SALMON BASIN: Bascum Canyon, Boulder Creek, Brown 
Creek, Campbell Ditch, Castle Creek, Copper Creek, Granite Fork Lake 
Fork Rapid River, Hard Creek, Hazard Creek, Lake Fork Rapid River, 
Little Salmon River (above Hazard Creek), Paradise Creek, Pony Creek, 
Rapid River, Squirrel Creek, Trail Creek, West Fork Rapid River.
    (ix) LOCHSA BASIN: Apgar Creek, Badger Creek, Bald Mountain Creek, 
Beaver Creek, Big Flat Creek, Big Stew Creek, Boulder Creek, Brushy 
Fork, Cabin Creek, Castle Creek, Chain Creek, Cliff Creek, Coolwater 
Creek, Cooperation Creek, Crab Creek, Crooked Fork Lochsa River, Dan 
Creek, Deadman Creek, Doe Creek, Dutch Creek, Eagle Creek, East Fork 
Papoose Creek, East Fork Split Creek, East Fork Squaw Creek, Eel Creek, 
Fern Creek, Fire Creek, Fish Creek, Fish Lake Creek, Fox Creek, Gass 
Creek, Gold Creek, Ham Creek, Handy Creek, Hard Creek, Haskell Creek, 
Heather Creek, Hellgate Creek, Holly Creek, Hopeful Creek, Hungery 
Creek, Indian Grave Creek, Jay Creek, Kerr Creek, Kube Creek, Lochsa 
River, Lone Knob Creek, Lottie Creek, Macaroni Creek, Maud Creek, Middle 
Fork Clearwater River, No-see-um Creek, North Fork Spruce Creek, North 
Fork Storm Creek, Nut Creek, Otter Slide Creek, Pack Creek, Papoose 
Creek, Parachute Creek, Pass Creek, Pedro Creek, Pell Creek, Pete King 
Creek, Placer Creek, Polar Creek, Postoffice Creek, Queen Creek, Robin 
Creek, Rock Creek, Rye Patch Creek, Sardine Creek, Shoot Creek, Shotgun 
Creek, Skookum Creek, Snowshoe Creek, South Fork Spruce Creek, South 
Fork Storm Creek, Split Creek, Sponge Creek, Spring Creek, Spruce Creek, 
Squaw Creek, Storm Creek, Tick Creek, Tomcat Creek, Tumble Creek, Twin 
Creek, Wag Creek, Walde Creek, Walton Creek, Warm Springs Creek, Weir 
Creek, Wendover Creek, West Fork Boulder Creek, West Fork Papoose Creek, 
West Fork Squaw Creek, West Fork Wendover Creek, White Sands Creek, 
Willow Creek.
    (x) LOWER CLARK FORK BASIN: Cascade Creek, East Fork, East Fork 
Creek, East Forkast Fork Creek, Gold Creek, Johnson Creek, Lightning 
Creek, Mosquito Creek, Porcupine Creek, Rattle Creek, Spring Creek, Twin 
Creek, Wellington Creek.
    (xi) LOWER KOOTENAI BASIN: Ball Creek, Boundary Creek, Brush Creek, 
Cabin Creek, Caribou Creek, Cascade Creek, Cooks Creek, Cow Creek, 
Curley Creek, Deep Creek, Grass Creek, Jim Creek, Lime Creek, Long 
Canyon Creek, Mack Creek, Mission Creek, Myrtle Creek, Peak Creek, Snow 
Creek, Trout Creek.
    (xii) LOWER MIDDLE FORK SALMON BASIN: Acorn Creek, Alpine Creek, 
Anvil Creek, Arrastra Creek, Bar Creek, Beagle Creek, Beaver Creek, 
Belvidere Creek, Big Creek, Birdseye Creek, Boulder Creek, Brush Creek, 
Buck Creek, Bull Creek, Cabin Creek, Camas Creek, Canyon Creek, Castle 
Creek, Clark Creek, Coin Creek, Corner Creek, Coxey Creek, Crooked 
Creek, Doe Creek, Duck Creek, East Fork Holy Terror Creek, Fawn Creek, 
Flume Creek, Fly Creek, Forge Creek, Furnace Creek, Garden Creek, 
Government Creek, Grouse Creek, Hammer Creek, Hand Creek, Holy Terror 
Creek, J Fell

[[Page 951]]

Creek, Jacobs Ladder Creek, Lewis Creek, Liberty Creek, Lick Creek, Lime 
Creek, Little Jacket Creek, Little Marble Creek, Little White Goat 
Creek, Little Woodtick Creek, Logan Creek, Lookout Creek, Loon Creek, 
Martindale Creek, Meadow Creek, Middle Fork Smith Creek, Monumental 
Creek, Moore Creek, Mulligan Creek, North Fork Smith Creek, Norton 
Creek, Placer Creek, Pole Creek, Rams Creek, Range Creek, Routson Creek, 
Rush Creek, Sawlog Creek, Sheep Creek, Sheldon Creek, Shellrock Creek, 
Ship Island Creek, Shovel Creek, Silver Creek, Smith Creek, Snowslide 
Creek, Soldier Creek, South Fork Camas Creek, South Fork Chamberlain 
Creek, South Fork Holy Terror Creek, South Fork Norton Creek, South Fork 
Rush Creek, South Fork Sheep Creek, Spider Creek, Spletts Creek, 
Telephone Creek, Trail Creek, Two Point Creek, West Fork Beaver Creek, 
West Fork Camas Creek, West Fork Monumental Creek, West Fork Rush Creek, 
White Goat Creek, Wilson Creek.
    (xiii) LOWER NORTH FORK CLEARWATER BASIN: Adair Creek, Badger Creek, 
Bathtub Creek, Beaver Creek, Black Creek, Brush Creek, Buck Creek, Butte 
Creek, Canyon Creek, Caribou Creek, Crimper Creek, Dip Creek, Dog Creek, 
Elmer Creek, Falls Creek, Fern Creek, Goat Creek, Isabella Creek, John 
Creek, Jug Creek, Jungle Creek, Lightning Creek, Little Lost Lake Creek, 
Little North Fork Clearwater River, Lost Lake Creek, Lund Creek, Montana 
Creek, Mowitch Creek, Papoose Creek, Pitchfork Creek, Rocky Run, 
Rutledge Creek, Spotted Louis Creek, Triple Creek, Twin Creek, West Fork 
Montana Creek, Willow Creek.
    (xiv) LOWER SALMON BASIN: Bear Gulch, Berg Creek, East Fork John Day 
Creek, Elkhorn Creek, Fiddle Creek, French Creek, Hurley Creek, John Day 
Creek, Kelly Creek, Klip Creek, Lake Creek, Little Slate Creek, Little 
Van Buren Creek, No Business Creek, North Creek, North Fork Slate Creek, 
North Fork White Bird Creek, Partridge Creek, Slate Creek, Slide Creek, 
South Fork John Day Creek, South Fork White Bird Creek, Warm Springs 
Creek.
    (xv) LOWER SELWAY BASIN: Anderson Creek, Bailey Creek, Browns Spring 
Creek, Buck Lake Creek, Butte Creek, Butter Creek, Cabin Creek, Cedar 
Creek, Chain Creek, Chute Creek, Dent Creek, Disgrace Creek, Double 
Creek, East Fork Meadow Creek, East Fork Moose Creek, Elbow Creek, 
Fivemile Creek, Fourmile Creek, Gate Creek, Gedney Creek, Goddard Creek, 
Horse Creek, Indian Hill Creek, Little Boulder Creek, Little Schwar 
Creek, Matteson Creek, Meadow Creek, Monument Creek, Moose Creek, Moss 
Creek, Newsome Creek, North Fork Moose Creek, Rhoda Creek, Saddle Creek, 
Schwar Creek, Shake Creek, Spook Creek, Spur Creek, Tamarack Creek, West 
Fork Anderson Creek, West Fork Gedney Creek, West Moose Creek, Wounded 
Doe Creek.
    (xvi) MIDDLE FORK CLEARWATER BASIN: Baldy Creek, Big Cedar Creek, 
Browns Spring Creek, Clear Creek, Middle Fork Clear Creek, Pine Knob 
Creek, South Fork Clear Creek.
    (xvii) MIDDLE FORK PAYETTE BASIN: Bull Creek, Middle Fork Payette 
River (above Fool Creek), Oxtail Creek, Silver Creek, Sixteen-to-one 
Creek.
    (xviii) MIDDLE SALMON-CHAMBERLAIN BASIN: Arrow Creek, Bargamin 
Creek, Bat Creek, Bay Creek, Bear Creek, Bend Creek, Big Elkhorn Creek, 
Big Harrington Creek, Big Mallard Creek, Big Squaw Creek, Bleak Creek, 
Bronco Creek, Broomtail Creek, Brown Creek, Cayuse Creek, Center Creek, 
Chamberlain Creek, Cliff Creek, Colt Creek, Corn Creek, Crooked Creek, 
Deer Creek, Dennis Creek, Disappointment Creek, Dismal Creek, Dog Creek, 
East Fork Fall Creek, East Fork Horse Creek, East Fork Noble Creek, Fall 
Creek, Filly Creek, Fish Creek, Flossie Creek, Game Creek, Gap Creek, 
Ginger Creek, Green Creek, Grouse Creek, Guard Creek, Hamilton Creek, 
Horse Creek, Hot Springs Creek, Hotzel Creek, Hungry Creek, Iodine 
Creek, Jack Creek, Jersey Creek, Kitchen Creek, Lake Creek, Little Horse 
Creek, Little Lodgepole Creek, Little Mallard Creek, Lodgepole Creek, 
Mayflower Creek, McCalla Creek, Meadow Creek, Moose Creek, Moose Jaw 
Creek, Mule Creek, Mustang Creek, No Name Creek, Owl Creek, Poet Creek, 
Pole Creek, Porcupine Creek, Prospector Creek, Pup Creek,

[[Page 952]]

Queen Creek, Rainey Creek, Ranch Creek, Rattlesnake Creek, Red Top 
Creek, Reynolds Creek, Rim Creek, Ring Creek, Rock Creek, Root Creek, 
Runaway Creek, Sabe Creek, Saddle Creek, Salt Creek, Schissler Creek, 
Sheep Creek, Short Creek, Shovel Creek, Skull Creek, Slaughter Creek, 
Slide Creek, South Fork Cottonwood Creek, South Fork Chamberlain Creek, 
South Fork Kitchen Creek, South Fork Salmon River, Spread Creek, Spring 
Creek, Starvation Creek, Steamboat Creek, Steep Creek, Stud Creek, 
Warren Creek, Webfoot Creek, West Fork Chamberlain Creek, West Fork 
Rattlesnake Creek, West Horse Creek, Whimstick Creek, Wind River, Woods 
Fork Horse Creek.
    (xix) MIDDLE SALMON-PANTHER BASIN: Allen Creek, Arnett Creek, Beaver 
Creek, Big Deer Creek, Blackbird Creek, Boulder Creek, Cabin Creek, Camp 
Creek, Carmen Creek, Clear Creek, Colson Creek, Copper Creek, Corral 
Creek, Cougar Creek, Cow Creek, Deadhorse Creek, Deep Creek, East 
Boulder Creek, Elkhorn Creek, Fawn Creek, Fourth Of July Creek, Freeman 
Creek, Homet Creek, Hughes Creek, Hull Creek, Indian Creek, Iron Creek, 
Jackass Creek, Jefferson Creek, Jesse Creek, Lake Creek, Little Deep 
Creek, Little Hat Creek, Little Sheep Creek, McConn Creek, McKim Creek, 
Mink Creek, Moccasin Creek, Moose Creek, Moyer Creek, Musgrove Creek, 
Napias Creek, North Fork Hughes Creek, North Fork Iron Creek, North Fork 
Salmon River, North Fork Williams Creek, Opal Creek, Otter Creek, Owl 
Creek, Panther Creek, Park Creek, Phelan Creek, Pine Creek, Pony Creek, 
Porphyry Creek, Pruvan Creek, Rabbit Creek, Rancherio Creek, Rapps 
Creek, Salt Creek, Salzer Creek, Saw Pit Creek, Sharkey Creek, Sheep 
Creek, South Fork Cabin Creek, South Fork Iron Creek, South Fork Moyer 
Creek, South Fork Phelan Creek, South Fork Sheep Creek, South Fork 
Williams Creek, Spring Creek, Squaw Creek, Trail Creek, Twelvemile 
Creek, Twin Creek, Weasel Creek, West Fork Blackbird Creek, West Fork 
Iron Creek, Williams Creek, Woodtick Creek.
    (xx) MOYIE BASIN: Brass Creek, Bussard Creek, Copper Creek, Deer 
Creek, Faro Creek, Keno Creek, Kreist Creek, Line Creek, McDougal Creek, 
Mill Creek, Moyie River (above Skin Creek), Placer Creek, Rutledge 
Creek, Skin Creek, Spruce Creek, West Branch Deer Creek.
    (xxi) NORTH AND MIDDLE FORK BOISE BASIN: Abby Creek, Arrastra Creek, 
Bald Mountain Creek, Ballentyne Creek, Banner Creek, Bayhouse Creek, 
Bear Creek, Bear River, Big Gulch, Big Silver Creek, Billy Creek, 
Blackwarrior Creek, Bow Creek, Browns Creek, Buck Creek, Cabin Creek, 
Cahhah Creek, Camp Gulch, China Fork, Coma Creek, Corbus Creek, Cow 
Creek, Crooked River, Cub Creek, Decker Creek, Dutch Creek, Dutch Frank 
Creek, East Fork Roaring River, East Fork Swanholm Creek, East Fork Yuba 
River, Flint Creek, Flytrip Creek, Gotch Creek, Graham Creek, Granite 
Creek, Grays Creek, Greylock Creek, Grouse Creek, Hot Creek, Hungarian 
Creek, Joe Daley Creek, Johnson Creek, Kid Creek, King Creek, La Mayne 
Creek, Leggit Creek, Lightening Creek, Little Queens River, Little 
Silver Creek, Louise Creek, Lynx Creek, Mattingly Creek, McKay Creek, 
McLeod Creek, McPhearson Creek, Middle Fork Boise River (above Roaring 
River), Middle Fork Corbus Creek, Middle Fork Roaring River, Mill Creek, 
Misfire Creek, Montezuma Creek, North Fork Boise River (above Bear 
River), Phifer Creek, Pikes Fork, Quartz Gulch, Queens River, Rabbit 
Creek, Right Creek, Roaring River, Robin Creek, Rock Creek, Rockey 
Creek, Sawmill Creek, Scenic Creek, Scotch Creek, Scott Creek, Shorip 
Creek, Smith Creek, Snow Creek, Snowslide Creek, South Fork Corbus 
Creek, South Fork Cub Creek, Spout Creek, Steamboat Creek, Steel Creek, 
Steppe Creek, Swanholm Creek, Timpa Creek, Trail Creek, Trapper Creek, 
Tripod Creek, West Fork Creek, West Warrior Creek, Willow Creek, Yuba 
River.
    (xxii) NORTH FORK PAYETTE BASIN: Gold Fork River, North Fork Gold 
Fork River, Pearsol Creek.
    (xxiii) AHSIMEROI BASIN: Baby Creek, Bear Creek, Big Creek, Big 
Gulch, Burnt Creek, Christian Gulch, Dead Cat Canyon, Ditch Creek, 
Donkey Creek, Doublespring Creek, Dry Canyon, Dry Gulch, East Fork Burnt

[[Page 953]]

Creek, East Fork Morgan Creek, East Fork Pahsimeroi River, East Fork 
Patterson Creek, Elkhorn Creek, Falls Creek, Goldberg Creek, Hillside 
Creek, Inyo Creek, Long Creek, Mahogany Creek, Mill Creek, Morgan Creek, 
Morse Creek, Mulkey Gulch, North Fork Big Creek, North Fork Morgan 
Creek, Pahsimeroi River (above Big Creek), Patterson Creek, Rock Spring 
Canyon, Short Creek, Snowslide Creek, South Fork Big Creek, Spring 
Gulch, Squaw Creek, Stinking Creek, Tater Creek, West Fork Burnt Creek, 
West Fork North Fork Big Creek.
    (xxiv) PAYETTE BASIN: Squaw Creek, Third Fork Squaw Creek.
    (xxv) PEND OREILLE LAKE BASIN: Branch North Gold Creek, Cheer Creek, 
Chloride Gulch, Dry Gulch, Dyree Creek, Flume Creek, Gold Creek, Granite 
Creek, Grouse Creek, Kick Bush Gulch, North Fork Grouse Creek, North 
Gold Creek, Plank Creek, Rapid Lightning Creek, South Fork Grouse Creek, 
Strong Creek, Thor Creek, Trestle Creek, West Branch Pack River, West 
Gold Creek, Wylie Creek, Zuni Creek.
    (xxvi) PRIEST BASIN: Abandon Creek, Athol Creek, Bath Creek, Bear 
Creek, Bench Creek, Blacktail Creek, Bog Creek, Boulder Creek, Bugle 
Creek, Canyon Creek, Caribou Creek, Cedar Creek, Chicopee Creek, Deadman 
Creek, East Fork Trapper Creek, East River, Fedar Creek, Floss Creek, 
Gold Creek, Granite Creek, Horton Creek, Hughes Fork, Indian Creek, 
Jackson Creek, Jost Creek, Kalispell Creek, Kent Creek, Keokee Creek, 
Lime Creek, Lion Creek, Lost Creek, Lucky Creek, Malcom Creek, Middle 
Fork East River, Muskegon Creek, North Fork Granite Creek, North Fork 
Indian Creek, Packer Creek, Rock Creek, Ruby Creek, South Fork Granite 
Creek, South Fork Indian Creek, South Fork Lion Creek, Squaw Creek, 
Tango Creek, Tarlac Creek, The Thorofare, Trapper Creek, Two Mouth 
Creek, Uleda Creek, Priest R. (above Priest Lake), Zero Creek.
    (xxvii) SOUTH FORK BOISE BASIN: Badger Creek, Bear Creek, Bear 
Gulch, Big Smoky Creek, Big Water Gulch, Boardman Creek, Burnt Log 
Creek, Cayuse Creek, Corral Creek, Cow Creek, Edna Creek, Elk Creek, 
Emma Creek, Feather River, Fern Gulch, Grape Creek, Gunsight Creek, 
Haypress Creek, Heather Creek, Helen Creek, Johnson Creek, Lincoln 
Creek, Little Cayuse Creek, Little Rattlesnake Creek, Little Skeleton 
Creek, Little Smoky Creek, Loggy Creek, Mule Creek, North Fork Ross 
Fork, Pinto Creek, Rattlesnake Creek, Ross Fork, Russel Gulch, Salt 
Creek, Shake Creek, Skeleton Creek, Slater Creek, Smokey Dome Canyon, 
South Fork Ross Fork, Three Forks Creek, Tipton Creek, Vienna Creek, 
Weeks Gulch, West Fork Big Smoky Creek, West Fork Salt Creek, West Fork 
Skeleton Creek, Willow Creek.
    (xxviii) SOUTH FORK CLEARWATER BASIN: American River, Baker Gulch, 
Baldy Creek, Bear Creek, Beaver Creek, Big Canyon Creek, Big Elk Creek, 
Blanco Creek, Boundary Creek, Box Sing Creek, Boyer Creek, Cartwright 
Creek, Cole Creek, Crooked River, Dawson Creek, Deer Creek, Ditch Creek, 
East Fork American River, East Fork Crooked River, Elk Creek, Fivemile 
Creek, Flint Creek, Fourmile Creek, Fox Creek, French Gulch, Galena 
Creek, Gospel Creek, Hagen Creek, Hays Creek, Johns Creek, Jungle Creek, 
Kirks Fork American River, Little Elk Creek, Little Moose Creek, Little 
Siegel Creek, Loon Creek, Mackey Creek, Meadow Creek, Melton Creek, 
Middle Fork Red River, Mill Creek, Monroe Creek, Moores Creek, Moores 
Lake Creek, Moose Butte Creek, Morgan Creek, Mule Creek, Newsome Creek, 
Nuggett Creek, Otterson Creek, Pat Brennan Creek, Pilot Creek, Quartz 
Creek, Queen Creek, Rabbit Creek, Rainbow Gulch, Red River, Relief 
Creek, Ryan Creek, Sally Ann Creek, Sawmill Creek, Schooner Creek, 
Schwartz Creek, Sharmon Creek, Siegel Creek, Silver Creek, Sixmile 
Creek, Sixtysix Creek, Snoose Creek, Sourdough Creek, South Fork Red 
River, Square Mountain Creek, Swale Creek, Swift Creek, Taylor Creek, 
Tenmile Creek, Trail Creek, Trapper Creek, Trout Creek, Twentymile 
Creek, Twin Lakes Creek, Umatilla Creek, West Fork Big Elk Creek, West 
Fork Crooked River, West Fork Gospel Creek, West Fork Newsome Creek, 
West Fork Red River, West Fork Twentymile Creek, Whiskey

[[Page 954]]

Creek, Whitaker Creek, Williams Creek.
    (xxix) SOUTH FORK PAYETTE BASIN: Archie Creek, Ash Creek, Baron 
Creek, Basin Creek, Bear Creek, Beaver Creek, Big Spruce Creek, Bitter 
Creek, Blacks Creek, Blue Jay Creek, Burn Creek, Bush Creek, Camp Creek, 
Canyon Creek, Casner Creek, Cat Creek, Chapman Creek, Charters Creek, 
Clear Creek, Coski Creek, Cup Creek, Dead Man Creek, Deadwood River, 
Deer Creek, East Fork Deadwood Creek, East Fork Warm Springs Creek, Eby 
Creek, Elkhorn Creek, Emma Creek, Fall Creek, Fence Creek, Fern Creek, 
Fivemile Creek, Fox Creek, Garney Creek, Gates Creek, Goat Creek, 
Grandjem Creek, Grouse Creek, Habit Creek, Helende Creek, Horse Creek, 
Huckleberry Creek, Jackson Creek, Kettle Creek, Kirkham Creek, Lake 
Creek, Lick Creek, Little Tenmile Creek, Logging Gulch, Long Creek, 
MacDonald Creek, Meadow Creek, Middle Fork Warm Springs Creek, Miller 
Creek, Monument Creek, Moulding Creek, Ninemile Creek, No Man Creek, No 
Name Creek, North Fork Baron Creek, North Fork Canyon Creek, North Fork 
Deer Creek, North Fork Whitehawk Creek, O'Keefe Creek, Packsaddle Creek, 
Park Creek, Pass Creek, Pinchot Creek, Pine Creek, Pitchfork Creek, Pole 
Creek, Richards Creek, Road Fork Rock Creek, Rock Creek, Rough Creek, 
Scott Creek, Silver Creek, Sixmile Creek, Smith Creek, Smokey Creek, 
South Fork Beaver Creek, South Fork Canyon Creek, South Fork Clear 
Creek, South Fork Payette River (above Rock Creek), South Fork Scott 
Creek, South Fork Warm Spring Creek, Spring Creek, Steep Creek, Stratton 
Creek, Topnotch Creek, Trail Creek, Wapiti Creek, Warm Spring Creek, 
Warm Springs Creek, Whangdoodle Creek, Whitehawk Creek, Wild Buck Creek, 
Wills Gulch, Wilson Creek, Wolf Creek.
    (xxx) SOUTH FORK SALMON BASIN: Alez Creek, Back Creek, Bear Creek, 
Bishop Creek, Blackmare Creek, Blue Lake Creek, Buck Creek, Buckhorn Bar 
Creek, Buckhorn Creek, Burgdorf Creek, Burntlog Creek, Cabin Creek, Calf 
Creek, Camp Creek, Cane Creek, Caton Creek, Cinnabar Creek, Cliff Creek, 
Cly Creek, Cougar Creek, Cow Creek, Cox Creek, Curtis Creek, Deep Creek, 
Dollar Creek, Dutch Creek, East Fork South Fork Salmon River, East Fork 
Zena Creek, Elk Creek, Enos Creek, Falls Creek, Fernan Creek, Fiddle 
Creek, Fitsum Creek, Flat Creek, Fourmile Creek, Goat Creek, Grimmet 
Creek, Grouse Creek, Halfway Creek, Hanson Creek, Hays Creek, Holdover 
Creek, Hum Creek, Indian Creek, Jeanette Creek, Johnson Creek, Josephine 
Creek, Jungle Creek, Knee Creek, Krassel Creek, Lake Creek, Landmark 
Creek, Lick Creek, Little Buckhorn Creek, Little Indian Creek, Lodgepole 
Creek, Loon Creek, Maverick Creek, Meadow Creek, Middle Fork Elk Creek, 
Missouri Creek, Moose Creek, Mormon Creek, Nasty Creek, Nethker Creek, 
Nick Creek, No Mans Creek, North Fork Bear Creek, North Fork Buckhorn 
Creek, North Fork Camp Creek, North Fork Dollar Creek, North Fork Fitsum 
Creek, North Fork Lake Fork, North Fork Lick Creek, North Fork Riordan 
Creek, North Fork Six-bit Creek, Oompaul Creek, Paradise Creek, Park 
Creek, Peanut Creek, Pepper Creek, Phoebe Creek, Piah Creek, Pid Creek, 
Pilot Creek, Pony Creek, Porcupine Creek, Porphyry Creek, Prince Creek, 
Profile Creek, Quartz Creek, Reeves Creek, Rice Creek, Riordan Creek, 
Roaring Creek, Ruby Creek, Rustican Creek, Ryan Creek, Salt Creek, Sand 
Creek, Secesh River, Sheep Creek, Silver Creek, Sister Creek, Six-Bit 
Creek, South Fork Bear Creek, South Fork Blackmare Creek, South Fork 
Buckhorn Creek, South Fork Cougar Creek, South Fork Elk Creek, South 
Fork Fitsum Creek, South Fork Fourmile Creek, South Fork Salmon River, 
South Fork Threemile Creek, Split Creek, Steep Creek, Sugar Creek, 
Summit Creek, Tamarack Creek, Teepee Creek, Threemile Creek, Trail 
Creek, Trapper Creek, Trout Creek, Tsum Creek, Two-bit Creek, Tyndall 
Creek, Vein Creek, Victor Creek, Wardenhoff Creek, Warm Lake Creek, Warm 
Spring Creek, West Fork Buckhorn Creek, West Fork Elk Creek, West Fork 
Enos Creek, West Fork Zena Creek, Whangdoodle Creek, Willow Basket 
Creek, Willow Creek, Zena Creek.
    (xxxi) ST. JOE R. BASIN: Bad Bear Creek, Bean Creek, Bear Creek, 
Beaver

[[Page 955]]

Creek, Bedrock Creek, Berge Creek, Bird Creek, Blue Grouse Creek, 
Boulder Creek, Broadaxe Creek, Bruin Creek, California Creek, Cherry 
Creek, Clear Creek, Color Creek, Copper Creek, Dolly Creek, Dump Creek, 
Eagle Creek, East Fork Bluff Creek, East Fork Gold Creek, Emerald Creek, 
Fishhook Creek, Float Creek, Fly Creek, Fuzzy Creek, Gold Creek, Heller 
Creek, Indian Creek, Kelley Creek, Malin Creek, Marble Creek, Medicine 
Creek, Mica Creek, Mill Creek, Mosquito Creek, North Fork Bean Creek, 
North Fork Saint Joe River, North Fork Simmons Creek, Nugget Creek, 
Packsaddle Creek, Periwinkle Creek, Prospector Creek, Quartz Creek, Red 
Cross Creek, Red Ives Creek, Ruby Creek, Saint Joe River (above Siwash 
Creek), Setzer Creek, Sherlock Creek, Simmons Creek, Siwash Creek, 
Skookum Creek, Thomas Creek, Thorn Creek, Three Lakes Creek, Timber 
Creek, Tinear Creek, Trout Creek, Tumbledown Creek, Wahoo Creek, Washout 
Creek, Wilson Creek, Yankee Bar Creek.
    (xxxii) UPPER COEUR D'ALENE BASIN: Brown Creek, Falls Creek, Graham 
Creek.
    (xxxiii) UPPER KOOTENAI BASIN: Halverson Cr, North Callahan Creek, 
South Callahan Creek, West Fork Keeler Creek
    (xxxiv) UPPER MIDDLE FORK SALMON BASIN: Asher Creek, Automatic 
Creek, Ayers Creek, Baldwin Creek, Banner Creek, Bear Creek, Bear Valley 
Creek, Bearskin Creek, Beaver Creek, Bernard Creek, Big Chief Creek, Big 
Cottonwood Creek, Birch Creek, Blue Lake Creek, Blue Moon Creek, 
Boundary Creek, Bridge Creek, Browning Creek, Buck Creek, Burn Creek, 
Cabin Creek, Cache Creek, Camp Creek, Canyon Creek, Cap Creek, Cape Horn 
Creek, Casner Creek, Castle Fork, Casto Creek, Cat Creek, Chokebore 
Creek, Chuck Creek, Cliff Creek, Cold Creek, Collie Creek, Colt Creek, 
Cook Creek, Corley Creek, Cornish Creek, Cottonwood Creek, Cougar Creek, 
Crystal Creek, Cub Creek, Cultus Creek, Dagger Creek, Deer Creek, Deer 
Horn Creek, Doe Creek, Dry Creek, Duffield Creek, Dynamite Creek, Eagle 
Creek, East Fork Elk Creek, East Fork Indian Creek, East Fork Mayfield 
Creek, Elk Creek, Elkhorn Creek, Endoah Creek, Fall Creek, Fawn Creek, 
Feltham Creek, Fir Creek, Flat Creek, Float Creek, Foresight Creek, 
Forty-five Creek, Forty-four Creek, Fox Creek, Full Moon Creek, Fuse 
Creek, Grays Creek, Grenade Creek, Grouse Creek, Gun Creek, Half Moon 
Creek, Hogback Creek, Honeymoon Creek, Hot Creek, Ibex Creek, Indian 
Creek, Jose Creek, Kelly Creek, Kerr Creek, Knapp Creek, Kwiskwis Creek, 
Lime Creek, Lincoln Creek, Little Beaver Creek, Little Cottonwood Creek, 
Little East Fork Elk Creek, Little Indian Creek, Little Loon Creek, 
Little Pistol Creek, Lola Creek, Loon Creek, Lucinda Creek, Lucky Creek, 
Luger Creek, Mace Creek, Mack Creek, Marble Creek, Marlin Creek, Marsh 
Creek, Mayfield Creek, McHoney Creek, McKee Creek, Merino Creek, Middle 
Fork Elkhorn Creek, Middle Fork Indian Creek, Middle Fork Salmon River 
(above Soldier Creek), Mine Creek, Mink Creek, Moonshine Creek, Mowitch 
Creek, Muskeg Creek, Mystery Creek, Nelson Creek, New Creek, No Name 
Creek, North Fork Elk Creek, North Fork Elkhorn Creek, North Fork Sheep 
Creek, North Fork Sulphur Creek, Papoose Creek, Parker Creek, Patrol 
Creek, Phillips Creek, Pierson Creek, Pinyon Creek, Pioneer Creek, 
Pistol Creek, Placer Creek, Poker Creek, Pole Creek, Popgun Creek, 
Porter Creek, Prospect Creek, Rabbit Creek, Rams Horn Creek, Range 
Creek, Rapid River, Rat Creek, Remington Creek, Rock Creek, Rush Creek, 
Sack Creek, Safety Creek, Salt Creek, Savage Creek, Scratch Creek, 
Seafoam Creek, Shady Creek, Shake Creek, Sheep Creek, Sheep Trail Creek, 
Shell Creek, Shrapnel Creek, Siah Creek, Silver Creek, Slide Creek, 
Snowshoe Creek, Soldier Creek, South Fork Cottonwood Creek, South Fork 
Sheep Creek, Spike Creek, Springfield Creek, Squaw Creek, Sulphur Creek, 
Sunnyside Creek, Swamp Creek, Tennessee Creek, Thatcher Creek, Thicket 
Creek, Thirty-two Creek, Tomahawk Creek, Trail Creek, Trapper Creek, 
Trigger Creek, Twenty-two Creek, Vader Creek, Vanity Creek, Velvet 
Creek, Walker Creek, Wampum Creek, Warm Spring Creek, West Fork Elk 
Creek, West Fork Little Loon Creek, West Fork Mayfield Creek, White 
Creek,

[[Page 956]]

Wickiup Creek, Winchester Creek, Winnemucca Creek, Wyoming Creek.
    (xxxv) UPPER NORTH FORK CLEARWATER BASIN: Adams Creek, Avalanche 
Creek, Bacon Creek, Ball Creek, Barn Creek, Barnard Creek, Barren Creek, 
Bear Creek, Beaver Dam Creek, Bedrock Creek, Bill Creek, Bostonian 
Creek, Boundary Creek, Burn Creek, Butter Creek, Camp George Creek, 
Canyon Creek, Cayuse Creek, Chamberlain Creek, Clayton Creek, Cliff 
Creek, Coffee Creek, Cold Springs Creek, Collins Creek, Colt Creek, Cool 
Creek, Copper Creek, Corral Creek, Cougar Creek, Craig Creek, Crater 
Creek, Cub Creek, Davis Creek, Deadwood Creek, Deer Creek, Dill Creek, 
Drift Creek, Elizabeth Creek, Fall Creek, Fire Creek, Fix Creek, Flame 
Creek, Fly Creek, Fourth of July Creek, Fro Creek, Frog Creek, Frost 
Creek, Gilfillian Creek, Goose Creek, Grass Creek, Gravey Creek, Grizzly 
Creek, Hanson Creek, Heather Creek, Henry Creek, Hidden Creek, Howard 
Creek, Independence Creek, Jam Creek, Japanese Creek, Johnagan Creek, 
Johnny Creek, Junction Creek, Kelly Creek, Kid Lake Creek, Kodiak Creek, 
Lake Creek, Laundry Creek, Lightning Creek, Little Moose Creek, Little 
Weitas Creek, Liz Creek, Long Creek, Marten Creek, Meadow Creek, Middle 
Creek, Middle North Fork Kelly Creek, Mill Creek, Mire Creek, Monroe 
Creek, Moose Creek, Negro Creek, Nettle Creek, Niagra Gulch, North Fork 
Clearwater River (Fourth of July Creek), Nub Creek, Osier Creek, Perry 
Creek, Pete Ott Creek, Placer Creek, Polar Creek, Post Creek, Potato 
Creek, Quartz Creek, Rapid Creek, Rawhide Creek, Roaring Creek, Rock 
Creek, Rocky Ridge Creek, Ruby Creek, Saddle Creek, Salix Creek, Scurry 
Creek, Seat Creek, Short Creek, Shot Creek, Siam Creek, Silver Creek, 
Skull Creek, Slide Creek, Smith Creek, Snow Creek, South Fork Kelly 
Creek, Spud Creek, Spy Creek, Stolen Creek, Stove Creek, Sugar Creek, 
Swamp Creek, Tinear Creek, Tinkle Creek, Toboggan Creek, Trail Creek, 
Vanderbilt Gulch, Wall Creek, Weitas Creek, Williams Creek, Windy Creek, 
Wolf Creek, Young Creek.
    (xxxvi) UPPER SALMON BASIN: Alder Creek, Alpine Creek, Alta Creek, 
Alturas Lake Creek, Anderson Creek, Aspen Creek, Basin Creek, Bayhorse 
Creek, Bear Creek, Beaver Creek, Big Boulder Creek, Block Creek, Blowfly 
Creek, Blue Creek, Boundary Creek, Bowery Creek, Broken Ridge Creek, 
Bruno Creek, Buckskin Creek, Cabin Creek, Camp Creek, Cash Creek, 
Challis Creek, Chamberlain Creek, Champion Creek, Cherry Creek, Cinnabar 
Creek, Cleveland Creek, Coal Creek, Crooked Creek, Darling Creek, 
Deadwood Creek, Decker Creek, Deer Creek, Dry Creek, Duffy Creek, East 
Basin Creek, East Fork Salmon River, East Fork Valley Creek, East Pass 
Creek, Eddy Creek, Eightmile Creek, Elevenmile Creek, Elk Creek, Ellis 
Creek, Estes Creek, First Creek, Fisher Creek, Fishhook Creek, Fivemile 
Creek, Fourth of July Creek, Frenchman Creek, Garden Creek, Germania 
Creek, Goat Creek, Gold Creek, Gooseberry Creek, Greylock Creek, Hay 
Creek, Hell Roaring Creek, Herd Creek, Huckleberry Creek, Iron Creek, 
Job Creek, Jordan Creek, Juliette Creek, Kelly Creek, Kinnikinic Creek, 
Lick Creek, Lightning Creek, Little Basin Creek, Little Beaver Creek, 
Little Boulder Creek, Little West Fork Morgan Creek, Lodgepole Creek, 
Lone Pine Creek, Lost Creek, MacRae Creek, Martin Creek, McKay Creek, 
Meadow Creek, Mill Creek, Morgan Creek, Muley Creek, Ninemile Creek, 
Noho Creek, Pack Creek, Park Creek, Pat Hughes Creek, Pig Creek, Pole 
Creek, Pork Creek, Prospect Creek, Rainbow Creek, Redfish Lake Creek, 
Road Creek, Rough Creek, Sage Creek, Sagebrush Creek, Salmon River 
(Redfish Lake Creek), Sawmill Creek, Second Creek, Sevenmile Creek, 
Sheep Creek, Short Creek, Sixmile Creek, Slate Creek, Smiley Creek, 
South Fork East Fork Salmon River, Squaw Creek, Stanley Creek, Stephens 
Creek, Summit Creek, Sunday Creek, Swimm Creek, Taylor Creek, Tenmile 
Creek, Tennel Creek, Thompson Creek, Three Cabins Creek, Trail Creek, 
Trap Creek, Trealor Creek, Twelvemile Creek, Twin Creek, Valley Creek, 
Van Horn Creek, Vat Creek, Warm Spring Creek, Warm Springs Creek, 
Washington Creek, West Beaver Creek, West Fork Creek, West Fork East 
Fork Salmon River, West Fork Herd Creek, West Fork Morgan

[[Page 957]]

Creek, West Fork Yankee Fork, West Pass Creek, Wickiup Creek, Williams 
Creek, Willow Creek, Yankee Fork.
    (xxxvii) UPPER SELWAY BASIN: Basin Creek, Bear Creek, Burn Creek, 
Camp Creek, Canyon Creek, Cliff Creek, Comb Creek, Cooper Creek, Cub 
Creek, Deep Creek, Eagle Creek, Elk Creek, Fall Creek, Fox Creek, Goat 
Creek, Gold Pan Creek, Granite Creek, Grass Gulch, Haystack Creek, Hells 
Half Acre Creek, Indian Creek, Kim Creek, Lake Creek, Langdon Gulch, 
Little Clearwater River, Lodge Creek, Lunch Creek, Mist Creek, Paloma 
Creek, Paradise Creek, Peach Creek, Pettibone Creek, Running Creek, 
Saddle Gulch, Schofield Creek, Selway River (above Pettibone Creek), 
South Fork Running Creek, South Fork Saddle Gulch, South Fork Surprise 
Creek, Spruce Creek, Squaw Creek, Stripe Creek, Surprise Creek, Set 
Creek, Tepee Creek, Thirteen Creek, Three Lakes Creek, Triple Creek, 
Wahoo Creek, White Cap Creek, Wilkerson Creek, Witter Creek.
    (xxxviii) WEISER BASIN: Anderson Creek, Bull Corral Creek, Dewey 
Creek, East Fork Weiser River, Little Weiser River, above Anderson 
Creek, Sheep Creek, Wolf Creek.
    (3) Procedures for site specific modification of listed waterbodies 
or temperature criteria for bull trout.
    (i) The Regional Administrator may, in his discretion, determine 
that the temperature criteria in paragraph (a)(1) of this section shall 
not apply to a specific waterbody or portion thereof listed in paragraph 
(a)(2) of this section. Any such determination shall be made consistent 
with Sec. 131.11 and shall be based on a finding that bull trout 
spawning and rearing is not an existing use in such waterbody or portion 
thereof.
    (ii) The Regional Administrator may, in his discretion, raise the 
temperature criteria in paragraph (a)(1) of this section as they pertain 
to a specific waterbody or portion thereof listed in paragraph (a)(2) of 
this section. Any such determination shall be made consistent with 
Sec. 131.11, and shall be based on a finding that bull trout would be 
fully supported at the higher temperature criteria.
    (iii) For any determination made under paragraphs (a)(3)(i) or 
(a)(3)(ii) of this section, the Regional Administrator shall, prior to 
making such a determination, provide for public notice of and comment on 
a proposed determination. For any such proposed determination, the 
Regional Administrator shall prepare and make available to the public a 
technical support document addressing each waterbody or portion thereof 
that would be deleted or modified and the justification for each 
proposed determination. This document shall be made available to the 
public not later than the date of public notice.
    (iv) The Regional Administrator shall maintain and make available to 
the public an updated list of determinations made pursuant to paragraphs 
(a)(3)(i) and (a)(3)(ii) of this section as well as the technical 
support documents for each determination.
    (v) Nothing in this paragraph (a)(3) shall limit the Administrator's 
authority to modify the temperature criteria in paragraph (a)(1) of this 
section or the list of waterbodies in paragraph (a)(2) of this section 
through rulemaking.
    (b) Use designations for surface waters. In addition to the State 
adoped use designations, the following water body segments in Idaho are 
designated for cold water biota: Canyon Creek (PB 121)--below mining 
impact; South Fork Coeur d'Alene River (PB 140S)--Daisy Gulch to mouth; 
Shields Gulch (PB 148S)--below mining impact; Blackfoot River (USB 
360)--Equalizing Dam to mouth, except for any portion in Indian country; 
Soda Creek (BB 310)--source to mouth.
    (c) Excluded waters. Lakes, ponds, pools, streams, and springs 
outside public lands but located wholly and entirely upon a person's 
land are not protected specifically or generally for any beneficial use, 
unless such waters are designated in Idaho 16.01.02.110. through 160., 
or, although not so designated, are waters of the United States as 
defined at 40 CFR 122.2.
    (d) Water quality standard variances. (1) The Regional 
Administrator, EPA Region X, is authorized to grant variances from the 
water quality

[[Page 958]]

standards in paragraph (b) of this section where the requirements of 
this paragraph (d) are met. A water quality standard variance applies 
only to the permittee requesting the variance and only to the pollutant 
or pollutants specified in the variance; the underlying water quality 
standard otherwise remains in effect.
    (2) A water quality standard variance shall not be granted if:
    (i) Standards will be attained by implementing effluent limitations 
required under sections 301(b) and 306 of the CWA and by the permittee 
implementing reasonable best management practices for nonpoint source 
control; or
    (ii) The variance would likely jeopardize the continued existence of 
any threatened or endangered species listed under section 4 of the 
Endangered Species Act or result in the destruction or adverse 
modification of such species' critical habitat.
    (3) Subject to paragraph (d)(2) of this section, a water quality 
standards variance may be granted if the applicant demonstrates to EPA 
that attaining the water quality standard is not feasible because:
    (i) Naturally occurring pollutant concentrations prevent the 
attainment of the use; or
    (ii) Natural, ephemeral, intermittent or low flow conditions or 
water levels prevent the attainment of the use, unless these conditions 
may be compensated for by the discharge of sufficient volume of effluent 
discharges without violating State water conservation requirements to 
enable uses to be met; or
    (iii) Human caused conditions or sources of pollution prevent the 
attainment of the use and cannot be remedied or would cause more 
environmental damage to correct than to leave in place; or
    (iv) Dams, diversions or other types of hydrologic modifications 
preclude the attainment of the use, and it is not feasible to restore 
the waterbody to its original condition or to operate such modification 
in a way which would result in the attainment of the use; or
    (v) Physical conditions related to the natural features of the 
waterbody, such as the lack of a proper substrate, cover, flow, depth, 
pools, riffles, and the like unrelated to water quality, preclude 
attainment of aquatic life protection uses; or
    (vi) Controls more stringent than those required by sections 301(b) 
and 306 of the CWA would result in substantial and widespread economic 
and social impact.
    (4) Procedures. An applicant for a water quality standards variance 
shall submit a request to the Regional Administrator not later than the 
date the applicant applies for an NPDES permit which would implement the 
variance, except that an application may be filed later if the need for 
the variance arises or the data supporting the variance becomes 
available after the NPDES permit application is filed. The application 
shall include all relevant information showing that the requirements for 
a variance have been satisfied. The burden is on the applicant to 
demonstrate to EPA's satisfaction that the designated use is 
unattainable for one of the reasons specified in paragraph (d)(3) of 
this section. If the Regional Administrator preliminarily determines 
that grounds exist for granting a variance, he shall publish notice of 
the proposed variance. Notice of a final decision to grant a variance 
shall also be published. EPA will incorporate into the permittee's NPDES 
permit all conditions needed to implement the variance.
    (5) A variance may not exceed 5 years or the term of the NPDES 
permit, whichever is less. A variance may be renewed if the applicant 
reapplies and demonstrates that the use in question is still not 
attainable. Renewal of the variance may be denied if the applicant did 
not comply with the conditions of the original variance.

[62 FR 41183, July 31, 1997]



Sec. 131.34  [Reserved]



Sec. 131.35  Colville Confederated Tribes Indian Reservation.

    The water quality standards applicable to the waters within the 
Colville Indian Reservation, located in the State of Washington.

[[Page 959]]

    (a) Background. (1) It is the purpose of these Federal water quality 
standards to prescribe minimum water quality requirements for the 
surface waters located within the exterior boundaries of the Colville 
Indian Reservation to ensure compliance with section 303(c) of the Clean 
Water Act.
    (2) The Colville Confederated Tribes have a primary interest in the 
protection, control, conservation, and utilization of the water 
resources of the Colville Indian Reservation. Water quality standards 
have been enacted into tribal law by the Colville Business Council of 
the Confederated Tribes of the Colville Reservation, as the Colville 
Water Quality Standards Act, CTC Title 33 (Resolution No. 1984-526 
(August 6, 1984) as amended by Resolution No. 1985-20 (January 18, 
1985)).
    (b) Territory covered. The provisions of these water quality 
standards shall apply to all surface waters within the exterior 
boundaries of the Colville Indian Reservation.
    (c) Applicability, Administration and Amendment. (1) The water 
quality standards in this section shall be used by the Regional 
Administrator for establishing any water quality based National 
Pollutant Discharge Elimination System Permit (NPDES) for point sources 
on the Colville Confederated Tribes Reservation.
    (2) In conjunction with the issuance of section 402 or section 404 
permits, the Regional Administrator may designate mixing zones in the 
waters of the United States on the reservation on a case-by-case basis. 
The size of such mixing zones and the in-zone water quality in such 
mixing zones shall be consistent with the applicable procedures and 
guidelines in EPA's Water Quality Standards Handbook and the Technical 
Support Document for Water Quality Based Toxics Control.
    (3) Amendments to the section at the request of the Tribe shall 
proceed in the following manner.
    (i) The requested amendment shall first be duly approved by the 
Confederated Tribes of the Colville Reservation (and so certified by the 
Tribes Legal Counsel) and submitted to the Regional Administrator.
    (ii) The requested amendment shall be reviewed by EPA (and by the 
State of Washington, if the action would affect a boundary water).
    (iii) If deemed in compliance with the Clean Water Act, EPA will 
propose and promulgate an appropriate change to this section.
    (4) Amendment of this section at EPA's initiative will follow 
consultation with the Tribe and other appropriate entities. Such 
amendments will then follow normal EPA rulemaking procedures.
    (5) All other applicable provisions of this part 131 shall apply on 
the Colville Confederated Tribes Reservation. Special attention should 
be paid to Secs. 131.6, 131.10, 131.11 and 131.20 for any amendment to 
these standards to be initiated by the Tribe.
    (6) All numeric criteria contained in this section apply at all in-
stream flow rates greater than or equal to the flow rate calculated as 
the minimum 7-consecutive day average flow with a recurrence frequency 
of once in ten years (7Q10); narrative criteria (Sec. 131.35(e)(3)) 
apply regardless of flow. The 7Q10 low flow shall be calculated using 
methods recommended by the U.S. Geological Survey.
    (d) Definitions. (1) Acute toxicity means a deleterious response 
(e.g., mortality, disorientation, immobilization) to a stimulus observed 
in 96 hours or less.
    (2) Background conditions means the biological, chemical, and 
physical conditions of a water body, upstream from the point or non-
point source discharge under consideration. Background sampling location 
in an enforcement action will be upstream from the point of discharge, 
but not upstream from other inflows. If several discharges to any water 
body exist, and an enforcement action is being taken for possible 
violations to the standards, background sampling will be undertaken 
immediately upstream from each discharge.
    (3) Ceremonial and Religious water use means activities involving 
traditional Native American spiritual practices which involve, among 
other things, primary (direct) contact with water.
    (4) Chronic toxicity means the lowest concentration of a constituent 
causing observable effects (i.e., considering

[[Page 960]]

lethality, growth, reduced reproduction, etc.) over a relatively long 
period of time, usually a 28-day test period for small fish test 
species.
    (5) Council or Tribal Council means the Colville Business Council of 
the Colville Confederated Tribes.
    (6) Geometric mean means the nth root of a product of n factors.
    (7) Mean retention time means the time obtained by dividing a 
reservoir's mean annual minimum total storage by the non-zero 30-day, 
ten-year low-flow from the reservoir.
    (8) Mixing zone or dilution zone means a limited area or volume of 
water where initial dilution of a discharge takes place; and where 
numeric water quality criteria can be exceeded but acutely toxic 
conditions are prevented from occurring.
    (9) pH means the negative logarithm of the hydrogen ion 
concentration.
    (10) Primary contact recreation means activities where a person 
would have direct contact with water to the point of complete 
submergence, including but not limited to skin diving, swimming, and 
water skiing.
    (11) Regional Administrator means the Administrator of EPA's Region 
X.
    (12) Reservation means all land within the limits of the Colville 
Indian Reservation, established on July 2, 1872 by Executive Order, 
presently containing 1,389,000 acres more or less, and under the 
jurisdiction of the United States government, notwithstanding the 
issuance of any patent, and including rights-of-way running through the 
reservation.
    (13) Secondary contact recreation means activities where a person's 
water contact would be limited to the extent that bacterial infections 
of eyes, ears, respiratory, or digestive systems or urogenital areas 
would normally be avoided (such as wading or fishing).
    (14) Surface water means all water above the surface of the ground 
within the exterior boundaries of the Colville Indian Reservation 
including but not limited to lakes, ponds, reservoirs, artificial 
impoundments, streams, rivers, springs, seeps and wetlands.
    (15) Temperature means water temperature expressed in Centigrade 
degrees (C).
    (16) Total dissolved solids (TDS) means the total filterable residue 
that passes through a standard glass fiber filter disk and remains after 
evaporation and drying to a constant weight at 180 degrees C. it is 
considered to be a measure of the dissolved salt content of the water.
    (17) Toxicity means acute and/or chronic toxicity.
    (18) Tribe or Tribes means the Colville Confederated Tribes.
    (19) Turbidity means the clarity of water expressed as nephelometric 
turbidity units (NTU) and measured with a calibrated turbidimeter.
    (20) Wildlife habitat means the waters and surrounding land areas of 
the Reservation used by fish, other aquatic life and wildlife at any 
stage of their life history or activity.
    (e) General considerations. The following general guidelines shall 
apply to the water quality standards and classifications set forth in 
the use designation Sections.
    (1) Classification boundaries. At the boundary between waters of 
different classifications, the water quality standards for the higher 
classification shall prevail.
    (2) Antidegradation policy. This antidegradation policy shall be 
applicable to all surface waters of the Reservation.
    (i) Existing in-stream water uses and the level of water quality 
necessary to protect the existing uses shall be maintained and 
protected.
    (ii) Where the quality of the waters exceeds levels necessary to 
support propagation of fish, shellfish, and wildlife and recreation in 
and on the water, that quality shall be maintained and protected unless 
the Regional Administrator finds, after full satisfaction of the inter-
governmental coordination and public participation provisions of the 
Tribes' continuing planning process, that allowing lower water quality 
is necessary to accommodate important economic or social development in 
the area in which the waters are located. In allowing such degradation 
or lower water quality, the Regional Administrator shall assure water 
quality adequate to protect existing uses fully. Further, the Regional 
Administrator shall assure that there shall be

[[Page 961]]

achieved the highest statutory and regulatory requirements for all new 
and existing point sources and all cost-effective and reasonable best 
management practices for nonpoint source control.
    (iii) Where high quality waters are identified as constituting an 
outstanding national or reservation resource, such as waters within 
areas designated as unique water quality management areas and waters 
otherwise of exceptional recreational or ecological significance, and 
are designated as special resource waters, that water quality shall be 
maintained and protected.
    (iv) In those cases where potential water quality impairment 
associated with a thermal discharge is involved, this antidegradation 
policy's implementing method shall be consistent with section 316 of the 
Clean Water Act.
    (3) Aesthetic qualities. All waters within the Reservation, 
including those within mixing zones, shall be free from substances, 
attributable to wastewater discharges or other pollutant sources, that:
    (i) Settle to form objectionable deposits;
    (ii) Float as debris, scum, oil, or other matter forming nuisances;
    (iii) Produce objectionable color, odor, taste, or turbidity;
    (iv) Cause injury to, are toxic to, or produce adverse physiological 
responses in humans, animals, or plants; or
    (v) produce undesirable or nuisance aquatic life.
    (4) Analytical methods. (i) The analytical testing methods used to 
measure or otherwise evaluate compliance with water quality standards 
shall to the extent practicable, be in accordance with the ``Guidelines 
Establishing Test Procedures for the Analysis of Pollutants'' (40 CFR 
part 136). When a testing method is not available for a particular 
substance, the most recent edition of ``Standard Methods for the 
Examination of Water and Wastewater'' (published by the American Public 
Health Association, American Water Works Association, and the Water 
Pollution Control Federation) and other or superseding methods published 
and/or approved by EPA shall be used.
    (f) General water use and criteria classes. The following criteria 
shall apply to the various classes of surface waters on the Colville 
Indian Reservation:
    (1) Class I (Extraordinary)--(i) Designated uses. The designated 
uses include, but are not limited to, the following:
    (A) Water supply (domestic, industrial, agricultural).
    (B) Stock watering.
    (C) Fish and shellfish: Salmonid migration, rearing, spawning, and 
harvesting; other fish migration, rearing, spawning, and harvesting.
    (D) Wildlife habitat.
    (E) Ceremonial and religious water use.
    (F) Recreation (primary contact recreation, sport fishing, boating 
and aesthetic enjoyment).
    (G) Commerce and navigation.
    (ii) Water quality criteria. (A) Bacteriological Criteria. The 
geometric mean of the enterococci bacteria densities in samples taken 
over a 30 day period shall not exceed 8 per 100 milliliters, nor shall 
any single sample exceed an enterococci density of 35 per 100 
milliliters. These limits are calculated as the geometric mean of the 
collected samples approximately equally spaced over a thirty day period.
    (B) Dissolved oxygen--The dissolved oxygen shall exceed 9.5 mg/l.
    (C) Total dissolved gas--concentrations shall not exceed 110 percent 
of the saturation value for gases at the existing atmospheric and 
hydrostatic pressures at any point of sample collection.
    (D) Temperature--shall not exceed 16.0 degrees C due to human 
activities. Temperature increases shall not, at any time, exceed t=23/
(T+5).
    (1) When natural conditions exceed 16.0 degrees C, no temperature 
increase will be allowed which will raise the receiving water by greater 
than 0.3 degrees C.
    (2) For purposes hereof, ``t'' represents the permissive temperature 
change across the dilution zone; and ``T'' represents the highest 
existing temperature in this water classification outside of any 
dilution zone.

[[Page 962]]

    (3) Provided that temperature increase resulting from nonpoint 
source activities shall not exceed 2.8 degrees C, and the maximum water 
temperature shall not exceed 10.3 degrees C.
    (E) pH shall be within the range of 6.5 to 8.5 with a human-caused 
variation of less than 0.2 units.
    (F) Turbidity shall not exceed 5 NTU over background turbidity when 
the background turbidity is 50 NTU or less, or have more than a 10 
percent increase in turbidity when the background turbidity is more than 
50 NTU.
    (G) Toxic, radioactive, nonconventional, or deleterious material 
concentrations shall be less than those of public health significance, 
or which may cause acute or chronic toxic conditions to the aquatic 
biota, or which may adversely affect designated water uses.
    (2) Class II (Excellent)--(i) Designated uses. The designated uses 
include but are not limited to, the following:
    (A) Water supply (domestic, industrial, agricultural).
    (B) Stock watering.
    (C) Fish and shellfish: Salmonid migration, rearing, spawning, and 
harvesting; other fish migration, rearing, spawning, and harvesting; 
crayfish rearing, spawning, and harvesting.
    (D) Wildlife habitat.
    (E) Ceremonial and religious water use.
    (F) Recreation (primary contact recreation, sport fishing, boating 
and aesthetic enjoyment).
    (G) Commerce and navigation.
    (ii) Water quality criteria. (A) Bacteriological Criteria--The 
geometric mean of the enterococci bacteria densities in samples taken 
over a 30 day period shall not exceed 16/100 ml, nor shall any single 
sample exceed an enterococci density of 75 per 100 milliliters. These 
limits are calculated as the geometric mean of the collected samples 
approximately equally spaced over a thirty day period.
    (B) Dissolved oxygen--The dissolved oxygen shall exceed 8.0 mg/l.
    (C) Total dissolved gas--concentrations shall not exceed 110 percent 
of the saturation value for gases at the existing atmospheric and 
hydrostatic pressures at any point of sample collection.
    (D) Temperature-shall not exceed 18.0 degrees C due to human 
activities. Temperature increases shall not, at any time, exceed t=28/
(T+7).
    (1) When natural conditions exceed 18 degrees C no temperature 
increase will be allowed which will raise the receiving water 
temperature by greater than 0.3 degrees C.
    (2) For purposes hereof, ``t'' represents the permissive temperature 
change across the dilution zone; and ``T'' represents the highest 
existing temperature in this water classification outside of any 
dilution zone.
    (3) Provided that temperature increase resulting from non-point 
source activities shall not exceed 2.8 degrees C, and the maximum water 
temperature shall not exceed 18.3 degrees C.
    (E) pH shall be within the range of 6.5 to 8.5 with a human-caused 
variation of less than 0.5 units.
    (F) Turbidity shall not exceed 5 NTU over background turbidity when 
the background turbidity is 50 NTU or less, or have more than a 10 
percent increase in turbidity when the background turbidity is more than 
50 NTU.
    (G) Toxic, radioactive, nonconventional, or deleterious material 
concentrations shall be less than those of public health significance, 
or which may cause acute or chronic toxic conditions to the aquatic 
biota, or which may adversely affect designated water uses.
    (3) Class III (Good)--(i) Designated uses.  The designated uses 
include but are not limited to, the following:
    (A) Water supply (industrial, agricultural).
    (B) Stock watering.
    (C) Fish and shellfish: Salmonid migration, rearing, spawning, and 
harvesting; other fish migration, rearing, spawning, and harvesting; 
crayfish rearing, spawning, and harvesting.
    (D) Wildlife habitat.
    (E) Recreation (secondary contact recreation, sport fishing, boating 
and aesthetic enjoyment).
    (F) Commerce and navigation.
    (ii) Water quality criteria. (A) Bacteriological Criteria--The 
geometric mean of the enterococci bacteria densities in samples taken 
over a 30 day period shall not exceed 33/100 ml, nor shall any single 
sample exceed an

[[Page 963]]

enterococci density of 150 per 100 milliliters. These limits are 
calculated as the geometric mean of the collected samples approximately 
equally spaced over a thirty day period.
    (B) Dissolved oxygen.

------------------------------------------------------------------------
                                                                  Other
                                                   Early life      life
                                                 stages \1\,\2\   stages
------------------------------------------------------------------------
7 day mean.....................................     9.5 (6.5)     \3\ NA
1 day minimum \4\..............................     8.0 (5.0)        6.5
------------------------------------------------------------------------
\1\ These are water column concentrations recommended to achieve the
  required intergravel dissolved oxygen concentrations shown in
  parentheses. The 3 mg/L differential is discussed in the dissolved
  oxygen criteria document (EPA 440/5-86-003, April 1986). For species
  that have early life stages exposed directly to the water column, the
  figures in parentheses apply.
\2\ Includes all embryonic and larval stages and all juvenile forms to
  30-days following hatching.
\3\ NA (not applicable)
\4\ All minima should be considered as instantaneous concentrations to
  be achieved at all times.

    (C) Total dissolved gas concentrations shall not exceed 110 percent 
of the saturation value for gases at the existing atmospheric and 
hydrostatic pressures at any point of sample collection.
    (D) Temperature shall not exceed 21.0 degrees C due to human 
activities. Temperature increases shall not, at any time, exceed t=34/
(T+9).
    (1) When natural conditions exceed 21.0 degrees C no temperature 
increase will be allowed which will raise the receiving water 
temperature by greater than 0.3 degrees C.
    (2) For purposes hereof, ``t'' represents the permissive temperature 
change across the dilution zone; and ``T'' represents the highest 
existing temperature in this water classification outside of any 
dilution zone.
    (3) Provided that temperature increase resulting from nonpoint 
source activities shall not exceed 2.8 degrees C, and the maximum water 
temperature shall not exceed 21.3 degrees C.
    (E) pH shall be within the range of 6.5 to 8.5 with a human-caused 
variation of less than 0.5 units.
    (F) Turbidity shall not exceed 10 NTU over background turbidity when 
the background turbidity is 50 NTU or less, or have more than a 20 
percent increase in turbidity when the background turbidity is more than 
50 NTU.
    (G) Toxic, radioactive, nonconventional, or deleterious material 
concentrations shall be less than those of public health significance, 
or which may cause acute or chronic toxic conditions to the aquatic 
biota, or which may adversely affect designated water uses.
    (4) Class IV (Fair)--(i) Designated uses. The designated uses 
include but are not limited to, the following:
    (A) Water supply (industrial).
    (B) Stock watering.
    (C) Fish (salmonid and other fish migration).
    (D) Recreation (secondary contact recreation, sport fishing, boating 
and aesthetic enjoyment).
    (E) Commerce and navigation.
    (ii) Water quality criteria. (A) Dissolved oxygen.

------------------------------------------------------------------------
                                                     During
                                                   periods of    During
                                                    salmonid   all other
                                                   and other      time
                                                      fish      periods
                                                   migration
------------------------------------------------------------------------
30 day mean.....................................          6.5        5.5
7 day mean......................................       \1\ NA     \1\ NA
7 day mean minimum..............................          5.0        4.0
1 day minimum \2\...............................          4.0        3.0
------------------------------------------------------------------------
\1\ NA (not applicable).
\2\ All minima should be considered as instantaneous concentrations to
  be achieved at all times.

    (B) Total dissolved gas--concentrations shall not exceed 110 percent 
of the saturation value for gases at the existing atmospheric and 
hydrostatic pressures at any point of sample collection.
    (C) Temperature shall not exceed 22.0 degrees C due to human 
activities. Temperature increases shall not, at any time, exceed t=20/
(T+2).
    (1) When natural conditions exceed 22.0 degrees C, no temperature 
increase will be allowed which will raise the receiving water 
temperature by greater than 0.3 degrees C.
    (2) For purposes hereof, ``t'' represents the permissive temperature 
change across the dilution zone; and ``T'' represents the highest 
existing temperature in this water classification outside of any 
dilution zone.
    (D) pH shall be within the range of 6.5 to 9.0 with a human-caused 
variation of less than 0.5 units.
    (E) Turbidity shall not exceed 10 NTU over background turbidity when 
the background turbidity is 50 NTU or less, or have more than a 20 
percent increase in turbidity when the background turbidity is more than 
50 NTU.

[[Page 964]]

    (F) Toxic, radioactive, nonconventional, or deleterious material 
concentrations shall be less than those of public health significance, 
or which may cause acute or chronic toxic conditions to the aquatic 
biota, or which may adversely affect designated water uses.
    (5) Lake Class--(i) Designated uses. The designated uses include but 
are not limited to, the following:
    (A) Water supply (domestic, industrial, agricultural).
    (B) Stock watering.
    (C) Fish and shellfish: Salmonid migration, rearing, spawning, and 
harvesting; other fish migration, rearing, spawning, and harvesting; 
crayfish rearing, spawning, and harvesting.
    (D) Wildlife habitat.
    (E) Ceremonial and religious water use.
    (F) Recreation (primary contact recreation, sport fishing, boating 
and aesthetic enjoyment).
    (G) Commerce and navigation.
    (ii) Water quality criteria. (A) Bacteriological Criteria. The 
geometric mean of the enterococci bacteria densities in samples taken 
over a 30 day period shall not exceed 33/100 ml, nor shall any single 
sample exceed an enterococci density of 150 per 100 milliliters. These 
limits are calculated as the geometric mean of the collected samples 
approximately equally spaced over a thirty day period.
    (B) Dissolved oxygen--no measurable decrease from natural 
conditions.
    (C) Total dissolved gas concentrations shall not exceed 110 percent 
of the saturation value for gases at the existing atmospheric and 
hydrostatic pressures at any point of sample collection.
    (D) Temperature--no measurable change from natural conditions.
    (E) pH--no measurable change from natural conditions.
    (F) Turbidity shall not exceed 5 NTU over natural conditions.
    (G) Toxic, radioactive, nonconventional, or deleterious material 
concentrations shall be less than those which may affect public health, 
the natural aquatic environment, or the desirability of the water for 
any use.
    (6) Special Resource Water Class (SRW)--(i) General characteristics. 
These are fresh or saline waters which comprise a special and unique 
resource to the Reservation. Water quality of this class will be varied 
and unique as determined by the Regional Administrator in cooperation 
with the Tribes.
    (ii) Designated uses. The designated uses include, but are not 
limited to, the following:
    (A) Wildlife habitat.
    (B) Natural foodchain maintenance.
    (iii) Water quality criteria.
    (A) Enterococci bacteria densities shall not exceed natural 
conditions.
    (B) Dissolved oxygen--shall not show any measurable decrease from 
natural conditions.
    (C) Total dissolved gas shall not vary from natural conditions.
    (D) Temperature--shall not show any measurable change from natural 
conditions.
    (E) pH shall not show any measurable change from natural conditions.
    (F) Settleable solids shall not show any change from natural 
conditions.
    (G) Turbidity shall not exceed 5 NTU over natural conditions.
    (H) Toxic, radioactive, or deleterious material concentrations shall 
not exceed those found under natural conditions.
    (g) General classifications. General classifications applying to 
various surface waterbodies not specifically classified under 
Sec. 131.35(h) are as follows:
    (1) All surface waters that are tributaries to Class I waters are 
classified Class I, unless otherwise classified.
    (2) Except for those specifically classified otherwise, all lakes 
with existing average concentrations less than 2000 mg/L TDS and their 
feeder streams on the Colville Indian Reservation are classified as Lake 
Class and Class I, respectively.
    (3) All lakes on the Colville Indian Reservation with existing 
average concentrations of TDS equal to or exceeding 2000 mg/L and their 
feeder streams are classified as Lake Class and Class I respectively 
unless specifically classified otherwise.
    (4) All reservoirs with a mean detention time of greater than 15 
days are classified Lake Class.

[[Page 965]]

    (5) All reservoirs with a mean detention time of 15 days or less are 
classified the same as the river section in which they are located.
    (6) All reservoirs established on pre-existing lakes are classified 
as Lake Class.
    (7) All wetlands are assigned to the Special Resource Water Class.
    (8) All other waters not specifically assigned to a classification 
of the reservation are classified as Class II.
    (h) Specific classifications. Specific classifications for surface 
waters of the Colville Indian Reservation are as follows:

(1) Streams:
    Alice Creek...........................  Class III
    Anderson Creek........................  Class III
    Armstrong Creek.......................  Class III
    Barnaby Creek.........................  Class II
    Bear Creek............................  Class III
    Beaver Dam Creek......................  Class II
    Bridge Creek..........................  Class II
    Brush Creek...........................  Class III
    Buckhorn Creek........................  Class III
    Cache Creek...........................  Class III
    Canteen Creek.........................  Class I
    Capoose Creek.........................  Class III
    Cobbs Creek...........................  Class III
    Columbia River from Chief Joseph Dam    ............................
     to Wells Dam.
    Columbia River from northern            ............................
     Reservation boundary to Grand Coulee
     Dam (Roosevelt Lake).
    Columbia River from Grand Coulee Dam    ............................
     to Chief Joseph Dam.
    Cook Creek............................  Class I
    Cooper Creek..........................  Class III
    Cornstalk Creek.......................  Class III
    Cougar Creek..........................  Class I
    Coyote Creek..........................  Class II
    Deerhorn Creek........................  Class III
    Dick Creek............................  Class III
    Dry Creek.............................  Class I
    Empire Creek..........................  Class III
    Faye Creek............................  Class I
    Forty Mile Creek......................  Class III
    Gibson Creek..........................  Class I
    Gold Creek............................  Class II
    Granite Creek.........................  Class II
    Grizzly Creek.........................  Class III
    Haley Creek...........................  Class III
    Hall Creek............................  Class II
    Hall Creek, West Fork.................  Class I
    Iron Creek............................  Class III
    Jack Creek............................  Class III
    Jerred Creek..........................  Class I
    Joe Moses Creek.......................  Class III
    John Tom Creek........................  Class III
    Jones Creek...........................  Class I
    Kartar Creek..........................  Class III
    Kincaid Creek.........................  Class III
    King Creek............................  Class III
    Klondyke Creek........................  Class I
    Lime Creek............................  Class III
    Little Jim Creek......................  Class III
    Little Nespelem.......................  Class II
    Louie Creek...........................  Class III
    Lynx Creek............................  Class II
    Manila Creek..........................  Class III
    McAllister Creek......................  Class III
    Meadow Creek..........................  Class III
    Mill Creek............................  Class II
    Mission Creek.........................  Class III
    Nespelem River........................  Class II
    Nez Perce Creek.......................  Class III
    Nine Mile Creek.......................  Class II
    Nineteen Mile Creek...................  Class III
    No Name Creek.........................  Class II
    North Nanamkin Creek..................  Class III
    North Star Creek......................  Class III
    Okanogan River from Reservation north   Class II
     boundary to Columbia River.
    Olds Creek............................  Class I
    Omak Creek............................  Class II
    Onion Creek...........................  Class II
    Parmenter Creek.......................  Class III
    Peel Creek............................  Class III
    Peter Dan Creek.......................  Class III
    Rock Creek............................  Class I
    San Poil River........................  Class I
    Sanpoil, River West Fork..............  Class II
    Seventeen Mile Creek..................  Class III
    Silver Creek..........................  Class III
    Sitdown Creek.........................  Class III
    Six Mile Creek........................  Class III
    South Nanamkin Creek..................  Class III
    Spring Creek..........................  Class III
    Stapaloop Creek.......................  Class III
    Stepstone Creek.......................  Class III
    Stranger Creek........................  Class II
    Strawberry Creek......................  Class III
    Swimptkin Creek.......................  Class III
    Three Forks Creek.....................  Class I
    Three Mile Creek......................  Class III
    Thirteen Mile Creek...................  Class II
    Thirty Mile Creek.....................  Class II
    Trail Creek...........................  Class III
    Twentyfive Mile Creek.................  Class III
    Twentyone Mile Creek..................  Class III
    Twentythree Mile Creek................  Class III
    Wannacot Creek........................  Class III
    Wells Creek...........................  Class I
    Whitelaw Creek........................  Class III
    Wilmont Creek.........................  Class II
(2) Lakes:
    Apex Lake.............................  LC
    Big Goose Lake........................  LC
    Bourgeau Lake.........................  LC
    Buffalo Lake..........................  LC
    Cody Lake.............................  LC
    Crawfish Lakes........................  LC
    Camille Lake..........................  LC
    Elbow Lake............................  LC
    Fish Lake.............................  LC
    Gold Lake.............................  LC
    Great Western Lake....................  LC
    Johnson Lake..........................  LC
    LaFleur Lake..........................  LC
    Little Goose Lake.....................  LC
    Little Owhi Lake......................  LC
    McGinnis Lake.........................  LC
    Nicholas Lake.........................  LC
    Omak Lake.............................  SRW
    Owhi Lake.............................  SRW
    Penley Lake...........................  SRW
    Rebecca Lake..........................  LC
    Round Lake............................  LC
    Simpson Lake..........................  LC
    Soap Lake.............................  LC
    Sugar Lake............................  LC
    Summit Lake...........................  LC
    Twin Lakes............................  SRW
 


[54 FR 28625, July 6, 1989]

[[Page 966]]



Sec. 131.36  Toxics criteria for those states not complying with Clean Water Act section 303(c)(2)(B).

    (a) Scope. This section is not a general promulgation of the section 
304(a) criteria for priority toxic pollutants but is restricted to 
specific pollutants in specific States.
    (b)(1) EPA's Section 304(a) Criteria for Priority Toxic Pollutants.
    [GRAPHIC] [TIFF OMITTED] TC01MR92.020
    

[[Page 967]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.021


[[Page 968]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.022


[[Page 969]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.023


[[Page 970]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.024

    Footnotes:

    a. Criteria revised to reflect current agency q1* or RfD, 
as contained in the Integrated Risk Information System (IRIS). The fish 
tissue bioconcentration factor (BCF) from the 1980 criteria documents 
was retained in all cases.
    b. The criteria refers to the inorganic form only.
    c. Criteria in the matrix based on carcinogenicity 
(10-\6\ risk). For a risk level of 10-\5\, move 
the decimal point in the matrix value one place to the right.
    d. Criteria Maximum Concentration (CMC) = the highest concentration 
of a pollutant to which aquatic life can be exposed for a short period 
of time (1-hour average) without deleterious effects. Criteria 
Continuous Concentration (CCC) = the highest concentration of a 
pollutant to which aquatic life can be exposed for an extended period of 
time (4 days) without deleterious effects. ug/L = micrograms per liter
    e. Freshwater aquatic life criteria for these metals are expressed 
as a function of total hardness (mg/L as CaC03), the 
pollutant's water effect ratio (WER) as defined in Sec. 131.36(c) and 
multiplied by an appropriate dissolved conversion factor as defined in 
Sec. 131.36(b)(2). For comparative purposes, the values displayed in 
this matrix are shown as dissolved metal and correspond to a total 
hardness of 100 mg/L and a water effect ratio of 1.0.
    f. Freshwater aquatic life criteria for pentachlorophenol are 
expressed as a function of pH, and are calculated as follows. Values 
displayed above in the matrix correspond to a pH of 7.8.

CMC = exp(1.005(pH) - 4.830)  CCC = exp(1.005(pH) - 5.290)

    g. Aquatic life criteria for these compounds were issued in 1980 
utilizing the 1980 Guidelines for criteria development. The acute values 
shown are final acute values (FAV) which by the 1980 Guidelines are 
instantaneous values as contrasted with a CMC which is a one-hour 
average.
    h. These totals simply sum the criteria in each column. For aquatic 
life, there are 30 priority toxic pollutants with some type of 
freshwater or saltwater, acute or chronic criteria. For human health, 
there are 91 priority toxic pollutants with either ``water + fish'' or 
``fish only'' criteria. Note that these totals count chromium as one 
pollutant even though EPA has developed criteria based on two valence 
states. In the matrix, EPA has assigned numbers 5a and 5b to the 
criteria for chromium to reflect the fact that the list of 126 priority 
toxic pollutants includes only a single listing for chromium.
    i. If the CCC for total mercury exceeds 0.012 ug/L more than once in 
a 3-year period in the ambient water, the edible portion of aquatic 
species of concern must be analyzed to determine whether the 
concentration of methyl mercury exceeds the FDA action level (1.0 mg/
kg). If the FDA action level is exceeded, the State must notify the 
appropriate EPA Regional Administrator, initiate a revision of its 
mercury criterion in its

[[Page 971]]

water quality standards so as to protect designated uses, and take other 
appropriate action such as issuance of a fish consumption advisory for 
the affected area.
    j. No criteria for protection of human health from consumption of 
aquatic organisms (excluding water) was presented in the 1980 criteria 
document or in the 1986 Quality Criteria for Water. Nevertheless, 
sufficient information was presented in the 1980 document to allow a 
calculation of a criterion, even though the results of such a 
calculation were not shown in the document.
    k. The criterion for asbestos is the MCL (56 FR 3526, January 30, 
1991).
    l. [Reserved: this letter not used as a footnote].
    m. Criteria for these metals are expressed as a function of the 
water effect ratio, WER, as defined in 40 CFR 131.36(c).

CMC = column B1 or C1 value  x  WER
CCC = column B2 or C2 value  x  WER

    n. EPA is not promulgating human health criteria for this 
contaminant. However, permit authorities should address this contaminant 
in NPDES permit actions using the State's existing narrative criteria 
for toxics.
    o. [Reserved: This letter not used as a footnote].
    p. Criterion expressed as total recoverable.

    General Notes:

    1. This chart lists all of EPA's priority toxic pollutants whether 
or not criteria recommendations are available. Blank spaces indicate the 
absence of criteria recommendations. Because of variations in chemical 
nomenclature systems, this listing of toxic pollutants does not 
duplicate the listing in Appendix A of 40 CFR Part 423. EPA has added 
the Chemical Abstracts Service (CAS) registry numbers, which provide a 
unique identification for each chemical.
    2. The following chemicals have organoleptic based criteria 
recommendations that are not included on this chart (for reasons which 
are discussed in the preamble): copper, zinc, chlorobenzene, 2-
chlorophenol, 2,4-dichlorophenol, acenaphthene, 2,4-dimethylphenol, 3-
methyl-4-chlorophenol, hexachlorocyclopentadiene, pentachlorophenol, 
phenol
    3. For purposes of this rulemaking, freshwater criteria and 
saltwater criteria apply as specified in 40 CFR 131.36(c).

    Note to paragraph (b)(1): On April 14, 1995, the Environmental 
Protection Agency issued a stay of certain criteria in paragraph (b)(1) 
of this section as follows: the criteria in columns B and C for arsenic, 
cadmium, chromium (VI), copper, lead, nickel, silver, and zinc; the 
criteria in B1 and C1 for mercury; the criteria in column B for chromium 
(III); and the criteria in column C for selenium. The stay remains in 
effect until further notice.

    (2) Factors for Calculating Hardness-Dependent, Freshwater Metals 
Criteria

CMC=WER exp { mA[ln(hardness)]+bA} x Acute 
    Conversion Factor
CCC=WER exp { mC[ln(hardness)]+bC} x Chronic 
    Conversion Factor
Final CMC and CCC values should be rounded to two significant figures.

----------------------------------------------------------------------------------------------------------------
                                                                                          Freshwater conversion
                                                                                                 factors
               Metal                     mA           bA           mC           bC     -------------------------
                                                                                           Acute       Chronic
----------------------------------------------------------------------------------------------------------------
Cadmium...........................        1.128       -3.828       0.7852       -3.490      a 0.944      a 0.909
Chromium (III)....................       0.8190        3.688       0.8190        1.561        0.316        0.860
Copper............................       0.9422       -1.464       0.8545       -1.465        0.960        0.960
Lead..............................        1.273       -1.460        1.273       -4.705      a 0.791      a 0.791
Nickel............................       0.8460       3.3612       0.8460       1.1645        0.998        0.997
Silver............................         1.72        -6.52        b N/A        b N/A         0.85        b N/A
Zinc..............................       0.8473       0.8604       0.8473       0.7614        0.978       0.986
----------------------------------------------------------------------------------------------------------------
Note to table: The term ``exp'' represents the base e exponential function.
Footnotes to table:
a The freshwater conversion factors (CF) for cadmium and lead are hardness-dependent and can be calculated for
  any hardness [see limitations in Sec.  131.36(c)(4)] using the following equations:
 
 Cadmium
Acute: CF=1.136672--[(ln hardness)(0.041838)]
Chronic: CF=1.101672--[(ln hardness)(0.041838)]
Lead (Acute and Chronic): CF = 1.46203--[(ln hardness)(0.145712)]
 
 b No chronic criteria are available for silver.

    (c) Applicability. (1) The criteria in paragraph (b) of this section 
apply to the States' designated uses cited in paragraph (d) of this 
section and supersede any criteria adopted by the State, except when 
State regulations contain criteria which are more stringent for a 
particular use in which case the State's criteria will continue to 
apply.
    (2) The criteria established in this section are subject to the 
State's general rules of applicability in the same

[[Page 972]]

way and to the same extent as are the other numeric toxics criteria when 
applied to the same use classifications including mixing zones, and low 
flow values below which numeric standards can be exceeded in flowing 
fresh waters.
    (i) For all waters with mixing zone regulations or implementation 
procedures, the criteria apply at the appropriate locations within or at 
the boundary of the mixing zones; otherwise the criteria apply 
throughout the waterbody including at the end of any discharge pipe, 
canal or other discharge point.
    (ii) A State shall not use a low flow value below which numeric 
standards can be exceeded that is less stringent than the following for 
waters suitable for the establishment of low flow return frequencies 
(i.e., streams and rivers):

                              Aquatic Life
Acute criteria (CMC)                 1 Q 10 or 1 B 3
Chronic criteria (CCC)               7 Q 10 or 4 B 3
                              Human Health
Non-carcinogens                      30 Q 5
Carcinogens                          Harmonic mean flow
 

Where:

CMC--criteria maximum concentration--the water quality criteria to 
protect against acute effects in aquatic life and is the highest 
instream concentration of a priority toxic pollutant consisting of a 
one-hour average not to be exceeded more than once every three years on 
the average;
CCC--criteria continuous concentration--the water quality criteria to 
protect against chronic effects in aquatic life is the highest instream 
concentration of a priority toxic pollutant consisting of a 4-day 
average not to be exceeded more than once every three years on the 
average;
1 Q 10 is the lowest one day flow with an average recurrence frequency 
of once in 10 years determined hydrologically;
1 B 3 is biologically based and indicates an allowable exceedence of 
once every 3 years. It is determined by EPA's computerized method (DFLOW 
model);
7 Q 10 is the lowest average 7 consecutive day low flow with an average 
recurrence frequency of once in 10 years determined hydrologically;
4 B 3 is biologically based and indicates an allowable exceedence for 4 
consecutive days once every 3 years. It is determined by EPA's 
computerized method (DFLOW model);
30 Q 5 is the lowest average 30 consecutive day low flow with an average 
recurrence frequency of once in 5 years determined hydrologically; and 
the harmonic mean flow is a long term mean flow value calculated by 
dividing the number of daily flows analyzed by the sum of the 
reciprocals of those daily flows.

    (iii) If a State does not have such a low flow value for numeric 
standards compliance, then none shall apply and the criteria included in 
paragraph (d) of this section herein apply at all flows.
    (3) The aquatic life criteria in the matrix in paragraph (b) of this 
section apply as follows:
    (i) For waters in which the salinity is equal to or less than 1 part 
per thousand 95% or more of the time, the applicable criteria are the 
freshwater criteria in Column B;
    (ii) For waters in which the salinity is equal to or greater than 10 
parts per thousand 95% or more of the time, the applicable criteria are 
the saltwater criteria in Column C; and
    (iii) For waters in which the salinity is between 1 and 10 parts per 
thousand as defined in paragraphs (c)(3) (i) and (ii) of this section, 
the applicable criteria are the more stringent of the freshwater or 
saltwater criteria. However, the Regional Administrator may approve the 
use of the alternative freshwater or saltwater criteria if 
scientifically defensible information and data demonstrate that on a 
site-specific basis the biology of the waterbody is dominated by 
freshwater aquatic life and that freshwater criteria are more 
appropriate; or conversely, the biology of the waterbody is dominated by 
saltwater aquatic life and that saltwater criteria are more appropriate.
    (4) Application of metals criteria. (i) For purposes of calculating 
freshwater aquatic life criteria for metals from the equations in 
paragraph (b)(2) of this section, the minimum hardness allowed for use 
in those equations shall not be less than 25 mg/l, as calcium carbonate, 
even if the actual ambient hardness is less than 25 mg/l as calcium 
carbonate. The maximum hardness value for use in those equations shall 
not exceed 400 mg/l as calcium carbonate, even if the actual ambient 
hardness is greater than 400 mg/l as calcium carbonate. The same 
provisions apply for calculating the metals criteria for the comparisons 
provided

[[Page 973]]

for in paragraph (c)(3)(iii) of this section.
    (ii) The hardness values used shall be consistent with the design 
discharge conditions established in paragraph (c)(2) of this section for 
flows and mixing zones.
    (iii) Except where otherwise noted, the criteria for metals 
(compounds #2, #4-# 11, and #13, in paragraph (b) of this section) are 
expressed as dissolved metal. For purposes of calculating aquatic life 
criteria for metals from the equations in footnote m. in the criteria 
matrix in paragraph (b)(1) of this section and the equations in 
paragraphs (b)(2) of this section, the water-effect ratio is computed as 
a specific pollutant's acute or chronic toxicity values measured in 
water from the site covered by the standard, divided by the respective 
acute or chronic toxicity value in laboratory dilution water.
    (d) Criteria for Specific Jurisdictions--(1) Rhode Island, EPA 
Region 1. (i) All waters assigned to the following use classifications 
in the Water Quality Regulations for Water Pollution Control adopted 
under Chapters 46-12, 42-17.1, and 42-35 of the General Laws of Rhode 
Island are subject to the criteria in paragraph (d)(1)(ii) of this 
section, without exception:

              6.21 Freshwater                      6.22 Saltwater:
 Class A..................................    Class SA
 Class B..................................    Class SB
 Class C..................................    Class SC
 

    (ii) The following criteria from the matrix in paragraph (b)(1) of 
this section apply to the use classifications identified in paragraph 
(d)(1)(i) of this section:

 
         Use classification                  Applicable criteria
 
Class A                              ...................................
Class B waters where water supply    These classifications are assigned
 use is designated                    the criteria in:
                                        Column D1--all
Class B waters where water supply    ...................................
 use is not designated;
Class C;                             ...................................
Class SA;                            ...................................
Class SB;                            ...................................
Class SC                             Each of these classifications is
                                      assigned the criteria in:
                                        Column D2--all
 

    (iii) The human health criteria shall be applied at the 
10-5 risk level, consistent with the State policy. To 
determine appropriate value for carcinogens, see footnote c in the 
criteria matrix in paragraph (b)(1) of this section.
    (2) Vermont, EPA Region 1. (i) All waters assigned to the following 
use classifications in the Vermont Water Quality Standards adopted under 
the authority of the Vermont Water Pollution Control Act (10 V.S.A., 
Chapter 47) are subject to the criteria in paragraph (d)(2)(ii) of this 
section, without exception:

Class A
Class B
Class C

    (ii) The following criteria from the matrix in paragraph (b)(1) of 
this section apply to the use classifications identified in paragraph 
(d)(2)(i) of this section:

 
         Use classification                  Applicable criteria
 
Class A                              ...................................
Class B waters where water supply    This classification is assigned the
 use is designated                    criteria in:
                                        Column B1--all
                                        Column B2--all
                                        Column D1--all
Class B waters where water supply    ...................................
 use is not designated
Class C                              These classifications are assigned
                                      the criteria in:
                                        Column B1--all
                                        Column B2--all
                                        Column D2--all
 

    (iii) The human health criteria shall be applied at the State-
proposed 10-6 risk level.
    (3) New Jersey, EPA Region 2. (i) All waters assigned to the 
following use classifications in the New Jersey Administrative Code 
(N.J.A.C.) 7:9-4.1 et seq., Surface Water Quality Standards, are subject 
to the criteria in paragraph (d)(3)(ii) of this section, without 
exception.

N.J.A.C. 7:9-4.12(b): Class PL
N.J.A.C. 7:9-4.12(c): Class FW2
N.J.A.C. 7:9-4.12(d): Class SE1
N.J.A.C. 7:9-4.12(e): Class SE2
N.J.A.C. 7:9-4.12(f): Class SE3
N.J.A.C. 7:9-4.12(g): Class SC
N.J.A.C. 7:9-4.13(a): Delaware River Zones 1C, 1D, and 1E

[[Page 974]]

N.J.A.C. 7:9-4.13(b): Delaware River Zone 2
N.J.A.C. 7:9-4.13(c): Delaware River Zone 3
N.J.A.C. 7:9-4.13(d): Delaware River Zone 4
N.J.A.C. 7:9-4.13(e): Delaware River Zone 5
N.J.A.C. 7:9-4.13(f): Delaware River Zone 6

    (ii) The following criteria from the matrix in paragraph (b)(1) of 
this section apply to the use classifications identified in paragraph 
(d)(3)(i) of this section:

 
           Use classification                   Applicable criteria
 
PL (Freshwater Pinelands), FW2            These classifications are
                                           assigned the criteria in:
                                           Column B1--all except #102,
                                           105, 107, 108, 111, 112, 113,
                                           115, 117, and 118.
                                          Column B2--all except #105,
                                           107, 108, 111, 112, 113, 115,
                                           117, 118, 119, 120, 121, 122,
                                           123, 124, and 125.
                                          Column D1--all at a 10-6 risk
                                           level except #23, 30, 37, 38,
                                           42, 68, 89, 91, 93, 104, 105;
                                           #23, 30, 37, 38, 42, 68, 89,
                                           91, 93, 104, 105, at a 10-5
                                           risk level.
                                          Column D2--all at a 10-6 risk
                                           level except #23, 30, 37, 38,
                                           42, 68, 89, 91, 93, 104, 105;
                                           #23, 30, 37, 38, 42, 68, 89,
                                           91, 93, 104, 105, at a 10-5
                                           risk level.
PL (Saline Water Pinelands), SE1, SE2,    These classifications are each
 SE3, SC                                   assigned the criteria in:
                                             Column C1--all except #102,
                                              105, 107, 108, 111, 112,
                                              113, 115, 117, and 118.
                                             Column C2--all except #105,
                                              107, 108, 111, 112, 113,
                                              115, 117, 118, 119, 120,
                                              121, 122, 123, 124, and
                                              125.
                                             Column D2--all at a 10-6
                                              risk level except #23, 30,
                                              37, 38, 42, 68, 89, 91,
                                              93, 104, 105; #23, 30, 37,
                                              38, 42, 68, 89, 91, 93,
                                              104, 105, at a 10-5 risk
                                              level.
Delaware River zones 1C, 1D, 1E, 2, 3,    These classifications are each
 4, 5 and Delaware Bay zone 6              assigned the criteria in:
                                             Column B1--all.
                                             Column B2--all.
                                             Column D1--all at a 10-6
                                              risk level except #23, 30,
                                              37, 38, 42, 68, 89, 91,
                                              93, 104, 105; #23, 30, 37,
                                              38, 42, 68, 89, 91, 93,
                                              104, 105, at a 10-5 risk
                                              level.
                                             Column D2--all at a 10-6
                                              risk level except #23, 30,
                                              37, 38, 42, 68, 89, 91,
                                              93, 104, 105; #23, 30, 37,
                                              38, 42, 68, 89, 91, 93,
                                              104, 105, at a 10-5 risk
                                              level.
Delaware River zones 3, 4, and 5, and     These classifications are each
 Delaware Bay zone 6                       assigned the criteria in:
                                             Column C1--all.
                                             Column C2--all.
                                             Column D2--all at a 10-6
                                              risk level except #23, 30,
                                              37, 38, 42, 68, 89, 91,
                                              93, 104, 105; #23, 30, 37,
                                              38, 42, 68, 89, 91, 93,
                                              104, 105, at a 10-5 risk
                                              level.
 

    (iii) The human health criteria shall be applied at the State-
proposed 10-6 risk level for EPA rated Class A, 
B1, and B2 carcinogens; EPA rated Class C 
carcinogens shall be applied at 10-5 risk level. To determine 
appropriate value for carcinogens, see footnote c. in the matrix in 
paragraph (b)(1) of this section.
    (4) Puerto Rico, EPA Region 2. (i) All waters assigned to the 
following use classifications in the Puerto Rico Water Quality Standards 
(promulgated by Resolution Number R-83-5-2) are subject to the criteria 
in paragraph (d)(4)(ii) of this section, without exception.

Article 2.2.2--Class SB
Article 2.2.3--Class SC
Article 2.2.4--Class SD

    (ii) The following criteria from the matrix in paragraph (b)(1) of 
this section apply to the use classifications identified in paragraph 
(d)(4)(i) of this section:

[[Page 975]]



 
           Use classification                   Applicable criteria
 
Class SD                                  This Classification is
                                           assigned criteria in:
                                             Column B1--all, except: 10,
                                              102, 105, 107, 108, 111,
                                              112, 113, 115, 117, and
                                              126.
                                             Column B2--all, except:
                                              105, 107, 108, 112, 113,
                                              115, and 117.
                                             Column D1--all, except: 6,
                                              14, 105, 112, 113, and
                                              115.
                                             Column D2--all, except: 14,
                                              105, 112, 113, and 115.
Class SB, Class SC                        These Classifications are
                                           assigned criteria in:
                                             Column C1--all, except: 4,
                                              5b, 7, 8, 10, 11, 13, 102,
                                              105, 107, 108, 111, 112,
                                              113, 115, 117, and 126.
                                             Column C2--all, except: 4,
                                              5b, 10, 13, 108, 112, 113,
                                              115, and 117.
                                             Column D2--all, except: 14,
                                              105, 112, 113, and 115.
 

    (iii) The human health criteria shall be applied at the State-
proposed 10-5 risk level. To determine appropriate value for 
carcinogens, see footnote c, in the criteria matrix in paragraph (b)(1) 
of this section.
    (5) District of Columbia, EPA Region 3.
    (i) All waters assigned to the following use classifications in 
chapter 11 Title 21 DCMR, Water Quality Standards of the District of 
Columbia are subject to the criteria in paragraph (d)(5)(ii) of this 
section, without exception:

1101.2 Class C waters

    (ii) The following criteria from the matrix in paragraph (b)(1) of 
this section apply to the use classification identified in paragraph 
(d)(5)(i) of this section:

 
           Use classification                   Applicable criteria
 
Class C                                   This classification is
                                           assigned the additional
                                           criteria in:
                                             Column B2--#10, 118, 126.
                                             Column D1--#15, 16, 44, 67,
                                              68, 79, 80, 81, 88, 114,
                                              116, 118.
                                             Column D2--all.
 

    (iii) The human health criteria shall be applied at the State-
adopted 10-6 risk level.
    (6) Florida, EPA Region 4.
    (i) All waters assigned to the following use classifications in 
Chapter 17-301 of the Florida Administrative Code (i.e., identified in 
Section 17-302.600) are subject to the criteria in paragraph (d)(6)(ii) 
of this section, without exception:

Class I
Class II
Class III

    (ii) The following criteria from the matrix paragraph (b)(1) of this 
section apply to the use classifications identified in paragraph 
(d)(6)(i) of this section:

 
         Use classification                  Applicable criteria
 
Class I                              This classification is assigned the
                                      criteria in:
                                       Column D1--#16
Class II                             This classification is assigned the
Class III (marine)                    criteria in:
                                       Column D2--#16
Class III (freshwater)               This classification is assigned the
                                      criteria in:
                                     Column D2--#16
 

      (iii) The human health criteria shall be applied at the State-
adopted 10-\6\ risk level.
    (7) Michigan, EPA Region 5.
    (i) All waters assigned to the following use classifications in the 
Michigan Department of Natural Resources Commission General Rules, R 
323.1100 designated uses, as defined at R 323.1043. Definitions; A to N, 
(i.e., identified in Section (g) ``Designated use'') are subject to the 
criteria in paragraph (d)(7)(ii) of this section, without exception:

Agriculture
Navigation
Industrial Water Supply
Public Water Supply at the Point of Water Intake
Warmwater Fish

[[Page 976]]

Other Indigenous Aquatic Life and Wildlife
Partial Body Contact Recreation

    (ii) The following criteria from the matrix in paragraph (b)(1) of 
this section apply to the use classifications identified in paragraph 
(d)(7)(i) of this section:

 
           Use classification                   Applicable criteria
 
Public Water supply                       This classification is
                                           assigned the criteria in:
                                             Column B1--all,
                                             Column B2--all,
                                             Column D1--all.
All other designations                    These classifications are
                                           assigned the criteria in:
                                             Column B1--all,
                                             Column B2--all, and
                                             Column D2--all.
 

    (iii) The human health criteria shall be applied at the State-
adopted 10-\5\ risk level. To determine appropriate value for 
carcinogens, see footnote c in the criteria matrix in paragraph (b)(1) 
of this section.
    (8) Arkansas, EPA Region 6.
    (i) All waters assigned to the following use classification in 
section 4C (Waterbody uses) identified in Arkansas Department of 
Pollution Control and Ecology's Regulation No. 2 as amended and 
entitled, ``Regulation Establishing Water Quality Standards for Surface 
Waters of the State of Arkansas'' are subject to the criteria in 
paragraph (d)(8)(ii) of this section, without exception:

Extraordinary Resource Waters
Ecologically Sensitive Waterbody
Natural and Scenic Waterways
Fisheries:
    (1) Trout
    (2) Lakes and Reservoirs
    (3) Streams
(a) Ozark Highlands Ecoregion
(b) Boston Mountains Ecoregion
(c) Arkansas River Valley Ecoregion
(d) Ouachita Mountains Ecoregion
(e) Typical Gulf Coastal Ecoregion
(f) Spring Water-influenced Gulf Coastal Ecoregion
(g) Least-altered Delta Ecoregion
(h) Channel-altered Delta Ecoregion
Domestic Water Supply

    (ii) The following criteria from the matrix in paragraph (b)(1) of 
this section apply to the use classification identified in paragraph 
(d)(8)(i) of this section:

 
      Use classification                   Applicable criteria
 
Extraordinary Resource Waters
Ecologically Sensitive
 Waterbody
Natural and Scenic Waterways
Fisheries:
  (1) Trout
  (2) Lakes and Reservoirs
  (3) Streams
    (a) Ozark Highlands
     Ecoregion
    (b) Boston Mountains
     Ecoregion
    (c) Arkansas River Valley
     Ecoregion
    (d) Ouachita Mountains
     Ecoregion
    (e) Typical Gulf Coastal
     Ecoregion
    (f) Spring Water-
     influenced Gulf Coastal
     Ecoregion
    (g) Least-altered Delta
     Ecoregion
    (h) Channel-altered Delta   These uses are each assigned the
     Ecoregion                   criteria in--
                                   Column B1--4, 5a, 5b, 6, 7, 8, 9,
                                    10, 11, 13, 14
                                   Column B2--4, 5a, 5b, 6, 7, 8, 9,
                                    10, 13, 14
 

    (9) Kansas, EPA Region 7.
    (i) All waters assigned to the following use classification in the 
Kansas Department of Health and Environment regulations, K.A.R. 28-16-
28b through K.A.R. 28-16-28f, are subject to the criteria in paragraph 
(d)(9)(ii) of this section, without exception.

Section 28-16-28d
    Section (2)(A)--Special Aquatic Life Use Waters
    Section (2)(B)--Expected Aquatic Life Use Waters
    Section (2)(C)--Restricted Aquatic Life Use Waters
    Section (3)--Domestic Water Supply
    Section (6)(c)--Consumptive Recreation Use.

    (ii) The following criteria from the matrix in paragraph (b)(1) of 
this section apply to the use classifications

[[Page 977]]

identified in paragraph (d)(9)(i) of this section:

 
           Use classification                   Applicable criteria
 
Sections (2)(A), (2)(B), (2)(C), (6)(C)   These classifications are each
                                           assigned all criteria in:
                                             Column B1, all except 9,
                                              11, 13, 102, 105, 107,
                                              108, 111-113, 115, 117,
                                              and 126;
                                             Column B2, all except 9,
                                              13, 105, 107, 108, 111-
                                              113, 115, 117, 119-125,
                                              and 126; and
                                             Column D2, all except 9,
                                              112, 113, and 115.
Section (3)                               This classification is
                                           assigned all criteria in;
                                             Column D1, all except 9,
                                              12, 112, 113, and 115.
 

    (iii) The human health criteria shall be applied at the State-
proposed 10-6 risk level.
    (10) California, EPA Region 9.
    (i) All waters assigned any aquatic life or human health use 
classifications in the Water Quality Control Plans for the various 
Basins of the State (``Basin Plans''), as amended, adopted by the 
California State Water Resources Control Board (``SWRCB''), except for 
ocean waters covered by the Water Quality Control Plan for Ocean Waters 
of California (``Ocean Plan'') adopted by the SWRCB with resolution 
Number 90-27 on March 22, 1990, are subject to the criteria in paragraph 
(d)(10)(ii) of this section, without exception. These criteria amend the 
portions of the existing State standards contained in the Basin Plans. 
More particularly these criteria amend water quality criteria contained 
in the Basin Plan Chapters specifying water quality objectives (the 
State equivalent of federal water quality criteria) for the toxic 
pollutants identified in paragraph (d)(10)(ii) of this section. Although 
the State has adopted several use designations for each of these waters, 
for purposes of this action, the specific standards to be applied in 
paragraph (d)(10)(ii) of this section are based on the presence in all 
waters of some aquatic life designation and the presence or absence of 
the MUN use designation (Municipal and domestic supply). (See Basin 
Plans for more detailed use definitions.)
    (ii) The following criteria from the matrix in paragraph (b)(1) of 
this section apply to the water and use classifications defined in 
paragraph (d)(10)(i) of this section and identified below:

 
                                                           Applicable
             Water and use classification                   criteria
 
Waters of the State defined as bays or estuaries       These waters are
 except the Sacramento-San Joaquin Delta and San        assigned the
 Francisco Bay                                          criteria in:
                                                          Column B1--
                                                           pollutants 5a
                                                           and 14
                                                          Column B2--
                                                           pollutants 5a
                                                           and 14
                                                          Column C1--
                                                           pollutant 14
                                                          Column C2--
                                                           pollutant 14
                                                          Column D2--
                                                           pollutants 1,
                                                           12, 17, 18,
                                                           21, 22, 29,
                                                           30, 32, 33,
                                                           37, 38, 42-
                                                           44, 46, 48,
                                                           49, 54, 59,
                                                           66, 67, 68,
                                                           78-82, 85,
                                                           89, 90, 91,
                                                           93, 95, 96,
                                                           98
Waters of the Sacramento--San Joaquin Delta and        These waters are
 waters of the State defined as inland (i.e., all       assigned the
 surface waters of the State not bays or estuaries or   criteria in:
 ocean) that include a MUN use designation             Column B1--
                                                        pollutants 5a
                                                        and 14
                                                       Column B2--
                                                        pollutants 5a
                                                        and 14
                                                       Column D1--
                                                        pollutants 1,
                                                        12, 15, 17, 18,
                                                        21, 22, 29, 30,
                                                        32, 33, 37, 38,
                                                        42-48, 49, 59,
                                                        66, 67, 68, 78-
                                                        82, 85, 89, 90,
                                                        91, 93, 95, 96,
                                                        98

[[Page 978]]

 
Waters of the State defined as inland without an MUN   These waters are
 use designation                                        assigned the
                                                        criteria in:
                                                          Column B1--
                                                           pollutants 5a
                                                           and 14
                                                          Column B2--
                                                           pollutants 5a
                                                           and 14
                                                          Column D2--
                                                           pollutants 1,
                                                           12, 17, 18,
                                                           21, 22, 29,
                                                           30, 32, 33,
                                                           37, 38, 42-
                                                           44, 46, 48,
                                                           49, 54, 59,
                                                           66, 67, 68,
                                                           78-82, 85,
                                                           89, 90, 91,
                                                           93, 95, 96,
                                                           98
Waters of the San Joaquin River from the mouth of the  In addition to
 Merced River to Vernalis                               the criteria
                                                        assigned to
                                                        these waters
                                                        elsewhere in
                                                        this rule, these
                                                        waters are
                                                        assigned the
                                                        criteria in:
                                                          Column B2--
                                                           pollutant 10
Waters of Salt Slough, Mud Slough (north) and the San  In addition to
 Joaquin River, Sack Dam to the mouth of the Merced     the criteria
 River                                                  assigned to
                                                        these waters
                                                        elsewhere in
                                                        this rule, these
                                                        waters are
                                                        assigned the
                                                        criteria in:
                                                          Column B1--
                                                           pollutant 10
                                                          Column B2--
                                                           pollutant 10
Waters of San Francisco Bay upstream to and including  These waters are
 Suisun Bay and the Sacramento-San Joaquin Delta        assigned the
                                                        criteria in:
                                                          Column B1--
                                                           pollutants
                                                           5a, 10* and
                                                           14
                                                          Column B2--
                                                           pollutants
                                                           5a, 10* and
                                                           14
                                                          Column C1--
                                                           pollutant 14
                                                          Column C2--
                                                           pollutant 14
                                                          Column D2--
                                                           pollutants 1,
                                                           12, 17, 18,
                                                           21, 22, 29,
                                                           30, 32, 33,
                                                           37, 38, 42-
                                                           44, 46, 48,
                                                           49, 54, 59,
                                                           66, 67, 68,
                                                           78-82, 85,
                                                           89, 90, 91,
                                                           93, 95, 96,
                                                           98
All inland waters of the United States or enclosed     These waters are
 bays and estuaries that are waters of the United       assigned the
 States that include an MUN use designation and that    criteria for
 the State has either excluded or partially excluded    pollutants for
 from coverage under its Water Quality Control Plan     which the State
 for Inland Surface Waters of California, Tables 1      does not apply
 and 2, or its Water Quality Control Plan for           Table 1 or 2
 Enclosed Bays and Estuaries of California, Tables 1    standards. These
 and 2, or has deferred applicability of those          criteria are:
 tables. (Category (a), (b), and (c) waters described  Column B1--all
 on page 6 of Water Quality Control Plan for Inland     pollutants
 Surface Waters of California or page 6 of its Water   Column B2--all
 Quality Control Plan for Enclosed Bays and Estuaries   pollutants
 of California.)                                       Column D1--all
                                                        pollutants
                                                        except #2
All inland waters of the United States that do not     These waters are
 include an MUN use designation and that the State      assigned the
 has either excluded or partially excluded from         criteria for
 coverage under its Water Quality Control Plan for      pollutants for
 Inland Surface Waters of California, Tables 1 and 2,   which the State
 or has deferred applicability of these tables.         does not apply
 (Category (a), (b), and (c) waters described on page   Table 1 or 2
 6 of Water Quality Control Plan for Inland Surface     standards. These
 Waters of California.)                                 criteria are:
                                                       Column B1--all
                                                        pollutants
                                                       Column B2--all
                                                        pollutants
                                                       Column D2--all
                                                        pollutants
                                                        except #2

[[Page 979]]

 
All enclosed bays and estuaries that are waters of     These waters are
 the United States that do not include an MUN           assigned the
 designation and that the State has either excluded     criteria for
 or partially excluded from coverage under its Water    pollutants for
 Quality Control Plan for Inland Surface Waters of      which the State
 California, Tables 1 and 2, or its Water Quality       does not apply
 Control Plan for Enclosed Bays and Estuaries of        Table 1 or 2
 California, Tables 1 and 2, or has deferred            standards. These
 applicability of those tables. (Category (a), (b),     criteria are:
 and (c) waters described on page 6 of Water Quality   Column B1--all
 Control Plan for Inland Surface Waters of California   pollutants
 or page 6 of its Water Quality Control Plan for       Column B2--all
 Enclosed Bays and Estuaries of California.)            pollutants
                                                       Column C1--all
                                                        pollutants
                                                       Column C2--all
                                                        pollutants
                                                       Column D2--all
                                                        pollutants
                                                        except #2
 
*The fresh water selenium criteria are included for the San Francisco
  Bay estuary because high levels of bioaccumulation of selenium in the
  estuary indicate that the salt water criteria are underprotective for
  San Francisco Bay.

    (iii) The human health criteria shall be applied at the State-
adopted 10-6 risk level.
    (11) Nevada, EPA Region 9. (i) All waters assigned the use 
classifications in Chapter 445 of the Nevada Administrative Code (NAC), 
Nevada Water Pollution Control Regulations, which are referred to in 
paragraph (d)(11)(ii) of this section, are subject to the criteria in 
paragraph (d)(11)(ii) of this section, without exception. These criteria 
amend the existing State standards contained in the Nevada Water 
Pollution Control Regulations. More particularly, these criteria amend 
or supplement the table of numeric standards in NAC 445.1339 for the 
toxic pollutants identified in paragraph (d)(11)(ii) of this section.
    (ii) The following criteria from matrix in paragraph (b)(1) of this 
section apply to the waters defined in paragraph (d)(11)(i) of this 
section and identified below:

 
    Water and use classification             Applicable criteria
 
Waters that the State has included   These waters are assigned the
 in NAC 445.1339 where Municipal or   criteria in:
 domestic supply is a designated     Column B1--pollutant #118
 use                                 Column B2--pollutant #118
                                     Column D1--pollutants #15, 16, 18,
                                      19, 20, 21, 23, 26, 27, 29, 30,
                                      34, 37, 38, 42, 43, 55, 58-62, 64,
                                      66, 73, 74, 78, 82, 85, 87-89, 91,
                                      92, 96, 98, 100, 103, 104, 105,
                                      114, 116, 117, 118
Waters that the State has included   These waters are assigned the
 in NAC 445.1339 where Municipal or   criteria in:
 domestic supply is not a            Column B1--pollutant #118
 designated use                      Column B2--pollutant #118
                                     Column D2--all pollutants except
                                      #2.
 

    (iii) The human health criteria shall be applied at the 
10-\5\ risk level, consistent with State policy. To determine 
appropriate value for carcinogens, see footnote c in the criteria matrix 
in paragraph (b)(1) of this section.
    (12) Alaska, EPA Region 10.
    (i) All waters assigned to the following use classifications in the 
Alaska Administrative Code (AAC), Chapter 18 (i.e., identified in 18 AAC 
70.020) are subject to the criteria in paragraph (d)(12)(ii) of this 
section, without exception:

70.020.(1) (A)  Fresh Water
70.020.(1) (A)  Water Supply
    (i) Drinking, culinary, and food processing,
    (iii) Aquaculture;
70.020.(1) (B)  Water Recreation
    (i) Contact recreation,
    (ii) Secondary recreation;
70.020.(1) (C)  Growth and propagation of fish, shellfish, other aquatic 
          life, and wildlife
70.020.(2) (A)  Marine Water
70.020.(2) (A)  Water Supply
    (i) Aquaculture,
70.020.(2) (B)  Water Recreation
    (i) contact recreation,
    (ii) secondary recreation;
70.020.(2) (C) Growth and propagation of fish, shellfish, other aquatic 
          life, and wildlife;

[[Page 980]]

70.020.(2) (D)  Harvesting for consumption of raw mollusks or other raw 
          aquatic life.

    (ii) The following criteria from the matrix in paragraph (b)(1) of 
this section apply to the use classifications identified in paragraph 
(d)(12)(i) of this section:

 
           Use classification                   Applicable criteria
 
(1)(A) i                                  Column B1--#9, 10, 13, 53, and
                                           126
                                          Column B2--#10
                                          Column D1
                                          #'s 16, 18-21, 23, 26, 27, 29,
                                           30, 32, 37, 38, 42-44, 53,
                                           55, 59-62, 64, 66, 68, 73,
                                           74, 78, 82, 85, 88, 89, 91-
                                           93, 96, 98, 102-105, 107-111,
                                           117-126
(1)(A) iii                                Column B1--#9, 10, 13, 53, and
                                           126
                                          Column B2--#10
                                          Column D2
                                          #'s 14, 16, 18-21, 22, 23, 26,
                                           27, 29, 30, 32, 37, 38, 42-
                                           44, 46, 53, 54, 55, 59-62,
                                           64, 66, 68, 73, 74, 78, 82,
                                           85, 88-93, 95, 96, 98, 102-
                                           105, 107-111, 115-126
(1)(B)i, (1)(B) ii, (1)(C)                Column B1--#9, 10, 13, 53, and
                                           126
                                          Column B2--#10
                                          Column D2
                                          #'s 14, 16, 18-21, 22, 23, 26,
                                           27, 29, 30, 32, 37, 38, 42-
                                           44, 46, 53, 54, 55, 59-62,
                                           64, 66, 68, 73, 74, 78, 82,
                                           85, 88-93, 95, 96, 98, 102-
                                           105, 107-111, 115-126
(2)(A) i, (2)(B)i, and (2)(B)ii, (2)(C),  Column C1--#9, 10, 13, and 53
 (2)(D)                                   Column C2--#10
                                          Column D2
                                          #'s 14, 16, 18-21, 22, 23, 26,
                                           27, 29, 30, 32, 37, 38, 42-
                                           44, 46, 53, 54, 55, 59-62,
                                           64, 66, 68, 73, 74, 78, 82,
                                           85, 88-93, 95, 96, 98, 102-
                                           105, 107-111, 115-126
 

    (iii) The human health criteria shall be applied at the State-
proposed risk level of 10-5. To determine appropriate value 
for carcinogens, see footnote c in the criteria matrix in paragraph 
(b)(1) of this section.
    (13) Idaho, EPA Region 10.
    (i) All waters assigned to the following use classifications in the 
Idaho Administrative Procedures Act (IDAPA), Chapter 16 (i.e., 
identified in IDAPA 16.01.2100,02-16.01.2100,07) are subject to the 
criteria in paragraph (d)(13)(ii) of this section, without exception:

16.01.2100.02.a. Cold Water Biota
16.01.2100.02.b. Warm Water Biota
16.01.2100.02cc. Salmonid Spawning

    (ii) The following criteria from the matrix in paragraph (b)(1) of 
this section apply to the use classifications identified in paragraph 
(d)(13)(i) of this section:

 
         Use classification                   Applicable criteria
 
02.a                                  These classifications are assigned
02.b                                   the criteria in:
02cc
                                         Column B1--all
                                         Column B2--all
 

    (14) Washington, EPA Region 10.
    (i) All waters assigned to the following use classifications in the 
Washington Administrative Code (WAC), Chapter 173-201 (i.e., identified 
in WAC 173-201-045) are subject to the criteria in paragraph (d)(14)(ii) 
of this section, without exception:

173-201-045
    Fish and Shellfish
    Fish
    Water Supply (domestic)
    Recreation

    (ii) The following criteria from the matrix in paragraph (b)(1) of 
this section apply to the use classifications identified in paragraph 
(d)(14)(i) of this section:

 
           Use classification                   Applicable criteria
 
Fish and Shellfish;                       These classifications are
Fish                                       assigned the criteria in:
                                             Column C2--6, 14
                                             Column D2--all
Water Supply (domestic)                   These classifications are
                                           assigned the criteria in:
                                             Column D1--all
Recreation                                This classification is
                                           assigned the criteria in:
                                             Column D2--Marine waters
                                              and freshwaters not
                                              protected for domestic
                                              water supply
 


[[Page 981]]

    (iii) The human health criteria shall be applied at the State 
proposed risk level of 10-6.

[57 FR 60910, Dec. 22, 1992; 58 FR 31177, June 1, 1993, as amended at 58 
FR 34499, June 25, 1993; 58 FR 36142, July 6, 1993; 60 FR 22229, 22235, 
May 4, 1995; 60 FR 44120, Aug. 24, 1995; 61 FR 60617, Nov. 29, 1996; 62 
FR 52927, Oct. 9, 1997; 62 FR 53214, Oct. 10, 1997; 63 FR 10144, Mar. 2, 
1998]



Sec. 131.37  California.

    (a) Additional criteria. The following criteria are applicable to 
waters specified in the Water Quality Control Plan for Salinity for the 
San Francisco Bay/Sacramento-San Joaquin Delta Estuary, adopted by the 
California State Water Resources Control Board in State Board Resolution 
No. 91-34 on May 1, 1991:
    (1) Estuarine habitat criteria. (i) General rule. (A) Salinity 
(measured at the surface) shall not exceed 2640 micromhos/centimeter 
specific conductance at 25  deg.C (measured as a 14-day moving average) 
at the Confluence of the Sacramento and San Joaquin Rivers throughout 
the period each year from February 1 through June 30, and shall not 
exceed 2640 micromhos/centimeter specific conductance at 25  deg.C 
(measured as a 14-day moving average) at the specific locations noted in 
Table 1 near Roe Island and Chipps Island for the number of days each 
month in the February 1 to June 30 period computed by reference to the 
following formula:

Number of days required in Month X = Total number of days in Month X * 
    (1 - 1/(1+eK)

where

K = A + (B*natural logarithm of the previous month's 8-River Index);
A and B are determined by reference to Table 1 for the Roe Island and 
Chipps Island locations;
x is the calendar month in the February 1 to June 30 period;
and e is the base of the natural (or Napierian) logarithm.


Where the number of days computed in this equation in paragraph 
(a)(1)(i)(A) of this section shall be rounded to the nearest whole 
number of days. When the previous month's 8-River Index is less than 
500,000 acre-feet, the number of days required for the current month 
shall be zero.

   Table 1. Constants applicable to each of the monthly equations to determine monthly requirements described.
----------------------------------------------------------------------------------------------------------------
                                                           Chipps Island             Roe Island (if triggered)
                     Month X                     ---------------------------------------------------------------
                                                         A               B               A               B
----------------------------------------------------------------------------------------------------------------
Feb.............................................            -\1\            -\1\          -14.36          +2.068
Mar.............................................         -105.16         +15.943          -20.79          +2.741
Apr.............................................          -47.17          +6.441          -28.73          +3.783
May.............................................          -94.93         +13.662          -54.22          +6.571
June............................................          -81.00          +9.961         -92.584        +10.699
----------------------------------------------------------------------------------------------------------------
\1\ Coefficients for A and B are not provided at Chipps Island for February, because the 2640 micromhos/cm
  specific conductance criteria must be maintained at Chipps Island throughout February under all historical 8-
  River Index values for January.

    (B) The Roe Island criteria apply at the salinity measuring station 
maintained by the U.S. Bureau of Reclamation at Port Chicago (km 64). 
The Chipps Island criteria apply at the Mallard Slough Monitoring Site, 
Station D-10 (RKI RSAC-075) maintained by the California Department of 
Water Resources. The Confluence criteria apply at the Collinsville 
Continuous Monitoring Station C-2 (RKI RSAC-081) maintained by the 
California Department of Water Resources.
    (ii) Exception. The criteria at Roe Island shall be required for any 
given month only if the 14-day moving average salinity at Roe Island 
falls below 2640 micromhos/centimeter specific conductance on any of the 
last 14 days of the previous month.
    (2) Fish migration criteria. (i) General rule.
    (A) Sacramento River. Measured Fish Migration criteria values for 
the Sacramento River shall be at least the following:

At temperatures less than below 61  deg.F: SRFMC = 1.35

[[Page 982]]

At temperatures between 61  deg.F and 72  deg.F: SRFMC = 6.96-.092 * 
    Fahrenheit temperature
At temperatures greater than 72  deg.F: SRFMC = 0.34


where SRFMC is the Sacramento River Fish Migration criteria value. 
Temperature shall be the water temperature at release of tagged salmon 
smolts into the Sacramento River at Miller Park.
    (B) San Joaquin River. Measured Fish Migration criteria values on 
the San Joaquin River shall be at least the following:

For years in which the SJVIndex is > 2.5: SJFMC = (-0.012) + 
    0.184*SJVIndex
In other years: SJFMC = 0.205 + 0.0975*SJVIndex


where SJFMC is the San Joaquin River Fish Migration criteria value, and 
SJVIndex is the San Joaquin Valley Index in million acre feet (MAF)
    (ii) Computing fish migration criteria values for Sacramento River. 
In order to assess fish migration criteria values for the Sacramento 
River, tagged fall-run salmon smolts will be released into the 
Sacramento River at Miller Park and captured at Chipps Island, or 
alternatively released at Miller Park and Port Chicago and recovered 
from the ocean fishery, using the methodology described in this 
paragraph (a)(2)(ii). An alternative methodology for computing fish 
migration criteria values can be used so long as the revised methodology 
is calibrated with the methodology described in this paragraph 
(a)(2)(ii) so as to maintain the validity of the relative index values. 
Sufficient releases shall be made each year to provide a statistically 
reliable verification of compliance with the criteria. These criteria 
will be considered attained when the sum of the differences between the 
measured experimental value and the stated criteria value (i.e., 
measured value minus stated value) for each experimental release 
conducted over a three year period (the current year and the previous 
two years) shall be greater than or equal to zero. Fish for release are 
to be tagged at the hatchery with coded-wire tags, and fin clipped. 
Approximately 50,000 to 100,000 fish of smolt size (size greater than 75 
mm) are released for each survival index estimate, depending on expected 
mortality. As a control for the ocean recovery survival index, one or 
two groups per season are released at Benecia or Pt. Chicago. From each 
upstream release of tagged fish, fish are to be caught over a period of 
one to two weeks at Chipps Island. Daylight sampling at Chipps Island 
with a 9.1 by 7.9 m, 3.2 mm cod end, midwater trawl is begun 2 to 3 days 
after release. When the first fish is caught, full-time trawling 7 days 
a week should begin. Each day's trawling consists of ten 20 minute tows 
generally made against the current, and distributed equally across the 
channel.
    (A) The Chipps Island smolt survival index is calculated as:

SSI=RMT(0.007692)

where

R=number of recaptures of tagged fish
M=number of marked (tagged) fish released
T=proportion of time sampled vs total time tagged fish were passing the 
site (i.e. time between first and last tagged fish recovery)


Where the value 0.007692 is the proportion of the channel width fished 
by the trawl, and is calculated as trawl width/channel width.
    (B) Recoveries of tagged fish from the ocean salmon fishery two to 
four years after release are also used to calculate a survival index for 
each release. Smolt survival indices from ocean recoveries are 
calculated as:

OSI=R1/M1R2/M2

where

R1=number of tagged adults recovered from the upstream 
release
M1=number released upstream
R2=number of tagged adults recovered from the Port Chicago 
release
M2=number released at Port Chicago

    (1) The number of tagged adults recovered from the ocean fishery is 
provided by the Pacific States Marine Fisheries Commission, which 
maintains a port sampling program.
    (2) [Reserved]
    (iii) Computing fish migration criteria values for San Joaquin 
River. In order to assess annual fish migration criteria values for the 
San Joaquin River, tagged salmon smolts will be released

[[Page 983]]

into the San Joaquin River at Mossdale and captured at Chipps Island, or 
alternatively released at Mossdale and Port Chicago and recovered from 
the ocean fishery, using the methodology described in paragraph 
(a)(2)(iii). An alternative methodology for computing fish migration 
criteria values can be used so long as the revised methodology is 
calibrated with the methodology described below so as to maintain the 
validity of the relative index values. Sufficient releases shall be made 
each year to provide a statistically reliable estimate of the SJFMC for 
the year. These criteria will be considered attained when the sum of the 
differences between the measured experimental value and the stated 
criteria value (i.e., measured value minus stated value) for each 
experimental release conducted over a three year period (the current 
year and the previous two years) shall be greater than or equal to zero.
    (A) Fish for release are to be tagged at the hatchery with coded-
wire tags, and fin clipped. Approximately 50,000 to 100,000 fish of 
smolt size (size greater than 75 mm) are released for each survival 
index estimate, depending on expected mortality. As a control for the 
ocean recovery survival index, one or two groups per season are released 
at Benicia or Pt. Chicago. From each upstream release of tagged fish, 
fish are to be caught over a period of one to two weeks at Chipps 
Island. Daylight sampling at Chipps Island with a 9.1 by 7.9 m, 3.2 mm 
cod end, midwater trawl is begun 2 to 3 days after release. When the 
first fish is caught, full-time trawling 7 days a week should begin. 
Each day's trawling consists of ten 20 minute tows generally made 
against the current, and distributed equally across the channel.
    (B) The Chipps Island smolt survival index is calculated as:

SSI=RMT(0.007692)

where

R=number of recaptures of tagged fish
M=number of marked (tagged) fish released
T=proportion of time sampled vs total time tagged fish were passing the 
site (i.e. time between first and last tagged fish recovery)

Where the value 0.007692 is the proportion of the channel width fished 
by the trawl, and is calculated as trawl width/channel width.
    (C) Recoveries of tagged fish from the ocean salmon fishery two to 
four years after release are also used to calculate a survival index for 
each release. Smolt survival indices from ocean recoveries are 
calculated as:

OSI=R1/M1  R2/M2

where

R1=number of tagged adults recovered from the upstream 
release
M1=number released upstream
R2=number of tagged adults recovered from the Port Chicago 
release
M2=number released at Port Chicago

    (1) The number of tagged adults recovered from the ocean fishery is 
provided by the Pacific States Marine Fisheries Commission, which 
maintains a port sampling program.
    (2) [Reserved]
    (3) Suisun marsh criteria. (i) Water quality conditions sufficient 
to support a natural gradient in species composition and wildlife 
habitat characteristic of a brackish marsh throughout all elevations of 
the tidal marshes bordering Suisun Bay shall be maintained. Water 
quality conditions shall be maintained so that none of the following 
occurs: Loss of diversity; conversion of brackish marsh to salt marsh; 
for animals, decreased population abundance of those species vulnerable 
to increased mortality and loss of habitat from increased water 
salinity; or for plants, significant reduction in stature or percent 
cover from increased water or soil salinity or other water quality 
parameters.
    (ii) [Reserved]
    (b) Revised criteria. The following criteria are applicable to state 
waters specified in Table 1-1, at Section (C)(3) (``Striped Bass--
Salinity : 3. Prisoners Point--Spawning) of the Water Quality Control 
Plan for Salinity for the San Francisco Bay--Sacramento/San Joaquin 
Delta Estuary, adopted by the California State Water Resources Control 
Board in State Board Resolution No. 91-34 on May 1, 1991:

[[Page 984]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                              Sampling site Nos (I--                                                      San Joaquin
          Location                    A/RKI)            Parameter       Description       Index type     Valley Index        Dates            Values
--------------------------------------------------------------------------------------------------------------------------------------------------------
San Joaquin River at Jersey   D15/RSAN018,           Specific.......  14-day running   Not Applicable.  >2.5 MAF        April 1 to May   0.44 micro-
 Point, San Andreas Landing,  C4/RSAN032,            Conductance....   average of                                        31.              mhos.
 Prisoners Point, Buckley     D29/RSAN038,           @ 25  deg.C....   mean daily for
 Cove, Rough and Ready        P8/RSAN056,                              the period not
 Island, Brandt Bridge,       -/RSAN062,                               more than
 Mossdale, and Vernalis.      C6/RSAN073,                              value shown,
                              C7/RSAN087,                              in mmhos.
                              C10/RSAN112
San Joaquin River at Jersey   D15/RSAN018,           Specific         14-day running   Not Applicable.  2.5  April 1 to May   0.44 micro-
 Point, San Andreas Landing   C4/RSAN032,             Conductance.     average of                        MAF             31.              mhos.
 and Prisoners Point.         D29/RSAN038                              mean daily for
                                                                       the period not
                                                                       more than
                                                                       value shown,
                                                                       in mmhos.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (c) Definitions. Terms used in paragraphs (a) and (b) of this 
section, shall be defined as follows:
    (1) Water year. A water year is the twelve calendar months beginning 
October 1.
    (2) 8-River Index. The flow determinations are made and are 
published by the California Department of Water Resources in Bulletin 
120. The 8-River Index shall be computed as the sum of flows at the 
following stations:
    (i) Sacramento River at Band Bridge, near Red Bluff;
    (ii) Feather River, total inflow to Oroville Reservoir;
    (iii) Yuba River at Smartville;
    (iv) American River, total inflow to Folsom Reservoir;
    (v) Stanislaus River, total inflow to New Melones Reservoir;
    (vi) Tuolumne River, total inflow to Don Pedro Reservoir;
    (vii) Merced River, total inflow to Exchequer Reservoir; and
    (viii) San Joaquin River, total inflow to Millerton Lake.
    (3) San Joaquin Valley Index. (i) The San Joaquin Valley Index is 
computed according to the following formula:

ISJ=0.6X+0.2Y and 0.2Z

where

ISJ=San Joaquin Valley Index
X=Current year's April-July San Joaquin Valley unimpaired runoff
Y=Current year's October-March San Joaquin Valley unimpaired runoff
Z=Previous year's index in MAF, not to exceed 0.9 MAF

    (ii) Measuring San Joaquin Valley unimpaired runoff. San Joaquin 
Valley unimpaired runoff for the current water year is a forecast of the 
sum of the following locations: Stanislaus River, total flow to New 
Melones Reservoir; Tuolumne River, total inflow to Don Pedro Reservoir; 
Merced River, total flow to Exchequer Reservoir; San Joaquin River, 
total inflow to Millerton Lake.
    (4) Salinity. Salinity is the total concentration of dissolved ions 
in water. It shall be measured by specific conductance in accordance 
with the procedures set forth in 40 CFR 136.3, Table 1B, Parameter 64.

[60 FR 4707, Jan. 24, 1995]

[[Page 985]]



PART 132--WATER QUALITY GUIDANCE FOR THE GREAT LAKES SYSTEM--Table of Contents




Sec.
132.1  Scope, purpose, and availability of documents.
132.2  Definitions.
132.3  Adoption of criteria.
132.4  State adoption and application of methodologies, policies and 
          procedures.
132.5  Procedures for adoption and EPA review.
132.6  Application of part 132 requirements in Great Lakes States and 
          Tribes. [Reserved]

                           Tables to Part 132

Appendix A to Part 132--Great Lakes Water Quality Initiative 
          Methodologies for Development of Aquatic Life Criteria and 
          Values
Appendix B to Part 132--Great Lakes Water Quality Initiative
Appendix C to Part 132--Great Lakes Water Quality Initiative 
          Methodologies for Development of Human Health Criteria and 
          Values
Appendix D to Part 132--Great Lakes Water Quality Initiative Methodology 
          for the Development of Wildlife Criteria
Appendix E to Part 132--Great Lakes Water Quality Initiative 
          Antidegradation Policy
Appendix F to Part 132--Great Lakes Water Quality Initiative 
          Implementation Procedures

    Authority: 33 U.S.C. 1251 et seq.

    Source: 60 FR 15387, Mar. 23, 1995, unless otherwise noted.



Sec. 132.1  Scope, purpose, and availability of documents.

    (a) This part constitutes the Water Quality Guidance for the Great 
Lakes System (Guidance) required by section 118(c)(2) of the Clean Water 
Act (33 U.S.C. 1251 et seq.) as amended by the Great Lakes Critical 
Programs Act of 1990 (Pub. L. 101-596, 104 Stat. 3000 et seq.). The 
Guidance in this part identifies minimum water quality standards, 
antidegradation policies, and implementation procedures for the Great 
Lakes System to protect human health, aquatic life, and wildlife.
    (b) The U.S. Environmental Protection Agency, Great Lakes States, 
and Great Lakes Tribes will use the Guidance in this part to evaluate 
the water quality programs of the States and Tribes to assure that they 
are protective of water quality. State and Tribal programs do not need 
to be identical to the Guidance in this part, but must contain 
provisions that are consistent with (as protective as) the Guidance in 
this part. The scientific, policy and legal basis for EPA's development 
of each section of the final Guidance in this part is set forth in the 
preamble, Supplementary Information Document, Technical Support 
Documents, and other supporting documents in the public docket. EPA will 
follow the guidance set out in these documents in reviewing the State 
and Tribal water quality programs in the Great Lakes for consistency 
with this part.
    (c) The Great Lakes States and Tribes must adopt provisions 
consistent with the Guidance in this part applicable to waters in the 
Great Lakes System or be subject to EPA promulgation of its terms 
pursuant to this part.
    (d) EPA understands that the science of risk assessment is rapidly 
improving. Therefore, to ensure that the scientific basis for the 
methodologies in appendices A through D are always current and peer 
reviewed, EPA will review the methodologies and revise them, as 
appropriate, every 3 years.
    (e) Certain documents referenced in the appendixes to this part with 
a designation of NTIS and/or ERIC are available for a fee upon request 
to the National Technical Information Center (NTIS), U.S. Department of 
Commerce, 5285 Port Royal Road, Springfield, VA 22161. Alternatively, 
copies may be obtained for a fee upon request to the Educational 
Resources Information Center/Clearinghouse for Science, Mathematics, and 
Environmental Education (ERIC/CSMEE), 1200 Chambers Road, Room 310, 
Columbus, Ohio 43212. When ordering, please include the NTIS or ERIC/
CSMEE accession number.



Sec. 132.2  Definitions.

    The following definitions apply in this part. Terms not defined in 
this section have the meaning given by the Clean Water Act and EPA 
implementing regulations.
    Acute-chronic ratio (ACR) is a standard measure of the acute 
toxicity of a material divided by an appropriate measure of the chronic 
toxicity of the

[[Page 986]]

same material under comparable conditions.
    Acute toxicity is concurrent and delayed adverse effect(s) that 
results from an acute exposure and occurs within any short observation 
period which begins when the exposure begins, may extend beyond the 
exposure period, and usually does not constitute a substantial portion 
of the life span of the organism.
    Adverse effect is any deleterious effect to organisms due to 
exposure to a substance. This includes effects which are or may become 
debilitating, harmful or toxic to the normal functions of the organism, 
but does not include non-harmful effects such as tissue discoloration 
alone or the induction of enzymes involved in the metabolism of the 
substance.
    Bioaccumulation is the net accumulation of a substance by an 
organism as a result of uptake from all environmental sources.
    Bioaccumulation factor (BAF) is the ratio (in L/kg) of a substance's 
concentration in tissue of an aquatic organism to its concentration in 
the ambient water, in situations where both the organism and its food 
are exposed and the ratio does not change substantially over time.
    Bioaccumulative chemical of concern (BCC) is any chemical that has 
the potential to cause adverse effects which, upon entering the surface 
waters, by itself or as its toxic transformation product, accumulates in 
aquatic organisms by a human health bioaccumulation factor greater than 
1000, after considering metabolism and other physicochemical properties 
that might enhance or inhibit bioaccumulation, in accordance with the 
methodology in appendix B of this part. Chemicals with half-lives of 
less than eight weeks in the water column, sediment, and biota are not 
BCCs. The minimum BAF information needed to define an organic chemical 
as a BCC is either a field-measured BAF or a BAF derived using the BSAF 
methodology. The minimum BAF information needed to define an inorganic 
chemical, including an organometal, as a BCC is either a field-measured 
BAF or a laboratory-measured BCF. BCCs include, but are not limited to, 
the pollutants identified as BCCs in section A of Table 6 of this part.
    Bioconcentration is the net accumulation of a substance by an 
aquatic organism as a result of uptake directly from the ambient water 
through gill membranes or other external body surfaces.
    Bioconcentration factor (BCF) is the ratio (in L/kg) of a 
substance's concentration in tissue of an aquatic organism to its 
concentration in the ambient water, in situations where the organism is 
exposed through the water only and the ratio does not change 
substantially over time.
    Biota-sediment accumulation factor (BSAF) is the ratio (in kg of 
organic carbon/kg of lipid) of a substance's lipid-normalized 
concentration in tissue of an aquatic organism to its organic carbon-
normalized concentration in surface sediment, in situations where the 
ratio does not change substantially over time, both the organism and its 
food are exposed, and the surface sediment is representative of average 
surface sediment in the vicinity of the organism.
    Carcinogen is a substance which causes an increased incidence of 
benign or malignant neoplasms, or substantially decreases the time to 
develop neoplasms, in animals or humans. The classification of 
carcinogens is discussed in section II.A of appendix C to part 132.
    Chronic toxicity is concurrent and delayed adverse effect(s) that 
occurs only as a result of a chronic exposure.
    Connecting channels of the Great Lakes are the Saint Mary's River, 
Saint Clair River, Detroit River, Niagara River, and Saint Lawrence 
River to the Canadian Border.
    Criterion continuous concentration (CCC) is an estimate of the 
highest concentration of a material in the water column to which an 
aquatic community can be exposed indefinitely without resulting in an 
unacceptable effect.
    Criterion maximum concentration (CMC) is an estimate of the highest 
concentration of a material in the water column to which an aquatic 
community can be exposed briefly without resulting in an unacceptable 
effect.

[[Page 987]]

    EC50 is a statistically or graphically estimated concentration that 
is expected to cause one or more specified effects in 50 percent of a 
group of organisms under specified conditions.
    Endangered or threatened species are those species that are listed 
as endangered or threatened under section 4 of the Endangered Species 
Act.
    Existing Great Lakes discharger is any building, structure, 
facility, or installation from which there is or may be a ``discharge of 
pollutants'' (as defined in 40 CFR 122.2) to the Great Lakes System, 
that is not a new Great Lakes discharger.
    Federal Indian reservation, Indian reservation, or reservation means 
all land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and including rights-of-way running through the 
reservation.
    Final acute value (FAV) is (a) a calculated estimate of the 
concentration of a test material such that 95 percent of the genera 
(with which acceptable acute toxicity tests have been conducted on the 
material) have higher GMAVs, or (b) the SMAV of an important and/or 
critical species, if the SMAV is lower than the calculated estimate.
    Final chronic value (FCV) is (a) a calculated estimate of the 
concentration of a test material such that 95 percent of the genera 
(with which acceptable chronic toxicity tests have been conducted on the 
material) have higher GMCVs, (b) the quotient of an FAV divided by an 
appropriate acute-chronic ratio, or (c) the SMCV of an important and/or 
critical species, if the SMCV is lower than the calculated estimate or 
the quotient, whichever is applicable.
    Final plant value (FPV) is the lowest plant value that was obtained 
with an important aquatic plant species in an acceptable toxicity test 
for which the concentrations of the test material were measured and the 
adverse effect was biologically important.
    Genus mean acute value (GMAV) is the geometric mean of the SMAVs for 
the genus.
    Genus mean chronic value (GMCV) is the geometric mean of the SMCVs 
for the genus.
    Great Lakes means Lake Ontario, Lake Erie, Lake Huron (including 
Lake St. Clair), Lake Michigan, and Lake Superior; and the connecting 
channels (Saint Mary's River, Saint Clair River, Detroit River, Niagara 
River, and Saint Lawrence River to the Canadian Border).
    Great Lakes States and Great Lakes Tribes, or Great Lakes States and 
Tribes means the States of Illinois, Indiana, Michigan, Minnesota, New 
York, Ohio, Pennsylvania, and Wisconsin, and any Indian Tribe as defined 
in this part which is located in whole or in part within the drainage 
basin of the Great Lakes, and for which EPA has approved water quality 
standards under section 303 of the Clean Water Act or which EPA has 
authorized to administer an NPDES program under section 402 of the Clean 
Water Act.
    Great Lakes System means all the streams, rivers, lakes and other 
bodies of water within the drainage basin of the Great Lakes within the 
United States.
    Human cancer criterion (HCC) is a Human Cancer Value (HCV) for a 
pollutant that meets the minimum data requirements for Tier I specified 
in appendix C of this part.
    Human cancer value (HCV) is the maximum ambient water concentration 
of a substance at which a lifetime of exposure from either: drinking the 
water, consuming fish from the water, and water-related recreation 
activities; or consuming fish from the water, and water-related 
recreation activities, will represent a plausible upper-bound risk of 
contracting cancer of one in 100,000 using the exposure assumptions 
specified in the Methodologies for the Development of Human Health 
Criteria and Values in appendix C of this part.
    Human noncancer criterion (HNC) is a Human Noncancer Value (HNV) for 
a pollutant that meets the minimum data requirements for Tier I 
specified in appendix C of this part.
    Human noncancer value (HNV) is the maximum ambient water 
concentration of a substance at which adverse noncancer effects are not 
likely to occur in the human population from lifetime exposure via 
either: drinking the water, consuming fish from the

[[Page 988]]

water, and water-related recreation activities; or consuming fish from 
the water, and water-related recreation activities using the 
Methodologies for the Development of Human Health Criteria and Values in 
appendix C of this part.
    Indian Tribe or Tribe means any Indian Tribe, band, group, or 
community recognized by the Secretary of the Interior and exercising 
governmental authority over a Federal Indian reservation.
    LC50 is a statistically or graphically estimated concentration that 
is expected to be lethal to 50 percent of a group of organisms under 
specified conditions.
    Load allocation (LA) is the portion of a receiving water's loading 
capacity that is attributed either to one of its existing or future 
nonpoint sources or to natural background sources, as more fully defined 
at 40 CFR 130.2(g). Nonpoint sources include: in-place contaminants, 
direct wet and dry deposition, groundwater inflow, and overland runoff.
    Loading capacity is the greatest amount of loading that a water can 
receive without violating water quality standards.
    Lowest observed adverse effect level (LOAEL) is the lowest tested 
dose or concentration of a substance which resulted in an observed 
adverse effect in exposed test organisms when all higher doses or 
concentrations resulted in the same or more severe effects.
    Method detection level is the minimum concentration of an analyte 
(substance) that can be measured and reported with a 99 percent 
confidence that the analyte concentration is greater than zero as 
determined by the procedure set forth in appendix B of 40 CFR part 136.
    Minimum Level (ML) is the concentration at which the entire 
analytical system must give a recognizable signal and acceptable 
calibration point. The ML is the concentration in a sample that is 
equivalent to the concentration of the lowest calibration standard 
analyzed by a specific analytical procedure, assuming that all the 
method-specified sample weights, volumes and processing steps have been 
followed.
    New Great Lakes discharger is any building, structure, facility, or 
installation from which there is or may be a ``discharge of pollutants'' 
(as defined in 40 CFR 122.2) to the Great Lakes System, the construction 
of which commenced after March 23, 1997.
    No observed adverse effect level (NOAEL) is the highest tested dose 
or concentration of a substance which resulted in no observed adverse 
effect in exposed test organisms where higher doses or concentrations 
resulted in an adverse effect.
    No observed effect concentration (NOEC) is the highest concentration 
of toxicant to which organisms are exposed in a full life-cycle or 
partial life-cycle (short-term) test, that causes no observable adverse 
effects on the test organisms (i.e., the highest concentration of 
toxicant in which the values for the observed responses are not 
statistically significantly different from the controls).
    Open waters of the Great Lakes (OWGLs) means all of the waters 
within Lake Erie, Lake Huron (including Lake St. Clair), Lake Michigan, 
Lake Ontario, and Lake Superior lakeward from a line drawn across the 
mouth of tributaries to the Lakes, including all waters enclosed by 
constructed breakwaters, but not including the connecting channels.
    Quantification level is a measurement of the concentration of a 
contaminant obtained by using a specified laboratory procedure 
calibrated at a specified concentration above the method detection 
level. It is considered the lowest concentration at which a particular 
contaminant can be quantitatively measured using a specified laboratory 
procedure for monitoring of the contaminant.
    Quantitative structure activity relationship (QSAR) or structure 
activity relationship (SAR) is a mathematical relationship between a 
property (activity) of a chemical and a number of descriptors of the 
chemical. These descriptors are chemical or physical characteristics 
obtained experimentally or predicted from the structure of the chemical.
    Risk associated dose (RAD) is a dose of a known or presumed 
carcinogenic substance in (mg/kg)/day which, over a lifetime of 
exposure, is estimated to be associated with a plausible upper

[[Page 989]]

bound incremental cancer risk equal to one in 100,000.
    Species mean acute value (SMAV) is the geometric mean of the results 
of all acceptable flow-through acute toxicity tests (for which the 
concentrations of the test material were measured) with the most 
sensitive tested life stage of the species. For a species for which no 
such result is available for the most sensitive tested life stage, the 
SMAV is the geometric mean of the results of all acceptable acute 
toxicity tests with the most sensitive tested life stage.
    Species mean chronic value (SMCV) is the geometric mean of the 
results of all acceptable life-cycle and partial life-cycle toxicity 
tests with the species; for a species of fish for which no such result 
is available, the SMCV is the geometric mean of all acceptable early 
life-stage tests.
    Stream design flow is the stream flow that represents critical 
conditions, upstream from the source, for protection of aquatic life, 
human health, or wildlife.
    Threshold effect is an effect of a substance for which there is a 
theoretical or empirically established dose or concentration below which 
the effect does not occur.
    Tier I criteria are numeric values derived by use of the Tier I 
methodologies in appendixes A, C and D of this part, the methodology in 
appendix B of this part, and the procedures in appendix F of this part, 
that either have been adopted as numeric criteria into a water quality 
standard or are used to implement narrative water quality criteria.
    Tier II values are numeric values derived by use of the Tier II 
methodologies in appendixes A and C of this part, the methodology in 
appendix B of this part, and the procedures in appendix F of this part, 
that are used to implement narrative water quality criteria.
    Total maximum daily load (TMDL) is the sum of the individual 
wasteload allocations for point sources and load allocations for 
nonpoint sources and natural background, as more fully defined at 40 CFR 
130.2(i). A TMDL sets and allocates the maximum amount of a pollutant 
that may be introduced into a water body and still assure attainment and 
maintenance of water quality standards.
    Tributaries of the Great Lakes System means all waters of the Great 
Lakes System that are not open waters of the Great Lakes, or connecting 
channels.
    Uncertainty factor (UF) is one of several numeric factors used in 
operationally deriving criteria from experimental data to account for 
the quality or quantity of the available data.
    Uptake is acquisition of a substance from the environment by an 
organism as a result of any active or passive process.
    Wasteload allocation (WLA) is the portion of a receiving water's 
loading capacity that is allocated to one of its existing or future 
point sources of pollution, as more fully defined at 40 CFR 130.2(h). In 
the absence of a TMDL approved by EPA pursuant to 40 CFR 130.7 or an 
assessment and remediation plan developed and approved in accordance 
with procedure 3.A of appendix F of this part, a WLA is the allocation 
for an individual point source, that ensures that the level of water 
quality to be achieved by the point source is derived from and complies 
with all applicable water quality standards.
    Wet weather point source means any discernible, confined and 
discrete conveyance from which pollutants are, or may be, discharged as 
the result of a wet weather event. Discharges from wet weather point 
sources shall include only: discharges of storm water from a municipal 
separate storm sewer as defined at 40 CFR 122.26(b)(8); storm water 
discharge associated with industrial activity as defined at 40 CFR 
122.26(b)(14); discharges of storm water and sanitary wastewaters 
(domestic, commercial, and industrial) from a combined sewer overflow; 
or any other stormwater discharge for which a permit is required under 
section 402(p) of the Clean Water Act. A storm water discharge 
associated with industrial activity which is mixed with process 
wastewater shall not be considered a wet weather point source.



Sec. 132.3  Adoption of criteria.

    The Great Lakes States and Tribes shall adopt numeric water quality 
criteria for the purposes of section 303(c) of the Clean Water Act 
applicable to

[[Page 990]]

waters of the Great Lakes System in accordance with Sec. 132.4(d) that 
are consistent with:
    (a) The acute water quality criteria for protection of aquatic life 
in Table 1 of this part, or a site-specific modification thereof in 
accordance with procedure 1 of appendix F of this part;
    (b) The chronic water quality criteria for protection of aquatic 
life in Table 2 of this part, or a site-specific modification thereof in 
accordance with procedure 1 of appendix F of this part;
    (c) The water quality criteria for protection of human health in 
Table 3 of this part, or a site-specific modification thereof in 
accordance with procedure 1 of appendix F of this part; and
    (d) The water quality criteria for protection of wildlife in Table 4 
of this part, or a site-specific modification thereof in accordance with 
procedure 1 of appendix F of this part.



Sec. 132.4  State adoption and application of methodologies, policies and procedures.

    (a) The Great Lakes States and Tribes shall adopt requirements 
applicable to waters of the Great Lakes System for the purposes of 
sections 118, 301, 303, and 402 of the Clean Water Act that are 
consistent with:
    (1) The definitions in Sec. 132.2;
    (2) The Methodologies for Development of Aquatic Life Criteria and 
Values in appendix A of this part;
    (3) The Methodology for Development of Bioaccumulation Factors in 
appendix B of this part;
    (4) The Methodologies for Development of Human Health Criteria and 
Values in appendix C of this part;
    (5) The Methodology for Development of Wildlife Criteria in appendix 
D of this part;
    (6) The Antidegradation Policy in appendix E of this part; and
    (7) The Implementation Procedures in appendix F of this part.
    (b) Except as provided in paragraphs (g), (h), and (i) of this 
section, the Great Lakes States and Tribes shall use methodologies 
consistent with the methodologies designated as Tier I methodologies in 
appendixes A, C, and D of this part, the methodology in appendix B of 
this part, and the procedures in appendix F of this part when adopting 
or revising numeric water quality criteria for the purposes of section 
303(c) of the Clean Water Act for the Great Lakes System.
    (c) Except as provided in paragraphs (g), (h), and (i) of this 
section, the Great Lakes States and Tribes shall use methodologies and 
procedures consistent with the methodologies designated as Tier I 
methodologies in appendixes A, C, and D of this part, the Tier II 
methodologies in appendixes A and C of this part, the methodology in 
appendix B of this part, and the procedures in appendix F of this part 
to develop numeric criteria and values when implementing narrative water 
quality criteria adopted for purposes of section 303(c) of the Clean 
Water Act.
    (d) The water quality criteria and values adopted or developed 
pursuant to paragraphs (a) through (c) of this section shall apply as 
follows:
    (1) The acute water quality criteria and values for the protection 
of aquatic life, or site-specific modifications thereof, shall apply to 
all waters of the Great Lakes System.
    (2) The chronic water quality criteria and values for the protection 
of aquatic life, or site-specific modifications thereof, shall apply to 
all waters of the Great Lakes System.
    (3) The water quality criteria and values for protection of human 
health, or site-specific modifications thereof, shall apply as follows:
    (i) Criteria and values derived as HCV-Drinking and HNV-Drinking 
shall apply to the Open Waters of the Great Lakes, all connecting 
channels of the Great Lakes, and all other waters of the Great Lakes 
System that have been designated as public water supplies by any State 
or Tribe in accordance with 40 CFR 131.10.
    (ii) Criteria and values derived as HCV-Nondrinking and HNV-
Nondrinking shall apply to all waters of the Great Lakes System other 
than those in paragraph (d)(3)(i) of this section.
    (4) Criteria for protection of wildlife, or site-specific 
modifications thereof, shall apply to all waters of the Great Lakes 
System.
    (e) The Great Lakes States and Tribes shall apply implementation 
procedures consistent with the procedures

[[Page 991]]

in appendix F of this part for all applicable purposes under the Clean 
Water Act, including developing total maximum daily loads for the 
purposes of section 303(d) and water quality-based effluent limits for 
the purposes of section 402, in establishing controls on the discharge 
of any pollutant to the Great Lakes System by any point source with the 
following exceptions:
    (1) The Great Lakes States and Tribes are not required to apply 
these implementation procedures in establishing controls on the 
discharge of any pollutant by a wet weather point source. Any adopted 
implementation procedures shall conform with all applicable Federal, 
State and Tribal requirements.
    (2) The Great Lakes States and Tribes may, but are not required to, 
apply procedures consistent with procedures 1, 2, 3, 4, 5, 7, 8, and 9 
of appendix F of this part in establishing controls on the discharge of 
any pollutant set forth in Table 5 of this part. Any procedures applied 
in lieu of these implementation procedures shall conform with all 
applicable Federal, State, and Tribal requirements.
    (f) The Great Lakes States and Tribes shall apply an antidegradation 
policy consistent with the policy in appendix E for all applicable 
purposes under the Clean Water Act, including 40 CFR 131.12.
    (g) For pollutants listed in Table 5 of this part, the Great Lakes 
States and Tribes shall:
    (1) Apply any methodologies and procedures acceptable under 40 CFR 
part 131 when developing water quality criteria or implementing 
narrative criteria; and
    (2) Apply the implementation procedures in appendix F of this part 
or alternative procedures consistent with all applicable Federal, State, 
and Tribal laws.
    (h) For any pollutant other than those in Table 5 of this part for 
which the State or Tribe demonstrates that a methodology or procedure in 
this part is not scientifically defensible, the Great Lakes States and 
Tribes shall:
    (1) Apply an alternative methodology or procedure acceptable under 
40 CFR part 131 when developing water quality criteria; or
    (2) Apply an alternative implementation procedure that is consistent 
with all applicable Federal, State, and Tribal laws.
    (i) Nothing in this part shall prohibit the Great Lakes States and 
Tribes from adopting numeric water quality criteria, narrative criteria, 
or water quality values that are more stringent than criteria or values 
specified in Sec. 132.3 or that would be derived from application of the 
methodologies set forth in appendixes A, B, C, and D of this part, or to 
adopt antidegradation standards and implementation procedures more 
stringent than those set forth in appendixes E and F of this part.



Sec. 132.5  Procedures for adoption and EPA review.

    (a) Except as provided in paragraph (c) of this section, the Great 
Lakes States and Tribes shall adopt and submit for EPA review and 
approval the criteria, methodologies, policies, and procedures developed 
pursuant to this part no later than September 23, 1996.
    (b) The following elements must be included in each submission to 
EPA for review:
    (1) The criteria, methodologies, policies, and procedures developed 
pursuant to this part;
    (2) Certification by the Attorney General or other appropriate legal 
authority pursuant to 40 CFR 123.62 and 40 CFR 131.6(e) as appropriate;
    (3) All other information required for submission of National 
Pollutant Discharge Elimination System (NPDES) program modifications 
under 40 CFR 123.62; and
    (4) General information which will aid EPA in determining whether 
the criteria, methodologies, policies and procedures are consistent with 
the requirements of the Clean Water Act and this part, as well as 
information on general policies which may affect their application and 
implementation.
    (c) The Regional Administrator may extend the deadline for the 
submission required in paragraph (a) of this section if the Regional 
Administrator believes that the submission will be consistent with the 
requirements of this part and can be reviewed and approved

[[Page 992]]

pursuant to this section no later than March 23, 1997.
    (d) If a Great Lakes State or Tribe makes no submission pursuant to 
this part to EPA for review, the requirements of this part shall apply 
to discharges to waters of the Great Lakes System located within the 
State or Federal Indian reservation upon EPA's publication of a final 
rule indicating the effective date of the part 132 requirements in the 
identified jurisdictions.
    (e) If a Great Lakes State or Tribe submits criteria, methodologies, 
policies, and procedures pursuant to this part to EPA for review that 
contain substantial modifications of the State or Tribal NPDES program, 
EPA shall issue public notice and provide a minimum of 30 days for 
public comment on such modifications. The public notice shall conform 
with the requirements of 40 CFR 123.62.
    (f) After review of State or Tribal submissions under this section, 
and following the public comment period in subparagraph (e) of this 
section, if any, EPA shall either:
    (1) Publish notice of approval of the submission in the Federal 
Register within 90 days of such submission; or
    (2) Notify the State or Tribe within 90 days of such submission that 
EPA has determined that all or part of the submission is inconsistent 
with the requirements of the Clean Water Act or this part and identify 
any necessary changes to obtain EPA approval. If the State or Tribe 
fails to adopt such changes within 90 days after the notification, EPA 
shall publish a notice in the Federal Register identifying the approved 
and disapproved elements of the submission and a final rule in the 
Federal Register identifying the provisions of part 132 that shall apply 
to discharges within the State or Federal Indian reservation.
    (g) EPA's approval or disapproval of a State or Tribal submission 
shall be based on the requirements of this part and of the Clean Water 
Act. EPA's determination whether the criteria, methodologies, policies, 
and procedures in a State or Tribal submission are consistent with the 
requirements of this part will be based on whether:
    (1) For pollutants listed in Tables 1, 2, 3, and 4 of this part. The 
Great Lakes State or Tribe has adopted numeric water quality criteria as 
protective as each of the numeric criteria in Tables 1, 2, 3, and 4 of 
this part, taking into account any site-specific criteria modifications 
in accordance with procedure 1 of appendix F of this part;
    (2) For pollutants other than those listed in Tables 1, 2, 3, 4, and 
5 of this part. The Great Lakes State or Tribe demonstrates that either:
    (i) It has adopted numeric criteria in its water quality standards 
that were derived, or are as protective as or more protective than could 
be derived, using the methodologies in appendixes A, B, C, and D of this 
part, and the site-specific criteria modification procedures in 
accordance with procedure 1 of appendix F of this part; or
    (ii) It has adopted a procedure by which water quality-based 
effluent limits and total maximum daily loads are developed using the 
more protective of:
    (A) Numeric criteria adopted by the State into State water quality 
standards and approved by EPA prior to March 23, 1997; or
    (B) Water quality criteria and values derived pursuant to 
Sec. 132.4(c); and
    (3) For methodologies, policies, and procedures. The Great Lakes 
State or Tribe has adopted methodologies, policies, and procedures as 
protective as the corresponding methodology, policy, or procedure in 
Sec. 132.4. The Great Lakes State or Tribe may adopt provisions that are 
more protective than those contained in this part. Adoption of a more 
protective element in one provision may be used to offset a less 
protective element in the same provision as long as the adopted 
provision is as protective as the corresponding provision in this part; 
adoption of a more protective element in one provision, however, is not 
justification for adoption of a less protective element in another 
provision of this part.
    (h) A submission by a Great Lakes State or Tribe will need to 
include any provisions that EPA determines, based on EPA's authorities 
under the Clean Water Act and the results of consultation under section 
7 of the Endangered Species Act, are necessary to ensure

[[Page 993]]

that water quality is not likely to jeopardize the continued existence 
of any endangered or threatened species listed under section 4 of the 
Endangered Species Act or result in the destruction or adverse 
modification of such species' critical habitat.
    (i) EPA's approval of the elements of a State's or Tribe's 
submission will constitute approval under section 118 of the Clean Water 
Act, approval of the submitted water quality standards pursuant to 
section 303 of the Clean Water Act, and approval of the submitted 
modifications to the State's or Tribe's NPDES program pursuant to 
section 402 of the Clean Water Act.



Sec. 132.6  Application of part 132 requirements in Great Lakes States and Tribes. [Reserved]

                           Tables to Part 132

Table 1--Acute Water Quality Criteria for Protection of Aquatic Life in 
    Ambient Water

    EPA recommends that metals criteria be expressed as dissolved 
concentrations (see appendix A, I.A.4 for more information regarding 
metals criteria).
    (a)

------------------------------------------------------------------------
                                                CMC (g/L)       factor
                                                                 (CF)
------------------------------------------------------------------------
Arsenic (III).................................  a,b 339.8         1.000
Chromium (VI).................................   a,b 16.02        0.982
Cyanide.......................................     c 22             n/a
Dieldrin......................................      d 0.24          n/a
Endrin........................................      d 0.086         n/a
Lindane.......................................      d 0.95          n/a
Mercury (II)..................................    a,b 1.694       0.85
Parathion.....................................      d 0.065         n/a
Selenium......................................   a,b 19.34        0.922
------------------------------------------------------------------------
a CMC=CMCtr.
b CMCd=(CMCtr) CF. The CMCd shall be rounded to two significant digits.
c CMC should be considered free cyanide as CN.
d CMC=CMCt.
 
Notes:
The term ``n/a'' means not applicable.
CMC is Criterion Maximum Concentration.
CMCtr is the CMC expressed as total recoverable.
CMCd is the CMC expressed as a dissolved concentration.
CMCt is the CMC expressed as a total concentration.

    (b)

------------------------------------------------------------------------
                                                              Conversion
               Chemical                     mA         bA       factor
                                                                 (CF)
------------------------------------------------------------------------
Cadmium a,b...........................     1.128     -3.6867      0.85
Chromium (III) a,b....................     0.819     +3.7256      0.316
Copper a,b............................     0.9422    -1.700       0.960
Nickel a,b............................     0.846     +2.255       0.998
Pentachlorophenol c...................     1.005     -4.869         n/a
Zinc a,b..............................     0.8473    +0.884       0.978
------------------------------------------------------------------------
a CMCtr=exp { mA [ln (hardness)]+bA}.
b CMCd=(CMCtr) CF. The CMCd shall be rounded to two significant digits.
c CMCt=exp mA { [pH]+bA}. The CMCt shall be rounded to two significant
  digits.
 
Notes:
The term ``exp'' represents the base e exponential function.
The term ``n/a'' means not applicable.
CMC is Criterion Maximum Concentration.
CMCtr is the CMC expressed as total recoverable.
CMCd is the CMC expressed as a dissolved concentration.
CMCt is the CMC expressed as a total concentration.

Table 2--Chronic Water Quality Criteria for Protection of Aquatic Life 
    in Ambient Water
    EPA recommends that metals criteria be expressed as dissolved 
concentrations (see appendix A, I.A.4 for more information regarding 
metals criteria).
    (a)

------------------------------------------------------------------------
                                                CCC (g/L)       factor
                                                                 (CF)
------------------------------------------------------------------------
Arsenic (III).................................  a,b 147.9         1.000
Chromium (VI).................................   a,b 10.98        0.962
Cyanide.......................................      c 5.2           n/a
Dieldrin......................................      d 0.056         n/a
Endrin........................................      d 0.036         n/a
Mercury (II)..................................    a,b 0.9081      0.85
Parathion.....................................      d 0.013         n/a
Selenium......................................    a,b 5           0.922
------------------------------------------------------------------------
a CCC=CCCtr.
b CCCd=(CCCtr) CF. The CCCd shall be rounded to two significant digits.
c CCC should be considered free cyanide as CN.
d CCC=CCCt.
 
Notes:
The term ``n/a'' means not applicable.
CCC is Criterion Continuous Concentration.
CCCtr is the CCC expressed as total recoverable.
CCCd is the CCC expressed as a dissolved concentration.
CCCt is the CCC expressed as a total concentration.

    (b)

------------------------------------------------------------------------
                                                              Conversion
                 Chemical                      mc       bc      factor
                                                                 (CF)
------------------------------------------------------------------------
Cadmiuma,b................................   0.7852  -2.715       0.850
Chromium (III)a,b.........................   0.819   +0.6848      0.860
Coppera,b.................................   0.8545  -1.702       0.960
Nickela,b.................................   0.846   +0.0584      0.997
Pentachlorophenolc........................   1.005   -5.134         n/a
Zinca,b...................................   0.8473  +0.884       0.986
------------------------------------------------------------------------
a CCCtr=exp { mc[ln (hardness)]+bc}.
b CCCd=(CCCtr) (CF). The CCCd shall be rounded to two significant
  digits.
c CMCt=exp { mA[pH]+bA}. The CMCt shall be rounded to two significant
  digits.
 
Notes:
The term ``exp'' represents the base e exponential function.
The term ``n/a'' means not applicable.
CCC is Criterion Continuous Concentration.
CCCtr is the CCC expressed as total recoverable.
CCCd is the CCC expressed as a dissolved concentration.
CCCt is the CCC expressed as a total concentration.


[[Page 994]]


                         Table 3--Water Quality Criteria for Protection of Human Health
----------------------------------------------------------------------------------------------------------------
                                             HNV (g/L)                      HCV (g/L)
             Chemical             ------------------------------------------------------------------------------
                                        Drinking           Nondrinking          Drinking          Nondrinking
----------------------------------------------------------------------------------------------------------------
Benzene..........................  1.9E1               5.1E2               1.2E1               3.1E2
Chlordane........................  1.4E-3              1.4E-3              2.5E-4              2.5E-4
Chlorobenzene....................  4.7E2               3.2E3
Cyanides.........................  6.0E2               4.8E4
DDT..............................  2.0E-3              2.0E-3              1.5E-4              1.5E-4
Dieldrin.........................  4.1E-4              4.1E-4              6.5E-6              6.5E-6
2,4-Dimethylphenol...............  4.5E2               8.7E3
2,4-Dinitrophenol................  5.5E1               2.8E3
Hexachlorobenzene................  4.6E-2              4.6E-2              4.5E-4              4.5E-4
Hexachloroethane.................  6.0                 7.6                 5.3                 6.7
Lindane..........................  4.7E-1              5.0E-1
Mercury 1........................  1.8E-3              1.8E-3
Methylene chloride...............  1.6E3               9.0E4               4.7E1               2.6E3
2,3,7,8-TCDD.....................  6.7E-8              6.7E-8              8.6E-9              8.6E-9
Toluene..........................  5.6E3               5.1E4
Toxaphene........................                                          6.8E-5              6.8E-5
Trichloroethylene................                                          2.9E1               3.7E2
----------------------------------------------------------------------------------------------------------------
\1\ Includes methylmercury.

[60 FR 15387, Mar. 23, 1995, as amended at 62 FR 11731, Mar. 12, 1997; 
62 FR 52924, Oct. 9, 1997]

       Table 4--Water Quality Criteria for Protection of Wildlife
------------------------------------------------------------------------
                  Chemical                     Criteria (g/L)
------------------------------------------------------------------------
DDT and metabolites........................  1.1E-5
Mercury (including methylmercury)..........  1.3E-3
PCBs (class)...............................  1.2E-4
2,3,7,8-TCDD...............................  3.1E-9
------------------------------------------------------------------------


[60 FR 15387, Mar. 23, 1995, as amended at 62 FR 11731, Mar. 12, 1997]
Table 5--Pollutants Subject to Federal, State, and Tribal Requirements

    Alkalinity
    Ammonia
    Bacteria
    Biochemical oxygen demand (BOD)
    Chlorine
    Color
    Dissolved oxygen
    Dissolved solids
    pH
    Phosphorus
    Salinity
    Temperature
    Total and suspended solids
    Turbidity

Table 6--Pollutants of Initial Focus in the Great Lakes Water Quality 
    Initiative
    A. Pollutants that are bioaccumulative chemicals of concern (BCCs):
    Chlordane
    4,4'-DDD; p,p'-DDD; 4,4'-TDE; p,p'-TDE
    4,4'-DDE; p,p'-DDE
    4,4'-DDT; p,p'-DDT
    Dieldrin
    Hexachlorobenzene
    Hexachlorobutadiene; hexachloro-1, 3-butadiene
    Hexachlorocyclohexanes; BHCs
    alpha-Hexachlorocyclohexane; alpha-BHC
    beta-Hexachlorocyclohexane; beta-BHC
    delta-Hexachlorocyclohexane; delta-BHC
    Lindane; gamma-hexachlorocyclohexane; gamma-BHC
    Mercury
    Mirex
    Octachlorostyrene
    PCBs; polychlorinated biphenyls
    Pentachlorobenzene
    Photomirex
    2,3,7,8-TCDD; dioxin
    1,2,3,4-Tetrachlorobenzene
    1,2,4,5-Tetrachlorobenzene Toxaphene
    B. Pollutants that are not bioaccumulative chemicals of concern:
    Acenaphthene
    Acenaphthylene
    Acrolein; 2-propenal
    Acrylonitrile
    Aldrin
    Aluminum
    Anthracene
    Antimony
    Arsenic
    Asbestos
    1,2-Benzanthracene; benz[a]anthracene
    Benzene
    Benzidine
    Benzo[a]pyrene; 3,4-benzopyrene
    3,4-Benzofluoranthene; benzo[b]fluoranthene
    11,12-Benzofluoranthene; benzo[k]fluoranthene
    1,12-Benzoperylene; benzo[ghi]perylene
    Beryllium
    Bis(2-chloroethoxy) methane
    Bis(2-chloroethyl) ether
    Bis(2-chloroisopropyl) ether
    Bromoform; tribomomethane
    4-Bromophenyl phenyl ether
    Butyl benzyl phthalate
    Cadmium

[[Page 995]]

    Carbon tetrachloride; tetrachloromethane
    Chlorobenzene
    p-Chloro-m-cresol; 4-chloro-3-methylphenol
    Chlorodibromomethane
    Chlorethane
    2-Chloroethyl vinyl ether
    Chloroform; trichloromethane
    2-Chloronaphthalene
    2-Chlorophenol
    4-Chlorophenyl phenyl ether
    Chlorpyrifos
    Chromium
    Chrysene
    Copper
    Cyanide
    2,4-D; 2,4-Dichlorophenoxyacetic acid
    DEHP; di(2-ethylhexyl) phthalate
    Diazinon
    1,2:5,6-Dibenzanthracene; dibenz[a,h]anthracene
    Dibutyl phthalate; di-n-butyl phthalate
    1,2-Dichlorobenzene
    1,3-Dichlorobenzene
    1,4-Dichlorobenzene
    3,3'-Dichlorobenzidine
    Dichlorobromomethane; bromodichloromethane
    1,1-Dichloroethane
    1,2-Dichloroethane
    1,1-Dichloroethylene; vinylidene chloride
    1,2-trans-Dichloroethylene
    2,4-Dichlorophenol
    1,2-Dichloropropane
    1,3-Dichloropropene; 1,3-dichloropropylene
    Diethyl phthalate
    2,4-Dimethylphenol; 2,4-xylenol
    Dimethyl phthalate
    4,6-Dinitro-o-cresol; 2-methyl-4,6-dinitrophenol
    2,4-Dinitrophenol
    2,4-Dinitrotoluene
    2,6-Dinitrotoluene
    Dioctyl phthalate; di-n-octyl phthalate
    1,2-Diphenylhydrazine
    Endosulfan; thiodan
    alpha-Endosulfan
    beta-Endosulfan
    Endosulfan sulfate
    Endrin
    Endrin aldehyde
    Ethylbenzene
    Fluoranthene
    Fluorene; 9H-fluorene
    Fluoride
    Guthion
    Heptachlor
    Heptachlor epoxide
    Hexachlorocyclopentadiene
    Hexachloroethane
    Indeno[1,2,3-cd]pyrene; 2,3-o-phenylene pyrene
    Isophorone
    Lead
    Malathion
    Methoxychlor
    Methyl bromide; bromomethane
    Methyl chloride; chloromethane
    Methylene chloride; dichloromethane
    Napthalene
    Nickel
    Nitrobenzene
    2-Nitrophenol
    4-Nitrophenol
    N-Nitrosodimethylamine
    N-Nitrosodiphenylamine
    N-Nitrosodipropylamine; N-nitrosodi-n-propylamine
    Parathion
    Pentachlorophenol
    Phenanthrene
    Phenol
    Iron
    Pyrene
    Selenium
    Silver
    1,1,2,2-Tetrachloroethane
    Tetrachloroethylene
    Thallium
    Toluene; methylbenzene
    1,2,4-Trichlorobenzene
    1,1,1-Trichloroethane
    1,1,2-Trichloroethane
    Trichloroethylene; trichloroethene
    2,4,6-Trichlorophenol
    Vinyl chloride; chloroethylene; chloroethene
    Zinc

      Appendix A to part 132--Great Lakes Water Quality Initiative 
    Methodologies for Development of Aquatic Life Criteria and Values

         Methodology for Deriving Aquatic Life Criteria: Tier I

    Great Lakes States and Tribes shall adopt provisions consistent with 
(as protective as) this appendix.

                             I. Definitions

    A. Material of Concern. When defining the material of concern the 
following should be considered:
    1. Each separate chemical that does not ionize substantially in most 
natural bodies of water should usually be considered a separate 
material, except possibly for structurally similar organic compounds 
that only exist in large quantities as commercial mixtures of the 
various compounds and apparently have similar biological, chemical, 
physical, and toxicological properties.
    2. For chemicals that ionize substantially in most natural bodies of 
water (e.g., some phenols and organic acids, some salts of phenols and 
organic acids, and most inorganic salts and coordination complexes of 
metals and metalloid), all forms that would be in chemical equilibrium 
should usually be considered one material. Each different oxidation 
state of a metal and each different non-ionizable covalently bonded 
organometallic

[[Page 996]]

compound should usually be considered a separate material.
    3. The definition of the material of concern should include an 
operational analytical component. Identification of a material simply as 
``sodium,'' for example, implies ``total sodium,'' but leaves room for 
doubt. If ``total'' is meant, it must be explicitly stated. Even 
``total'' has different operational definitions, some of which do not 
necessarily measure ``all that is there'' in all samples. Thus, it is 
also necessary to reference or describe the analytical method that is 
intended. The selection of the operational analytical component should 
take into account the analytical and environmental chemistry of the 
material and various practical considerations, such as labor and 
equipment requirements, and whether the method would require measurement 
in the field or would allow measurement after samples are transported to 
a laboratory.
    a. The primary requirements of the operational analytical component 
are that it be appropriate for use on samples of receiving water, that 
it be compatible with the available toxicity and bioaccumulation data 
without making extrapolations that are too hypothetical, and that it 
rarely result in underprotection or overprotection of aquatic organisms 
and their uses. Toxicity is the property of a material, or combination 
of materials, to adversely affect organisms.
    b. Because an ideal analytical measurement will rarely be available, 
an appropriate compromise measurement will usually have to be used. This 
compromise measurement must fit with the general approach that if an 
ambient concentration is lower than the criterion, unacceptable effects 
will probably not occur, i.e., the compromise measure must not err on 
the side of underprotection when measurements are made on a surface 
water. What is an appropriate measurement in one situation might not be 
appropriate for another. For example, because the chemical and physical 
properties of an effluent are usually quite different from those of the 
receiving water, an analytical method that is appropriate for analyzing 
an effluent might not be appropriate for expressing a criterion, and 
vice versa. A criterion should be based on an appropriate analytical 
measurement, but the criterion is not rendered useless if an ideal 
measurement either is not available or is not feasible.
    Note: The analytical chemistry of the material might have to be 
taken into account when defining the material or when judging the 
acceptability of some toxicity tests, but a criterion must not be based 
on the sensitivity of an analytical method. When aquatic organisms are 
more sensitive than routine analytical methods, the proper solution is 
to develop better analytical methods.
    4. It is now the policy of EPA that the use of dissolved metal to 
set and measure compliance with water quality standards is the 
recommended approach, because dissolved metal more closely approximates 
the bioavailable fraction of metal in the water column that does total 
recoverable metal. One reason is that a primary mechanism for water 
column toxicity is adsorption at the gill surface which requires metals 
to be in the dissolved form. Reasons for the consideration of total 
recoverable metals criteria include risk management considerations not 
covered by evaluation of water column toxicity. A risk manager may 
consider sediments and food chain effects and may decide to take a 
conservative approach for metals, considering that metals are very 
persistent chemicals. This approach could include the use of total 
recoverable metal in water quality standards. A range of different risk 
management decisions can be justified. EPA recommends that State water 
quality standards be based on dissolved metal. EPA will also approve a 
State risk management decision to adopt standards based on total 
recoverable metal, if those standards are otherwise approvable under 
this program.
    B. Acute Toxicity. Concurrent and delayed adverse effect(s) that 
results from an acute exposure and occurs within any short observation 
period which begins when the exposure begins, may extend beyond the 
exposure period, and usually does not constitute a substantial portion 
of the life span of the organism. (Concurrent toxicity is an adverse 
effect to an organism that results from, and occurs during, its exposure 
to one or more test materials.) Exposure constitutes contact with a 
chemical or physical agent. Acute exposure, however, is exposure of an 
organism for any short period which usually does not constitute a 
substantial portion of its life span.
    C. Chronic Toxicity. Concurrent and delayed adverse effect(s) that 
occurs only as a result of a chronic exposure. Chronic exposure is 
exposure of an organism for any long period or for a substantial portion 
of its life span.

                         II. Collection of Data

    A. Collect all data available on the material concerning toxicity to 
aquatic animals and plants.
    B. All data that are used should be available in typed, dated, and 
signed hard copy (e.g., publication, manuscript, letter, memorandum, 
etc.) with enough supporting information to indicate that acceptable 
test procedures were used and that the results are reliable. In some 
cases, it might be appropriate to obtain written information from the 
investigator, if possible. Information that is not available for 
distribution shall not be used.
    C. Questionable data, whether published or unpublished, must not be 
used. For example, data must be rejected if they are from tests that did 
not contain a control treatment,

[[Page 997]]

tests in which too many organisms in the control treatment died or 
showed signs of stress or disease, and tests in which distilled or 
deionized water was used as the dilution water without the addition of 
appropriate salts.
    D. Data on technical grade materials may be used if appropriate, but 
data on formulated mixtures and emulsifiable concentrates of the 
material must not be used.
    E. For some highly volatile, hydrolyzable, or degradable materials, 
it might be appropriate to use only results of flow-through tests in 
which the concentrations of test material in test solutions were 
measured using acceptable analytical methods. A flow-through test is a 
test with aquatic organisms in which test solutions flow into constant-
volume test chambers either intermittently (e.g., every few minutes) or 
continuously, with the excess flowing out.
    F. Data must be rejected if obtained using:
    1. Brine shrimp, because they usually only occur naturally in water 
with salinity greater than 35 g/kg.
    2. Species that do not have reproducing wild populations in North 
America.
    3. Organisms that were previously exposed to substantial 
concentrations of the test material or other contaminants.
    4. Saltwater species except for use in deriving acute-chronic 
ratios. An ACR is a standard measure of the acute toxicity of a material 
divided by an appropriate measure of the chronic toxicity of the same 
material under comparable conditions.
    G. Questionable data, data on formulated mixtures and emulsifiable 
concentrates, and data obtained with species non-resident to North 
America or previously exposed organisms may be used to provide auxiliary 
information but must not be used in the derivation of criteria.

                           III. Required Data

    A. Certain data should be available to help ensure that each of the 
major kinds of possible adverse effects receives adequate consideration. 
An adverse effect is a change in an organism that is harmful to the 
organism. Exposure means contact with a chemical or physical agent. 
Results of acute and chronic toxicity tests with representative species 
of aquatic animals are necessary so that data available for tested 
species can be considered a useful indication of the sensitivities of 
appropriate untested species. Fewer data concerning toxicity to aquatic 
plants are usually available because procedures for conducting tests 
with plants and interpreting the results of such tests are not as well 
developed.
    B. To derive a Great Lakes Tier I criterion for aquatic organisms 
and their uses, the following must be available:
    1. Results of acceptable acute (or chronic) tests (see section IV or 
VI of this appendix) with at least one species of freshwater animal in 
at least eight different families such that all of the following are 
included:
    a. The family Salmonidae in the class Osteichthyes;
    b. One other family (preferably a commercially or recreationally 
important, warmwater species) in the class Osteichthyes (e.g., bluegill, 
channel catfish);
    c. A third family in the phylum Chordata (e.g., fish, amphibian);
    d. A planktonic crustacean (e.g., a cladoceran, copepod);
    e. A benthic crustacean (e.g., ostracod, isopod, amphipod, 
crayfish);
    f. An insect (e.g., mayfly, dragonfly, damselfly, stonefly, 
caddisfly, mosquito, midge);
    g. A family in a phylum other than Arthropoda or Chordata (e.g., 
Rotifera, Annelida, Mollusca);
    h. A family in any order of insect or any phylum not already 
represented.
    2. Acute-chronic ratios (see section VI of this appendix) with at 
least one species of aquatic animal in at least three different families 
provided that of the three species:
    a. At least one is a fish;
    b. At least one is an invertebrate; and
    c. At least one species is an acutely sensitive freshwater species 
(the other two may be saltwater species).
    3. Results of at least one acceptable test with a freshwater algae 
or vascular plant is desirable but not required for criterion derivation 
(see section VIII of this appendix). If plants are among the aquatic 
organisms most sensitive to the material, results of a test with a plant 
in another phylum (division) should also be available.
    C. If all required data are available, a numerical criterion can 
usually be derived except in special cases. For example, derivation of a 
chronic criterion might not be possible if the available ACRs vary by 
more than a factor of ten with no apparent pattern. Also, if a criterion 
is to be related to a water quality characteristic (see sections V and 
VII of this appendix), more data will be required.
    D. Confidence in a criterion usually increases as the amount of 
available pertinent information increases. Thus, additional data are 
usually desirable.

                          IV. Final Acute Value

    A. Appropriate measures of the acute (short-term) toxicity of the 
material to a variety of species of aquatic animals are used to 
calculate the Final Acute Value (FAV). The calculated Final Acute Value 
is a calculated estimate of the concentration of a test material such 
that 95 percent of the genera (with which acceptable acute toxicity 
tests have been conducted on the material) have higher Genus Mean Acute 
Values (GMAVs). An acute test is a comparative

[[Page 998]]

study in which organisms, that are subjected to different treatments, 
are observed for a short period usually not constituting a substantial 
portion of their life span. However, in some cases, the Species Mean 
Acute Value (SMAV) of a commercially or recreationally important species 
of the Great Lakes System is lower than the calculated FAV, then the 
SMAV replaces the calculated FAV in order to provide protection for that 
important species.
    B. Acute toxicity tests shall be conducted using acceptable 
procedures. For good examples of acceptable procedures see American 
Society for Testing and Materials (ASTM) Standard E 729, Guide for 
Conducting Acute Toxicity Tests with Fishes, Macroinvertebrates, and 
Amphibians.
    C. Except for results with saltwater annelids and mysids, results of 
acute tests during which the test organisms were fed should not be used, 
unless data indicate that the food did not affect the toxicity of the 
test material. (Note: If the minimum acute-chronic ratio data 
requirements (as described in section III.B.2 of this appendix) are not 
met with freshwater data alone, saltwater data may be used.)
    D. Results of acute tests conducted in unusual dilution water, e.g., 
dilution water in which total organic carbon or particulate matter 
exceeded five mg/L, should not be used, unless a relationship is 
developed between acute toxicity and organic carbon or particulate 
matter, or unless data show that organic carbon or particulate matter, 
etc., do not affect toxicity.
    E. Acute values must be based upon endpoints which reflect the total 
severe adverse impact of the test material on the organisms used in the 
test. Therefore, only the following kinds of data on acute toxicity to 
aquatic animals shall be used:
    1. Tests with daphnids and other cladocerans must be started with 
organisms less than 24 hours old and tests with midges must be started 
with second or third instar larvae. It is preferred that the results 
should be the 48-hour EC50 based on the total percentage of organisms 
killed and immobilized. If such an EC50 is not available for a test, the 
48-hour LC50 should be used in place of the desired 48-hour EC50. An 
EC50 or LC50 of longer than 48 hours can be used as long as the animals 
were not fed and the control animals were acceptable at the end of the 
test. An EC50 is a statistically or graphically estimated concentration 
that is expected to cause one or more specified effects in 50% of a 
group of organisms under specified conditions. An LC50 is a 
statistically or graphically estimated concentration that is expected to 
be lethal to 50% of a group of organisms under specified conditions.
    2. It is preferred that the results of a test with embryos and 
larvae of barnacles, bivalve molluscs (clams, mussels, oysters and 
scallops), sea urchins, lobsters, crabs, shrimp and abalones be the 96-
hour EC50 based on the percentage of organisms with incompletely 
developed shells plus the percentage of organisms killed. If such an 
EC50 is not available from a test, of the values that are available from 
the test, the lowest of the following should be used in place of the 
desired 96-hour EC50: 48- to 96-hour EC50s based on percentage of 
organisms with incompletely developed shells plus percentage of 
organisms killed, 48- to 96-hour EC50s based upon percentage of 
organisms with incompletely developed shells, and 48-hour to 96-hour 
LC50s. (Note: If the minimum acute-chronic ratio data requirements (as 
described in section III.B.2 of this appendix) are not met with 
freshwater data alone, saltwater data may be used.)
    3. It is preferred that the result of tests with all other aquatic 
animal species and older life stages of barnacles, bivalve molluscs 
(clams, mussels, oysters and scallops), sea urchins, lobsters, crabs, 
shrimp and abalones be the 96-hour EC50 based on percentage of organisms 
exhibiting loss of equilibrium plus percentage of organisms immobilized 
plus percentage of organisms killed. If such an EC50 is not available 
from a test, of the values that are available from a test the lower of 
the following should be used in place of the desired 96-hour EC50: the 
96-hour EC50 based on percentage of organisms exhibiting loss of 
equilibrium plus percentage of organisms immobilized and the 96-hour 
LC50.
    4. Tests whose results take into account the number of young 
produced, such as most tests with protozoans, are not considered acute 
tests, even if the duration was 96 hours or less.
    5. If the tests were conducted properly, acute values reported as 
``greater than'' values and those which are above the solubility of the 
test material should be used, because rejection of such acute values 
would bias the Final Acute Value by eliminating acute values for 
resistant species.
    F. If the acute toxicity of the material to aquatic animals has been 
shown to be related to a water quality characteristic such as hardness 
or particulate matter for freshwater animals, refer to section V of this 
appendix.
    G. The agreement of the data within and between species must be 
considered. Acute values that appear to be questionable in comparison 
with other acute and chronic data for the same species and for other 
species in the same genus must not be used. For example, if the acute 
values available for a species or genus differ by more than a factor of 
10, rejection of some or all of the values would be appropriate, absent 
countervailing circumstances.
    H. If the available data indicate that one or more life stages are 
at least a factor of

[[Page 999]]

two more resistant than one or more other life stages of the same 
species, the data for the more resistant life stages must not be used in 
the calculation of the SMAV because a species cannot be considered 
protected from acute toxicity if all of the life stages are not 
protected.
    I. For each species for which at least one acute value is available, 
the SMAV shall be calculated as the geometric mean of the results of all 
acceptable flow-through acute toxicity tests in which the concentrations 
of test material were measured with the most sensitive tested life stage 
of the species. For a species for which no such result is available, the 
SMAV shall be calculated as the geometric mean of all acceptable acute 
toxicity tests with the most sensitive tested life stage, i.e., results 
of flow-through tests in which the concentrations were not measured and 
results of static and renewal tests based on initial concentrations 
(nominal concentrations are acceptable for most test materials if 
measured concentrations are not available) of test material. A renewal 
test is a test with aquatic organisms in which either the test solution 
in a test chamber is removed and replaced at least once during the test 
or the test organisms are transferred into a new test solution of the 
same composition at least once during the test. A static test is a test 
with aquatic organisms in which the solution and organisms that are in a 
test chamber at the beginning of the test remain in the chamber until 
the end of the test, except for removal of dead test organisms.

    Note 1: Data reported by original investigators must not be rounded 
off. Results of all intermediate calculations must not be rounded off to 
fewer than four significant digits.

    Note 2: The geometric mean of N numbers is the Nth root of the 
product of the N numbers. Alternatively, the geometric mean can be 
calculated by adding the logarithms of the N numbers, dividing the sum 
by N, and taking the antilog of the quotient. The geometric mean of two 
numbers is the square root of the product of the two numbers, and the 
geometric mean of one number is that number. Either natural (base e) or 
common (base 10) logarithms can be used to calculate geometric means as 
long as they are used consistently within each set of data, i.e., the 
antilog used must match the logarithms used.

    Note 3: Geometric means, rather than arithmetic means, are used here 
because the distributions of sensitivities of individual organisms in 
toxicity tests on most materials and the distributions of sensitivities 
of species within a genus are more likely to be lognormal than normal. 
Similarly, geometric means are used for ACRs because quotients are 
likely to be closer to lognormal than normal distributions. In addition, 
division of the geometric mean of a set of numerators by the geometric 
mean of the set of denominators will result in the geometric mean of the 
set of corresponding quotients.

    J. For each genus for which one or more SMAVs are available, the 
GMAV shall be calculated as the geometric mean of the SMAVs available 
for the genus.
    K. Order the GMAVs from high to low.
    L. Assign ranks, R, to the GMAVs from ``1'' for the lowest to ``N'' 
for the highest. If two or more GMAVs are identical, assign them 
successive ranks.
    M. Calculate the cumulative probability, P, for each GMAV as R/
(N+1).
    N. Select the four GMAVs which have cumulative probabilities closest 
to 0.05 (if there are fewer than 59 GMAVs, these will always be the four 
lowest GMAVs).
    O. Using the four selected GMAVs, and Ps, calculate

[[Page 1000]]

[GRAPHIC] [TIFF OMITTED] TR23MR95.104

    Note: Natural logarithms (logarithms to base e, denoted as ln) are 
used herein merely because they are easier to use on some hand 
calculators and computers than common (base 10) logarithms. Consistent 
use of either will produce the same result.
    P. If for a commercially or recreationally important species of the 
Great Lakes System the geometric mean of the acute values from flow-
through tests in which the concentrations of test material were measured 
is lower than the calculated Final Acute Value (FAV), then that 
geometric mean must be used as the FAV instead of the calculated FAV.
    Q. See section VI of this appendix.

                         V. Final Acute Equation

    A. When enough data are available to show that acute toxicity to two 
or more species is similarly related to a water quality characteristic, 
the relationship shall be taken into account as described in sections 
V.B through V.G of this appendix or using analysis of covariance. The 
two methods are equivalent and produce identical results. The manual 
method described below provides an understanding of this application of 
covariance analysis, but computerized versions of covariance analysis 
are much more convenient for analyzing large data sets. If two or more 
factors affect toxicity, multiple regression analysis shall be used.
    B. For each species for which comparable acute toxicity values are 
available at two or more different values of the water quality 
characteristic, perform a least squares regression of the acute toxicity 
values on the corresponding values of the water quality characteristic 
to obtain the slope and its 95 percent confidence limits for each 
species.
    Note: Because the best documented relationship is that between 
hardness and acute toxicity of metals in fresh water and a log-log 
relationship fits these data, geometric means and natural logarithms of 
both toxicity and water quality are used in the rest of this section. 
For relationships based on other water quality characteristics, such as 
Ph, temperature, no transformation or a different transformation might 
fit the data better, and appropriate changes will be necessary 
throughout this section.
    C. Decide whether the data for each species are relevant, taking 
into account the range and number of the tested values of the water 
quality characteristic and the degree of agreement within and between 
species. For example, a slope based on six data points might be of 
limited value if it is based only on data for a very narrow range of 
values of the water quality characteristic. A slope based on only two 
data points, however, might be useful if it is consistent with other 
information and if the two points cover a broad enough range of the 
water quality characteristic. In addition, acute values that appear to 
be questionable in comparison with other acute and chronic data 
available for the same species and for other species in the same genus 
should not be used. For example, if after adjustment for the water 
quality characteristic, the acute values available for a species or 
genus differ by more than a factor of 10, rejection of some or all of 
the values would be appropriate, absent countervailing justification. If 
useful slopes are not available for at least one fish and one 
invertebrate or if the available slopes are too dissimilar or if too few 
data are available to adequately define the relationship between acute 
toxicity and the

[[Page 1001]]

water quality characteristic, return to section IV.G of this appendix, 
using the results of tests conducted under conditions and in waters 
similar to those commonly used for toxicity tests with the species.
    D. For each species, calculate the geometric mean of the available 
acute values and then divide each of the acute values for the species by 
the geometric mean for the species. This normalizes the acute values so 
that the geometric mean of the normalized values for each species 
individually and for any combination of species is 1.0.
    E. Similarly normalize the values of the water quality 
characteristic for each species individually using the same procedure as 
above.
    F. Individually for each species perform a least squares regression 
of the normalized acute values of the water quality characteristic. The 
resulting slopes and 95 percent confidence limits will be identical to 
those obtained in section V.B. of this appendix. If, however, the data 
are actually plotted, the line of best fit for each individual species 
will go through the point 1,1 in the center of the graph.
    G. Treat all of the normalized data as if they were all for the same 
species and perform a least squares regression of all of the normalized 
acute values on the corresponding normalized values of the water quality 
characteristic to obtain the pooled acute slope, V, and its 95 percent 
confidence limits. If all of the normalized data are actually plotted, 
the line of best fit will go through the point 1,1 in the center of the 
graph.
    H. For each species calculate the geometric mean, W, of the acute 
toxicity values and the geometric mean, X, of the values of the water 
quality characteristic. (These were calculated in sections V.D and V.E 
of this appendix).
    I. For each species, calculate the logarithm, Y, of the SMAV at a 
selected value, Z, of the water quality characteristic using the 
equation:

Y=ln W-V(ln X-ln Z)

    J. For each species calculate the SMAV at X using the equation:

SMAV=eY
    Note: Alternatively, the SMAVs at Z can be obtained by skipping step 
H above, using the equations in steps I and J to adjust each acute value 
individually to Z, and then calculating the geometric mean of the 
adjusted values for each species individually. This alternative 
procedure allows an examination of the range of the adjusted acute 
values for each species.
    K. Obtain the FAV at Z by using the procedure described in sections 
IV.J through IV.O of this appendix.
    L. If, for a commercially or recreationally important species of the 
Great Lakes System the geometric mean of the acute values at Z from 
flow-through tests in which the concentrations of the test material were 
measured is lower than the FAV at Z, then the geometric mean must be 
used as the FAV instead of the FAV.
    M. The Final Acute Equation is written as:

FAV=e(V[ln(waterqualitycharacteristic)]=A-V[lnZ]),

    where:
V=pooled acute slope, and A=ln(FAV at Z).

    Because V, A, and Z are known, the FAV can be calculated for any 
selected value of the water quality characteristic.

                         VI. Final Chronic Value

    A. Depending on the data that are available concerning chronic 
toxicity to aquatic animals, the Final Chronic Value (FCV) can be 
calculated in the same manner as the FAV or by dividing the FAV by the 
Final Acute-Chronic Ratio (FACR). In some cases, it might not be 
possible to calculate a FCV. The FCV is (a) a calculated estimate of the 
concentration of a test material such that 95 percent of the genera 
(with which acceptable chronic toxicity tests have been conducted on the 
material) have higher GMCVs, or (b) the quotient of an FAV divided by an 
appropriate ACR, or (c) the SMCV of an important and/or critical 
species, if the SMCV is lower than the calculated estimate or the 
quotient, whichever is applicable.
    Note: As the name implies, the ACR is a way of relating acute and 
chronic toxicities.
    B. Chronic values shall be based on results of flow-through (except 
renewal is acceptable for daphnids) chronic tests in which the 
concentrations of test material in the test solutions were properly 
measured at appropriate times during the test. A chronic test is a 
comparative study in which organisms, that are subjected to different 
treatments, are observed for a long period or a substantial portion of 
their life span.
    C. Results of chronic tests in which survival, growth, or 
reproduction in the control treatment was unacceptably low shall not be 
used. The limits of acceptability will depend on the species.
    D. Results of chronic tests conducted in unusual dilution water, 
e.g., dilution water in which total organic carbon or particulate matter 
exceeded five mg/L, should not be used, unless a relationship is 
developed between chronic toxicity and organic carbon or particulate 
matter, or unless data show that organic carbon, particulate matter, 
etc., do not affect toxicity.
    E. Chronic values must be based on endpoints and lengths of exposure 
appropriate to the species. Therefore, only results of the following 
kinds of chronic toxicity tests shall be used:

[[Page 1002]]

    1. Life-cycle toxicity tests consisting of exposures of each of two 
or more groups of individuals of a species to a different concentration 
of the test material throughout a life cycle. To ensure that all life 
stages and life processes are exposed, tests with fish should begin with 
embryos or newly hatched young less than 48 hours old, continue through 
maturation and reproduction, and should end not less than 24 days (90 
days for salmonids) after the hatching of the next generation. Tests 
with daphnids should begin with young less than 24 hours old and last 
for not less than 21 days, and for ceriodaphnids not less than seven 
days. For good examples of acceptable procedures see American Society 
for Testing and Materials (ASTM) Standard E 1193 Guide for conducting 
renewal life-cycle toxicity tests with Daphnia magna and ASTM Standard E 
1295 Guide for conducting three-brood, renewal toxicity tests with 
Ceriodaphnia dubia. Tests with mysids should begin with young less than 
24 hours old and continue until seven days past the median time of first 
brood release in the controls. For fish, data should be obtained and 
analyzed on survival and growth of adults and young, maturation of males 
and females, eggs spawned per female, embryo viability (salmonids only), 
and hatchability. For daphnids, data should be obtained and analyzed on 
survival and young per female. For mysids, data should be obtained and 
analyzed on survival, growth, and young per female.
    2. Partial life-cycle toxicity tests consist of exposures of each of 
two more groups of individuals of a species of fish to a different 
concentration of the test material through most portions of a life 
cycle. Partial life-cycle tests are allowed with fish species that 
require more than a year to reach sexual maturity, so that all major 
life stages can be exposed to the test material in less than 15 months. 
A life-cycle test is a comparative study in which organisms, that are 
subjected to different treatments, are observed at least from a life 
stage in one generation to the same life-stage in the next generation. 
Exposure to the test material should begin with immature juveniles at 
least two months prior to active gonad development, continue through 
maturation and reproduction, and end not less than 24 days (90 days for 
salmonids) after the hatching of the next generation. Data should be 
obtained and analyzed on survival and growth of adults and young, 
maturation of males and females, eggs spawned per female, embryo 
viability (salmonids only), and hatchability.
    3. Early life-stage toxicity tests consisting of 28- to 32-day (60 
days post hatch for salmonids) exposures of the early life stages of a 
species of fish from shortly after fertilization through embryonic, 
larval, and early juvenile development. Data should be obtained and 
analyzed on survival and growth.
    Note: Results of an early life-stage test are used as predictions of 
results of life-cycle and partial life-cycle tests with the same 
species. Therefore, when results of a life-cycle or partial life-cycle 
test are available, results of an early life-stage test with the same 
species should not be used. Also, results of early life-stage tests in 
which the incidence of mortalities or abnormalities increased 
substantially near the end of the test shall not be used because the 
results of such tests are possibly not good predictions of comparable 
life-cycle or partial life-cycle tests.
    F. A chronic value may be obtained by calculating the geometric mean 
of the lower and upper chronic limits from a chronic test or by 
analyzing chronic data using regression analysis.
    1. A lower chronic limit is the highest tested concentration:
    a. In an acceptable chronic test;
    b. Which did not cause an unacceptable amount of adverse effect on 
any of the specified biological measurements; and
    c. Below which no tested concentration caused an unacceptable 
effect.
    2. An upper chronic limit is the lowest tested concentration:
    a. In an acceptable chronic test;
    b. Which did cause an unacceptable amount of adverse effect on one 
or more of the specified biological measurements; and,
    c. Above which all tested concentrations also caused such an effect.
    Note: Because various authors have used a variety of terms and 
definitions to interpret and report results of chronic tests, reported 
results should be reviewed carefully. The amount of effect that is 
considered unacceptable is often based on a statistical hypothesis test, 
but might also be defined in terms of a specified percent reduction from 
the controls. A small percent reduction (e.g., three percent) might be 
considered acceptable even if it is statistically significantly 
different from the control, whereas a large percent reduction (e.g., 30 
percent) might be considered unacceptable even if it is not 
statistically significant.
    G. If the chronic toxicity of the material to aquatic animals has 
been shown to be related to a water quality characteristic such as 
hardness or particulate matter for freshwater animals, refer to section 
VII of this appendix.
    H. If chronic values are available for species in eight families as 
described in section III.B.1 of this appendix, a SMCV shall be 
calculated for each species for which at least one chronic value is 
available by calculating the geometric mean of the results of all 
acceptable life-cycle and partial life-cycle toxicity tests with the 
species; for a species of fish for which no such result is available, 
the

[[Page 1003]]

SMCV is the geometric mean of all acceptable early life-stage tests. 
Appropriate GMCVs shall also be calculated. A GMCV is the geometric mean 
of the SMCVs for the genus. The FCV shall be obtained using the 
procedure described in sections IV.J through IV.O of this appendix, 
substituting SMCV and GMCV for SMAV and GMAV respectively. See section 
VI.M of this appendix.
    Note: Section VI.I through VI.L are for use when chronic values are 
not available for species in eight taxonomic families as described in 
section III.B.1 of this appendix.
    I. For each chronic value for which at least one corresponding 
appropriate acute value is available, calculate an ACR, using for the 
numerator the geometric mean of the results of all acceptable flow-
through (except static is acceptable for daphnids and midges) acute 
tests in the same dilution water in which the concentrations are 
measured. For fish, the acute test(s) should be conducted with 
juveniles. The acute test(s) should be part of the same study as the 
chronic test. If acute tests were not conducted as part of the same 
study, but were conducted as part of a different study in the same 
laboratory and dilution water, then they may be used. If no such acute 
tests are available, results of acute tests conducted in the same 
dilution water in a different laboratory may be used. If no such acute 
tests are available, an ACR shall not be calculated.
    J. For each species, calculate the SMACR as the geometric mean of 
all ACRs available for that species. If the minimum ACR data 
requirements (as described in section III.B.2 of this appendix) are not 
met with freshwater data alone, saltwater data may be used along with 
the freshwater data.
    K. For some materials, the ACR seems to be the same for all species, 
but for other materials the ratio seems to increase or decrease as the 
SMAV increases. Thus the FACR can be obtained in three ways, depending 
on the data available:
    1. If the species mean ACR seems to increase or decrease as the 
SMAVs increase, the FACR shall be calculated as the geometric mean of 
the ACRs for species whose SMAVs are close to the FAV.
    2. If no major trend is apparent and the ACRs for all species are 
within a factor of ten, the FACR shall be calculated as the geometric 
mean of all of the SMACRs.
    3. If the most appropriate SMACRs are less than 2.0, and especially 
if they are less than 1.0, acclimation has probably occurred during the 
chronic test. In this situation, because continuous exposure and 
acclimation cannot be assured to provide adequate protection in field 
situations, the FACR should be assumed to be two, so that the FCV is 
equal to the Criterion Maximum Concentration (CMC). (See section X.B of 
this appendix.)
    If the available SMACRs do not fit one of these cases, a FACR may 
not be obtained and a Tier I FCV probably cannot be calculated.
    L. Calculate the FCV by dividing the FAV by the FACR.
    FCV=FAVFACR
If there is a Final Acute Equation rather than a FAV, see also section V 
of this appendix.
    M. If the SMCV of a commercially or recreationally important species 
of the Great Lakes System is lower than the calculated FCV, then that 
SMCV must be used as the FCV instead of the calculated FCV.
    N. See section VIII of this appendix.

                       VII. Final Chronic Equation

    A. A Final Chronic Equation can be derived in two ways. The 
procedure described in section VII.A of this appendix will result in the 
chronic slope being the same as the acute slope. The procedure described 
in sections VII.B through N of this appendix will usually result in the 
chronic slope being different from the acute slope.
    1. If ACRs are available for enough species at enough values of the 
water quality characteristic to indicate that the ACR appears to be the 
same for all species and appears to be independent of the water quality 
characteristic, calculate the FACR as the geometric mean of the 
available SMACRs.
    2. Calculate the FCV at the selected value Z of the water quality 
characteristic by dividing the FAV at Z (see section V.M of this 
appendix) by the FACR.
    3. Use V=pooled acute slope (see section V.M of this appendix), and
    L=pooled chronic slope.
    4. See section VII.M of this appendix.
    B. When enough data are available to show that chronic toxicity to 
at least one species is related to a water quality characteristic, the 
relationship should be taken into account as described in sections C 
through G below or using analysis of covariance. The two methods are 
equivalent and produce identical results. The manual method described 
below provides an understanding of this application of covariance 
analysis, but computerized versions of covariance analysis are much more 
convenient for analyzing large data sets. If two or more factors affect 
toxicity, multiple regression analysis shall be used.
    C. For each species for which comparable chronic toxicity values are 
available at two or more different values of the water quality 
characteristic, perform a least squares regression of the chronic 
toxicity values on the corresponding values of the water quality 
characteristic to obtain the slope and its 95 percent confidence limits 
for each species.
    Note: Because the best documented relationship is that between 
hardness and acute toxicity of metals in fresh water and a log-

[[Page 1004]]

log relationship fits these data, geometric means and natural logarithms 
of both toxicity and water quality are used in the rest of this section. 
For relationships based on other water quality characteristics, such as 
Ph, temperature, no transformation or a different transformation might 
fit the data better, and appropriate changes will be necessary 
throughout this section. It is probably preferable, but not necessary, 
to use the same transformation that was used with the acute values in 
section V of this appendix.
    D. Decide whether the data for each species are relevant, taking 
into account the range and number of the tested values of the water 
quality characteristic and the degree of agreement within and between 
species. For example, a slope based on six data points might be of 
limited value if it is based only on data for a very narrow range of 
values of the water quality characteristic. A slope based on only two 
data points, however, might be more useful if it is consistent with 
other information and if the two points cover a broad range of the water 
quality characteristic. In addition, chronic values that appear to be 
questionable in comparison with other acute and chronic data available 
for the same species and for other species in the same genus in most 
cases should not be used. For example, if after adjustment for the water 
quality characteristic, the chronic values available for a species or 
genus differ by more than a factor of 10, rejection of some or all of 
the values is, in most cases, absent countervailing circumstances, 
appropriate. If a useful chronic slope is not available for at least one 
species or if the available slopes are too dissimilar or if too few data 
are available to adequately define the relationship between chronic 
toxicity and the water quality characteristic, it might be appropriate 
to assume that the chronic slope is the same as the acute slope, which 
is equivalent to assuming that the ACR is independent of the water 
quality characteristic. Alternatively, return to section VI.H of this 
appendix, using the results of tests conducted under conditions and in 
waters similar to those commonly used for toxicity tests with the 
species.
    E. Individually for each species, calculate the geometric mean of 
the available chronic values and then divide each chronic value for a 
species by the mean for the species. This normalizes the chronic values 
so that the geometric mean of the normalized values for each species 
individually, and for any combination of species, is 1.0.
    F. Similarly, normalize the values of the water quality 
characteristic for each species individually.
    G. Individually for each species, perform a least squares regression 
of the normalized chronic toxicity values on the corresponding 
normalized values of the water quality characteristic. The resulting 
slopes and the 95 percent confidence limits will be identical to those 
obtained in section VII.B of this appendix. Now, however, if the data 
are actually plotted, the line of best fit for each individual species 
will go through the point 1,1 in the center of the graph.
    H. Treat all of the normalized data as if they were all the same 
species and perform a least squares regression of all of the normalized 
chronic values on the corresponding normalized values of the water 
quality characteristic to obtain the pooled chronic slope, L, and its 95 
percent confidence limits.
    If all normalized data are actually plotted, the line of best fit 
will go through the point 1,1 in the center of the graph.
    I. For each species, calculate the geometric mean, M, of the 
toxicity values and the geometric mean, P, of the values of the water 
quality characteristic. (These are calculated in sections VII.E and F of 
this appendix.)
    J. For each species, calculate the logarithm, Q, of the SMCV at a 
selected value, Z, of the water quality characteristic using the 
equation:

Q=ln M--L(ln P-ln Z)
    Note: Although it is not necessary, it is recommended that the same 
value of the water quality characteristic be used here as was used in 
section V of this appendix.
    K. For each species, calculate a SMCV at Z using the equation:

SMCV=eQ
    Note: Alternatively, the SMCV at Z can be obtained by skipping 
section VII.J of this appendix, using the equations in sections VII.J 
and K of this appendix to adjust each chronic value individually to Z, 
and then calculating the geometric means of the adjusted values for each 
species individually. This alternative procedure allows an examination 
of the range of the adjusted chronic values for each species.
    L. Obtain the FCV at Z by using the procedure described in sections 
IV.J through O of this appendix.
    M. If the SMCV at Z of a commercially or recreationally important 
species of the Great Lakes System is lower than the calculated FCV at Z, 
then that SMCV shall be used as the FCV at Z instead of the calculated 
FCV.
    N. The Final Chronic Equation is written as:

FCV=e(L[ln(waterqualitycharacteristic)]=lnS-L[lnZ])

Where:

L=pooled chronic slope and S = FCV at Z.

    Because L, S, and Z are known, the FCV can be calculated for any 
selected value of the water quality characteristic.

[[Page 1005]]

                         VIII. Final Plant Value

    A. A Final Plant Value (FPV) is the lowest plant value that was 
obtained with an important aquatic plant species in an acceptable 
toxicity test for which the concentrations of the test material were 
measured and the adverse effect was biologically important. Appropriate 
measures of the toxicity of the material to aquatic plants are used to 
compare the relative sensitivities of aquatic plants and animals. 
Although procedures for conducting and interpreting the results of 
toxicity tests with plants are not well-developed, results of tests with 
plants usually indicate that criteria which adequately protect aquatic 
animals and their uses will, in most cases, also protect aquatic plants 
and their uses.
    B. A plant value is the result of a 96-hour test conducted with an 
alga or a chronic test conducted with an aquatic vascular plant.
    Note: A test of the toxicity of a metal to a plant shall not be used 
if the medium contained an excessive amount of a complexing agent, such 
as EDTA, that might affect the toxicity of the metal. Concentrations of 
EDTA above 200  g/L should be considered excessive.
    C. The FPV shall be obtained by selecting the lowest result from a 
test with an important aquatic plant species in which the concentrations 
of test material are measured and the endpoint is biologically 
important.

                             IX. Other Data

    Pertinent information that could not be used in earlier sections 
might be available concerning adverse effects on aquatic organisms. The 
most important of these are data on cumulative and delayed toxicity, 
reduction in survival, growth, or reproduction, or any other adverse 
effect that has been shown to be biologically important. Delayed 
toxicity is an adverse effect to an organism that results from, and 
occurs after the end of, its exposure to one or more test materials. 
Especially important are data for species for which no other data are 
available. Data from behavioral, biochemical, physiological, microcosm, 
and field studies might also be available. Data might be available from 
tests conducted in unusual dilution water (see sections IV.D and VI.D of 
this appendix), from chronic tests in which the concentrations were not 
measured (see section VI.B of this appendix), from tests with previously 
exposed organisms (see section II.F.3 of this appendix), and from tests 
on formulated mixtures or emulsifiable concentrates (see section II.D of 
this appendix). Such data might affect a criterion if the data were 
obtained with an important species, the test concentrations were 
measured, and the endpoint was biologically important.

                              X. Criterion

    A. A criterion consists of two concentrations: the CMC and the 
Criterion Continuous Concentration (CCC).
    B. The CMC is equal to one-half the FAV. The CMC is an estimate of 
the highest concentration of a material in the water column to which an 
aquatic community can be exposed briefly without resulting in an 
unacceptable effect.
    C. The CCC is equal to the lowest of the FCV or the FPV (if 
available) unless other data (see section IX of this appendix) show that 
a lower value should be used. The CCC is an estimate of the highest 
concentration of a material in the water column to which an aquatic 
community can be exposed indefinitely without resulting in an 
unacceptable effect. If toxicity is related to a water quality 
characteristic, the CCC is obtained from the Final Chronic Equation or 
FPV (if available) that results in the lowest concentrations in the 
usual range of the water quality characteristic, unless other data (see 
section IX) show that a lower value should be used.
    D. Round both the CMC and the CCC to two significant digits.
    E. The criterion is stated as:
    The procedures described in the Tier I methodology indicate that, 
except possibly where a commercially or recreationally important species 
is very sensitive, aquatic organisms should not be affected unacceptably 
if the four-day average concentration of (1) does not exceed (2) 
 g/L more than once every three years on the average and if the 
one-hour average concentration does not exceed (3)  g/L more 
than once every three years on the average.
Where:

(1) = insert name of material
(2) = insert the CCC
(3) = insert the CMC

    If the CMC averaging period of one hour or the CCC averaging period 
of four days is inappropriate for the pollutant, or if the once-in-
three-year allowable excursion frequency is inappropriate for the 
pollutant or for the sites to which a criterion is applied, then the 
State may specify alternative averaging periods or frequencies. The 
choice of an alternative averaging period or frequency shall be 
justified by a scientifically defensible analysis demonstrating that the 
alternative values will protect the aquatic life uses of the water. 
Appropriate laboratory data and/or well-designed field biological 
surveys shall be submitted to EPA as justification for differing 
averaging periods and/or frequencies of exceedance.

                            XI. Final Review

    A. The derivation of the criterion should be carefully reviewed by 
rechecking each

[[Page 1006]]

step of the Guidance in this part. Items that should be especially 
checked are:
    1. If unpublished data are used, are they well documented?
    2. Are all required data available?
    3. Is the range of acute values for any species greater than a 
factor of 10?
    4. Is the range of SMAVs for any genus greater than a factor of 10?
    5. Is there more than a factor of 10 difference between the four 
lowest GMAVs?
    6. Are any of the lowest GMAVs questionable?
    7. Is the FAV reasonable in comparison with the SMAVs and GMAVs?
    8. For any commercially or recreationally important species of the 
Great Lakes System, is the geometric mean of the acute values from flow-
through tests in which the concentrations of test material were measured 
lower than the FAV?
    9. Are any of the chronic values used questionable?
    10. Are any chronic values available for acutely sensitive species?
    11. Is the range of acute-chronic ratios greater than a factor of 
10?
    12. Is the FCV reasonable in comparison with the available acute and 
chronic data?
    13. Is the measured or predicted chronic value for any commercially 
or recreationally important species of the Great Lakes System below the 
FCV?
    14. Are any of the other data important?
    15. Do any data look like they might be outliers?
    16. Are there any deviations from the Guidance in this part? Are 
they acceptable?
    B. On the basis of all available pertinent laboratory and field 
information, determine if the criterion is consistent with sound 
scientific evidence. If it is not, another criterion, either higher or 
lower, shall be derived consistent with the Guidance in this part.

          Methodology for Deriving Aquatic Life Values: Tier II

                       XII. Secondary Acute Value

    If all eight minimum data requirements for calculating an FAV using 
Tier I are not met, a Secondary Acute Value (SAV) for the waters of the 
Great Lakes System shall be calculated for a chemical as follows:
    To calculate a SAV, the lowest GMAV in the database is divided by 
the Secondary Acute Factor (SAF) (Table A-1 of this appendix) 
corresponding to the number of satisfied minimum data requirements 
listed in the Tier I methodology (section III.B.1 of this appendix). 
(Requirements for definitions, data collection and data review, 
contained in sections I, II, and IV shall be applied to calculation of a 
SAV.) If all eight minimum data requirements are satisfied, a Tier I 
criterion calculation may be possible. In order to calculate a SAV, the 
database must contain, at a minimum, a genus mean acute value (GMAV) for 
one of the following three genera in the family Daphnidae--Ceriodaphnia 
sp., Daphnia sp., or Simocephalus sp.
    If appropriate, the SAV shall be made a function of a water quality 
characteristic in a manner similar to that described in Tier I.

                   XIII. Secondary Acute-Chronic Ratio

    If three or more experimentally determined ACRs, meeting the data 
collection and review requirements of Section VI of this appendix, are 
available for the chemical, determine the FACR using the procedure 
described in Section VI. If fewer than three acceptable experimentally 
determined ACRs are available, use enough assumed ACRs of 18 so that the 
total number of ACRs equals three. Calculate the Secondary Acute-Chronic 
Ratio (SACR) as the geometric mean of the three ACRs. Thus, if no 
experimentally determined ACRs are available, the SACR is 18.

                      XIV. Secondary Chronic Value

    Calculate the Secondary Chronic Value (SCV) using one of the 
following:
[GRAPHIC] [TIFF OMITTED] TR23MR95.099

    If appropriate, the SCV will be made a function of a water quality 
characteristic in a manner similar to that described in Tier I.

          XV. Commercially or Recreationally Important Species

    If for a commercially or recreationally important species of the 
Great Lakes System the geometric mean of the acute values or chronic 
values from flow-through tests in which the concentrations of the test 
materials were measured is lower than the calculated SAV or SCV, then 
that geometric mean must be used as the SAV or SCV instead of the 
calculated SAV or SCV.

                           XVI. Tier II Value

    A. A Tier II value shall consist of two concentrations: the 
Secondary Maximum Concentration (SMC) and the Secondary Continuous 
Concentration (SCC).

[[Page 1007]]

    B. The SMC is equal to one-half of the SAV.
    C. The SCC is equal to the lowest of the SCV or the Final Plant 
Value, if available, unless other data (see section IX of this appendix) 
show that a lower value should be used.
    If toxicity is related to a water quality characteristic, the SCC is 
obtained from the Secondary Chronic Equation or FPV, if available, that 
results in the lowest concentrations in the usual range of the water 
quality characteristic, unless other data (See section IX of this 
appendix) show that a lower value should be used.
    D. Round both the SMC and the SCC to two significant digits.
    E. The Tier II value is stated as:
    The procedures described in the Tier II methodology indicate that, 
except possibly where a locally important species is very sensitive, 
aquatic organisms should not be affected unacceptably if the four-day 
average concentration of (1) does not exceed (2)  g/L more than 
once every three years on the average and if the one-hour average 
concentration does not exceed (3)  g/L more than once every 
three years on the average.

Where:

(1) = insert name of material
(2) = insert the SCC
(3) = insert the SMC

    As discussed above, States and Tribes have the discretion to specify 
alternative averaging periods or frequencies (see section X.E. of this 
appendix).

                     XVII. Appropriate Modifications

    On the basis of all available pertinent laboratory and field 
information, determine if the Tier II value is consistent with sound 
scientific evidence. If it is not, another value, either higher or 
lower, shall be derived consistent with the Guidance in this part.

                   Table A-1-- Secondary Acute Factors
------------------------------------------------------------------------
                                                              Adjustment
        Number of minimum data requirements satisfied           factor
------------------------------------------------------------------------
1...........................................................        21.9
2...........................................................        13.0
3...........................................................         8.0
4...........................................................         7.0
5...........................................................         6.1
6...........................................................         5.2
7...........................................................         4.3
------------------------------------------------------------------------

      Appendix B to Part 132--Great Lakes Water Quality Initiative

            Methodology for Deriving Bioaccumulation Factors

    Great Lakes States and Tribes shall adopt provisions consistent with 
(as protective as) this appendix.

                             I. Introduction

    A. The purpose of this methodology is to describe procedures for 
deriving bioaccumulation factors (BAFs) to be used in the calculation of 
Great Lakes Water Quality Guidance (Guidance) human health Tier I 
criteria and Tier II values and wildlife Tier I criteria. A subset of 
the human health BAFs are also used to identify the chemicals that are 
considered bioaccumulative chemicals of concern (BCCs).
    B. Bioaccumulation reflects uptake of a substance by aquatic 
organisms exposed to the substance through all routes (i.e., ambient 
water and food), as would occur in nature. Bioconcentration reflects 
uptake of a substance by aquatic organisms exposed to the substance only 
through the ambient water. Both BAFs and bioconcentration factors (BCFs) 
are proportionality constants that describe the relationship between the 
concentration of a substance in aquatic organisms and its concentration 
in the ambient water. For the Guidance in this part, BAFs, rather than 
BCFs, are used to calculate Tier I criteria for human health and 
wildlife and Tier II values for human health because they better account 
for the total exposure of aquatic organisms to chemicals.
    C. For organic chemicals, baseline BAFs can be derived using four 
methods. Measured baseline BAFs are derived from field-measured BAFs; 
predicted baseline BAFs are derived using biota-sediment accumulation 
factors (BSAFs) or are derived by multiplying a laboratory-measured or 
predicted BCF by a food-chain multiplier (FCM). The lipid content of the 
aquatic organisms is used to account for partitioning of organic 
chemicals within organisms so that data from different tissues and 
species can be integrated. In addition, the baseline BAF is based on the 
concentration of freely dissolved organic chemicals in the ambient water 
to facilitate extrapolation from one water to another.
    D. For inorganic chemicals, baseline BAFs can be derived using two 
of the four methods. Baseline BAFs are derived using either field-
measured BAFs or by multiplying laboratory-measured BCFs by a FCM. For 
inorganic chemicals, BAFs are assumed to equal BCFs (i.e., the FCM is 
1.0), unless chemical-specific biomagnification data support using a FCM 
other than 1.0.
    E. Because both humans and wildlife consume fish from both trophic 
levels 3 and 4,

[[Page 1008]]

two baseline BAFs are needed to calculate either a human health 
criterion or value or a wildlife criterion for a chemical. When 
appropriate, ingestion through consumption of invertebrates, plants, 
mammals, and birds in the diet of wildlife species to be protected may 
be taken into account.

                             II. Definitions

    Baseline BAF. For organic chemicals, a BAF that is based on the 
concentration of freely dissolved chemical in the ambient water and 
takes into account the partitioning of the chemical within the organism; 
for inorganic chemicals, a BAF that is based on the wet weight of the 
tissue.
    Baseline BCF. For organic chemicals, a BCF that is based on the 
concentration of freely dissolved chemical in the ambient water and 
takes into account the partitioning of the chemical within the organism; 
for inorganic chemicals, a BCF that is based on the wet weight of the 
tissue.
    Bioaccumulation. The net accumulation of a substance by an organism 
as a result of uptake from all environmental sources.
    Bioaccumulation factor (BAF). The ratio (in L/kg) of a substance's 
concentration in tissue of an aquatic organism to its concentration in 
the ambient water, in situations where both the organism and its food 
are exposed to and the ratio does not change substantially over time.
    Bioconcentration. The net accumulation of a substance by an aquatic 
organism as a result of uptake directly from the ambient water through 
gill membranes or other external body surfaces.
    Bioconcentration factor (BCF). The ratio (in L/kg) of a substance's 
concentration in tissue of an aquatic organism to its concentration in 
the ambient water, in situations where the organism is exposed through 
the water only and the ratio does not change substantially over time.
    Biota-sediment accumulation factor (BSAF). The ratio (in kg of 
organic carbon/kg of lipid) of a substance's lipid-normalized 
concentration in tissue of an aquatic organism to its organic carbon-
normalized concentration in surface sediment, in situations where the 
ratio does not change substantially over time, both the organism and its 
food are exposed, and the surface sediment is representative of average 
surface sediment in the vicinity of the organism.
    Depuration. The loss of a substance from an organism as a result of 
any active or passive process.
    Food-chain multiplier (FCM). The ratio of a BAF to an appropriate 
BCF.
    Octanol-water partition coefficient (KOW). The ration of 
the concentration of a substance in the n-octanol phase to its 
concentration in the aqueous phase in an equilibrated two-phase octanol-
water system. For log KOW, the log of the octanol-water 
partition coefficient is a base 10 logarithm.
    Uptake. Acquisition of a substance from the environment by an 
organism as a result of any active or passive process.

                    III. Review and Selection of Data

    A. Data Sources. Measured BAFs, BSAFs and BCFs are assembled from 
available sources including the following:
    1. EPA Ambient Water Quality Criteria documents issued after January 
1, 1980.
    2. Published scientific literature.
    3. Reports issued by EPA or other reliable sources.
    4. Unpublished data.
    One useful source of references is the Aquatic Toxicity Information 
Retrieval (AQUIRE) database.
    B. Field-Measured BAFs. The following procedural and quality 
assurance requirements shall be met for field-measured BAFs:
    1. The field studies used shall be limited to those conducted in the 
Great Lakes System with fish at or near the top of the aquatic food 
chain (i.e., in trophic levels 3 and/or 4).
    2. The trophic level of the fish species shall be determined.
    3. The site of the field study should not be so unique that the BAF 
cannot be extrapolated to other locations where the criteria and values 
will apply.
    4. For organic chemicals, the percent lipid shall be either measured 
or reliably estimated for the tissue used in the determination of the 
BAF.
    5. The concentration of the chemical in the water shall be measured 
in a way that can be related to particulate organic carbon (POC) and/or 
dissolved organic carbon (DOC) and should be relatively constant during 
the steady-state time period.
    6. For organic chemicals with log Kow greater than four, 
the concentrations of POC and DOC in the ambient water shall be either 
measured or reliably estimated.
    7. For inorganic and organic chemicals, BAFs shall be used only if 
they are expressed on a wet weight basis; BAFs reported on a dry weight 
basis cannot be converted to wet weight unless a conversion factor is 
measured or reliably estimated for the tissue used in the determination 
of the BAF.
    C. Field-Measured BSAFs. The following procedural and quality 
assurance requirements shall be met for field-measured BSAFs:
    1. The field studies used shall be limited to those conducted in the 
Great Lakes System with fish at or near the top of the aquatic food 
chain (i.e., in trophic levels 3 and/or 4).
    2. Samples of surface sediments (0-1 cm is ideal) shall be from 
locations in which there is net deposition of fine sediment and is 
representative of average surface sediment in the vicinity of the 
organism.

[[Page 1009]]

    3. The Kow s used shall be acceptable quality as 
described in section III.F below.
    4. The site of the field study should not be so unique that the 
resulting BAF cannot be extrapolated to other locations where the 
criteria and values will apply.
    5. The tropic level of the fish species shall be determined.
    6. The percent lipid shall be either measured or reliably estimated 
for the tissue used in the determination of the BAF.
    D. Laboratory-Measured BCFs. The following procedural and quality 
assurance requirements shall be met for laboratory-measured BCFs:
    1. The test organism shall not be diseased, unhealthy, or adversely 
affected by the concentration of the chemical.
    2. The total concentration of the chemical in the water shall be 
measured and should be relatively constant during the steady-state time 
period.
    3. The organisms shall be exposed to the chemical using a flow-
through or renewal procedure.
    4. For organic chemicals, the percent lipid shall be either measured 
or reliably estimated for the tissue used in the determination of the 
BCF.
    5. For organic chemicals with log Kow greater than four, 
the concentrations of POC and DOC in the test solution shall be either 
measured or reliably estimated.
    6. Laboratory-measured BCFs should be determined using fish species, 
but BCFs determined with molluscs and other invertebrates may be used 
with caution. For example, because invertebrates metabolize some 
chemicals less efficiently than vertebrates, a baseline BCF determined 
for such a chemical using invertebrates is expected to be higher than a 
comparable baseline BCF determined using fish.
    7. If laboratory-measured BCFs increase or decrease as the 
concentration of the chemical increases in the test solutions in a 
bioconcentration test, the BCF measured at the lowest test concentration 
that is above concentrations existing in the control water shall be used 
(i.e., a BCF should be calculated from a control treatment). The 
concentrations of an inorganic chemical in a bioconcentration test 
should be greater than normal background levels and greater than levels 
required for normal nutrition of the test species if the chemical is a 
micronutrient, but below levels that adversely affect the species. 
Bioaccummulation of an inorganic chemical might be overestimated if 
concentrations are at or below normal background levels due to, for 
example, nutritional requirements of the test organisms.
    8. For inorganic and organic chemicals, BCFs shall be used only if 
they are expressed on a wet weight basis. BCFs reported on a dry weight 
basis cannot be converted to wet weight unless a conversion factor is 
measured or reliably estimated for the tissue used in the determination 
of the BAF.
    9. BCFs for organic chemicals may be based on measurement or 
radioactivity only when the BCF is intended to include metabolites or 
when there is confidence that there is no interference due to 
metabolites.
    10. The calculation of the BCF must appropriately address growth 
dilution.
    11. Other aspects of the methodology used should be similar to those 
described by ASTM (1990).
    E. Predicted BCFs. The following procedural and quality assurance 
requirements shall be met for predicted BCFs:
    1. The Kow used shall be of acceptable quality as 
described in section III.F below.
    2. The predicted baseline BCF shall be calculated using the 
equation: predicted baseline BCF = Kow
    where:
    Kow = octanol-water partition coefficient.
    F. Octanol-Water Partition Coefficient (Kow). 1. The 
value of Kow used for an organic chemical shall be determined 
by giving priority to the experimental and computational techniques used 
as follows:
    Log Kow  4:

------------------------------------------------------------------------
                 Priority                             Technique
------------------------------------------------------------------------
1.........................................  Slow-stir.
1.........................................  Generator-column.
1.........................................  Shake-flask.
2.........................................  Reverse-phase liquid
                                             chromatography on C18
                                             chromatography packing with
                                             extrapolation to zero
                                             percent solvent.
3.........................................  Reverse-phase liquid
                                             chromatography on C18
                                             chromatography packing
                                             without extrapolation to
                                             zero percent solvent.
4.........................................  Calculated by the CLOGP
                                             program.
------------------------------------------------------------------------

    Log Kow > 4:

------------------------------------------------------------------------
             Priority                             Technique
------------------------------------------------------------------------
1.................................  Slow Stir.
1.................................  Generator-column.
2.................................  Reverse-phase liquid chromatography
                                     on C18 chromatography packing with
                                     extrapolation to zero percent
                                     solvent.
3.................................  Reverse-phase liquid chromatography
                                     on C18 chromatography packing
                                     without extrapolation to zero
                                     percent solvent.
4.................................  Shake-flask.
5.................................  Calculated by the CLOGP program.
------------------------------------------------------------------------

    2. The CLOGP program is a computer program available from Pomona 
College. A value of Kow that seems to be different from the 
others should be considered an outlier and not used. The value of 
Kow used for an organic chemical shall be the geometric mean 
of the available Kow s with highest priority or can be 
calculated from the arithmetic mean of the available log Kow 
with the highest priority. Because it is an intermediate

[[Page 1010]]

value in the derivation of a BAF, the value used for the Kow 
of a chemical should not be rounded to fewer than three significant 
digits and a value for log Kow should not be rounded to fewer 
than three significant digits after the decimal point.
    G. This methodology provides overall guidance for the derivation of 
BAFs, but it cannot cover all the decisions that must be made in the 
review and selection of acceptable data. Professional judgment is 
required throughout the process. A degree of uncertainty is associated 
with the determination of any BAF, BSAF, BCF or Kow. The 
amount of uncertainty in a baseline BAF depends on both the quality of 
data available and the method used to derive the BAF.
    H. Hereinafter in this methodology, the terms BAF, BSAF, BCF and 
Kow refer to ones that are consistent with the procedural and 
quality assurance requirements given above.

               IV. Four Methods for Deriving Baseline BAFs

    Baseline BAFs shall be derived using the following four methods, 
which are listed from most preferred to least preferred:
    A. A measured baseline BAF for an organic or inorganic chemical 
derived from a field study of acceptable quality.
    B. A predicted baseline BAF for an organic chemical derived using 
field-measured BSAFs of acceptable quality.
    C. A predicted baseline BAF for an organic or inorganic chemical 
derived from a BCF measured in a laboratory study of acceptable quality 
and a FCM.
    D. A predicted baseline BAF for an organic chemical derived from a 
Kow of acceptable quality and a FCM.
    For comparative purposes, baseline BAFs should be derived for each 
chemical by as many of the four methods as available data allow.

          V. Calculation of Baseline BAFs for Organic Chemicals

    A. Lipid Normalization. 1. It is assumed that BAFs and BCFs for 
organic chemicals can be extrapolated on the basis of percent lipid from 
one tissue to another and from one aquatic species to another in most 
cases.
    2. Because BAFs and BCFs for organic chemicals are related to the 
percent lipid, it does not make any difference whether the tissue sample 
is whole body or edible portion, but both the BAF (or BCF) and the 
percent lipid must be determined for the same tissue. The percent lipid 
of the tissue should be measured during the BAF or BCF study, but in 
some cases it can be reliably estimated from measurements on tissue from 
other organisms. If percent lipid is not reported for the test organisms 
in the original study, it may be obtained from the author; or, in the 
case of a laboratory study, lipid data for the same or a comparable 
laboratory population of test organisms that were used in the original 
study may be used.
    3. The lipid-normalized concentration, Cl, of a chemical 
in tissue is defined using the following equation:
[GRAPHIC] [TIFF OMITTED] TR23MR95.100

Where:

CB=concentration of the organic chemical in the tissue of 
aquatic biota (either whole organism or specified tissue) (g/
g).
fl=fraction of the tissue that is lipid.

    B. Bioavailability. By definition, baseline BAFs and BCFs for 
organic chemicals, whether measured or predicted are based on the 
concentration of the chemical that is freely dissolved in the ambient 
water in order to account for bioavailability. For the purposes of this 
Guidance in this part, the relationship between the total concentration 
of the chemical in the water (i.e., that which is freely dissolved plus 
that which is sorbed to particulate organic carbon or to dissolved 
organic carbon) to the freely dissolved concentration of the chemical in 
the ambient water shall be calculated using the following equation:
[GRAPHIC] [TIFF OMITTED] TR23MR95.101

Where:

Cfdw=freely dissolved concentration of the organic 
chemical in the ambient water;
Ctw=total concentration of the organic chemical in 
the ambient water;
ffd=fraction of the total chemical in the ambient water that 
is freely dissolved.

    The fraction of the total chemical in the ambient water that is 
freely dissolved, ffd, shall be calculated using the 
following equation:
[GRAPHIC] [TIFF OMITTED] TR23MR95.102

Where:

DOC=concentration of dissolved organic carbon, kg of dissolved organic 
carbon/L of water.
KOW=octanol-water partition coefficient of the chemical.
POC=concentration of particulate organic carbon, kg of particulate 
organic carbon/L of water.

    C. Food-Chain Multiplier. In the absence of a field-measured BAF or 
a predicted BAF derived from a BSAF, a FCM shall be used to calculate 
the baseline BAF for trophic levels

[[Page 1011]]

3 and 4 from a laboratory-measured or predicted BCF. For an organic 
chemical, the FCM used shall be derived from Table B-1 using the 
chemical's log KOW and linear interpolation. A FCM greater 
than 1.0 applies to most organic chemicals with a log KOW of 
four or more. The trophic level used shall take into account the age or 
size of the fish species consumed by the human, avian or mammalian 
predator because, for some species of fish, the young are in trophic 
level 3 whereas the adults are in trophic level 4.
    D. Calculation of a Baseline BAF from a Field-Measured BAF. A 
baseline BAF shall be calculated from a field-measured BAF of acceptable 
quality using the following equation:
[GRAPHIC] [TIFF OMITTED] TR23MR95.103

Where:

BAFtT=BAF based on total concentration in tissue 
and water.
fl=fraction of the tissue that is lipid.
ffd=fraction of the total chemical that is freely dissolved 
in the ambient water.

The trophic level to which the baseline BAF applies is the same as the 
trophic level of the organisms used in the determination of the field-
measured BAF. For each trophic level, a species mean measured baseline 
BAF shall be calculated as the geometric mean if more than one measured 
baseline BAF is available for a given species. For each trophic level, 
the geometric mean of the species mean measured baseline BAFs shall be 
calculated. If a baseline BAF based on a measured BAF is available for 
either trophic level 3 or 4, but not both, a measured baseline BAF for 
the other trophic level shall be calculated using the ratio of the FCMs 
that are obtained by linear interpolation from Table B-1 for the 
chemical.
    E. Calculation of a Baseline BAF from a Field-Measured BSAF. 1. A 
baseline BAF for organic chemical ``i'' shall be calculated from a 
field-measured BSAF of acceptable quality using the following equation:
[GRAPHIC] [TIFF OMITTED] TR23MR95.105

Where:

(BSAF)i=BSAF for chemical ``i''.
(BSAF)r=BSAF for the reference chemical ``r''.
(KOW)i=octanol-water partition coefficient for 
chemical ``i''.
(KOW)r=octanol-water partition coefficient for the 
reference chemical ``r''.

    2. A BSAF shall be calculated using the following equation:
    [GRAPHIC] [TIFF OMITTED] TR23MR95.106
    
Where:

Ct=the lipid-normalized concentration of the chemical in 
tissue.
CSOC=the organic carbon-normalized concentration of the 
chemical in sediment.
    3. The organic carbon-normalized concentration of a chemical in 
sediment, CSOC, shall be calculated using the following 
equation:
[GRAPHIC] [TIFF OMITTED] TR23MR95.107

Where:
CS=concentration of chemical in sediment ( g/g 
sediment).
fOC=fraction of the sediment that is organic carbon.

    4. Predicting BAFs from BSAFs requires data from a steady-state (or 
near steady-state) condition between sediment and ambient water for both 
a reference chemical ``r'' with a field-measured BAFl fd and 
other chemicals ``n=i'' for which BSAFs are to be determined.
    5. The trophic level to which the baseline BAF applies is the same 
as the trophic level of the organisms used in the determination of the 
BSAF. For each trophic level, a species mean baseline BAF shall be 
calculated

[[Page 1012]]

as the geometric mean if more than one baseline BAF is predicted from 
BSAFs for a given species. For each trophic level, the geometric mean of 
the species mean baseline BAFs derived using BSAFs shall be calculated.
    6. If a baseline BAF based on a measured BSAF is available for 
either trophic level 3 or 4, but not both, a baseline BAF for the other 
trophic level shall be calculated using the ratio of the FCMs that are 
obtained by linear interpolation from Table B-1 for the chemical.
    F. Calculation of a Baseline BAF from a Laboratory-Measured BCF. A 
baseline BAF for trophic level 3 and a baseline BAF for trophic level 4 
shall be calculated from a laboratory-measured BCF of acceptable quality 
and a FCM using the following equation:
[GRAPHIC] [TIFF OMITTED] TR23MR95.108

Where:

BCFtT=BCF based on total concentration in tissue and water.
fl=fraction of the tissue that is lipid.
ffd=fraction of the total chemical in the test water that is 
freely dissolved.
FCM=the food-chain multiplier obtained from Table B-1 by linear 
interpolation for trophic level 3 or 4, as necessary.

For each trophic level, a species mean baseline BAF shall be calculated 
as the geometric mean if more than one baseline BAF is predicted from 
laboratory-measured BCFs for a given species. For each trophic level, 
the geometric mean of the species mean baseline BAFs based on 
laboratory-measured BCFs shall be calculated.
    G. Calculation of a Baseline BAF from an Octanol-Water Partition 
Coefficient. A baseline BAF for trophic level 3 and a baseline BAF for 
trophic level 4 shall be calculated from a KOW of acceptable 
quality and a FCM using the following equation:
    Baseline BAF=(FCM) (predicted baseline BCF)=(FCM) (KOW)

Where:

FCM=the food-chain multiplier obtained from Table B-1 by linear 
interpolation for trophic level 3 or 4, as necessary.
KOW=octanol-water partition coefficient.

        VI. Human Health and Wildlife BAFs for Organic Chemicals

    A. To calculate human health and wildlife BAFs for an organic 
chemical, the KOW of the chemical shall be used with a POC 
concentration of 0.00000004 kg/L and a DOC concentration of 0.000002 kg/
L to yield the fraction freely dissolved:
[GRAPHIC] [TIFF OMITTED] TR23MR95.109

    B. The human health BAFs for an organic chemical shall be calculated 
using the following equations:
    For trophic level 3:

[[Page 1013]]

[GRAPHIC] [TIFF OMITTED] TR23MR95.110

    For trophic level 4:
    [GRAPHIC] [TIFF OMITTED] TR23MR95.111
    
Where:
    0.0182 and 0.0310 are the standardized fraction lipid values for 
trophic levels 3 and 4, respectively, that are used to derive human 
health criteria and values for the GLI.
    C. The wildlife BAFs for an organic chemical shall be calculated 
using the following equations:
    For trophic level 3:
    [GRAPHIC] [TIFF OMITTED] TR23MR95.112
    
    For trophic level 4:
    [GRAPHIC] [TIFF OMITTED] TR23MR95.113
    
Where:
    0.0646 and 0.1031 are the standardized fraction lipid values for 
trophic levels 3 and 4, respectively, that are used to derive wildlife 
criteria for the GLI.

       VII. Human Health and Wildlife BAFs for Inorganic Chemicals

    A. For inorganic chemicals, the baseline BAFs for trophic levels 3 
and 4 are both assumed to equal the BCF determined for the chemical with 
fish, i.e., the FCM is assumed to be 1 for both trophic levels 3 and 4. 
However, a FCM greater than 1 might be applicable to some metals, such 
as mercury, if, for example, an organometallic form of the metal 
biomagnifies.
    B. BAFs for Human Health Criteria and Values.
    1. Measured BAFs and BCFs used to determine human health BAFs for 
inorganic chemicals shall be based on edible tissue (e.g., muscle) of 
freshwater fish unless it is demonstrated that whole-body BAFs or BCFs 
are similar to edible-tissue BAFs or BCFs. BCFs and BAFs based on 
measurements of aquatic plants and invertebrates should not be used in 
the derivation of human health criteria and values.
    2. If one or more field-measured baseline BAFs for an inorganic 
chemical are available from studies conducted in the Great Lakes System 
with the muscle of fish:
    a. For each trophic level, a species mean measured baseline BAF 
shall be calculated as the geometric mean if more than one measured BAF 
is available for a given species; and
    b. For each trophic level, the geometric mean of the species mean 
measured baseline BAFs shall be used as the human health BAF for that 
chemical.
    3. If an acceptable measured baseline BAF is not available for an 
inorganic chemical and one or more acceptable edible-portion laboratory-
measured BCFs are available for the chemical, a predicted baseline BAF 
shall be calculated by multiplying the geometric mean of the BCFs times 
a FCM. The FCM will be 1.0 unless chemical-specific biomagnification 
data support using a multiplier other than 1.0. The predicted baseline 
BAF shall be used as the human health BAF for that chemical.
    C. BAFs for Wildlife Criteria.
    1. Measured BAFs and BCFs used to determine wildlife BAFs for 
inorganic chemicals shall be based on whole-body freshwater fish and 
invertebrate data unless it is demonstrated that edible-tissue BAFs or 
BCFs are similar to whole-body BAFs or BCFs.
    2. If one or more field-measured baseline BAFs for an inorganic 
chemical are available from studies conducted in the Great Lakes

[[Page 1014]]

System with whole body of fish or invertebrates:
    a. For each trophic level, a species mean measured baseline BAF 
shall be calculated as the geometric mean if more than one measured BAF 
is available for a given species.
    b. For each trophic level, the geometric mean of the species mean 
measured baseline BAFs shall be used as the wildlife BAF for that 
chemical.
    3. If an acceptable measured baseline BAF is not available for an 
inorganic chemical and one or more acceptable whole-body laboratory-
measured BCFs are available for the chemical, a predicted baseline BAF 
shall be calculated by multiplying the geometric mean of the BCFs times 
a FCM. The FCM will be 1.0 unless chemical-specific biomagnification 
data support using a multiplier other than 1.0. The predicted baseline 
BAF shall be used as the wildlife BAF for that chemical.

                           VIII. Final Review

    For both organic and inorganic chemicals, human health and wildlife 
BAFs for both trophic levels shall be reviewed for consistency with all 
available data concerning the bioaccumulation, bioconcentration, and 
metabolism of the chemical. For example, information concerning octanol-
water partitioning, molecular size, or other physicochemical properties 
that might enhance or inhibit bioaccumulation should be considered for 
organic chemicals. BAFs derived in accordance with this methodology 
should be modified if changes are justified by available data.

                          IX. Literature Cited

    ASTM. 1990. Standard Practice for Conducting Bioconcentration Tests 
with Fishes and Saltwater Bivalve Molluscs. Standard E 1022. American 
Society for Testing and Materials, Philadelphia, PA.

      Table B-1--Food-Chain Multipliers for Trophic Levels 2, 3 & 4
------------------------------------------------------------------------
                                     Trophic     Trophic\1\    Trophic
             Log Kow                 level 2      level 3      level 4
------------------------------------------------------------------------
2.0..............................        1.000        1.005        1.000
2.5..............................        1.000        1.010        1.002
3.0..............................        1.000        1.028        1.007
3.1..............................        1.000        1.034        1.007
3.2..............................        1.000        1.042        1.009
3.3..............................        1.000        1.053        1.012
3.4..............................        1.000        1.067        1.014
3.5..............................        1.000        1.083        1.019
3.6..............................        1.000        1.103        1.023
3.7..............................        1.000        1.128        1.033
3.8..............................        1.000        1.161        1.042
3.9..............................        1.000        1.202        1.054
4.0..............................        1.000        1.253        1.072
4.1..............................        1.000        1.315        1.096
4.2..............................        1.000        1.380        1.130
4.3..............................        1.000        1.491        1.178
4.4..............................        1.000        1.614        1.242
4.5..............................        1.000        1.766        1.334
4.6..............................        1.000        1.950        1.459
4.7..............................        1.000        2.175        1.633
4.8..............................        1.000        2.452        1.871
4.9..............................        1.000        2.780        2.193
5.0..............................        1.000        3.181        2.612
5.1..............................        1.000        3.643        3.162
5.2..............................        1.000        4.188        3.873
5.3..............................        1.000        4.803        4.742
5.4..............................        1.000        5.502        5.821
5.5..............................        1.000        6.266        7.079
5.6..............................        1.000        7.096        8.551
5.7..............................        1.000        7.962       10.209
5.8..............................        1.000        8.841       12.050
5.9..............................        1.000        9.716       13.964
6.0..............................        1.000       10.556       15.996
6.1..............................        1.000       11.337       17.783
6.2..............................        1.000       12.064       19.907
6.3..............................        1.000       12.691       21.677
6.4..............................        1.000       13.228       23.281
6.5..............................        1.000       13.662       24.604
6.6..............................        1.000       13.980       25.645
6.7..............................        1.000       14.223       26.363
6.8..............................        1.000       14.355       26.669
6.9..............................        1.000       14.388       26.669
7.0..............................        1.000       14.305       26.242
7.1..............................        1.000       14.142       25.468
7.2..............................        1.000       13.852       24.322
7.3..............................        1.000       13.474       22.856
7.4..............................        1.000       12.987       21.038
7.5..............................        1.000       12.517       18.967
7.6..............................        1.000       11.708       16.749
7.7..............................        1.000       10.914       14.388
7.8..............................        1.000       10.069       12.050
7.9..............................        1.000        9.162        9.840
8.0..............................        1.000        8.222        7.798
8.1..............................        1.000        7.278        6.012
8.2..............................        1.000        6.361        4.519
8.3..............................        1.000        5.489        3.311
8.4..............................        1.000        4.683        2.371
8.5..............................        1.000        3.949        1.663
8.6..............................        1.000        3.296        1.146
8.7..............................        1.000        2.732        0.778
8.8..............................        1.000        2.246        0.521
8.9..............................        1.000        1.837        0.345
9.0..............................        1.000        1.493        0.226
------------------------------------------------------------------------
\1\ The FCMs for trophic level 3 are the geometric mean of the FCMs for
  sculpin and alewife.

      Appendix C to Part 132--Great Lakes Water Quality Initiative 
    Methodologies for Development of Human Health Criteria and Values

    Great Lakes States and Tribes shall adopt provisions consistent with 
(as protective as) this appendix.

                             I. Introduction

    Great Lakes States and Tribes shall adopt provisions consistent with 
this appendix C to ensure protection of human health.

[[Page 1015]]

    A. Goal. The goal of the human health criteria for the Great Lakes 
System is the protection of humans from unacceptable exposure to 
toxicants via consumption of contaminated fish and drinking water and 
from ingesting water as a result of participation in water-oriented 
recreational activities.
    B. Definitions.
    Acceptable daily exposure (ADE). An estimate of the maximum daily 
dose of a substance which is not expected to result in adverse noncancer 
effects to the general human population, including sensitive subgroups.
    Adverse effect. Any deleterious effect to organisms due to exposure 
to a substance. This includes effects which are or may become 
debilitating, harmful or toxic to the normal functions of the organism, 
but does not include non-harmful effects such as tissue discoloration 
alone or the induction of enzymes involved in the metabolism of the 
substance.
    Carcinogen. A substance which causes an increased incidence of 
benign or malignant neoplasms, or substantially decreases the time to 
develop neoplasms, in animals or humans. The classification of 
carcinogens is discussed in section II.A of appendix C to part 132.
    Human cancer criterion (HCC). A Human Cancer Value (HCV) for a 
pollutant that meets the minimum data requirements for Tier I specified 
in appendix C.
    Human cancer value (HCV). The maximum ambient water concentration of 
a substance at which a lifetime of exposure from either: drinking the 
water, consuming fish from the water, and water-related recreation 
activities; or consuming fish from the water, and water-related 
recreation activities, will represent a plausible upper-bound risk of 
contracting cancer of one in 100,000 using the exposure assumptions 
specified in the Methodologies for the Development of Human Health 
Criteria and Values in appendix C of this part.
    Human noncancer criterion (HNC). A Human Noncancer Value (HNV) for a 
pollutant that meets the minimum data requirements for Tier I specified 
in appendix C of this part.
    Human noncancer value (HNV). The maximum ambient water concentration 
of a substance at which adverse noncancer effects are not likely to 
occur in the human population from lifetime exposure via either: 
drinking the water, consuming fish from the water, and water-related 
recreation activities; or consuming fish from the water, and water-
related recreation activities using the Methodologies for the 
Development of Human Health criteria and Values in appendix C of this 
part.
    Linearized multi-stage model. A conservative mathematical model for 
cancer risk assessment. This model fits linear dose-response curves to 
low doses. It is consistent with a no-threshold model of carcinogenesis, 
i.e., exposure to even a very small amount of the substance is assumed 
to produce a finite increased risk of cancer.
    Lowest observed adverse effect level (LOAEL). The lowest tested dose 
or concentration of a substance which resulted in an observed adverse 
effect in exposed test organisms when all higher doses or concentrations 
resulted in the same or more severe effects.
    No observed adverse effect level (NOAEL). The highest tested dose or 
concentration of a substance which resulted in no observed adverse 
effect in exposed test organisms where higher doses or concentrations 
resulted in an adverse effect.
    Quantitative structure activity relationship (OSAR) or structure 
activity relationship (SAR). A mathematical relationship between a 
property (activity) of a chemical and a number of descriptors of the 
chemical. These descriptors are chemical or physical characteristics 
obtained experimentally or predicted from the structure of the chemical.
    Relative source contribution (RSC). The factor (percentage) used in 
calculating an HNV or HNC to account for all sources of exposure to a 
contaminant. The RSC reflects the percent of total exposure which can be 
attributed to surface water through water intake and fish consumption.
    Risk associated dose (RAD). A dose of a known or presumed 
carcinogenic substance in (mg/kg/day) which, over a lifetime of 
exposure, is estimated to be associated with a plausible upper bound 
incremental cancer risk equal to one in 100,000.
    Slope factor. Also known as q1*, slope factor is the 
incremental rate of cancer development calculated through use of a 
linearized multistage model or other appropriate model. It is expressed 
in (mg/kg/day) of exposure to the chemical in question.
    Threshold effect. An effect of a substance for which there is a 
theoretical or empirically established dose or concentration below which 
the effect does not occur.
    Uncertainty factor (UF). One of several numeric factors used in 
operationally deriving criteria from experimental data to account for 
the quality or quantity of the available data.
    C. Level of Protection. The criteria developed shall provide a level 
of protection likely to be without appreciable risk of carcinogenic and/
or noncarcinogenic effects. Criteria are a function of the level of 
designated risk or no adverse effect estimation, selection of data and 
exposure assumptions. Ambient criteria for single carcinogens shall not 
be set at a level representing a lifetime upper-bound incremental risk 
greater than one in 100,000 of developing cancer using the hazard 
assessment techniques and exposure assumptions described herein. 
Criteria affording protection from noncarcinogenic effects shall be 
established at levels that, taking into account uncertainties, are 
considered likely to be without an appreciable risk

[[Page 1016]]

of adverse human health effects (i.e., acute, subchronic and chronic 
toxicity including reproductive and developmental effects) during a 
lifetime of exposure, using the risk assessment techniques and exposure 
assumptions described herein.
    D. Two-tiered Classification. Chemical concentration levels in 
surface water protective of human health shall be derived based on 
either a Tier I or Tier II classification. The two Tiers are primarily 
distinguished by the amount of toxicity data available for deriving the 
concentration levels and the quantity and quality of data on 
bioaccumulation.

                      II. Minimum Data Requirements

    The best available toxicity data on the adverse health effects of a 
chemical and the best data on bioaccumulation factors shall be used when 
developing human health Tier I criteria or Tier II values. The best 
available toxicity data shall include data from well-conducted 
epidemiologic and/or animal studies which provide, in the case of 
carcinogens, an adequate weight of evidence of potential human 
carcinogenicity and, in the case of noncarcinogens, a dose-response 
relationship involving critical effects biologically relevant to humans. 
Such information should be obtained from the EPA Integrated Risk 
Information System (IRIS) database, the scientific literature, and other 
informational databases, studies and/or reports containing adverse 
health effects data of adequate quality for use in this procedure. 
Strong consideration shall be given to the most currently available 
guidance provided by IRIS in deriving criteria or values, supplemented 
with any recent data not incorporated into IRIS. When deviations from 
IRIS are anticipated or considered necessary, it is strongly recommended 
that such actions be communicated to the EPA Reference Dose (RfD) and/or 
the Cancer Risk Assessment Verification Endeavor (CRAVE) workgroup 
immediately. The best available bioaccumulation data shall include data 
from field studies and well-conducted laboratory studies.
    A. Carcinogens. Tier I criteria and Tier II values shall be derived 
using the methodologies described in section III.A of this appendix when 
there is adequate evidence of potential human carcinogenic effects for a 
chemical. It is strongly recommended that the EPA classification system 
for chemical carcinogens, which is described in the 1986 EPA Guidelines 
for Carcinogenic Risk Assessment (U.S. EPA, 1986), or future 
modifications thereto, be used in determining whether adequate evidence 
of potential carcinogenic effects exists. Carcinogens are classified, 
depending on the weight of evidence, as either human carcinogens, 
probable human carcinogens, or possible human carcinogens. The human 
evidence is considered inadequate and therefore the chemical cannot be 
classified as a human carcinogen, if one of two conditions exists: (a) 
there are few pertinent data, or (b) the available studies, while 
showing evidence of association, do not exclude chance, bias, or 
confounding and therefore a casual interpretation is not credible. The 
animal evidence is considered inadequate, and therefore the chemical 
cannot be classified as a probable or possible human carcinogen, when, 
because of major qualitative or quantitative limitations, the evidence 
cannot be interpreted as showing either the presence or absence of a 
carcinogenic effect.
    Chemicals are described as ``human carcinogens'' when there is 
sufficient evidence from epidemiological studies to support a causal 
association between exposure to the chemicals and cancer. Chemicals 
described as ``probable human carcinogens'' include chemicals for which 
the weight of evidence of human carcinogenicity based on epidemiological 
studies is limited. Limited human evidence is that which indicates that 
a causal interpretation is credible, but that alternative explanations, 
such as chance, bias, or confounding, cannot adequately be excluded. 
Probable human carcinogens are also agents for which there is sufficient 
evidence from animal studies and for which there is inadequate evidence 
or no data from epidemiologic studies. Sufficient animal evidence is 
data which indicates that there is an increased incidence of malignant 
tumors or combined malignant and benign tumors: (a) in multiple species 
or strains; (b) in multiple experiments (e.g., with different routes of 
administration or using different dose levels); or (c) to an unusual 
degree in a single experiment with regard to high incidence, unusual 
site or type of tumor, or early age at onset. Additional evidence may be 
provided by data on dose-response effects, as well as information from 
short-term tests (such as mutagenicity/genotoxicity tests which help 
determine whether the chemical interacts directly with DNA) or on 
chemical structure, metabolism or mode of action.
    ``Possible human carcinogens'' are chemicals with limited evidence 
of carcinogenicity in animals in the absence of human data. Limited 
animal evidence is defined as data which suggests a carcinogenic effect 
but are limited because: (a) The studies involve a single species, 
strain, or experiment and do not meet criteria for sufficient evidence 
(see preceding paragraph); or (b) the experiments are restricted by 
inadequate dosage levels, inadequate duration of exposure to the agent, 
inadequate period of follow-up, poor survival, too few animals, or 
inadequate reporting; or (c) the studies indicate an increase in the 
incidence of benign tumors only. More specifically, this group can 
include a wide variety of evidence, e.g., (a) a malignant tumor response 
in a single well-

[[Page 1017]]

conducted experiment that does not meet conditions for sufficient 
evidence, (b) tumor response of marginal statistical significance in 
studies having inadequate design or reporting, (c) benign but not 
malignant tumors with an agent showing no response in a variety of 
short-term tests for mutagenicity, and (d) response of marginal 
statistical significance in a tissue known to have a high or variable 
background rate.
    1. Tier I: Weight of evidence of potential human carcinogenic 
effects sufficient to derive a Tier I HCC shall generally include human 
carcinogens, probable human carcinogens and can include, on a case-by-
case basis, possible human carcinogens if studies have been well-
conducted albeit based on limited evidence, when compared to studies 
used in classifying human and probable human carcinogens. The decision 
to use data on a possible human carcinogen for deriving Tier I criteria 
shall be a case-by-case determination. In determining whether to derive 
a Tier I HCC, additional evidence that shall be considered includes but 
is not limited to available information on mode of action, such as 
mutagenicity/genotoxicity (determinations of whether the chemical 
interacts directly with DNA), structure activity, and metabolism.
    2. Tier II: Weight of evidence of possible human carcinogenic 
effects sufficient to derive a Tier II human cancer value shall include 
those possible human carcinogens for which there are at a minimum, data 
sufficient for quantitative risk assessment, but for which data are 
inadequate for Tier I criterion development due to a tumor response of 
marginal statistical significance or inability to derive a strong dose-
response relationship. In determining whether to derive Tier II human 
cancer values, additional evidence that shall be considered includes but 
is not limited to available information on mode of action such as 
mutagenicity/genotoxicity (determinations of whether the chemical 
interacts directly with DNA), structure activity and metabolism. As with 
the use of data on possible human carcinogens in developing Tier I 
criteria, the decision to use data on possible human carcinogens to 
derive Tier II values shall be made on a case-by-case basis.
    B. Noncarcinogens. All available toxicity data shall be evaluated 
considering the full range of possible health effects of a chemical, 
i.e., acute/subacute, chronic/subchronic and reproductive/developmental 
effects, in order to best describe the dose-response relationship of the 
chemical, and to calculate human noncancer criteria and values which 
will protect against the most sensitive endpoint(s) of toxicity. 
Although it is desirable to have an extensive database which considers a 
wide range of possible adverse effects, this type of data exists for a 
very limited number of chemicals. For many others, there is a range in 
quality and quantity of data available. To assure minimum reliability of 
criteria and values, it is necessary to establish a minimum database 
with which to develop Tier I criteria or Tier II values. The following 
represent the minimum data sets necessary for this procedure.
    1. Tier I: The minimum data set sufficient to derive a Tier I human 
HNC shall include at least one well-conducted epidemiologic study or 
animal study. A well-conducted epidemiologic study for a Tier I HNC must 
quantify exposure level(s) and demonstrate positive association between 
exposure to a chemical and adverse effect(s) in humans. A well-conducted 
study in animals must demonstrate a dose response relationship involving 
one or more critical effect(s) biologically relevant to humans. (For 
example, study results from an animal whose pharmacokinetics and 
toxicokinetics match those of a human would be considered most 
biologically relevant.) Ideally, the duration of a study should span 
multiple generations of exposed test species or at least a major portion 
of the lifespan of one generation. This type of data is currently very 
limited. By the use of uncertainty adjustments, shorter term studies 
(such as 90-day subchronic studies) with evaluation of more limited 
effect(s) may be used to extrapolate to longer exposures or to account 
for a variety of adverse effects. For Tier I criteria developed pursuant 
to this procedure, such a limited study must be conducted for at least 
90 days in rodents or 10 percent of the lifespan of other appropriate 
test species and demonstrate a no observable adverse effect level 
(NOAEL). Chronic studies of one year or longer in rodents or 50 percent 
of the lifespan or greater in other appropriate test species that 
demonstrate a lowest observable adverse effect level (LOAEL) may be 
sufficient for use in Tier I criterion derivation if the effects 
observed at the LOAEL were relatively mild and reversible as compared to 
effects at higher doses. This does not preclude the use of a LOAEL from 
a study (of chronic duration) with only one or two doses if the effects 
observed appear minimal when compared to effect levels observed at 
higher doses in other studies.
    2. Tier II: When the minimum data for deriving Tier I criteria are 
not available to meet the Tier I data requirements, a more limited 
database may be considered for deriving Tier II values. As with Tier I 
criteria, all available data shall be considered and ideally should 
address a range of adverse health effects with exposure over a 
substantial portion of the lifespan (or multiple generations) of the 
test species. When such data are lacking it may be necessary to rely on 
less extensive data in order to establish a Tier II value. With the use 
of appropriate uncertainty factors to account for a less extensive 
database, the minimum data sufficient

[[Page 1018]]

to derive a Tier II value shall include a NOAEL from at least one well-
conducted short-term repeated dose study. This study shall be of at 
least 28 days duration, in animals demonstrating a dose-response, and 
involving effects biologically relevant to humans. Data from studies of 
longer duration (greater than 28 days) and LOAELs from such studies 
(greater than 28 days) may be more appropriate in some cases for 
derivation of Tier II values. Use of a LOAEL should be based on 
consideration of the following information: severity of effect, quality 
of the study and duration of the study.
    C. Bioaccumulation factors (BAFs).
    1. Tier I for Carcinogens and Noncarcinogens: To be considered a 
Tier I cancer or noncancer human health criterion, along with satisfying 
the minimum toxicity data requirements of sections II.A.1 and II.B.1 of 
this appendix, a chemical must have the following minimum 
bioaccumulation data. For all organic chemicals either: (a) a field-
measured BAF; (b) a BAF derived using the BSAF methodology; or (c) a 
chemical with a BAF less than 125 regardless of how the BAF was derived. 
For all inorganic chemicals, including organometals such as mercury, 
either: (a) a field-measured BAF or (b) a laboratory-measured BCF.
    2. Tier II for Carcinogens and Noncarcinogens: A chemical is 
considered a Tier II cancer or noncancer human health value if it does 
not meet either the minimum toxicity data requirements of sections 
II.A.1 and II.B.1 of this appendix or the minimum bioaccumulation data 
requirements of section II.C.1 of this appendix.

  III. Principles for Development of Tier I Criteria or Tier II Values

    The fundamental components of the procedure to calculate Tier I 
criteria or Tier II values are the same. However, certain of the aspects 
of the procedure designed to account for short-duration studies or other 
limitations in data are more likely to be relevant in deriving Tier II 
values than Tier I criteria.
    A. Carcinogens.
    1. A non-threshold mechanism of carcinogenesis shall be assumed 
unless biological data adequately demonstrate the existence of a 
threshold on a chemical-specific basis.
    2. All appropriate human epidemiologic data and animal cancer 
bioassay data shall be considered. Data specific to an environmentally 
appropriate route of exposure shall be used. Oral exposure should be 
used preferentially over dermal and inhalation since, in most cases, the 
exposure routes of greatest concern are fish consumption and drinking 
water/incidental ingestion. The risk associated dose shall be set at a 
level corresponding to an incremental cancer risk of one in 100,000. If 
acceptable human epidemiologic data are available for a chemical, it 
shall be used to derive the risk associated dose. If acceptable human 
epidemiologic data are not available, the risk associated dose shall be 
derived from available animal bioassay data. Data from a species that is 
considered most biologically relevant to humans (i.e., responds most 
like humans) is preferred where all other considerations regarding 
quality of data are equal. In the absence of data to distinguish the 
most relevant species, data from the most sensitive species tested, 
i.e., the species showing a carcinogenic effect at the lowest 
administered dose, shall generally be used.
    3. When animal bioassay data are used and a non-threshold mechanism 
of carcinogenicity is assumed, the data are fitted to a linearized 
multistage computer model (e.g., Global '86 or equivalent model). Global 
'86 is the linearized multistage model, derived by Howe, Crump and Van 
Landingham (1986), which EPA uses to determine cancer potencies. The 
upper-bound 95 percent confidence limit on risk (or, the lower 95 
percent confidence limit on dose) at the one in 100,000 risk level shall 
be used to calculate a risk associated dose (RAD). Other models, 
including modifications or variations of the linear multistage model 
which are more appropriate to the available data may be used where 
scientifically justified.
    4. If the duration of the study is significantly less than the 
natural lifespan of the test animal, the slope may be adjusted on a 
case-by-case basis to compensate for latent tumors which were not 
expressed (e.g., U.S. EPA, 1980) In the absence of alternative 
approaches which compensate for study durations significantly less than 
lifetime, the permitting authority may use the process described in the 
1980 National Guidelines (see 45 FR 79352).
    5. A species scaling factor shall be used to account for differences 
between test species and humans. It shall be assumed that milligrams per 
surface area per day is an equivalent dose between species (U.S. EPA, 
1986). All doses presented in mg/kg bodyweight will be converted to an 
equivalent surface area dose by raising the mg/kg dose to the 2/3 power. 
However, if adequate pharmacokinetic and metabolism studies are 
available, these data may be factored into the adjustment for species 
differences on a case-by-case basis.
    6. Additional data selection and adjustment decisions must also be 
made in the process of quantifying risk. Consideration must be given to 
tumor selection for modeling, e.g., pooling estimates for multiple tumor 
types and identifying and combining benign and malignant tumors. All 
doses shall be adjusted to give an average daily dose over the study 
duration. Adjustments in the rate of tumor response must be made for

[[Page 1019]]

early mortality in test species. The goodness-of-fit of the model to the 
data must also be assessed.
    7. When a linear, non-threshold dose response relationship is 
assumed, the RAD shall be calculated using the following equation:
[GRAPHIC] [TIFF OMITTED] TR23MR95.114

Where:

RAD=risk associated dose in milligrams of toxicant per kilogram body 
weight per day (mg/kg/day).
0.00001 (1 x 10-5)=incremental risk of developing cancer 
equal to one in 100,000.
q1*=slope factor (mg/kg/day)-1.
    8. If human epidemiologic data and/or other biological data (animal) 
indicate that a chemical causes cancer via a threshold mechanism, the 
risk associated dose may, on a case-by-case basis, be calculated using a 
method which assumes a threshold mechanism is operative.
    B. Noncarcinogens.
    1. Noncarcinogens shall generally be assumed to have a threshold 
dose or concentration below which no adverse effects should be observed. 
Therefore, the Tier I criterion or Tier II value is the maximum water 
concentration of a substance at or below which a lifetime exposure from 
drinking the water, consuming fish caught in the water, and ingesting 
water as a result of participating in water-related recreation 
activities is likely to be without appreciable risk of deleterious 
effects.
    For some noncarcinogens, there may not be a threshold dose below 
which no adverse effects should be observed. Chemicals acting as 
genotoxic teratogens and germline mutagens are thought to possibly 
produce reproductive and/or developmental effects via a genetically 
linked mechanism which may have no threshold. Other chemicals also may 
not demonstrate a threshold. Criteria for these types of chemicals will 
be established on a case-by-case basis using appropriate assumptions 
reflecting the likelihood that no threshold exists.
    2. All appropriate human and animal toxicologic data shall be 
reviewed and evaluated. To the maximum extent possible, data most 
specific to the environmentally relevant route of exposure shall be 
used. Oral exposure data should be used preferentially over dermal and 
inhalation since, in most cases, the exposure routes of greatest concern 
are fish consumption and drinking water/incidental ingestion. When 
acceptable human data are not available (e.g., well-conducted 
epidemiologic studies), animal data from species most biologically 
relevant to humans shall be used. In the absence of data to distinguish 
the most relevant species, data from the most sensitive animal species 
tested, i.e., the species showing a toxic effect at the lowest 
administered dose (given a relevant route of exposure), should generally 
be used.
    3. Minimum data requirements are specified in section II.B of this 
appendix. The experimental exposure level representing the highest level 
tested at which no adverse effects were demonstrated (NOAEL) from 
studies satisfying the provisions of section II.B of this appendix shall 
be used for criteria calculations. In the absence of a NOAEL, the LOAEL 
from studies satisfying the provisions of section II.B of this appendix 
may be used if it is based on relatively mild and reversible effects.
    4. Uncertainty factors shall be used to account for the 
uncertainties in predicting acceptable dose levels for the general human 
population based upon experimental animal data or limited human data.
    a. An uncertainty factor of 10 shall generally be used when 
extrapolating from valid experimental results from studies on prolonged 
exposure to average healthy humans. This 10-fold factor is used to 
protect sensitive members of the human population.
    b. An uncertainty factor of 100 shall generally be used when 
extrapolating from valid results of long-term studies on experimental 
animals when results of studies of human exposure are not available or 
are inadequate. In comparison to a, above, this represents an additional 
10-fold uncertainty factor in extrapolating data from the average animal 
to the average human.
    c. An uncertainty factor of up to 1000 shall generally be used when 
extrapolating from animal studies for which the exposure duration is 
less than chronic, but greater than subchronic (e.g., 90 days or more in 
length), or when other significant deficiencies in study quality are 
present, and when useful long-term human data are not available. In 
comparison to b, above, this represents an additional UF of up to 10-
fold for less than chronic, but greater than subchronic, studies.
    d. An UF of up to 3000 shall generally be used when extrapolating 
from animal studies for which the exposure duration is less than 
subchronic (e.g., 28 days). In comparison to b above, this represents an 
additional UF of up to 30-fold for less than subchronic studies (e.g., 
28-day). The level of additional uncertainty applied for less than 
chronic exposures depends on the duration of the study used relative to 
the lifetime of the experimental animal.
    e. An additional UF of between one and ten may be used when deriving 
a criterion from a LOAEL. This UF accounts for the lack of an 
identifiable NOAEL. The level of additional uncertainty applied may 
depend upon the severity and the incidence of the observed adverse 
effect.

[[Page 1020]]

    f. An additional UF of between one and ten may be applied when there 
are limited effects data or incomplete sub-acute or chronic toxicity 
data (e.g., reproductive/developmental data). The level of quality and 
quantity of the experimental data available as well as structure-
activity relationships may be used to determine the factor selected.
    g. When deriving an UF in developing a Tier I criterion or Tier II 
value, the total uncertainty, as calculated following the guidance of 
sections 4.a through f, cited above, shall not exceed 10,000 for Tier I 
criteria and 30,000 for Tier II values.
    5. All study results shall be converted, as necessary, to the 
standard unit for acceptable daily exposure of milligrams of toxicant 
per kilogram of body weight per day (mg/kg/day). Doses shall be adjusted 
for continuous exposure (i.e., seven days/week, 24 hours/day, etc.).
    C. Criteria and Value Derivation.
    1. Standard Exposure Assumptions. The following represent the 
standard exposure assumptions used to calculate Tier I criteria and Tier 
II values for carcinogens and noncarcinogens. Higher levels of exposure 
may be assumed by States and Tribes pursuant to Clean Water Act (CWA) 
section 510, or where appropriate in deriving site-specific criteria 
pursuant to procedure 1 in appendix F to part 132.
    BW = body weight of an average human (BW = 70kg).
    WCd = per capita water consumption (both drinking and 
incidental exposure) for surface waters classified as public water 
supplies = two liters/day.
          --or--
    WCr = per capita incidental daily water ingestion for 
surface waters not used as human drinking water sources = 0.01 liters/
day.
    FC = per capita daily consumption of regionally caught freshwater 
fish = 0.015kg/day (0.0036 kg/day for trophic level 3 and 0.0114 kg/day 
for trophic level 4).
    BAF = bioaccumulation factor for trophic level 3 and trophic level 
4, as derived using the BAF methodology in appendix B to part 132.
    2. Carcinogens. The Tier I human cancer criteria or Tier II values 
shall be calculated as follows:
[GRAPHIC] [TIFF OMITTED] TR23MR95.115

Where:

HCV=Human Cancer Value in milligrams per liter (mg/L).
RAD=Risk associated dose in milligrams toxicant per kilogram body weight 
per day (mg/kg/day) that is associated with a lifetime incremental 
cancer risk equal to one in 100,000.
BW=weight of an average human (BW=70 kg).
WCd=per capita water consumption (both drinking and 
incidental exposure) for surface waters classified as public water 
supplies=two liters/day.
      or
WCr=per capita incidental daily water ingestion for surface 
waters not used as human drinking water sources=0.01 liters/day.
FCTL3=mean consumption of trophic level 3 of regionally 
caught freshwater fish=0.0036 kg/day.
FCTL4=mean consumption of trophic level 4 of regionally 
caught freshwater fish=0.0114 kg/day.
BAFHHTL3=bioaccumulation factor for trophic level 
3 fish, as derived using the BAF methodology in appendix B to part 132.
BAFHHTL4=bioaccumulation factor for trophic level 
4 fish, as derived using the BAF methodology in appendix B to part 132.

    3. Noncarcinogens. The Tier I human noncancer criteria or Tier II 
values shall be calculated as follows:
[GRAPHIC] [TIFF OMITTED] TR23MR95.116

Where:

HNV=Human noncancer value in milligrams per liter (mg/L).
ADE=Acceptable daily exposure in milligrams toxicant per kilogram body 
weight per day (mg/kg/day).

[[Page 1021]]

RSC=Relative source contribution factor of 0.8. An RSC derived from 
actual exposure data may be developed using the methodology outlined by 
the 1980 National Guidelines (see 45 FR 79354).
BW=weight of an average human (BW=70 kg).
WCd=per capita water consumption (both drinking and 
incidental exposure) for surface waters classified as public water 
supplies=two liters/day.
      or
WCr=per capita incidental daily water ingestion for surface 
waters not used as human drinking water sources=0.01 liters/day.
FCTL3=mean consumption of trophic level 3 fish by regional 
sport fishers of regionally caught freshwater fish=0.0036 kg/day.
FCTL4=mean consumption of trophic level 4 fish by regional 
sport fishers of regionally caught freshwater fish=0.0114 kg/day.
BAFHHTL3=human health bioaccumulation factor for 
edible portion of trophic level 3 fish, as derived using the BAF 
methodology in appendix B to part 132.
BAFHHTL4=human health bioaccumulation factor for 
edible portion of trophic level 4 fish, as derived using the BAF 
methodology in appendix B to part 132.

                             IV. References

    A. Howe, R.B., K.S. Crump and C. Van Landingham. 1986. Computer 
Program to Extrapolate Quantitative Animal Toxicity Data to Low Doses. 
Prepared for EPA under subcontract #2-251U-2745 to Research Triangle 
Institute.
    B. U.S. Environmental Protection Agency. 1980. Water Quality 
Criteria Availability, Appendix C Guidelines and Methodology Used in the 
Preparation of Health Effects Assessment Chapters of the Consent Decree 
Water Quality Criteria Documents. Available from U.S. Environmental 
Protection Agency, Office of Water Resource Center (WH-550A), 401 M St., 
SW., Washington, DC 20460.
    C. U.S. Environmental Protection Agency. 1986. Guidelines for 
Carcinogen Risk Assessment. Available from U.S. Environmental Protection 
Agency, Office of Water Resource Center (WH-550A), 401 M St., SW., 
Washington, DC 20460.

Appendix D to Part 132--Great Lakes Water Quality Initiative Methodology 
                for the Development of Wildlife Criteria

    Great Lakes States and Tribes shall adopt provisions consistent with 
(as protective as) this appendix.

                             I. Introduction

    A. A Great Lakes Water Quality Wildlife Criterion (GLWC) is the 
concentration of a substance which is likely to, if not exceeded, 
protect avian and mammalian wildlife populations inhabiting the Great 
Lakes basin from adverse effects resulting from the ingestion of water 
and aquatic prey taken from surface waters of the Great Lakes System. 
These criteria are based on existing toxicological studies of the 
substance of concern and quantitative information about the exposure of 
wildlife species to the substance (i.e., food and water consumption 
rates). Since toxicological and exposure data for individual wildlife 
species are limited, a GLWC is derived using a methodology similar to 
that used to derive noncancer human health criteria (Barnes and Dourson, 
1988; NAS, 1977; NAS, 1980; U.S. EPA, 1980). Separate avian and 
mammalian values are developed using taxonomic class-specific toxicity 
data and exposure data for five representative Great Lakes basin 
wildlife species. The wildlife species selected are representative of 
avian and mammalian species resident in the Great Lakes basin which are 
likely to experience the highest exposures to bioaccumulative 
contaminants through the aquatic food web; they are the bald eagle, 
herring gull, belted kingfisher, mink, and river otter.
    B. This appendix establishes a methodology which is required when 
developing Tier I wildlife criteria for bioaccumulative chemicals of 
concern (BCCs). The use of the equation provided in the methodology is 
encouraged, but not required, for the development of Tier I criteria or 
Tier II values for pollutants other than those identified in Table 6-A 
for which Tier I criteria or Tier II values are determined to be 
necessary for the protection of wildlife in the Great Lakes basin. A 
discussion of the methodology for deriving Tier II values can be found 
in the Great Lakes Water Quality Initiative Technical Support Document 
for Wildlife Criteria (Wildlife TSD).
    C. In the event that this methodology is used to develop criteria 
for pollutants other than BCCs, or in the event that the Tier II 
methodology described in the Wildlife TSD is used to derive Tier II 
values, the methodology for deriving bioaccumulation factors under 
appendix B to part 132 must be used in either derivation. For chemicals 
which do not biomagnify to the extent of BCCs, it may be appropriate to 
select different representative species which are better examples of 
species with the highest exposures for the given chemical. The equation 
presented in this methodology, however, is still encouraged. In 
addition, procedure 1 of appendix F of this part describes the 
procedures for calculating site-specific wildlife criteria.
    D. The term ``wildlife value'' (WV) is used to denote the value for 
each representative species which results from using the equation 
presented below, the value obtained from averaging species values within 
a class, or any value derived from application of the site-specific 
procedure provided in procedure

[[Page 1022]]

1 of appendix F of this part. The WVs calculated for the representative 
species are used to calculate taxonomic class-specific WVs. The WV is 
the concentration of a substance which, if not exceeded, should better 
protect the taxon in question.
    E. ``Tier I wildlife criterion,'' or ``Tier I criterion'' is used to 
denote the number derived from data meeting the Tier I minimum database 
requirements, and which will be protective of the two classes of 
wildlife. It is synonymous with the term ``GLWC,'' and the two are used 
interchangeably.

         II. Calculation of Wildlife Values for Tier I Criteria

    Table 4 of Part 132 and Table D-1 of this appendix contain criteria 
calculated by EPA using the methodology provided below.
    A. Equation for Avian and Mammalian Wildlife Values. Tier I wildlife 
values for the pollutants designated BCCs pursuant to part 132 are to be 
calculated using the equation presented below.
[GRAPHIC] [TIFF OMITTED] TR23MR95.117

Where:
WV=Wildlife Value in milligrams of substance per liter (mg/L).
TD=Test Dose (TD) in milligrams of substance per kilograms per day (mg/
kg-d) for the test species. This shall be either a NOAEL or a LOAEL.
UFA=Uncertainty Factor (UF) for extrapolating toxicity data 
across species (unitless). A species-specific UF shall be selected and 
applied to each representative species, consistent with the equation.
UFS=UF for extrapolating from subchronic to chronic exposures 
(unitless).
UFL=UF for LOAEL to NOAEL extrapolations (unitless).
Wt=Average weight in kilograms (kg) for the representative species.
W=Average daily volume of water consumed in liters per day (L/d) by the 
representative species.
FTLi=Average daily amount of food consumed from trophic level 
i in kilograms per day (kg/d) by the representative species.
BAFWLTLi=Bioaccumulation factor (BAF) for wildlife 
food in trophic level i in liters per kilogram (L/kg), developed using 
the BAF methodology in appendix B to part 132, Methodology for 
Development of Bioaccumulation Factors. For consumption of piscivorous 
birds by other birds (e.g., herring gull by eagles), the BAF is derived 
by multiplying the trophic level 3 BAF for fish by a biomagnification 
factor to account for the biomagnification from fish to the consumed 
birds.
    B. Identification of Representative Species for Protection. For 
bioaccumulative chemicals, piscivorous species are identified as the 
focus of concern for wildlife criteria development in the Great Lakes. 
An analysis of known or estimated exposure components for avian and 
mammalian wildlife species is presented in the Wildlife TSD. This 
analysis identifies three avian species (eagle, kingfisher and herring 
gull) and two mammalian species (mink and otter) as representative 
species for protection. The TD obtained from toxicity data for each 
taxonomic class is used to calculate WVs for each of the five 
representative species.
    C. Calculation of Avian and Mammalian Wildlife Values and GLWC 
Derivation. The avian WV is the geometric mean of the WVs calculated for 
the three representative avian species. The mammalian WV is the 
geometric mean of the WVs calculated for the two representative 
mammalian species. The lower of the mammalian and avian WVs must be 
selected as the GLWC.

    III. Parameters of the Effect Component of the Wildlife Criteria 
                               Methodology

    A. Definitions. The following definitions provide additional 
specificity and guidance in the evaluation of toxicity data and the 
application of this methodology.
    Acceptable endpoints. For the purpose of wildlife criteria 
derivation, acceptable subchronic and chronic endpoints are those which 
affect reproductive or developmental success, organismal viability or 
growth, or any other endpoint which is, or is directly related to, 
parameters that influence population dynamics.
    Chronic effect. An adverse effect that is measured by assessing an 
acceptable endpoint, and results from continual exposure over several 
generations, or at least over a significant part of the test species' 
projected life span or life stage.
    Lowest-observed-adverse-effect-level (LOAEL). The lowest tested dose 
or concentration of a substance which resulted in an observed adverse 
effect in exposed test organisms when all higher doses or concentrations 
resulted in the same or more severe effects.
    No-observed-adverse-effect-level (NOAEL). The highest tested dose or 
concentration of a substance which resulted in no observed adverse 
effect in exposed test organisms where higher doses or concentrations 
resulted in an adverse effect.
    Subchronic effect. An adverse effect, measured by assessing an 
acceptable endpoint, resulting from continual exposure for a period of 
time less than that deemed necessary for a chronic test.
    B. Minimum Toxicity Database for Tier I Criteria Development. A TD 
value is required for

[[Page 1023]]

criterion calculation. To derive a Tier I criterion for wildlife, the 
data set shall provide enough data to generate a subchronic or chronic 
dose-response curve for any given substance for both mammalian and avian 
species. In reviewing the toxicity data available which meet the minimum 
data requirements for each taxonomic class, the following order of 
preference shall be applied to select the appropriate TD to be used for 
calculation of individual WVs. Data from peer-reviewed field studies of 
wildlife species take precedence over other types of studies, where such 
studies are of adequate quality. An acceptable field study must be of 
subchronic or chronic duration, provide a defensible, chemical-specific 
dose-response curve in which cause and effect are clearly established, 
and assess acceptable endpoints as defined in this document. When 
acceptable wildlife field studies are not available, or determined to be 
of inadequate quality, the needed toxicity information may come from 
peer-reviewed laboratory studies. When laboratory studies are used, 
preference shall be given to laboratory studies with wildlife species 
over traditional laboratory animals to reduce uncertainties in making 
interspecies extrapolations. All available laboratory data and field 
studies shall be reviewed to corroborate the final GLWC, to assess the 
reasonableness of the toxicity value used, and to assess the 
appropriateness of any UFs which are applied. When evaluating the 
studies from which a test dose is derived in general, the following 
requirements must be met:
    1. The mammalian data must come from at least one well-conducted 
study of 90 days or greater designed to observe subchronic or chronic 
effects as defined in this document.
    2. The avian data must come from at least one well-conducted study 
of 70 days or greater designed to observe subchronic or chronic effects 
as defined in this document.
    3. In reviewing the studies from which a TD is derived for use in 
calculating a WV, studies involving exposure routes other than oral may 
be considered only when an equivalent oral daily dose can be estimated 
and technically justified because the criteria calculations are based on 
an oral route of exposure.
    4. In assessing the studies which meet the minimum data 
requirements, preference should be given to studies which assess effects 
on developmental or reproductive endpoints because, in general, these 
are more important endpoints in ensuring that a population's 
productivity is maintained. The Wildlife TSD provides additional 
discussion on the selection of an appropriate toxicity study.
    C. Selection of TD Data. In selecting data to be used in the 
derivation of WVs, the evaluation of acceptable endpoints, as defined in 
Section III.A of this appendix, will be the primary selection criterion. 
All data not part of the selected subset may be used to assess the 
reasonableness of the toxicity value and the appropriateness of the Ufs 
which are applied.
    1. If more than one TD value is available within a taxonomic class, 
based on different endpoints of toxicity, that TD, which is likely to 
reflect best potential impacts to wildlife populations through resultant 
changes in mortality or fecundity rates, shall be used for the 
calculation of WVs.
    2. If more than one TD is available within a taxonomic class, based 
on the same endpoint of toxicity, the TD from the most sensitive species 
shall be used.
    3. If more than one TD based on the same endpoint of toxicity is 
available for a given species, the TD for that species shall be 
calculated using the geometric mean of those TDs.
    D. Exposure Assumptions in the Determination of the TD. 1. In those 
cases in which a TD is available in units other than milligrams of 
substance per kilograms per day (mg/kg/d), the following procedures 
shall be used to convert the TD to the appropriate units prior to 
calculating a WV.
    2. If the TD is given in milligrams of toxicant per liter of water 
consumed by the test animals (mg/L), the TD shall be multiplied by the 
daily average volume of water consumed by the test animals in liters per 
day (L/d) and divided by the average weight of the test animals in 
kilograms (kg).
    3. If the TD is given in milligrams of toxicant per kilogram of food 
consumed by the test animals (mg/kg), the TD shall be multiplied by the 
average amount of food in kilograms consumed daily by the test animals 
(kg/d) and divided by the average weight of the test animals in 
kilograms (kg).
    E. Drinking and Feeding Rates. 1. When drinking and feeding rates 
and body weight are needed to express the TD in milligrams of substance 
per kilograms per day (mg/kg/d), they are obtained from the study from 
which the TD was derived. If not already determined, body weight, and 
drinking and feeding rates are to be converted to a wet weight basis.
    2. If the study does not provide the needed values, the values shall 
be determined from appropriate scientific literature. For studies done 
with domestic laboratory animals, either the Registry of Toxic Effects 
of Chemical Substances (National Institute for Occupational Safety and 
Health, the latest edition, Cincinnati, OH), or Recommendations for and 
Documentation of Biological Values for Use in Risk Assessment (U.S. EPA, 
1988) should be consulted. When these references do not contain exposure 
information for the species used in a given study, either the allometric 
equations from Calder and Braun (1983) and Nagy (1987), which are 
presented below, or the exposure estimation methods

[[Page 1024]]

presented in Chapter 4 of the Wildlife Exposure Factors Handbook (U.S. 
EPA, 1993), should be applied to approximate the needed feeding or 
drinking rates. Additional discussion and recommendations are provided 
in the Wildlife TSD. The choice of the methods described above is at the 
discretion of the State or Tribe.
    3. For mammalian species, the general allometric equations are:

    a. F = 0.0687  x  (Wt)0.82

Where:

F = Feeding rate of mammalian species in kilograms per day (kg/d) dry 
weight.
Wt = Average weight in kilograms (kg) of the test animals.

    b. W = 0.099  x  (Wt)0.90

Where:

W = Drinking rate of mammalian species in liters per day (L/d).
Wt = Average weight in kilograms (kg) of the test animals.

    4. For avian species, the general allometric equations are:

    a. F = 0.0582 (Wt)0.65

Where:

F = Feeding rate of avian species in kilograms per day (kg/d) dry 
weight.
Wt = Average weight in kilograms (kg) of the test animals.

    b. W = 0.059  x  (Wt)0.67

Where:

W = Drinking rate of avian species in liters per day (L/d).
Wt = Average weight in kilograms (kg) of the test animals.

    F. LOAEL to NOAEL Extrapolations (UFL). In those cases in 
which a NOAEL is unavailable as the TD and a LOAEL is available, the 
LOAEL may be used to estimate the NOAEL. If used, the LOAEL shall be 
divided by an UF to estimate a NOAEL for use in deriving WVs. The value 
of the UF shall not be less than one and should not exceed 10, depending 
on the dose-response curve and any other available data, and is 
represented by UFL in the equation expressed in Section II.A 
of this appendix. Guidance for selecting an appropriate UFL, 
based on a review of available wildlife toxicity data, is available in 
the Wildlife TSD.
    G. Subchronic to Chronic Extrapolations (USS). In 
instances where only subchronic data are available, the TD may be 
derived from subchronic data. In such cases, the TD shall be divided by 
an UF to extrapolate from subchronic to chronic levels. The value of the 
UF shall not be less than one and should not exceed 10, and is 
represented by UFS in the equation expressed in Section II.A 
of this appendix. This factor is to be used when assessing highly 
bioaccumulative substances where toxicokinetic considerations suggest 
that a bioassay of limited length underestimates chronic effects. 
Guidance for selecting an appropriate UFS, based on a review 
of available wildlife toxicity data, is available in the Wildlife TSD.
    H. Interspecies Extrapolations (UFA). 1. The selection of 
the UFA shall be based on the available toxicological data 
and on available data concerning the physicochemical, toxicokinetic, and 
toxicodynamic properties of the substance in question and the amount and 
quality of available data. This value is an UF that is intended to 
account for differences in toxicological sensitivity among species. 
Guidance for selecting an appropriate UFA, based on a review 
of available wildlife toxicity data, is available in the Wildlife TSD. 
Additional discussion of an interspecies UF located in appendix A to the 
Great Lakes Water Quality Initiative Technical Support Document for 
Human Health Criteria may be useful in determining the appropriate value 
for UFA.
    2. For the derivation of Tier I criteria, a UFA shall not 
be less than one and should not exceed 100, and shall be applied to each 
of the five representative species, based on existing data and best 
professional judgment. The value of UFA may differ for each 
of the representative species.
    3. For Tier I wildlife criteria, the UFA shall be used 
only for extrapolating toxicity data across species within a taxonomic 
class, except as provided below. The Tier I UFA is not 
intended for interclass extrapolations because of the poorly defined 
comparative toxicokinetic and toxicodynamic parameters between mammals 
and birds. However, an interclass extrapolation employing a 
UFA may be used for a given chemical if it can be supported 
by a validated biologically-based dose-response model or by an analysis 
of interclass toxicological data, considering acceptable endpoints, for 
a chemical analog that acts under the same mode of toxic action.

   IV. Parameters of the Exposure Component of the Wildlife Criteria 
                               Methodology

    A. Drinking and Feeding Rates of Representative Species. The body 
weights (Wt), feeding rates (FTli), drinking rates (W), and 
trophic level dietary composition (as food ingestion rate and percent in 
diet) for each of the five representative species are presented in Table 
D-2 of this appendix. Guidance on incorporating the non-aquatic portion 
of the bald eagle and mink diets in the criteria calculations is 
available in the Wildlife TSD.
    B. BAFs. The Methodology for Development of Bioaccumulation Factors 
is presented in appendix B to part 132. Trophic level 3 and 4 BAFs are 
used to derive Wvs because these are the trophic levels at which the 
representative species feed.

[[Page 1025]]

                              V. References

    A. Barnes, D.G. and M. Dourson. 1988. Reference Dose (RfD): 
Description and Use in Health Risk Assessments. Regul. Toxicol. 
Pharmacol. 8:471-486.
    B. Calder III, W.A. and E.J. Braun. 1983. Scaling of Osmotic 
Regulation in Mammals and Birds. American Journal of Physiology. 
244:601-606.
    C. Nagy, K.A. 1987. Field Metabolic Rate and Food Requirement 
Scaling in Mammals and Birds. Ecological Monographs. 57(2):111-128.
    D. National Academy of Sciences. 1977. Chemical Contaminants: Safety 
and Risk Assessment, in Drinking Water and Health, Volume 1. National 
Academy Press.
    E. National Academy of Sciences. 1980. Problems of Risk Estimation, 
in Drinking Water and Health, Volume 3. National Academy Press.
    F. National Institute for Occupational Safety and Health. Latest 
edition. Registry of Toxic Effects of Chemical Substances. Division of 
Standards Development and Technology Transfer. (Available only on 
microfiche or as an electronic database.)
    G. U.S. EPA. 1980. Appendix C. Guidelines and Methodology Used in 
the Preparation of Health Effect Assessment Chapters of the Consent 
Decree Water Criteria Documents, pp. 79347-79357 in Water Quality 
Criteria Documents; Availability. Available from U.S. Environmental 
Protection Agency, Office of Water Resource Center (WH-550A), 401 M St. 
SW, Washington, DC 20460.
    H. U.S. EPA. 1988. Recommendations for, and documentation of, 
biological values for use in risk assessment. NTIS-PB88-179874.
    I. U.S. EPA. 1993. Wildlife Exposure Factors Handbook, Volumes I and 
II. EPA/600/R-93/187a and b.

                    Tables to Appendix D to Part 132

             Table D-1--Tier I Great Lakes Wildlife Criteria
------------------------------------------------------------------------
                 Substance                     Criterion (g/L)
------------------------------------------------------------------------
DDT & Metabolites..........................  1.1E-5
Mercury....................................  1.3E-3
PCBs (total)...............................  7.4E-5
2,3,7,8-TCDD...............................  3.1E-9
------------------------------------------------------------------------


          Table D-2--Exposure Parameters for the Five Representative Species Identified for Protection
----------------------------------------------------------------------------------------------------------------
                                                      Water
                                       Adult body   ingestion    Food ingestion rate of   Trophic level of prey
           Species (units)               weight      rate (L/     prey in each trophic      (percent of diet)
                                          (kg)         day)          level (kg/day)
----------------------------------------------------------------------------------------------------------------
Mink.................................        0.80        0.081  TL3: 0.159; Other:       TL3: 90; Other: 10.
                                                                 0.0177.
Otter................................        7.4         0.600  TL3: 0.977; TL4: 0.244.  TL3: 80; TL4: 20.
Kingfisher...........................        0.15        0.017  TL3: 0.0672............  TL3: 100.
Herring gull.........................        1.1         0.063  TL3: 0.192; TL4: 0.0480  Fish: 90--TL3: 80; TL4:
                                                                                          20.
                                                                Other: 0.0267..........  Other: 10.
Bald eagle...........................        4.6         0.160  TL3: 0.371; TL4: 0.0929  Fish: 92--TL3: 80; TL4:
                                                                                          20.
                                                                PB: 00283; Other:        Birds: 8--PB: 70; non-
                                                                 0.0121.                  aquatic: 30.
----------------------------------------------------------------------------------------------------------------
Note: TL3=trophic level three fish;  TL4=trophic level four fish;  PB=piscivorous birds;  Other=non-aquatic
  birds and mammals.

      Appendix E to Part 132--Great Lakes Water Quality Initiative 
                         Antidegradation Policy

    Great Lakes States and Tribes shall adopt provisions consistent with 
(as protective as) appendix E to part 132.
    The State or Tribe shall adopt an antidegradation standard 
applicable to all waters of the Great Lakes System and identify the 
methods for implementing such a standard. Consistent with 40 CFR 131.12, 
an acceptable antidegradation standard and implementation procedure are 
required elements of a State's or Tribe's water quality standards 
program. Consistent with 40 CFR 131.6, a complete water quality 
standards submission needs to include both an antidegradation standard 
and antidegradation implementation procedures. At a minimum, States and 
Tribes shall adopt provisions in their antidegradation standard and 
implementation methods consistent with sections I, II, III and IV of 
this appendix, applicable to pollutants identified as bioaccumulative 
chemicals of concern (BCCs).

                       I. Antidegradation Standard

    This antidegradation standard shall be applicable to any action or 
activity by any source, point or nonpoint, of pollutants that is 
anticipated to result in an increased loading of BCCs to surface waters 
of the Great Lakes System and for which independent regulatory authority 
exists requiring compliance with water quality standards. Pursuant to 
this standard:
    A. Existing instream water uses, as defined pursuant to 40 CFR 131, 
and the level of water quality necessary to protect existing uses shall 
be maintained and protected.

[[Page 1026]]

Where designated uses of the waterbody are impaired, there shall be no 
lowering of the water quality with respect to the pollutant or 
pollutants which are causing the impairment;
    B. Where, for any parameter, the quality of the waters exceed levels 
necessary to support the propagation of fish, shellfish, and wildlife 
and recreation in and on the waters, that water shall be considered high 
quality for that parameter consistent with the definition of high 
quality water found at section II.A of this appendix and that quality 
shall be maintained and protected unless the State or Tribe finds, after 
full satisfaction of intergovernmental coordination and public 
participation provisions of the State's or Tribe's continuing planning 
process, that allowing lower water quality is necessary to accommodate 
important economic or social development in the area in which the waters 
are located. In allowing such degradation, the State or Tribe shall 
assure water quality adequate to protect existing uses fully. Further, 
the State or Tribe shall assure that there shall be achieved the highest 
statutory and regulatory requirements for all new and existing point 
sources and all cost-effective and reasonable best management practices 
for nonpoint source control. The State or Tribe shall utilize the 
Antidegradation Implementation Procedures adopted pursuant to the 
requirements of this regulation in determining if any lowering of water 
quality will be allowed;
    C. Where high quality waters constitute an outstanding national 
resource, such as waters of national and State parks and wildlife 
refuges and waters of exceptional recreational or ecological 
significance, that water quality shall be maintained and protected; and
    D. In those cases where the potential lowering of water quality is 
associated with a thermal discharge, the decision to allow such 
degradation shall be consistent with section 316 of the Clean Water Act 
(CWA).

              II. Antidegradation Implementation Procedures

    A. Definitions.
    Control Document. Any authorization issued by a State, Tribal or 
Federal agency to any source of pollutants to waters under its 
jurisdiction that specifies conditions under which the source is allowed 
to operate.
    High quality waters. High quality waters are water bodies in which, 
on a parameter by parameter basis, the quality of the waters exceeds 
levels necessary to support propagation of fish, shellfish, and wildlife 
and recreation in and on the water.
    Lake Superior Basin--Outstanding International Resource Waters. 
Those waters designated as such by a Tribe or State consistent with the 
September 1991 Bi-National Program to Restore and Protect the Lake 
Superior Basin. The purpose of such designations shall be to ensure that 
any new or increased discharges of Lake Superior bioaccumulative 
substances of immediate concern are subject to best technology in 
process and treatment requirements.
    Lake Superior Basin--Outstanding National Resource Waters. Those 
waters designated as such by a Tribe or State consistent with the 
September 1991 Bi-National Program to Restore and Protect the Lake 
Superior Basin. The purpose of such designations shall be to prohibit 
new or increased discharges of Lake Superior bioaccumulative substances 
of immediate concern from point sources in these areas.
    Lake Superior bioaccumulative substances of immediate concern. A 
list of substances identified in the September 1991 Bi-National Program 
to Restore and Protect the Lake Superior Basin. They include: 2, 3, 7, 
8-TCDD; octachlorostyrene; hexachlorobenzene; chlordane; DDT, DDE, and 
other metabolites; toxaphene; PCBs; and mercury. Other chemicals may be 
added to the list following States' or Tribes' assessments of 
environmental effects and impacts and after public review and comment.
    Outstanding National Resource Waters. Those waters designated as 
such by a Tribe or State. The State or Tribal designation shall describe 
the quality of such waters to serve as the benchmark of the water 
quality that shall be maintained and protected. Waters that may be 
considered for designation as Outstanding National Resource Waters 
include, but are not limited to, water bodies that are recognized as:
    Important because of protection through official action, such as 
Federal or State law, Presidential or secretarial action, international 
treaty, or interstate compact;
    Having exceptional recreational significance;
    Having exceptional ecological significance;
    Having other special environmental, recreational, or ecological 
attributes; or waters whose designation as Outstanding National Resource 
Waters is reasonably necessary for the protection of other waters so 
designated.
    Significant Lowering of Water Quality. A significant lowering of 
water quality occurs when there is a new or increased loading of any BCC 
from any regulated existing or new facility, either point source or 
nonpoint source for which there is a control document or reviewable 
action, as a result of any activity including, but not limited to:
    (1) Construction of a new regulated facility or modification of an 
existing regulated facility such that a new or modified control document 
is required;
    (2) Modification of an existing regulated facility operating under a 
current control document such that the production capacity of the 
facility is increased;

[[Page 1027]]

    (3) Addition of a new source of untreated or pretreated effluent 
containing or expected to contain any BCC to an existing wastewater 
treatment works, whether public or private;
    (4) A request for an increased limit in an applicable control 
document;
    (5) Other deliberate activities that, based on the information 
available, could be reasonably expected to result in an increased 
loading of any BCC to any waters of the Great Lakes System.
    b. Notwithstanding the above, changes in loadings of any BCC within 
the existing capacity and processes, and that are covered by the 
existing applicable control document, are not subject to an 
antidegradation review. These changes include, but are not limited to:
    (1) Normal operational variability;
    (2) Changes in intake water pollutants;
    (3) Increasing the production hours of the facility, (e.g., adding a 
second shift); or
    (4) Increasing the rate of production.
    C. Also, excluded from an antidegradation review are new effluent 
limits based on improved monitoring data or new water quality criteria 
or values that are not a result of changes in pollutant loading.
    B. For all waters, the Director shall ensure that the level of water 
quality necessary to protect existing uses is maintained. In order to 
achieve this requirement, and consistent with 40 CFR 131.10, water 
quality standards use designations must include all existing uses. 
Controls shall be established as necessary on point and nonpoint sources 
of pollutants to ensure that the criteria applicable to the designated 
use are achieved in the water and that any designated use of a 
downstream water is protected. Where water quality does not support the 
designated uses of a waterbody or ambient pollutant concentrations 
exceed water quality criteria applicable to that waterbody, the Director 
shall not allow a lowering of water quality for the pollutant or 
pollutants preventing the attainment of such uses or exceeding such 
criteria.
    C. For Outstanding National Resource Waters:
    1. The Director shall ensure, through the application of appropriate 
controls on pollutant sources, that water quality is maintained and 
protected.
    2. Exception. A short-term, temporary (i.e., weeks or months) 
lowering of water quality may be permitted by the Director.
    D. For high quality waters, the Director shall ensure that no action 
resulting in a lowering of water quality occurs unless an 
antidegradation demonstration has been completed pursuant to section III 
of this appendix and the information thus provided is determined by the 
Director pursuant to section IV of this appendix to adequately support 
the lowering of water quality.
    1. The Director shall establish conditions in the control document 
applicable to the regulated facility that prohibit the regulated 
facility from undertaking any deliberate action, such that there would 
be an increase in the rate of mass loading of any BCC, unless an 
antidegradation demonstration is provided to the Director and approved 
pursuant to section IV of this appendix prior to commencement of the 
action. Imposition of limits due to improved monitoring data or new 
water quality criteria or values, or changes in loadings of any BCC 
within the existing capacity and processes, and that are covered by the 
existing applicable control document, are not subject to an 
antidegradation review.
    2. For BCCs known or believed to be present in a discharge, from a 
point or nonpoint source, a monitoring requirement shall be included in 
the control document. The control document shall also include a 
provision requiring the source to notify the Director or any increased 
loadings. Upon notification, the Director shall require actions as 
necessary to reduce or eliminate the increased loading.
    3. Fact Sheets prepared pursuant to 40 CFR 124.8 and 124.56 shall 
reflect any conditions developed under sections II.D.1 or II.D.2 of this 
appendix and included in a permit.
    E. Special Provisions for Lake Superior. The following conditions 
apply in addition to those specified in section II.B through II.C of 
this appendix for waters of Lake Superior so designated.
    1. A State or Tribe may designate certain specified areas of the 
Lake Superior Basin as Lake Superior Basin--Outstanding National 
Resource Waters for the purpose of prohibiting the new or increased 
discharge of Lake Superior bioaccumulative substances of immediate 
concern from point sources in these areas.
    2. States and Tribes may designate all waters of the Lake Superior 
Basin as Outstanding International Resource Waters for the purpose of 
restricting the increased discharge of Lake Superior bioaccumulative 
substances of immediate concern from point sources consistent with the 
requirements of sections III.C and IV.B of this appendix.
    F. Exemptions. Except as the Director may determine on a case-by-
case basis that the application of these procedures is required to 
adequately protect water quality, or as the affected waterbody is an 
Outstanding National Resource Water as defined in section II.A of this 
appendix, the procedures in this part do not apply to:
    1. Short-term, temporary (i.e., weeks or months) lowering of water 
quality;
    2. Bypasses that are not prohibited at 40 CFR 122.41(m); and
    3. Response actions pursuant to the Comprehensive Environmental 
Response, Compensation and Liability Act (CERCLA), as amended, or 
similar Federal, State or Tribal

[[Page 1028]]

authorities, undertaken to alleviate a release into the environment of 
hazardous substances, pollutants or contaminants which may pose an 
imminent and substantial danger to public health or welfare.

                   III. Antidegradation Demonstration

    Any entity seeking to lower water quality in a high quality water or 
create a new or increased discharge of Lake Superior bioaccumulative 
substances of immediate concern in a Lake Superior Outstanding 
International Resource Water must first, as required by sections II.D or 
II.E.2 of this appendix, submit an antidegradation demonstration for 
consideration by the Director. States and Tribes should tailor the level 
of detail and documentation in antidegradation reviews, to the specific 
circumstances encountered. The antidegradation demonstration shall 
include the following:
    A. Pollution Prevention Alternatives Analysis. Identify any cost-
effective pollution prevention alternatives and techniques that are 
available to the entity, that would eliminate or significantly reduce 
the extent to which the increased loading results in a lowering of water 
quality.
    B. Alternative or Enhanced Treatment Analysis. Identify alternative 
or enhanced treatment techniques that are available to the entity that 
would eliminate the lowering of water quality and their costs relative 
to the cost of treatment necessary to achieve applicable effluent 
limitations.
    C. Lake Superior. If the States or Tribes designate the waters of 
Lake Superior as Outstanding International Resource Waters pursuant to 
section II.E.2 of this appendix, then any entity proposing a new or 
increased discharge of any Lake Superior bioaccumulative substance of 
immediate concern to the Lake Superior Basin shall identify the best 
technology in process and treatment to eliminate or reduce the extent of 
the lowering of water quality. In this case, the requirements in section 
III.B of this appendix do not apply.
    D. Important Social or Economic Development Analysis. Identify the 
social or economic development and the benefits to the area in which the 
waters are located that will be foregone if the lowering of water 
quality is not allowed.
    E. Special Provision for Remedial Actions. Entities proposing 
remedial actions pursuant to the CERCLA, as amended, corrective actions 
pursuant to the Resource Conservation and Recovery Act, as amended, or 
similar actions pursuant to other Federal or State environmental 
statutes may submit information to the Director that demonstrates that 
the action utilizes the most cost effective pollution prevention and 
treatment techniques available, and minimizes the necessary lowering of 
water quality, in lieu of the information required by sections III.B 
through III.D of this appendix.

                      IV. Antidegradation Decision

    A. Once the Director determines that the information provided by the 
entity proposing to increase loadings is administratively complete, the 
Director shall use that information to determine whether or not the 
lowering of water quality is necessary, and, if it is necessary, whether 
or not the lowering of water quality will support important social and 
economic development in the area. If the proposed lowering of water 
quality is either not necessary, or will not support important social 
and economic development, the Director shall deny the request to lower 
water quality. If the lowering of water quality is necessary, and will 
support important social and economic development, the Director may 
allow all or part of the proposed lowering to occur as necessary to 
accommodate the important social and economic development. In no event 
may the decision reached under this section allow water quality to be 
lowered below the minimum level required to fully support existing and 
designated uses. The decision of the Director shall be subject to the 
public participation requirements of 40 CFR 25.
    B. If States designate the waters of Lake Superior as Outstanding 
International Resource Waters pursuant to section II.E.2 of this 
appendix, any entity requesting to lower water quality in the Lake 
Superior Basin as a result of the new or increased discharge of any Lake 
Superior bioaccumulative substance of immediate concern shall be 
required to install and utilize the best technology in process and 
treatment as identified by the Director.

      Appendix F to Part 132--Great Lakes Water Quality Initiative 
                        Implementation Procedures

     Procedure 1: Site-specific Modifications to Criteria and Values

    Great Lakes States and Tribes shall adopt provisions consistent with 
(as protective as) this procedure.
    A. Requirements for Site-specific Modifications to Criteria and 
Values. Criteria and values may be modified on a site-specific basis to 
reflect local environmental conditions as restricted by the following 
provisions. Any such modifications must be protective of designated uses 
and aquatic life, wildlife or human health and be submitted to EPA for 
approval. In addition, any site-specific modifications that result in 
less stringent criteria must be based on a sound scientific rationale 
and shall not be likely to jeopardize the continued existence of 
endangered or threatened species listed or proposed under section 4 of 
the Endangered Species Act (ESA) or result

[[Page 1029]]

in the destruction or adverse modification of such species' critical 
habitat. More stringent modifications shall be developed to protect 
endangered or threatened species listed or proposed under section 4 of 
the ESA, where such modifications are necessary to ensure that water 
quality is not likely to jeopardize the continued existence of such 
species or result in the destruction or adverse modification of such 
species' critical habitat. More stringent modifications may also be 
developed to protect candidate (C1) species being considered by the U.S. 
Fish and Wildlife Service (FWS) for listing under section 4 of the ESA, 
where such modifications are necessary to protect such species.
    1. Aquatic Life.
    a. Aquatic life criteria or values may be modified on a site-
specific basis to provide an additional level of protection, pursuant to 
authority reserved to the States and Tribes under Clean Water Act (CWA) 
section 510.
    Guidance on developing site-specific criteria in these instances is 
provided in Chapter 3 of the U.S. EPA Water Quality Standards Handbook, 
Second Edition--Revised (1994).
    b. Less stringent site-specific modifications to chronic or acute 
aquatic life criteria or values may be developed when:
    i. The local water quality characteristics such as Ph, hardness, 
temperature, color, etc., alter the biological availability or toxicity 
of a pollutant; or
    ii. The sensitivity of the aquatic organisms species that ``occur at 
the site'' differs from the species actually tested in developing the 
criteria. The phrase ``occur at the site'' includes the species, genera, 
families, orders, classes, and phyla that: are usually present at the 
site; are present at the site only seasonally due to migration; are 
present intermittently because they periodically return to or extend 
their ranges into the site; were present at the site in the past, are 
not currently present at the site due to degraded conditions, and are 
expected to return to the site when conditions improve; are present in 
nearby bodies of water, are not currently present at the site due to 
degraded conditions, and are expected to be present at the site when 
conditions improve. The taxa that ``occur at the site'' cannot be 
determined merely by sampling downstream and/or upstream of the site at 
one point in time. ``Occur at the site'' does not include taxa that were 
once present at the site but cannot exist at the site now due to 
permanent physical alteration of the habitat at the site resulting, for 
example, from dams, etc.
    c. Less stringent modifications also may be developed to acute and 
chronic aquatic life criteria or values to reflect local physical and 
hydrological conditions.
    Guidance on developing site-specific criteria is provided in Chapter 
3 of the U.S. EPA Water Quality Standards Handbook, Second Edition--
Revised (1994).
    d. Any modifications to protect threatened or endangered aquatic 
species required by procedure 1.A of this appendix may be accomplished 
using either of the two following procedures:
    i. If the Species Mean Acute Value (SMAV) for a listed or proposed 
species, or for a surrogate of such species, is lower than the 
calculated Final Acute Value (FAV), such lower SMAV may be used instead 
of the calculated FAV in developing site-specific modified criteria; or,
    ii. The site-specific criteria may be calculated using the 
recalculation procedure for site-specific modifications described in 
Chapter 3 of the U.S. EPA Water Quality Standards Handbook, Second 
Edition--Revised (1994).
    2. Wildlife.
    a. Wildlife water quality criteria may be modified on a site-
specific basis to provide an additional level of protection, pursuant to 
authority reserved to the States and Tribes under CWA section 510.
    b. Less stringent site-specific modifications to wildlife water 
quality criteria may be developed when a site-specific bioaccumulation 
factor (BAF) is derived which is lower than the system-wide BAF derived 
under appendix B of this part. The modification must consider both the 
mobility of prey organisms and wildlife populations in defining the site 
for which criteria are developed. In addition, there must be a showing 
that:
    i. Any increased uptake of the toxicant by prey species utilizing 
the site will not cause adverse effects in wildlife populations; and
    ii. Wildlife populations utilizing the site or downstream waters 
will continue to be fully protected.
    c. Any modification to protect endangered or threatened wildlife 
species required by procedure 1.A of this appendix must consider both 
the mobility of prey organisms and wildlife populations in defining the 
site for which criteria are developed, and may be accomplished by using 
the following recommended method.
    i. The methodology presented in appendix D to part 132 is used, 
substituting appropriate species-specific toxicological, 
epidemiological, or exposure information, including changes to the BAF;
    ii. An interspecies uncertainty factor of 1 should be used where 
epidemiological data are available for the species in question. If 
necessary, species-specific exposure parameters can be derived as 
presented in Appendix D of this part;
    iii. An intraspecies uncertainty factor (to account for protection 
of individuals within a wildlife population) should be applied in the 
denominator of the effect part of the wildlife equation in appendix D of 
this part

[[Page 1030]]

in a manner consistent with the other uncertainty factors described in 
appendix D of this part; and
    iv. The resulting wildlife value for the species in question should 
be compared to the two class-specific wildlife values which were 
previously calculated, and the lowest of the three shall be selected as 
the site-specific modification.
    Note: Further discussion on the use of this methodology may be found 
in the Great Lakes Water Quality Initiative Technical Support Document 
for Wildlife Criteria.
    3. BAFs.
    a. BAFs may be modified on a site-specific basis to larger values, 
pursuant to the authority reserved to the States and Tribes under CWA 
section 510, where reliable data show that local bioaccumulation is 
greater than the system-wide value.
    b. BAFs may be modified on a site-specific basis to lower values, 
where scientifically defensible, if:
    i. The fraction of the total chemical that is freely dissolved in 
the ambient water is different than that used to derive the system-wide 
BAFs (i.e., the concentrations of particulate organic carbon and the 
dissolved organic carbon are different than those used to derive the 
system-wide BAFs);
    ii. Input parameters of the Gobas model, such as the structure of 
the aquatic food web and the disequilibrium constant, are different at 
the site than those used to derive the system-wide BAFs;
    iii. The percent lipid of aquatic organisms that are consumed and 
occur at the site is different than that used to derive the system-wide 
BAFs; or
    iv. Site-specific field-measured BAFs or biota-sediment accumulation 
factor (BSAFs) are determined.
    If site-specific BAFs are derived, they shall be derived using the 
methodology in appendix B of this part.
    c. Any more stringent modifications to protect threatened or 
endangered species required by procedure 1.A of this appendix shall be 
derived using procedures set forth in the methodology in appendix B of 
this part.
    4. Human Health.
    a. Human health criteria or values may be modified on a site-
specific basis to provide an additional level of protection, pursuant to 
authority reserved to the States and Tribes under CWA section 510. Human 
health criteria or values shall be modified on a site-specific basis to 
provide additional protection appropriate for highly exposed 
subpopulations.
    b. Less stringent site-specific modifications to human health 
criteria or values may be developed when:
    i. local fish consumption rates are lower than the rate used in 
deriving human health criteria or values under appendix C of this part; 
and/or
    ii. a site-specific BAF is derived which is lower than that used in 
deriving human health criteria or values under appendix C of this part.
    B. Notification Requirements. When a State proposes a site-specific 
modification to a criterion or value as allowed in section 4.A above, 
the State should notify the other Great Lakes States of such a proposal 
and, for less stringent criteria, supply appropriate justification.
    C. References.
    U.S. EPA. 1984. Water Quality Standards Handbook--Revised. Chapter 3 
and Appendices. U.S. Environmental Protection Agency, Office of Water 
Resource Center (RC-4100), 401 M Street, SW., Washington, DC 20960.

  Procedure 2: Variances from Water Quality Standards for Point Sources

    The Great Lakes States or Tribes may adopt water quality standards 
(WQS) variance procedures and may grant WQS variances for point sources 
pursuant to such procedures. Variance procedures shall be consistent 
with (as protective as) the provisions in this procedure.
    A. Applicability. A State or Tribe may grant a variance to a WQS 
which is the basis of a water quality-based effluent limitation included 
in a National Pollutant Discharge Elimination System (NPDES) permit. A 
WQS variance applies only to the permittee requesting the variance and 
only to the pollutant or pollutants specified in the variance. A 
variance does not affect, or require the State or Tribe to modify, the 
corresponding water quality standard for the waterbody as a whole.
    1. This provision shall not apply to new Great Lakes dischargers or 
recommencing dischargers.
    2. A variance to a water quality standard shall not be granted that 
would likely jeopardize the continued existence of any endangered or 
threatened species listed under Section 4 of the Endangered Species Act 
(ESA) or result in the destruction or adverse modification of such 
species' critical habitat.
    3. A WQS variance shall not be granted if standards will be attained 
by implementing effluent limits required under sections 301(b) and 306 
of the Clean Water Act (CWA) and by the permittee implementing cost-
effective and reasonable best management practices for nonpoint source 
control.
    B. Maximum Timeframe for Variances. A WQS variance shall not exceed 
five years or the term of the NPDES permit, whichever is less. A State 
or Tribe shall review, and modify as necessary, WQS variances as part of 
each water quality standards review pursuant to section 303(c) of the 
CWA.
    C. Conditions to Grant a Variance. A variance may be granted if:

[[Page 1031]]

    1. The permittee demonstrates to the State or Tribe that attaining 
the WQS is not feasible because:
    a. Naturally occurring pollutant concentrations prevent the 
attainment of the WQS;
    b. Natural, ephemeral, intermittent or low flow conditions or water 
levels prevent the attainment of the WQS, unless these conditions may be 
compensated for by the discharge of sufficient volume of effluent to 
enable WQS to be met without violating State or Tribal water 
conservation requirements;
    c. Human-caused conditions or sources of pollution prevent the 
attainment of the WQS and cannot be remedied, or would cause more 
environmental damage to correct than to leave in place;
    d. Dams, diversions or other types of hydrologic modifications 
preclude the attainment of the WQS, and it is not feasible to restore 
the waterbody to its original condition or to operate such modification 
in a way that would result in the attainment of the WQS;
    e. Physical conditions related to the natural features of the 
waterbody, such as the lack of a proper substrate cover, flow, depth, 
pools, riffles, and the like, unrelated to chemical water quality, 
preclude attainment of WQS; or
    f. Controls more stringent than those required by sections 301(b) 
and 306 of the CWA would result in substantial and widespread economic 
and social impact.
    2. In addition to the requirements of C.1, above, the permittee 
shall also:
    a. Show that the variance requested conforms to the requirements of 
the State's or Tribe's antidegradation procedures; and
    b. Characterize the extent of any increased risk to human health and 
the environment associated with granting the variance compared with 
compliance with WQS absent the variance, such that the State or Tribe is 
able to conclude that any such increased risk is consistent with the 
protection of the public health, safety and welfare.
    D. Submittal of Variance Application. The permittee shall submit an 
application for a variance to the regulatory authority issuing the 
permit. The application shall include:
    1. All relevant information demonstrating that attaining the WQS is 
not feasible based on one or more of the conditions in section C.1 of 
this procedure; and,
    2. All relevant information demonstrating compliance with the 
conditions in section C.2 of this procedure.
    E. Public Notice of Preliminary Decision. Upon receipt of a complete 
application for a variance, and upon making a preliminary decision 
regarding the variance, the State or Tribe shall public notice the 
request and preliminary decision for public comment pursuant to the 
regulatory authority's Administrative Procedures Act and shall notify 
the other Great Lakes States and Tribes of the preliminary decision. 
This public notice requirement may be satisfied by including the 
supporting information for the variance and the preliminary decision in 
the public notice of a draft NPDES permit.
    F. Final Decision on Variance Request. The State or Tribe shall 
issue a final decision on the variance request within 90 days of the 
expiration of the public comment period required in section E of this 
procedure. If all or part of the variance is approved by the State or 
Tribe, the decision shall include all permit conditions needed to 
implement those parts of the variance so approved. Such permit 
conditions shall, at a minimum, require:
    1. Compliance with an initial effluent limitation which, at the time 
the variance is granted, represents the level currently achievable by 
the permittee, and which is no less stringent than that achieved under 
the previous permit;
    2. That reasonable progress be made toward attaining the water 
quality standards for the waterbody as a whole through appropriate 
conditions;
    3. When the duration of a variance is shorter than the duration of a 
permit, compliance with an effluent limitation sufficient to meet the 
underlying water quality standard, upon the expiration of said variance; 
and
    4. A provision that allows the permitting authority to reopen and 
modify the permit based on any State or Tribal triennial water quality 
standards revisions to the variance.
    The State shall deny a variance request if the permittee fails to 
make the demonstrations required under section C of this procedure.
    G. Incorporating Variance into Permit. The State or Tribe shall 
establish and incorporate into the permittee's NPDES permit all 
conditions needed to implement the variance as determined in section F 
of this procedure.
    H. Renewal of Variance. A variance may be renewed, subject to the 
requirements of sections A through G of this procedure. As part of any 
renewal application, the permittee shall again demonstrate that 
attaining WQS is not feasible based on the requirements of section C of 
this procedure. The permittee's application shall also contain 
information concerning its compliance with the conditions incorporated 
into its permit as part of the original variance pursuant to sections F 
and G of this procedure. Renewal of a variance may be denied if the 
permittee did not comply with the conditions of the original variance.
    I. EPA Approval. All variances and supporting information shall be 
submitted by the State or Tribe to the appropriate EPA regional office 
and shall include:
    1. Relevant permittee applications pursuant to section D of this 
procedure;

[[Page 1032]]

    2. Public comments and records of any public hearings pursuant to 
section E of this procedure;
    3. The final decision pursuant to section F of this procedure; and,
    4. NPDES permits issued pursuant to section G of this procedure.
    5. Items required by sections I.1 through I.3. of this procedure 
shall be submitted by the State within 30 days of the date of the final 
variance decision. The item required by section I.4 of this procedure 
shall be submitted in accordance with the State or Tribe Memorandum of 
Agreement with the Regional Administrator pursuant to 40 CFR 123.24.
    6. EPA shall review the State or Tribe submittal for compliance with 
the CWA pursuant to 40 CFR 123.44, and 40 CFR 131.21.
    J. State WQS Revisions. All variances shall be appended to the State 
or Tribe WQS rules.

Procedure 3: Total Maximum Daily Loads, Wasteload Allocations for Point 
Sources, Load Allocations for Nonpoint Sources, Wasteload Allocations in 
    the Absence of a TMDL, and Preliminary Wasteload Allocations for 
Purposes of Determining the Need for Water Quality Based Effluent Limits

    The Great Lakes States and Tribes shall adopt provisions consistent 
with (as protective as) this procedure 3 for the purpose of developing 
Total Maximum Daily Loads (TMDLs), Wasteload Allocations (WLAs) in the 
Absence of TMDLs, and Preliminary Wasteload Allocations for Purposes of 
Determining the Need for Water Quality Based Effluent Limits (WQBELs), 
except as specifically provided.
    A. Where a State or Tribe develops an assessment and remediation 
plan that the State or Tribe certifies meets the requirements of 
sections B through F of this procedure and public participation 
requirements applicable to TMDLs, and that has been approved by EPA as 
meeting those requirements under 40 CFR 130.6, the assessment and 
remediation plan may be used in lieu of a TMDL for purposes of appendix 
F to part 132. Assessment and remediation plans under this procedure may 
include, but are not limited to, Lakewide Management Plans, Remedial 
Action Plans, and State Water Quality Management Plans. Also, any part 
of an assessment and remediation plan that also satisfies one or more 
requirements under Clean Water Act (CWA) section 303(d) or implementing 
regulations may be incorporated by reference into a TMDL as appropriate. 
Assessment and remediation plans under this section should be tailored 
to the level of detail and magnitude for the watershed and pollutant 
being assessed.
    B. General Conditions of Application. Except as provided in 
Sec. 132.4, the following are conditions applicable to establishing 
TMDLs for all pollutants and pollutant parameters in the Great Lakes 
System, with the exception of whole effluent toxicity, unless otherwise 
provided in procedure 6 of appendix F. Where specified, these conditions 
also apply to wasteload allocations (WLAs) calculated in the absence of 
TMDLs and to preliminary WLAs for purposes of determining the needs for 
WQBELs under procedure 5 of appendix F.
    1. TMDLs Required. TMDLs shall, at a minimum, be established in 
accordance with the listing and priority setting process established in 
section 303(d) of the CWA and at 40 CFR 130.7. Where water quality 
standards cannot be attained immediately, TMDLs must reflect reasonable 
assurances that water quality standards will be attained in a reasonable 
period of time. Some TMDLs may be based on attaining water quality 
standards over a period of time, with specific controls on individual 
sources being implemented in stages. Determining the reasonable period 
of time in which water quality standards will be met is a case-specific 
determination considering a number of factors including, but not limited 
to: receiving water characteristics; persistence, behavior and ubiquity 
of pollutants of concern; type of remediation activities necessary; 
available regulatory and non-regulatory controls; and individual State 
or Tribal requirements for attainment of water quality standards.
    2. Attainment of Water Quality Standards. A TMDL must ensure 
attainment of applicable water quality standards, including all numeric 
and narrative criteria, Tier I criteria, and Tier II values for each 
pollutant or pollutants for which a TMDL is established.
    3. TMDL Allocations.
    a. TMDLs shall include WLAs for point sources and load allocations 
(LAs) for nonpoint sources, including natural background, such that the 
sum of these allocations is not greater than the loading capacity of the 
water for the pollutant(s) addressed by the TMDL, minus the sum of a 
specified margin of safety (MOS) and any capacity reserved for future 
growth.
    b. Nonpoint source LAs shall be based on:
    i. Existing pollutant loadings if changes in loadings are not 
reasonably anticipated to occur;
    ii. Increases in pollutant loadings that are reasonably anticipated 
to occur;
    iii. Anticipated decreases in pollutant loadings if such decreased 
loadings are technically feasible and are reasonably anticipated to 
occur within a reasonable time period as a result of implementation of 
best management practices or other load reduction measures. In 
determining whether anticipated decreases in pollutant loadings are 
technically feasible and can reasonably be expected to occur within a 
reasonable period of time, technical and institutional factors shall be 
considered. These decisions are case-

[[Page 1033]]

specific and should reflect the particular TMDL under consideration.
    c. WLAs. The portion of the loading capacity not assigned to 
nonpoint sources including background, or to an MOS, or reserved for 
future growth is allocated to point sources. Upon reissuance, NPDES 
permits for these point sources must include effluent limitations 
consistent with WLAs in EPA-approved or EPA-established TMDLs.
    d. Monitoring. For LAs established on the basis of subsection b.iii 
above, monitoring data shall be collected and analyzed in order to 
validate the TMDL's assumptions, to varify anticipated load reductions, 
to evaluate the effectiveness of controls being used to implement the 
TMDL, and to revise the WLAs and LAs as necessary to ensure that water 
quality standards will be achieved within the time-period established in 
the TMDL.
    4. WLA Values. If separate EPA-approved or EPA-established TMDLs are 
prepared for different segments of the same watershed, and the separate 
TMDLs each include WLAs for the same pollutant for one or more of the 
same point sources, then WQBELs for that pollutant for the point 
source(s) shall be consistent with the most stringent of those WLAs in 
order to ensure attainment of all applicable water quality standards.
    5. Margin of Safety (MOS). Each TMDL shall include a MOS sufficient 
to account for technical uncertainties in establishing the TMDL and 
shall describe the manner in which the MOS is determined and 
incorporated into the TMDL. The MOS may be provided by leaving a portion 
of the loading capacity unallocated or by using conservative modeling 
assumptions to establish WLAs and LAs. If a portion of the loading 
capacity is left unallocated to provide a MOS, the amount left 
unallocated shall be described. If conservative modeling assumptions are 
relied on to provide a MOS, the specific assumptions providing the MOS 
shall be identified.
    6. More Stringent Requirements. States and Tribes may exercise 
authority reserved to them under section 510 of the CWA to develop more 
stringent TMDLs (including WLAs and LAs) than are required herein, 
provided that all LAs in such TMDLs reflect actual nonpoint source loads 
or those loads that can reasonably be expected to occur within a 
reasonable time-period as a result of implementing nonpoint source 
controls.
    7. Accumulation in Sediments. TMDLs shall reflect, where appropriate 
and where sufficient data are available, contributions to the water 
column from sediments inside and outside of any applicable mixing zones. 
TMDLs shall be sufficiently stringent so as to prevent accumulation of 
the pollutant of concern in sediments to levels injurious to designated 
or existing uses, human health, wildlife and aquatic life.
    8. Wet Weather Events. Notwithstanding the exception provided for 
the establishment of controls on wet weather point sources in 
Sec. 132.4(e)(1), TMDLs shall reflect, where appropriate and where 
sufficient data are available, discharges resulting from wet weather 
events. This procedure does not provide specific procedures for 
considering discharges resulting from wet weather events. However, some 
of the provisions of procedure 3 may be deemed appropriate for 
considering wet weather events on a case-by-case basis.
    9. Background Concentration of Pollutants. The representative 
background concentration of pollutants shall be established in 
accordance with this subsection to develop TMDLs, WLAs calculated in the 
absence of a TMDL, or preliminary WLAs for purposes of determining the 
need for WQBELs under procedure 5 of appendix F. Background loadings may 
be accounted for in a TMDL through an allocation to a single 
``background'' category or through individual allocations to the various 
background sources.
    a. Definition of Background. ``Background'' represents all loadings 
that: (1) flow from upstream waters into the specified watershed, 
waterbody or waterbody segment for which a TMDL, WLA in the absence of a 
TMDL or preliminary WLA for the purpose of determining the need for a 
WQBEL is being developed; (2) enter the specified watershed, waterbody 
or waterbody segment through atmospheric deposition or sediment release 
or resuspension; or (3) occur within the watershed, waterbody or 
waterbody segment as a result of chemical reactions.
    b. Data considerations. When determining what available data are 
acceptable for use in calculating background, the State or Tribe should 
use best professional judgment, including consideration of the sampling 
location and the reliability of the data through comparison to reported 
analytical detection levels and quantification levels. When data in more 
than one of the data sets or categories described in section B.9.c.i 
through B.9.c.iii below exist, best professional judgment should be used 
to select the one data set that most accurately reflects or estimates 
background concentrations. Pollutant degradation and transport 
information may be considered when utilizing pollutant loading data.
    c. Calculation requirements. Except as provided below, the 
representative background concentration for a pollutant in the specified 
watershed, waterbody or waterbody segment shall be established on a 
case-by-case basis as the geometric mean of:
    i. Acceptable available water column data; or
    ii. Water column concentrations estimated through use of acceptable 
available caged or resident fish tissue data; or

[[Page 1034]]

    iii. Water column concentrations estimated through use of acceptable 
available or projected pollutant loading data.
    d. Detection considerations.
    i. Commonly accepted statistical techniques shall be used to 
evaluate data sets consisting of values both above and below the 
detection level.
    ii. When all of the acceptable available data in a data set or 
category, such as water column, caged or resident fish tissue or 
pollutant loading data, are below the level of detection for a 
pollutant, then all the data for that pollutant in that data set shall 
be assumed to be zero.
    10. Effluent Flow. If WLAs are expressed as concentrations of 
pollutants, the TMDL shall also indicate the point source effluent flows 
assumed in the analyses. Mass loading limitations established in NPDES 
permits must be consistent with both the WLA and assumed effluent flows 
used in establishing the TMDL.
    11. Reserved Allocations. TMDLs may include reserved allocations of 
loading capacity to accommodate future growth and additional sources. 
Where such reserved allocations are not included in a TMDL, any 
increased loadings of the pollutant for which the TMDL was developed 
that are due to a new or expanded discharge shall not be allowed unless 
the TMDL is revised in accordance with these proceudres to include an 
allocation for the new or expanded discharge.
    C. [Reserved]
    D. Deriving TMDLs, WLAs, and LAs for Point and Nonpoint Sources: 
WLAs in the Absence of a TMDL; and Preliminary WLAs for Purposes of 
Determining the Need for WQBELs for OWGL. This section addresses 
conditions for deriving TMDLs for Open Waters of the Great Lakes (OWGL), 
inland lakes and other waters of the Great Lakes System with no 
appreciable flow relative to their volumes. State and Tribal procedures 
to derive TMDLs under this section must be consistent with (as 
protective as) the general conditions in section B of this procedure, 
CWA section 303(d), existing regulations (40 CFR 130.7), section C of 
this procedure, and sections D.1. through D.4 below. State and Tribal 
procedures to derive WLAs calculated in the absence of a TMDL and 
preliminary WLAs for purposes of determining the need for WQBELs under 
procedure 5 of appendix F must be consistent with sections B.9, C.1, C3 
through C.6, and D. 1 through D.4 of this procedure.
    1. Individual point source WLAs and preliminary WLAs for purposes of 
determining the need for WQBELs under procedure 5 of appendix F shall 
assume no greater dilution than one part effluent to 10 parts receiving 
water for implementation of numeric and narrative chronic criteria and 
values (including, but not limited to human cancer criteria, human 
cancer values, human noncancer values, human noncancer criteria, 
wildlife criteria, and chronic aquatic life criteria and values) unless 
an alternative mixing zone is demonstrated as appropriate in a mixing 
zone demonstration conducted pursuant to section F of this procedure. In 
no case shall a mixing zone be granted that exceeds the area where 
discharge-induced mixing occurs.
    2. Appropriate mixing zone assumptions to be used in calculating 
load allocations for nonpoint sources shall be determined, consistent 
with applicable State or Tribal requirements, on a case-by-case basis.
    3. WLAs and preliminary WLAs based on acute aquatic life criteria or 
values shall not exceed the Final Acute Value (FAV), unless a mixing 
zone demonstration is conducted and approved pursuant to section F of 
this procedure. If mixing zones from two or more proximate sources 
interact or overlap, the combined effect must be evaluated to ensure 
that applicable criteria and values will be met in the area where acute 
mixing zones overlap.
    4. In no case shall a mixing zone be granted that would likely 
jeopardize the continued existence of any endangered or threatened 
species listed under section 4 of the ESA or result in the destruction 
or adverse modification of such species' critical habitat.
    E. Deriving TMDLs, WLAs, and LAs for Point and Nonpoint Sources; 
WLAs in the Absence of a TMDL; and Preliminary WLAs for the Purposes of 
Determining the Need for WQBELs for Great Lakes Systems Tributaries and 
Connecting Channels. This section describes conditions for deriving 
TMDLs for tributaries and connecting channels of the Great Lakes System 
that exhibit appreciable flows relative to their volumes. State and 
Tribal procedures to derive TMDLs must be consistent with the general 
conditions listed in section B of this procedure, section C of this 
procedure, existing TMDL regulations (40 CFR 130.7) and specific 
conditions E.1 through E.5. State and Tribal procedures to derive WLAs 
calculated in the absence of a TMDL, and preliminary WLAs for purposes 
of determining reasonable potential under procedure 5 of this appendix 
for discharges to tributaries and connecting channels must be consistent 
with sections B.9, C.1, C.3 through C.6, and E.1 through E.5 of this 
procedure.
    1. Stream Design. These design flows must be used unless data exist 
to demonstrate that an alternative stream design flow is appropriate for 
stream-specific and pollutant-specific conditions. For purposes of 
calculating a TMDL, WLAs in the absence of a TMDL, or preliminary WLAs 
for the purposes of determining reasonable potential under procedure 5 
of this appendix, using a steady-state model, the stream design flows 
shall be:
    a. The 7-day, 10-year stream design flow (7Q10), or the 4-day, 3-
year biologically-based

[[Page 1035]]

stream design flow for chronic aquatic life criteria or values;
    b. The 1-day, 10-year stream design flow (1Q10), for acute aquatic 
life criteria or values;
    c. The harmonic mean flow for human health criteria or values;
    d. The 90-day, 10-year flow (90Q10) for wildlife criteria.
    e. TMDLs, WLAs in the absence of TMDLs, and preliminary WLAs for the 
purpose of determining the need for WQBELs calculated using dynamic 
modelling do not need to incorporate the stream design flows specified 
in sections E.1.a through E.1.d of this procedure.
    2. Loading Capacity. The loading capacity is the greatest amount of 
loading that a water can receive without violating water quality 
standards. The loading capacity is initially calculated at the farthest 
downstream location in the watershed drainage basin. The maximum 
allowable loading consistent with the attainment of each applicable 
numeric criterion or value for a given pollutant is determined by 
multiplying the applicable criterion or value by the flow at the 
farthest downstream location in the tributary basin at the design flow 
condition described above. This loading is then compared to the loadings 
at sites within the basin to assure that applicable numeric criteria or 
values for a given pollutant are not exceeded at all applicable sites. 
The lowest load is then selected as the loading capacity.
    3. Polluant Degradation. TMDLs, WLAs in the absence of a TMDL and 
preliminary WLAs for purposes of determining the need for WQBELs under 
procedure 5 of appendix F shall be based on the assumption that a 
pollutant does not degrade. However, the regulatory authority may take 
into account degradation of the pollutant if each of the following 
conditions are met.
    a. Scientifically valid field studies or other relevant information 
demonstrate that degradation of the pollutant is expected to occur under 
the full range of environmental conditions expected to be encountered;
    b. Scientifically valid field studies or other relevant information 
address other factors that affect the level of pollutants in the water 
column including, but not limited to, resuspension of sediments, 
chemical speciation, and biological and chemical transformation.
    4. Acute Aquatic Life Criteria and Values. WLAs and LAs established 
in a TMDL, WLAs in the absence of a TMDL, and preliminary WLAs for the 
purpose of determining the need for WQBELs based on acute aquatic life 
criteria or values shall not exceed the FAV, unless a mixing zone 
demonstration is completed and approved pursuant to section F of this 
procedure. If mixing zones from two or more proximate sources interact 
or overlap, the combined effect must be evaluated to ensure that 
applicable criteria and values will be met in the area where any 
applicable acute mixing zones overlap. This acute WLA review shall 
include, but not be limited to, consideration of:
    a. The expected dilution under all effluent flow and concentration 
conditions at stream design flow;
    b. Maintenance of a zone of passage for aquatic organisms; and
    c. Protection of critical aquatic habitat.
    In no case shall a permitting authority grant a mixing zone that 
would likely jeopardize the continued existence of any endangered or 
threatened species listed under section 4 of the ESA or result in the 
destruction or adverse modification of such species' critical habitat.
    5. Chronic Mixing Zones. WLAs and LAs established in a TMDL, WLAs in 
the absence of a TMDL, and preliminary WLAs for the purposes of 
determining the need for WQBELs for protection of aquatic life, wildlife 
and human health from chronic effects shall be calculated using a 
dilution fraction no greater than 25 percent of the stream design flow 
unless a mixing zone demonstration pursuant to section F of this 
procedure is conducted and approved. A demonstration for a larger mixing 
zone may be provided, if approved and implemented in accordance with 
section F of this procedure. In no case shall a permitting authority 
grant a mixing zone that would likely jeopardize the continued existence 
of any endangered or threatened species listed under section 4 of the 
ESA or result in the destruction or adverse modification of such 
species' critical habitat.
    F. Mixing Zone Demonstration Requirements.
    1. For purposes of establishing a mixing zone other than as 
specified in sections D and E above, a mixing zone demonstration must:
    a. Describe the amount of dilution occurring at the boundaries of 
the proposed mixing zone and the size, shape, and location of the area 
of mixing, including the manner in which diffusion and dispersion occur;
    b. For sources discharging to the open waters of the Great Lakes 
(OWGLs), define the location at which discharge-induced mixing ceases;
    c. Document the substrate character and geomorphology within the 
mixing zone;
    d. Show that the mixing zone does not interfere with or block 
passage of fish or aquatic life;
    e. Show that the mixing zone will be allowed only to the extent that 
the level of the pollutant permitted in the waterbody would not likely 
jeopardize the continued existence of any endangered or threatened 
species listed under section 4 of the ESA or result in the destruction 
or adverse modification of such species' critical habitat;
    f. Show that the mixing zone does not extend to drinking water 
intakes;

[[Page 1036]]

    g. Show that the mixing zone would not otherwise interfere with the 
designated or existing uses of the receiving water or downstream waters;
    h. Document background water quality concentrations;
    i. Show that the mixing zone does not promote undesirable aquatic 
life or result in a dominance of nuisance species; and
    j. Provide that by allowing additional mixing/dilution:
    i. Substances will not settle to form objectionable deposits;
    ii. Floating debris, oil, scum, and other matter in concentrations 
that form nuisances will not be produced; and
    iii. Objectionable color, odor, taste or turbidity will not be 
produced.
    2. In addition, the mixing zone demonstration shall address the 
following factors:
    a. Whether or not adjacent mixing zones overlap;
    b. Whether organisms would be attracted to the area of mixing as a 
result of the effluent character; and
    c. Whether the habitat supports endemic or naturally occurring 
species.
    3. The mixing zone demonstration must be submitted to EPA for 
approval. Following approval of a mixing zone demonstration consistent 
with sections F.1 and F.2, adjustment to the dilution ratio specified in 
section D.1 of this procedure shall be limited to the dilution available 
in the area where discharger-induced mixing occurs.
    4. The mixing zone demonstration shall be based on the assumption 
that a pollutant does not degrade within the proposed mixing zone, 
unless:
    a. Scientifically valid field studies or other relevant information 
demonstrate that degradation of the pollutant is expected to occur under 
the full range of environmental conditions expected to be encountered; 
and
    b. Scientifically valid field studies or other relevant information 
address other factors that affect the level of pollutants in the water 
column including, but not limited to, resuspension of sediments, 
chemical speciation, and biological and chemical transformation.

                         Procedure 4: Additivity

    The Great Lakes States and Tribes shall adopt additivity provisions 
consistent with (as protective as) this procedure.
    A. The Great Lakes States and Tribes shall adopt provisions to 
protect human health from the potential adverse additive effects from 
both the noncarcinogenic and carcinogenic components of chemical 
mixtures in effluents. For the chlorinated dibenzo-p-dioxins (CDDs) and 
chlorinated dibenzofurans (CDFs) listed in Table 1, potential adverse 
additive effects in effluents shall be accounted for in accordance with 
section B of this procedure.
    B. Toxicity Equivalency Factors (TEFs)/Bioaccumulation Equivalency 
Factors (BEFs).
    1. The TEFs in Table 1 and BEFs in Table 2 shall be used when 
calculating a 2,3,7,8-TCDD toxicity equivalence concentration in 
effluent to be used when implementing both human health noncancer and 
cancer criteria. The chemical concentration of each CDDs and CDFs in 
effluent shall be converted to a 2,3,7,8-TCDD toxicity equivalence 
concentration in effluent by (a) multiplying the chemical concentration 
of each CDDs and CDFs in the effluent by the appropriate TEF in Table 1 
below, (b) multiplying each product from step (a) by the BEF for each 
CDDs and CDFs in Table 2 below, and (c) adding all final products from 
step (b). The equation for calculating the 2,3,7,8-TCDD toxicity 
equivalence concentration in effluent is:
[GRAPHIC] [TIFF OMITTED] TR23MR95.118

where:

(TEC)tcdd=2,3,7,8-TCDD toxicity equivalence concentration in 
effluent
(C)x=concentration of total chemical x in effluent
(TEF)x=TCDD toxicity equivalency factor for x
(BEF)x=TCDD bioaccumulation equivalency factor for x

    2. The 2,3,7,8-TCDD toxicity equivalence concentration in effluent 
shall be used when developing waste load allocations under procedure 3, 
preliminary waste load allocations for purposes of determining 
reasonable potential under procedure 5, and for purposes of establishing 
effluent quality limits under procedure 5.

         Table 1--Toxicity Equivalency Factors for CDDs and CDFs
------------------------------------------------------------------------
                          Congener                               TEF
------------------------------------------------------------------------
2,3,7,8-TCDD...............................................        1.0
1,2,3,7,8-PeCDD............................................        0.5
1,2,3,4,7,8-HxCDD..........................................        0.1
1,2,3,6,7,8-HxCDD..........................................        0.1
1,2,3,7,8,9-HxCDD..........................................        0.1
1,2,3,4,6,7,8-HpCDD........................................        0.01
OCDD.......................................................        0.001
2,3,7,8-TCDF...............................................        0.1
1,2,3,7,8-PeCDF............................................        0.05
2,3,4,7,8-PeCDF............................................        0.5
1,2,3,4,7,8-HxCDF..........................................        0.1
1,2,3,6,7,8-HxCDF..........................................        0.1
2,3,4,6,7,8-HxCDF..........................................        0.1
1,2,3,7,8,9-HxCDF..........................................        0.1
1,2,3,4,6,7,8-HpCDF........................................        0.01
1,2,3,4,7,8,9-HpCDF........................................        0.01
OCDF.......................................................        0.001
------------------------------------------------------------------------


     Table 2--Bioaccumulation Equivalency Factors for CDDs and CDFs
------------------------------------------------------------------------
                          Congener                               BEF
------------------------------------------------------------------------
2,3,7,8-TCDD...............................................        1.0

[[Page 1037]]

 
1,2,3,7,8-PeCDD............................................        0.9
1,2,3,4,7,8-HxCDD..........................................        0.3
1,2,3,6,7,8-HxCDD..........................................        0.1
1,2,3,7,8,9-HxCDD..........................................        0.1
1,2,3,4,6,7,8-HpCDD........................................        0.05
OCDD.......................................................        0.01
2,3,7,8-TCDF...............................................        0.8
1,2,3,7,8-PeCDF............................................        0.2
2,3,4,7,8-PeCDF............................................        1.6
1,2,3,4,7,8-HxCDF..........................................        0.08
1,2,3,6,7,8-HxCDF..........................................        0.2
2,3,4,6,7,8-HxCDF..........................................        0.7
1,2,3,7,8,9-HxCDF..........................................        0.6
1,2,3,4,6,7,8-HpCDF........................................        0.01
1,2,3,4,7,8,9-HpCDF........................................        0.4
OCDF.......................................................        0.02
------------------------------------------------------------------------

   Procedure 5: Reasonable Potential To Exceed Water Quality Standards

    Great Lakes States and Tribes shall adopt provisions consistent with 
(as protective as) this procedure. If a permitting authority determines 
that a pollutant is or may be discharged into the Great Lakes System at 
a level which will cause, have the reasonable potential to cause, or 
contribute to an excursion above any Tier I criterion or Tier II value, 
the permitting authority shall incorporate a water quality-based 
effluent limitation (WQBEL) in an NPDES permit for the discharge of that 
pollutant. When facility-specific effluent monitoring data are 
available, the permitting authority shall make this determination by 
developing preliminary effluent limitations (PEL) and comparing those 
effluent limitations to the projected effluent quality (PEQ) of the 
discharge in accordance with the following procedures. In all cases, the 
permitting authority shall use any valid, relevant, representative 
information that indicates a reasonable potential to exceed any Tier I 
criterion or Tier II value.
    A. Developing Preliminary Effluent Limitations on the Discharge of a 
Pollutant From a Point Source.
    1. The permitting authority shall develop preliminary wasteload 
allocations (WLAs) for the discharge of the pollutant from the point 
source to protect human health, wildlife, acute aquatic life, and 
chronic aquatic life, based upon any existing Tier I criteria. Where 
there is no Tier I criterion nor sufficient data to calculate a Tier I 
criterion, the permitting authority shall calculate a Tier II value for 
such pollutant for the protection of human health, and aquatic life and 
the preliminary WLAs shall be based upon such values. Where there is 
insufficient data to calculate a Tier II value, the permitting authority 
shall apply the procedure set forth in section C of this procedure to 
determine whether data must be generated to calculate a Tier II value.
    2. The following provisions in procedure 3 of appendix F shall be 
used as the basis for determining preliminary WLAs in accordance with 
section 1 of this procedure: procedure 3.B.9, Background Concentrations 
of Pollutants; procedure 3.C, Mixing Zones for Bioaccumulative Chemicals 
of Concern (BCCs), procedures 3.C.1, and 3.C.3 through 3.C.6; procedure 
3.D, Deriving TMDLs for Discharges to Lakes (when the receiving water is 
an open water of the Great Lakes (OWGL), an inland lake or other water 
of the Great Lakes System with no appreciable flow relative to its 
volume); procedure 3.E, Deriving TMDLs, WLAs and Preliminary WLAs, and 
load allocations (LAs) for Discharges to Great Lakes System Tributaries 
(when the receiving water is a tributary or connecting channel of the 
Great Lakes that exhibits appreciable flow relative to its volume); and 
procedure 3.F, Mixing Zone Demonstration Requirements.
    3. The permitting authority shall develop PELs consistent with the 
preliminary WLAs developed pursuant to sections A.1 and A.2 of this 
procedure, and in accordance with existing State or Tribal procedures 
for converting WLAs into WQBELs. At a minimum:
    a. The PELs based upon criteria and values for the protection of 
human health and wildlife shall be expressed as monthly limitations;
    b. The PELs based upon criteria and values for the protection of 
aquatic life from chronic effects shall be expressed as either monthly 
limitations or weekly limitations; and
    c. The PELs based upon the criteria and values for the protection of 
aquatic life from acute effects shall be expressed as daily limitations.
    B. Determining Reasonable Potential Using Effluent Pollutant 
Concentration Data.
    If representative, facility-specific effluent monitoring data 
samples are available for a pollutant discharged from a point source to 
the waters of the Great Lakes System, the permitting authority shall 
apply the following procedures:
    1. The permitting authority shall specify the PEQ as the 95 percent 
confidence level of the 95th percentile based on a log-normal 
distribution of the effluent concentration; or the maximum observed 
effluent concentration, whichever is greater. In calculating the PEQ, 
the permitting authority shall identify the number of effluent samples 
and the coefficient of variation of the effluent data, obtain the 
appropriate multiplying factor from Table 1 of procedure 6 of appendix 
F, and multiply the maximum effluent concentration by that factor. The 
coefficient of variation of the effluent data shall be calculated as the 
ratio of the standard deviation of the effluent data divided by the 
arithmetic average of the effluent data, except that where

[[Page 1038]]

there are fewer than ten effluent concentration data points the 
coefficient of variation shall be specified as 0.6. If the PEQ exceeds 
any of the PELs developed in accordance with section A.3 of this 
procedure, the permitting authority shall establish a WQBEL in a NPDES 
permit for such pollutant.
    2. In lieu of following the procedures under section B.1 of this 
procedure, the permitting authority may apply procedures consistent with 
the following:
    a. The permitting authority shall specify the PEQ as the 95th 
percentile of the distribution of the projected population of daily 
values of the facility-specific effluent monitoring data projected using 
a scientifically defensible statistical method that accounts for and 
captures the long-term daily variability of the effluent quality, 
accounts for limitations associated with sparse data sets and, unless 
otherwise shown by the effluent data set, assumes a lognormal 
distribution of the facility-specific effluent data. If the PEQ exceeds 
the PEL based on the criteria and values for the protection of aquatic 
life from acute effects developed in accordance with section A.3 of this 
procedure, the permitting authority shall establish a WQBEL in an NPDES 
permit for such pollutant;
    b. The permitting authority shall calculate the PEQ as the 95th 
percentile of the distribution of the projected population of monthly 
averages of the facility-specific effluent monitoring data using a 
scientifically defensible statistical method that accounts for and 
captures the long-term variability of the monthly average effluent 
quality, accounts for limitations associated with sparse data sets and, 
unless otherwise shown by the effluent data set, assumes a lognormal 
distribution of the facility-specific effluent data. If the PEQ exceeds 
the PEL based on criteria and values for the protection of aquatic life 
from chronic effects, human health or wildlife developed in accordance 
with section A.3 of this procedure, the permitting authority shall 
establish a WQBEL in an NPDES permit for such pollutant; and
    c. The permitting authority shall calculate the PEQ as the 95th 
percentile of the distribution of the projected population of weekly 
averages of the facility-specific effluent monitoring data using a 
scientifically defensible statistical method that accounts for and 
captures the long-term variability of the weekly average effluent 
quality, accounts for limitations associated with sparse data sets and, 
unless otherwise shown by the effluent data set, assumes a lognormal 
distribution of the facility-specific effluent data. If the PEQ exceeds 
the PEL based on criteria and values to protect aquatic life from 
chronic effects developed in accordance with section A.3 of this 
procedure, the permitting authority shall establish a WQBEL in an NPDES 
permit for such pollutant.
    C. Developing Necessary Data to Calculate Tier II Values Where Such 
Data Does Not Currently Exist.
    1. Except as provided in sections C.2, C.4, or D of this procedure, 
for each pollutant listed in Table 6 of part 132 that a permittee 
reports as known or believed to be present in its effluent, and for 
which pollutant data sufficient to calculate Tier II values for non-
cancer human health, acute aquatic life and chronic aquatic life do not 
exist, the permitting authority shall take the following actions:
    a. The permitting authority shall use all available, relevant 
information, including Quantitative Structure Activity Relationship 
information and other relevant toxicity information, to estimate ambient 
screening values for such pollutant which will protect humans from 
health effects other than cancer, and aquatic life from acute and 
chronic effects.
    b. Using the procedures specified in sections A.1 and A.2 of this 
procedure, the permitting authority shall develop preliminary WLAs for 
the discharge of the pollutant from the point source to protect human 
health, acute aquatic life, and chronic aquatic life, based upon the 
estimated ambient screening values.
    c. The permitting authority shall develop PELs in accordance with 
section A.3 of this procedure, which are consistent with the preliminary 
WLAs developed in accordance with section C.1.b of this procedure.
    d. The permitting authority shall compare the PEQ developed 
according to the procedures set forth in section B of this procedure to 
the PELs developed in accordance with section C.1.c of this procedure. 
If the PEQ exceeds any of the PELs, the permitting authority shall 
generate or require the permittee to generate the data necessary to 
derive Tier II values for noncancer human health, acute aquatic life and 
chronic aquatic life.
    e. The data generated in accordance with section C.1.d of this 
procedure shall be used in calculating Tier II values as required under 
section A.1 of this procedure. The calculated Tier II value shall be 
used in calculating the preliminary WLA and PEL under section A of this 
procedure, for purposes of determining whether a WQBEL must be included 
in the permit. If the permitting authority finds that the PEQ exceeds 
the calculated PEL, a WQBEL for the pollutant or a permit limit on an 
indicator parameter consistent with 40 CFR 122.44(d)(1)(vi)(C) must be 
included in the permit.
    2. With the exception of bioaccumulative chemicals of concern 
(BCCs), a permitting authority is not required to apply the procedures 
set forth in section C.1 of this procedure or include WQBELs to protect 
aquatic life for any pollutant listed in Table 6 of part

[[Page 1039]]

132 discharged by an existing point source into the Great Lakes System, 
if:
    a. There is insufficient data to calculate a Tier I criterion or 
Tier II value for aquatic life for such pollutant;
    b. The permittee has demonstrated through a biological assessment 
that there are no acute or chronic effects on aquatic life in the 
receiving water; and
    c. The permittee has demonstrated in accordance with procedure 6 of 
this appendix that the whole effluent does not exhibit acute or chronic 
toxicity.
    3. Nothing in sections C.1 or C.2 of this procedure shall preclude 
or deny the right of a permitting authority to:
    a. Determine, in the absence of the data necessary to derive a Tier 
II value, that the discharge of the pollutant will cause, have the 
reasonable potential to cause, or contribute to an excursion above a 
narrative criterion for water quality; and
    b. Incorporate a WQBEL for the pollutant into an NPDES permit.
    4. If the permitting authority develops a WQBEL consistent with 
section C.3 of this procedure, and the permitting authority demonstrates 
that the WQBEL developed under section C.3 of this procedure is at least 
as stringent as a WQBEL that would have been based upon the Tier II 
value or values for that pollutant, the permitting authority shall not 
be obligated to generate or require the permittee to generate the data 
necessary to derive a Tier II value or values for that pollutant.
    D. Consideration of Intake Pollutants in Determining Reasonable 
Potential.
    1. General.
    a. Any procedures adopted by a State or Tribe for considering intake 
pollutants in water quality-based permitting shall be consistent with 
this section and section E.
    b. The determinations under this section and section E shall be made 
on a pollutant-by-pollutant, outfall-by-outfall, basis.
    c. This section and section E apply only in the absence of a TMDL 
applicable to the discharge prepared by the State or Tribe and approved 
by EPA, or prepared by EPA pursuant to 40 CFR 130.7(d), or in the 
absence of an assessment and remediation plan submitted and approved in 
accordance with procedure 3.A. of appendix F. This section and section E 
do not alter the permitting authority's obligation under 40 CFR 
122.44(d)(vii)(B) to develop effluent limitations consistent with the 
assumptions and requirements of any available WLA for the discharge, 
which is part of a TMDL prepared by the State or Tribe and approved by 
EPA pursuant to 40 CFR 130.7, or prepared by EPA pursuant to 40 CFR 
130.7(d).
    2. Definition of Same Body of Water.
    a. This definition applies to this section and section E of this 
procedure.
    b. An intake pollutant is considered to be from the same body of 
water as the discharge if the permitting authority finds that the intake 
pollutant would have reached the vicinity of the outfall point in the 
receiving water within a reasonable period had it not been removed by 
the permittee. This finding may be deemed established if:
    i. The background concentration of the pollutant in the receiving 
water (excluding any amount of the pollutant in the facility's 
discharge) is similar to that in the intake water;
    ii. There is a direct hydrological connection between the intake and 
discharge points; and
    iii. Water quality characteristics (e.g., temperature, Ph, hardness) 
are similar in the intake and receiving waters.
    c. The permitting authority may also consider other site-specific 
factors relevant to the transport and fate of the pollutant to make the 
finding in a particular case that a pollutant would or would not have 
reached the vicinity of the outfall point in the receiving water within 
a reasonable period had it not been removed by the permittee.
    d. An intake pollutant from groundwater may be considered to be from 
the same body of water if the permitting authority determines that the 
pollutant would have reached the vicinity of the outfall point in the 
receiving water within a reasonable period had it not been removed by 
the permittee, except that such a pollutant is not from the same body of 
water if the groundwater contains the pollutant partially or entirely 
due to human activity, such as industrial, commercial, or municipal 
operations, disposed actions, or treatment processes.
    e. An intake pollutant is the amount of a pollutant that is present 
in waters of the United States (including groundwater as provided in 
section D.2.d of this procedure) at the time it is withdrawn from such 
waters by the discharger or other facility (e.g., public water supply) 
supplying the discharger with intake water.
    3. Reasonable Potential Determination.
    a. The permitting authority may use the procedure described in this 
section of procedure 5 in lieu of procedures 5.A through C provided the 
conditions specified below are met.
    b. The permitting authority may determine that there is no 
reasonable potential for the discharge of an identified intake pollutant 
or pollutant parameter to cause or contribute to an excursion above a 
narrative or numeric water quality criterion within an applicable water 
quality standard where a discharger demonstrates to the satisfaction of 
the permitting authority (based upon information provided in the permit 
application or other information deemed necessary by the permitting 
authority) that:

[[Page 1040]]

    i. The facility withdraws 100 percent of the intake water containing 
the pollutant from the same body of water into which the discharge is 
made;
    ii. The facility does not contribute any additional mass of the 
identified intake pollutant to its wastewater;
    iii. The facility does not alter the identified intake pollutant 
chemically or physically in a manner that would cause adverse water 
quality impacts to occur that would not occur if the pollutants were 
left in-stream;
    iv. The facility does not increase the identified intake pollutant 
concentration, as defined by the permitting authority, at the edge of 
the mixing zone, or at the point of discharge if a mixing zone is not 
allowed, as compared to the pollutant concentration in the intake water, 
unless the increased concentration does not cause or contribute to an 
excursion above an applicable water quality standard; and
    v. The timing and location of the discharge would not cause adverse 
water quality impacts to occur that would not occur if the identified 
intake pollutant were left in-stream.
    c. Upon a finding under section D.3.b of this procedure that a 
pollutant in the discharge does not cause, have the reasonable potential 
to cause, or contribute to an excursion above an applicable water 
quality standard, the permitting authority is not required to include a 
WQBEL for the identified intake pollutant in the facility's permit, 
provided:
    i. The NPDES permit fact sheet or statement of basis includes a 
specific determination that there is no reasonable potential for the 
discharge of an identified intake pollutant to cause or contribute to an 
excursion above an applicable narrative or numeric water quality 
criterion and references appropriate supporting documentation included 
in the administrative record;
    ii. The permit requires all influent, effluent, and ambient 
monitoring necessary to demonstrate that the conditions in section D.3.b 
of this procedure are maintained during the permit term; and
    iii. The permit contains a reopener clause authorizing modification 
or revocation and reissuance of the permit if new information indicates 
changes in the conditions in section D.3.b of this procedure.
    d. Absent a finding under section D.3.b of this procedure that a 
pollutant in the discharge does not cause, have the reasonable potential 
to cause, or contribute to an excursion above an applicable water 
quality standard, the permitting authority shall use the procedures 
under sections 5.A through C of this procedure to determine whether a 
discharge causes, has the reasonable potential to cause, or contribute 
to an excursion above an applicable narrative or numeric water quality 
criterion.
    E. Consideration of Intake Pollutants in Establishing WQBELs.
    1. General. This section applies only when the concentration of the 
pollutant of concern upstream of the discharge (as determined using the 
provisions in procedure 3.B.9 of appendix F) exceeds the most stringent 
applicable water quality criterion for that pollutant.
    2. The requirements of sections D.1-D.2 of this procedure shall also 
apply to this section.
    3. Intake Pollutants from the Same Body of Water.
    a. In cases where a facility meets the conditions in sections 
D.3.b.i and D.3.b.iii through D.3.b.v of this procedure, the permitting 
authority may establish effluent limitations allowing the facility to 
discharge a mass and concentration of the pollutant that are no greater 
than the mass and concentration of the pollutant identified in the 
facility's intake water (``no net addition limitations''). The permit 
shall specify how compliance with mass and concentration limitations 
shall be assessed. No permit may authorize ``no net addition 
limitations'' which are effective after March 23, 2007. After that date, 
WQBELs shall be established in accordance with procedure 5.F.2 of 
appendix F.
    b. Where proper operation and maintenance of a facility's treatment 
system results in removal of a pollutant, the permitting authority may 
establish limitations that reflect the lower mass and/or concentration 
of the pollutant achieved by such treatment, taking into account the 
feasibility of establishing such limits.
    c. For pollutants contained in intake water provided by a water 
system, the concentration of the intake pollutant shall be determined at 
the point where the raw water supply is removed from the same body of 
water, except that it shall be the point where the water enters the 
water supplier's distribution system where the water treatment system 
removes any of the identified pollutants from the raw water supply. Mass 
shall be determined by multiplying the concentration of the pollutant 
determined in accordance with this paragraph by the volume of the 
facility's intake flow received from the water system.
    4. Intake Pollutants from a Different Body of Water. Where the 
pollutant in a facility's discharge originates from a water of the 
United States that is not the same body of water as the receiving water 
(as determined in accordance with section D.2 of this procedure), WQBELs 
shall be established based upon the most stringent applicable water 
quality criterion for that pollutant.
    5. Multiple Sources of Intake Pollutants. Where a facility 
discharges intake pollutants that originate in part from the same body 
of water, and in part from a different body of

[[Page 1041]]

water, the permitting authority may apply the procedures of sections E.3 
and E.4 of this procedure to derive an effluent limitation reflecting 
the flow-weighted average of each source of the pollutant, provided that 
adequate monitoring to determine compliance can be established and is 
included in the permit.
    F. Other Applicable Conditions.
    1. In addition to the above procedures, effluent limitations shall 
be established to comply with all other applicable State, Tribal and 
Federal laws and regulations, including technology-based requirements 
and antidegradation policies.
    2. Once the permitting authority has determined in accordance with 
this procedure that a WQBEL must be included in an NPDES permit, the 
permitting authority shall:
    a. Rely upon the WLA established for the point source either as part 
of any TMDL prepared under procedure 3 of this appendix and approved by 
EPA pursuant to 40 CFR 130.7, or as part of an assessment and 
remediation plan developed and approved in accordance with procedure 3.A 
of this appendix, or, in the absence of such TMDL or plan, calculate 
WLAs for the protection of acute and chronic aquatic life, wildlife and 
human health consistent with the provisions referenced in section A.1 of 
this procedure for developing preliminary wasteload allocations, and
    b. Develop effluent limitations consistent with these WLAs in 
accordance with existing State or Tribal procedures for converting WLAs 
into WQBELs.
    3. When determining whether WQBELs are necessary, information from 
chemical-specific, whole effluent toxicity and biological assessments 
shall be considered independently.
    4. If the geometric mean of a pollutant in fish tissue samples 
collected from a waterbody exceeds the tissue basis of a Tier I 
criterion or Tier II value, after consideration of the variability of 
the pollutant's bioconcentration and bioaccumulation in fish, each 
facility that discharges detectable levels of such pollutant to that 
water has the reasonable potential to cause or contribute to an 
excursion above a Tier I criteria or a Tier II value and the permitting 
authority shall establish a WQBEL for such pollutant in the NPDES permit 
for such facility.

            Procedure 6: Whole Effluent Toxicity Requirements

    The Great Lakes States and Tribes shall adopt provisions consistent 
with (as protective as) procedure 6 of appendix F of part 132.
    The following definitions apply to this part:
    Acute toxic unit (TUa). 100/LC50 where the 
LC50 is expressed as a percent effluent in the test medium of 
an acute whole effluent toxicity (WET) test that is statistically or 
graphically estimated to be lethal to 50 percent of the test organisms.
    Chronic toxic unit (TUc). 100/NOEC or 100/
IC25, where the NOEC and IC25 are expressed as a 
percent effluent in the test medium.
    Inhibition concentration 25 (IC25). the toxicant 
concentration that would cause a 25 percent reduction in a non-quantal 
biological measurement for the test population. For example, the 
IC25 is the concentration of toxicant that would cause a 25 
percent reduction in mean young per female or in growth for the test 
population.
    No observed effect concentration (NOEC). The highest concentration 
of toxicant to which organisms are exposed in a full life-cycle or 
partial life-cycle (short-term) test, that causes no observable adverse 
effects on the test organisms (i.e., the highest concentration of 
toxicant in which the values for the observed responses are not 
statistically significantly different from the controls).
    A. Whole Effluent Toxicity Requirements. The Great Lakes States and 
Tribes shall adopt whole effluent toxicity provisions consistent with 
the following:
    1. A numeric acute WET criterion of 0.3 acute toxic units 
(TUa) measured pursuant to test methods in 40 CFR part 136, 
or a numeric interpretation of a narrative criterion establishing that 
0.3 TUa measured pursuant to test methods in 40 CFR part 136 
is necessary to protect aquatic life from acute effects of WET. At the 
discretion of the permitting authority, the foregoing requirement shall 
not apply in an acute mixing zone that is sized in accordance with EPA-
approved State and Tribal methods.
    2. A numeric chronic WET criterion of one chronic toxicity unit 
(TUc) measured pursuant to test methods in 40 CFR part 136, 
or a numeric interpretation of a narrative criterion establishing that 
one TUc measured pursuant to test methods in 40 CFR part 136 
is necessary to protect aquatic life from the chronic effects of WET. At 
the discretion of the permitting authority, the foregoing requirements 
shall not apply within a chronic mixing zone consistent with: (a) 
procedures 3.D.1 and 3.D.4, for discharges to the open of the Great 
Lakes (OWGL), inland lakes and other waters of the Great Lakes System 
with no appreciable flow relative to their volume, or (b) procedure 
3.E.5 for discharges to tributaries and connecting channels of the Great 
Lakes System.
    B. WET Test Methods. All WET tests performed to implement or 
ascertain compliance with this procedure shall be performed in 
accordance with methods established in 40 CFR part 136.
    C. Permit Conditions.
    1. Where a permitting authority determines pursuant to section D of 
this procedure that the WET of an effluent is or may be discharged at a 
level that will cause, have

[[Page 1042]]

the reasonable potential to cause, or contribute to an excursion above 
any numeric WET criterion or narrative criterion within a State's or 
Tribe's water quality standards, the permitting authority:
    a. Shall (except as provided in section C.1.e of this procedure) 
establish a water quality-based effluent limitation (WQBEL) or WQBELs 
for WET consistent with section C.1.b of this procedure;
    b. Shall calculate WQBELs pursuant to section C.1.a. of this 
procedure to ensure attainment of the State's or Tribe's chronic WET 
criteria under receiving water flow conditions described in procedures 
3.E.1.a (or where applicable, with procedure 3.E.1.e) for Great Lakes 
System tributaries and connecting channels, and with mixing zones no 
larger than allowed pursuant to section A.2. of this procedure. Shall 
calculate WQBELs to ensure attainment of the State's or Tribe's acute 
WET criteria under receiving water flow conditions described in 
procedure 3.E.1.b (or where applicable, with procedure 3.E.1.e) for 
Great Lakes System tributaries and connecting channels, with an 
allowance for mixing zones no greater than specified pursuant to section 
A.1 of this procedure.
    c. May specify in the NPDES permit the conditions under which a 
permittee would be required to perform a toxicity reduction evaluation.
    d. May allow with respect to any WQBEL established pursuant to 
section C.1.a of this procedure an appropriate schedule of compliance 
consistent with procedure 9 of appendix F; and
    e. May decide on a case-by-case basis that a WQBEL for WET is not 
necessary if the State's or Tribe's water quality standards do not 
contain a numeric criterion for WET, and the permitting authority 
demonstrates in accordance with 40 CFR 122.44(d)(1)(v) that chemical-
specific effluent limits are sufficient to ensure compliance with 
applicable criteria.
    2. Where a permitting authority lacks sufficient information to 
determine pursuant to section D of this procedure whether the WET of an 
effluent is or may be discharged at levels that will cause, have the 
reasonable potential to cause, or contribute to an excursion above any 
numeric WET criterion or narrative criterion within a State's or Tribe's 
water quality standards, then the permitting authority should consider 
including in the NPDES permit appropriate conditions to require 
generation of additional data and to control toxicity if found, such as:
    a. WET testing requirements to generate the data needed to 
adequately characterize the toxicity of the effluent to aquatic life;
    b. Language requiring a permit reopener clause to establish WET 
limits if any toxicity testing data required pursuant to section C.2.a 
of this procedure indicate that the WET of an effluent is or may be 
discharged at levels that will cause, have the reasonable potential to 
cause, or contribute to an excursion above any numeric WET criterion or 
narrative criterion within a State's or Tribe's water quality standards.
    3. Where sufficient data are available for a permitting authority to 
determine pursuant to section D of this procedure that the WET of an 
effluent neither is nor may be discharged at a level that will cause, 
have the reasonable potential to cause, or contribute to an excursion 
above any numeric WET criterion or narrative criterion within a State's 
or Tribe's water quality standards, the permitting authority may include 
conditions and limitations described in section C.2 of this procedure at 
its discretion.
    D. Reasonable Potential Determinations. The permitting authority 
shall take into account the factors described in 40 CFR 122.44(d)(1)(ii) 
and, where representative facility-specific WET effluent data are 
available, apply the following requirements in determining whether the 
WET of an effluent is or may be discharged at a level that will cause, 
have the reasonable potential to cause, or contribute to an excursion 
above any numeric WET criterion or narrative criterion within a State's 
or Tribe's water quality standards.
    1. The permitting authority shall characterize the toxicity of the 
discharge by:
    a. Either averaging or using the maximum of acute toxicity values 
collected within the same day for each species to represent one daily 
value. The maximum of all daily values for the most sensitive species 
tested is used for reasonable potential determinations;
    b. Either averaging or using the maximum of chronic toxicity values 
collected within the same calendar month for each species to represent 
one monthly value. The maximum of such values, for the most sensitive 
species tested, is used for reasonable potential determinations:
    c. Estimating the toxicity values for the missing endpoint using a 
default acute-chronic ratio (ACR) of 10, when data exist for either 
acute WET or chronic WET, but not for both endpoints.
    2. The WET of an effluent is or may be discharged at a level that 
will cause, have the reasonable potential to cause, or contribute to an 
excursion above any numeric acute WET criterion or numeric 
interpretation of a narrative criterion within a State's or Tribe's 
water quality standards, when effluent-specific information demonstrates 
that:

(TUa effluent) (B) (effluent flow/(Qad+effluent flow))>AC

Where TUa effluent is the maximum measured acute toxicity of 
100 percent effluent determined pursuant to section D.1.a. of this 
procedure, B is the multiplying factor taken from Table F6-1 of this 
procedure to convert the highest measured effluent toxicity value

[[Page 1043]]

to the estimated 95th percentile toxicity value for the discharge, 
effluent flow is the same effluent flow used to calculate the 
preliminary wasteload allocations (WLAs) for individual pollutants to 
meet the acute criteria and values for those pollutants, AC is the 
numeric acute WET criterion or numeric interpretation of a narrative 
criterion established pursuant to section A.1 of this procedure and 
expressed in TUa, and Qad is the amount of the receiving 
water available for dilution calculated using: (i) the specified design 
flow(s) for tributaries and connecting channels in section C.1.b of this 
procedure, or where appropriate procedure 3.E.1.e of appendix F, and 
using EPA-approved State and Tribal procedures for establishing acute 
mixing zones in tributaries and connecting channels, or (ii) the EPA-
approved State and Tribal procedures for establishing acute mixing zones 
in OWGLs. Where there are less than 10 individual WET tests, the 
multiplying factor taken from Table F6-1 of this procedure shall be 
based on a coefficient of variation (CV) or 0.6. Where there are 10 or 
more individual WET tests, the multiplying factor taken from Table F6-1 
shall be based on a CV calculated as the standard deviation of the acute 
toxicity values found in the WET tests divided by the arithmetic mean of 
those toxicity values.
    3. The WET of an effluent is or may be discharged at a level that 
will cause, have the reasonable potential to cause, or contribute to an 
excursion above any numeric chronic WET criterion or numeric 
interpretation of a narrative criterion within a State's or Tribe's 
water quality standards, when effluent-specific information demonstrates 
that:

(TUc effluent) (B) (effluent flow/Qad+effluent flow))>CC

Where TUc effluent is the maximum measured chronic toxicity 
value of 100 percent effluent determined in accordance with section 
D.1.b. of this procedure, B is the multiplying factor taken from Table 
F6-1 of this procedure, effluent flow is the same effluent flow used to 
calculate the preliminary WLAs for individual pollutants to meet the 
chronic criteria and values for those pollutants, CC is the numeric 
chronic WET criterion or numeric interpretation of a narrative criterion 
established pursuant to section A.2 of this procedure and expressed in 
TUc, and Qad
is the amount of the receiving water available for dilution calculated 
using: (i) the design flow(s) for tributaries and connecting channels 
specified in procedure 3.E.1.a of appendix F, and where appropriate 
procedure 3.E.1.e of appendix F, and in accordance with the provisions 
of procedure 3.E.5 for chronic mixing zones, or (ii) procedures 3.D.1 
and 3.D.4 for discharges to the OWGLs. Where there are less than 10 
individual WET tests, the multiplying factor taken from Table F6-1 of 
this procedure shall be based on a CV of 0.6. Where there are 10 more 
individual WET tests, the multiplying factor taken from Table F6-1 of 
this procedure shall be based on a CV calculated as the standard 
deviation of the WET tests divided by the arithmetic mean of the WET 
tests.

                                              Table F6-1--Reasonable Potential Multiplying Factors: 95% Confidence Level and 95% Probability Basis
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                               Coefficient of variation
                  Number of Samples                  -------------------------------------------------------------------------------------------------------------------------------------------
                                                       0.1    0.2    0.3    0.4    0.5    0.6    0.7    0.8    0.9    1.0    1.1    1.2    1.3    1.4    1.5    1.6    1.7    1.8    1.9    2.0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
1...................................................    1.4    1.9    2.6    3.6    4.7    6.2    8.0   10.1   12.6   15.5   18.7   22.3   26.4   30.8   35.6   40.7   46.2   52.1   58.4   64.9
2...................................................    1.3    1.6    2.0    2.5    3.1    3.8    4.6    5.4    6.4    7.4    8.5    9.7   10.9   12.2   13.6   15.0   16.4   17.9   19.5   21.1
3...................................................    1.2    1.5    1.8    2.1    2.5    3.0    3.5    4.0    4.6    5.2    5.8    6.5    7.2    7.9    8.6    9.3   10.0   10.8   11.5   12.3
4...................................................    1.2    1.4    1.7    1.9    2.2    2.6    2.9    3.3    3.7    4.2    4.6    5.0    5.5    6.0    6.4    6.9    7.4    7.8    8.3    8.8
5...................................................    1.2    1.4    1.6    1.8    2.1    2.3    2.6    2.9    3.2    3.6    3.9    4.2    4.5    4.9    5.2    5.6    5.9    6.2    6.6    6.9
6...................................................    1.1    1.3    1.5    1.7    1.9    2.1    2.4    2.6    2.9    3.1    3.4    3.7    3.9    4.2    4.5    4.7    5.0    5.2    5.5    5.7
7...................................................    1.1    1.3    1.4    1.6    1.8    2.0    2.2    2.4    2.6    2.8    3.1    3.3    3.5    3.7    3.9    4.1    4.3    4.5    4.7    4.9
8...................................................    1.1    1.3    1.4    1.6    1.7    1.9    2.1    2.3    2.4    2.6    2.8    3.0    3.2    3.3    3.5    3.7    3.9    4.0    4.2    4.3
9...................................................    1.1    1.2    1.4    1.5    1.7    1.8    2.0    2.1    2.3    2.4    2.6    2.8    2.9    3.1    3.2    3.4    3.5    3.6    3.8    3.9
10..................................................    1.1    1.2    1.3    1.5    1.6    1.7    1.9    2.0    2.2    2.3    2.4    2.6    2.7    2.8    3.0    3.1    3.2    3.3    3.4    3.6
11..................................................    1.1    1.2    1.3    1.4    1.6    1.7    1.8    1.9    2.1    2.2    2.3    2.4    2.5    2.7    2.8    2.9    3.0    3.1    3.2    3.3
12..................................................    1.1    1.2    1.3    1.4    1.5    1.6    1.7    1.9    2.0    2.1    2.2    2.3    2.4    2.5    2.6    2.7    2.8    2.9    3.0    3.0
13..................................................    1.1    1.2    1.3    1.4    1.5    1.6    1.7    1.8    1.9    2.0    2.1    2.2    2.3    2.4    2.5    2.5    2.6    2.7    2.8    2.9
14..................................................    1.1    1.2    1.3    1.4    1.4    1.5    1.6    1.7    1.8    1.9    2.0    2.1    2.2    2.3    2.3    2.4    2.5    2.6    2.6    2.7
15..................................................    1.1    1.2    1.2    1.3    1.4    1.5    1.6    1.7    1.8    1.8    1.9    2.0    2.1    2.2    2.2    2.3    2.4    2.4    2.5    2.5
16..................................................    1.1    1.1    1.2    1.3    1.4    1.5    1.6    1.6    1.7    1.8    1.9    1.9    2.0    2.1    2.1    2.2    2.3    2.3    2.4    2.4
17..................................................    1.1    1.1    1.2    1.3    1.4    1.4    1.5    1.6    1.7    1.7    1.8    1.9    1.9    2.0    2.0    2.1    2.2    2.2    2.3    2.3
18..................................................    1.1    1.1    1.2    1.3    1.3    1.4    1.5    1.6    1.6    1.7    1.7    1.8    1.9    1.9    2.0    2.0    2.1    2.1    2.2    2.2
19..................................................    1.1    1.1    1.2    1.3    1.3    1.4    1.5    1.5    1.6    1.6    1.7    1.8    1.8    1.9    1.9    2.0    2.0    2.0    2.1    2.1
20..................................................    1.1    1.1    1.2    1.2    1.3    1.4    1.4    1.5    1.5    1.6    1.6    1.7    1.7    1.8    1.8    1.9    1.9    2.0    2.0    2.0
30..................................................    1.0    1.1    1.1    1.1    1.2    1.2    1.2    1.3    1.3    1.3    1.3    1.4    1.4    1.4    1.4    1.5    1.5    1.5    1.5    1.5
40..................................................    1.0    1.0    1.1    1.1    1.1    1.1    1.1    1.1    1.2    1.2    1.2    1.2    1.2    1.2    1.2    1.2    1.2    1.2    1.3    1.3
50..................................................    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.1    1.1    1.1    1.1    1.1    1.1    1.1    1.1    1.1    1.1    1.1    1.1    1.1
60..................................................    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.0
70..................................................    1.0    1.0    1.0    1.0    1.0    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.9
80..................................................    1.0    1.0    1.0    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.8    0.8    0.8    0.8    0.8    0.8

[[Page 1044]]

 
90..................................................    1.0    1.0    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.8    0.8    0.8    0.8    0.8    0.8    0.8    0.8    0.8    0.8    0.8
100.................................................    1.0    1.0    0.9    0.9    0.9    0.9    0.9    0.8    0.8    0.8    0.8    0.8    0.8    0.8    0.8    0.8    0.8    0.7    0.7    0.7
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

                       Procedure 7: Loading Limits

    The Great Lakes States and Tribes shall adopt provisions consistent 
with (as protective as) this procedure.
    Whenever a water quality-based effluent limitation (WQBEL) is 
developed, the WQBEL shall be expressed as both a concentration value 
and a corresponding mass loading rate.
    A. Both mass and concentration limits shall be based on the same 
permit averaging periods such as daily, weekly, or monthly averages, or 
in other appropriate permit averaging periods.
    B. The mass loading rates shall be calculated using effluent flow 
rates that are consistent with those used in establishing the WQBELs 
expressed in concentration.

    Procedure 8: Water Quality-based Effluent Limitations Below the 
                          Quantification Level

    The Great Lakes States and Tribes shall adopt provisions consistent 
with (as protective as) this procedure.
    When a water quality-based effluent limitation (WQBEL) for a 
pollutant is calculated to be less than the quantification level:
    A. Permit Limits. The permitting authority shall designate as the 
limit in the NPDES permit the WQBEL exactly as calculated.
    B. Analytical Method and Quantification Level.
    1. The permitting authority shall specify in the permit the most 
sensitive, applicable, analytical method, specified in or approved under 
40 CFR part 136, or other appropriate method if one is not available 
under 40 CFR part 136, to be used to monitor for the presence and amount 
in an effluent of the pollutant for which the WQBEL is established; and 
shall specify in accordance with section B.2 of this procedure, the 
quantification level that can be achieved by use of the specified 
analytical method.
    2. The quantification level shall be the minimum level (ML) 
specified in or approved under 40 CFR part 136 for the method for that 
pollutant. If no such ML exists, or if the method is not specified or 
approved under 40 CFR part 136, the quantification level shall be the 
lowest quantifiable level practicable. The permitting authority may 
specify a higher quantification level if the permittee demonstrates that 
a higher quantification level is appropriate because of effluent-
specific matrix interference.
    3. The permit shall state that, for the purpose of compliance 
assessment, the analytical method specified in the permit shall be used 
to monitor the amount of pollutant in an effluent down to the 
quantification level, provided that the analyst has complied with the 
specified quality assurance/quality control procedures in the relevant 
method.
    4. The permitting authority shall use applicable State and Tribal 
procedures to average and account for monitoring data. The permitting 
authority may specify in the permit the value to be used to interpret 
sample values below the quantification level.
    C. Special Conditions. The permit shall contain a reopener clause 
authorizing modification or revocation and reissuance of the permit if 
new information generated as a result of special conditions included in 
the permit indicates that presence of the pollutant in the discharge at 
levels above the WQBEL. Special conditions that may be included in the 
permit include, but are not limited to, fish tissue sampling, whole 
effluent toxicity (WET) tests, limits and/or monitoring requirements on 
internal waste streams, and monitoring for surrogate parameters. Data 
generated as a result of special conditions can be used to reopen the 
permit to establish more stringent effluent limits or conditions, if 
necessary.
    D. Pollutant Minimization Program. The permitting authority shall 
include a condition in the permit requiring the permittee to develop and 
conduct a pollutant minimization program for each pollutant with a WQBEL 
below the quantification level.The goal of the pollutant minimization 
program shall be to maintain the effluent at or below the WQBEL. In 
addition, States and Tribes may consider cost-effectiveness when 
evaluating the requirements of a PMP. The pollutant minimization program 
shall include, but is not limited to, the following:
    1. An annual review and semi-annual monitoring of potential sources 
of the pollutant, which may include fish tissue monitoring and other 
bio-uptake sampling;
    2. Quarterly monitoring for the pollutant in the influent to the 
wastewater treatment system;
    3. Submittal of a control strategy designed to proceed toward the 
goal of maintaining the effluent below the WQBEL;

[[Page 1045]]

    4. Implementation of appropriate, cost-effective control measures 
consistent with the control strategy; and
    5. An annual status report that shall be sent to the permitting 
authority including:
    a. All minimization program monitoring results for the previous 
year;
    b. A list of potential sources of the pollutant; and
    c. A summary of all action undertaken pursuant to the control 
strategy.
    6. Any information generated as a result of procedure 8.D can be 
used to support a request for subsequent permit modifications, including 
revisions to (e.g., more or less frequent monitoring), or removal of the 
requirements of procedure 8.D, consistent with 40 CFR 122.44, 122.62 and 
122.63.

                    Procedure 9: Compliance Schedules

    The Great Lakes States and Tribes shall adopt provisions consistent 
with (as protective as) procedure 9 of appendix F of part 132.
    A. Limitations for New Great Lakes Dischargers. When a permit issued 
on or after March 23, 1997 to a new Great Lakes discharger (defined in 
Part 132.2) contains a water quality-based effluent limitation (WQBEL), 
the permittee shall comply with such a limitation upon the commencement 
of the discharge.
    B. Limitations for Existing Great Lakes Dischargers.
    1. Any existing permit that is reissued or modified on or after 
March 23, 1997 to contain a new or more restrictive WQBEL may allow a 
reasonable period of time, up to five years from the date of permit 
issuance or modification, for the permittee to comply with that limit, 
provided that the Tier I criterion or whole effluent toxicity (WET) 
criterion was adopted (or, in the case of a narrative criterion, Tier II 
value, or Tier I criterion derived pursuant to the methodology in 
appendix A of part 132, was newly derived) after July 1, 1977.
    2. When the compliance schedule established under paragraph 1 goes 
beyond the term of the permit, an interim permit limit effective upon 
the expiration date shall be included in the permit and addressed in the 
permit's fact sheet or statement of basis. The administrative record for 
the permit shall reflect the final limit and its compliance date.
    3. If a permit establishes a schedule of compliance under paragraph 
1 which exceeds one year from the date of permit issuance or 
modification, the schedule shall set forth interim requirements and 
dates for their achievement. The time between such interim dates may not 
exceed one year. If the time necessary for completion of any interim 
requirement is more than one year and is not readily divisible into 
stages for completion, the permit shall require, at a minimum, specified 
dates for annual submission of progress reports on the status of any 
interim requirements.
    C. Delayed Effectiveness of Tier II Limitations for Existing Great 
Lakes Discharges.
    1. Whenever a limit (calculated in accordance with Procedure 3) 
based upon a Tier II value is included in a reissued or modified permit 
for an existing Great Lakes discharger, the permit may provide a 
reasonable period of time, up to two years, in which to provide 
additional studies necessary to develop a Tier I criterion or to modify 
the Tier II value. In such cases, the permit shall require compliance 
with the Tier II limitation within a reasonable period of time, no later 
than five years after permit issuance or modification, and contain a 
reopener clause.
    2. The reopener clause shall authorize permit modifications if 
specified studies have been completed by the permittee or provided by a 
third-party during the time allowed to conduct the specified studies, 
and the permittee or a third-party demonstrates, through such studies, 
that a revised limit is appropriate. Such a revised limit shall be 
incorporated through a permit modification and a reasonable time period, 
up to five years, shall be allowed for compliance. If incorporated prior 
to the compliance date of the original Tier II limitation, any such 
revised limit shall not be considered less-stringent for purposes of the 
anti-backsliding provisions of section 402(o) of the Clean Water Act.
    3. If the specified studies have been completed and do not 
demonstrate that a revised limit is appropriate, the permitting 
authority may provide a reasonable additional period of time, not to 
exceed five years with which to achieve compliance with the original 
effluent limitation.
    4. Where a permit is modified to include new or more stringent 
limitations, on a date within five years of the permit expiration date, 
such compliance schedules may extend beyond the term of a permit 
consistent with section B.2 of this procedure.
    5. If future studies (other than those conducted under paragraphs 1, 
2, or 3 above) result in a Tier II value being changed to a less 
stringent Tier II value or Tier I criterion, after the effective date of 
a Tier II-based limit, the existing Tier II-based limit may be revised 
to be less stringent if:
    (a) It complies with sections 402(o) (2) and (3) of the CWA; or,
    (b) In non-attainment waters, where the existing Tier II limit was 
based on procedure 3, the cumulative effect of revised effluent 
limitation based on procedure 3 of this appendix will assure compliance 
with water quality standards; or,

[[Page 1046]]

    (c) In attained waters, the revised effluent limitation complies 
with the State or Tribes' antidegradation policy and procedures.

[60 FR 15387, Mar. 23, 1995, as amended at 63 FR 20110, Apr. 23, 1998]



PART 133--SECONDARY TREATMENT REGULATION--Table of Contents




Sec.
133.100  Purpose.
133.101  Definitions.
133.102  Secondary treatment.
133.103  Special considerations.
133.104  Sampling and test procedures.
133.105  Treatment equivalent to secondary treatment.

    Authority: Secs. 301(b)(1)(B), 304(d)(1), 304(d)(4), 308, and 501 of 
the Federal Water Pollution Control Act as amended by the Federal Water 
Pollution Control Act Amendments of 1972, the Clean Water Act of 1977, 
and the Municipal Wastewater Treatment Construction Grant Amendments of 
1981; 33 U.S.C. 1311(b)(1)(B), 1314(d) (1) and (4), 1318, and 1361; 86 
Stat. 816, Pub. L. 92-500; 91 Stat. 1567, Pub. L. 95-217; 95 Stat. 1623, 
Pub. L. 97-117.

    Source: 49 FR 37006, Sept. 20, 1984, unless otherwise noted.



Sec. 133.100  Purpose.

    This part provides information on the level of effluent quality 
attainable through the application of secondary or equivalent treatment.



Sec. 133.101  Definitions.

    Terms used in this part are defined as follows:
    (a) 7-day average. The arithmetic mean of pollutant parameter values 
for samples collected in a period of 7 consecutive days.
    (b) 30-day average. The arithmetic mean of pollutant parameter 
values of samples collected in a period of 30 consecutive days.
    (c) Act. The Clean Water Act (33 U.S.C. 1251 et seq., as amended).
    (d) BOD. The five day measure of the pollutant parameter biochemical 
oxygen demand (BOD).
    (e) CBOD5. The five day measure of the pollutant 
parameter carbonaceous biochemical oxygen demand (CBOD5).
    (f) Effluent concentrations consistently achievable through proper 
operation and maintenance. (1) For a given pollutant parameter, the 95th 
percentile value for the 30-day average effluent quality achieved by a 
treatment works in a period of at least two years, excluding values 
attributable to upsets, bypasses, operational errors, or other unusual 
conditions, and (2) a 7-day average value equal to 1.5 times the value 
derived under paragraph (f)(1) of this section.
    (g) Facilities eligible for treatment equivalent to secondary 
treatment. Treatment works shall be eligible for consideration for 
effluent limitations described for treatment equivalent to secondary 
treatment (Sec. 133.105), if:
    (1) The BOD5 and SS effluent concentrations consistently 
achievable through proper operation and maintenance (Sec. 133.101(f)) of 
the treatment works exceed the minimum level of the effluent quality set 
forth in Secs. 133.102(a) and 133.102(b),
    (2) A trickling filter or waste stabilization pond is used as the 
principal process, and
    (3) The treatment works provide significant biological treatment of 
municipal wastewater.
    (h) mg/l. Milligrams per liter.
    (i) NPDES. National Pollutant Discharge Elimination System.
    (j) Percent removal. A percentage expression of the removal 
efficiency across a treatment plant for a given pollutant parameter, as 
determined from the 30-day average values of the raw wastewater influent 
pollutant concentrations to the facility and the 30-day average values 
of the effluent pollutant concentrations for a given time period.
    (k) Significant biological treatment. The use of an aerobic or 
anaerobic biological treatment process in a treatment works to 
consistently achieve a 30-day average of a least 65 percent removal of 
BOD5.
    (l) SS. The pollutant parameter total suspended solids.
    (m) Significantly more stringent limitation means BOD5 
and SS limitations necessary to meet the percent removal requirements of 
at least 5 mg/l more stringent than the otherwise applicable 
concentration-based limitations (e.g., less than 25 mg/l in the case of 
the secondary treatment limits for BOD5 and SS), or the 
percent removal limitations in Secs. 133.102 and 133.105, if such limits

[[Page 1047]]

would, by themselves, force significant construction or other 
significant capital expenditure.
    (n) State Director means the chief administrative officer of any 
State or interstate agency operating an ``approved program,'' or the 
delegated representative of the State Director.

[49 FR 37006, Sept. 20, 1984; 49 FR 40405, Oct. 16, 1984, as amended at 
50 FR 23387, June 3, 1985]



Sec. 133.102  Secondary treatment.

    The following paragraphs describe the minimum level of effluent 
quality attainable by secondary treatment in terms of the parameters--
BOD5, SS and pH. All requirements for each parameter shall be 
achieved except as provided for in Secs. 133.103 and 133.105.
    (a) BOD5.
    (1) The 30-day average shall not exceed 30 mg/l.
    (2) The 7-day average shall not exceed 45 mg/l.
    (3) The 30-day average percent removal shall not be less than 85 
percent.
    (4) At the option of the NPDES permitting authority, in lieu of the 
parameter BOD5 and the levels of the effluent quality 
specified in paragraphs (a)(1), (a)(2) and (a)(3), the parameter 
CBOD5 may be substituted with the following levels of the 
CBOD5 effluent quality provided:
    (i) The 30-day average shall not exceed 25 mg/l.
    (ii) The 7-day average shall not exceed 40 mg/l.
    (iii) The 30-day average percent removal shall not be less than 85 
percent.
    (b) SS. (1) The 30-day average shall not exceed 30 mg/l.
    (2) The 7-day average shall not exceed 45 mg/l.
    (3) The 30-day average percent removal shall not be less than 85 
percent.
    (c) pH. The effluent values for pH shall be maintained within the 
limits of 6.0 to 9.0 unless the publicly owned treatment works 
demonstrates that: (1) Inorganic chemicals are not added to the waste 
stream as part of the treatment process; and (2) contributions from 
industrial sources do not cause the pH of the effluent to be less than 
6.0 or greater than 9.0.

[49 FR 37006, Sept. 20, 1984; 49 FR 40405, Oct. 16, 1984]



Sec. 133.103  Special considerations.

    (a) Combined sewers.  Treatment works subject to this part may not 
be capable of meeting the percentage removal requirements established 
under Secs. 133.102(a)(3) and 133.102(b)(3), or Secs. 133.105(a)(3) and 
133.105(b)(3) during wet weather where the treatment works receive flows 
from combined sewers (i.e., sewers which are designed to transport both 
storm water and sanitary sewage). For such treatment works, the decision 
must be made on a case-by-case basis as to whether any attainable 
percentage removal level can be defined, and if so, what the level 
should be.
    (b) Industrial wastes.   For certain industrial categories, the 
discharge to navigable waters of BOD5 and SS permitted under 
sections 301(b)(1)(A)(i), (b)(2)(E) or 306 of the Act may be less 
stringent than the values given in Secs. 133.102(a)(1), 
133.102(a)(4)(i), 133.102(b)(1), 133.105(a)(1), 133.105(b)(1) and 
133.105(e)(1)(i). In cases when wastes would be introduced from such an 
industrial category into a publicly owned treatment works, the values 
for BOD5 and SS in Secs. 133.102(a)(1), 133.102(a)(4)(i),  
133.102(b)(1),  133.105(a)(1),  133.105(b)(1), and 133.105(e)(1)(i) may 
be adjusted upwards provided that: (1) The permitted discharge of such 
pollutants, attributable to the industrial category, would not be 
greater than that which would be permitted under sections 
301(b)(1)(A)(i), 301(b)(2)(E) or 306 of the Act if such industrial 
category were to discharge directly into the navigable waters, and (2) 
the flow or loading of such pollutants introduced by the industrial 
category exceeds 10 percent of the design flow or loading of the 
publicly owned treatment works. When such an adjustment is made, the 
values for BOD5 or SS in Secs. 133.102(a)(2),  
133.102(a)(4)(ii),  Sec. 133.102(b)(2),  133.105(a)(2),  133.105(b)(2), 
and 133.105(e)(1)(ii) should be adjusted proportionately.
    (c) Waste stabilization ponds. The Regional Administrator, or, if 
appropriate, State Director subject to EPA approval, is authorized to 
adjust the minimum levels of effluent quality set forth in Sec. 133.105 
(b)(1), (b)(2), and (b)(3) for treatment works subject to this

[[Page 1048]]

part, to conform to the SS concentrations achievable with waste 
stabilization ponds, provided that: (1) Waste stablization ponds are the 
principal process used for secondary treatment; and (2) operation and 
maintenance data indicate that the SS values specified in Sec. 133.105 
(b)(1), (b)(2), and (b)(3) cannot be achieved. The term ``SS 
concentrations achievable with waste stabilization ponds'' means a SS 
value, determined by the Regional Administrator, or, if appropriate, 
State Director subject to EPA approval, which is equal to the effluent 
concentration achieved 90 percent of the time within a State or 
appropriate contiguous geographical area by waste stabilization ponds 
that are achieving the levels of effluent quality for BOD5 
specified in Sec. 133.105(a)(1). [cf. 43 FR 55279].
    (d) Less concentrated influent wastewater for separate sewers. The 
Regional Administrator or, if appropriate, State Director is authorized 
to substitute either a lower percent removal requirement or a mass 
loading limit for the percent removal requirements set forth in 
Secs. 133.102(a)(3), 133.102(a)(4)(iii),  133.102(b)(3),  102.105(a)(3), 
 133.105(b)(3) and 133.105(e)(1)(iii)  provided that the permittee 
satisfactorily demonstrates that: (1) The treatment works is 
consistently meeting, or will consistently meet, its permit effluent 
concentration limits but its percent removal requirements cannot be met 
due to less concentrated influent wastewater, (2) to meet the percent 
removal requirements, the treatment works would have to achieve 
significantly more stringent limitations than would otherwise be 
required by the concentration-based standards, and (3) the less 
concentrated influent wastewater is not the result of excessive I/I. The 
determination of whether the less concentrated wastewater is the result 
of excessive I/I will use 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 
infiltration) is less than 275 gallons per capita per day.
    (e) Less concentrated influent wastewater for combined sewers during 
dry weather. The Regional Administrator or, if appropriate, the State 
Director is authorized to substitute either a lower percent removal 
requirement or a mass loading limit for the percent removal requirements 
set forth in Secs. 133.102(a)(3), 133.102(a)(4)(iii),  133.102(b)(3),  
133.105(a)(3), 133.105(b)(3) and 133.105(e)(1)(iii) provided that the 
permittee satisfactorily demonstrates that: (1) The treatment works is 
consistently meeting, or will consistently meet, its permit effluent 
concentration limits, but the percent removal requirements cannot be met 
due to less concentrated influent wastewater; (2) to meet the percent 
removal requirements, the treatment works would have to achieve 
significantly more stringent effluent concentrations than would 
otherwise be required by the concentration-based standards; and (3) the 
less concentrated influent wastewater does not result from either 
excessive infiltration or clear water industrial discharges during dry 
weather periods. The determination of whether the less concentrated 
wastewater results from excessive infiltration is discussed in 40 CFR 
35.2005(b)(28), plus the additional criterion that either 40 gallons per 
capita per day (gpcd) or 1500 gallons per inch diameter per mile of 
sewer (gpdim) may be used as the threshold value for that portion of the 
dry weather base flow attributed to infiltration. If the less 
concentrated influent wastewater is the result of clear water industrial 
discharges, then the treatment works must control such discharges 
pursuant to 40 CFR part 403.

[49 FR 37006, Sept. 20, 1984, as amended at 50 FR 23387, June 3, 1985; 
50 FR 36880, Sept. 10, 1985; 54 FR 4228, Jan. 27, 1989]



Sec. 133.104  Sampling and test procedures.

    (a) Sampling and test procedures for pollutants listed in this part 
shall be in accordance with guidelines promulgated by the Administrator 
in 40 CFR part 136.
    (b) Chemical oxygen demand (COD) or total organic carbon (TOC) may 
be substituted for BOD5 when a long-term BOD:COD or BOD:TOC 
correlation has been demonstrated.

[[Page 1049]]



Sec. 133.105  Treatment equivalent to secondary treatment.

    This section describes the minimum level of effluent quality 
attainable by facilities eligible for treatment equivalent to secondary 
treatment (Sec. 133.101(g)) in terms of the parameters--BOD5, 
SS and pH. All requirements for the specified parameters in paragraphs 
(a), (b) and (c) of this section shall be achieved except as provided 
for in Sec. 133.103, or paragraphs (d), (e) or (f) of this section.
    (a) BOD5. (1) The 30-day average shall not exceed 45 mg/
l.
    (2) The 7-day average shall not exceed 65 mg/l.
    (3) The 30-day average percent removal shall not be less than 65 
percent.
    (b) SS. Except where SS values have been adjusted in accordance with 
Sec. 133.103(c):
    (1) The 30-day average shall not exceed 45 mg/l.
    (2) The 7-day average shall not exceed 65 mg/l.
    (3) The 30-day average percent removal shall not be less than 65 
percent.
    (c) pH. The requirements of Sec. 133.102(c) shall be met.
    (d) Alternative State requirements. Except as limited by paragraph 
(f) of this section, and after notice and opportunity for public 
comment, the Regional Administrator, or, if appropriate, State Director 
subject to EPA approval, is authorized to adjust the minimum levels of 
effluent quality set forth in paragraphs (a)(1), (a)(2), (b)(1) and 
(b)(2) of this section for trickling filter facilities and in paragraphs 
(a)(1) and (a)(2) of this section for waste stabilization pond 
facilities, to conform to the BOD5 and SS effluent 
concentrations consistently achievable through proper operation and 
maintenance (Sec. 133.101(f)) by the median (50th percentile) facility 
in a representative sample of facilities within a State or appropriate 
contiguous geographical area that meet the definition of facilities 
eligible for treatment equivalent to secondary treatment 
(Sec. 133.101(g)).

(The information collection requirements contained in this rule have 
been approved by OMB and assigned control number 2040-0051.)

    (e) CBOD5 limitations:
    (1) Where data are available to establish CBOD5 
limitations for a treatment works subject to this section, the NPDES 
permitting authority may substitute the parameter CBOD5 for 
the parameter BOD5 In Secs. 133.105(a)(1), 133.105(a)(2) and 
133.105(a)(3), on a case-by-case basis provided that the levels of 
CBOD5 effluent quality are not less stringent than the 
following:
    (i) The 30-day average shall not exceed 40 mg/l.
    (ii) The 7-days average shall not exceed 60 mg/l.
    (iii) The 30-day average percent removal shall not be less than 65 
percent.
    (2) Where data are available, the parameter CBOD5 may be 
used for effluent quality limitations established under paragraph (d) of 
this section. Where concurrent BOD effluent data are available, they 
must be submitted with the CBOD data as a part of the approval process 
outlined in paragraph (d) of this section.
    (f) Permit adjustments. Any permit adjustment made pursuant to this 
part may not be any less stringent than the limitations required 
pursuant to Sec. 133.105(a)-(e). Furthermore, permitting authorities 
shall require more stringent limitations when adjusting permits if: (1) 
For existing facilities the permitting authority determines that the 30-
day average and 7-day average BOD5 and SS effluent values 
that could be achievable through proper operation and maintenance of the 
treatment works, based on an analysis of the past performance of the 
treatment works, would enable the treatment works to achieve more 
stringent limitations, or
    (2) For new facilities, the permitting authority determines that the 
30-day average and 7-day average BOD5 and SS effluent values 
that could be achievable through proper operation and maintenance of the 
treatment works, considering the design capability of the treatment 
process and geographical and climatic conditions, would enable the 
treatment works to achieve more stringent limitations.

[49 FR 37006, Sept. 20, 1984; 49 FR 40405, Oct. 16, 1984]

[[Page 1050]]



PART 135--PRIOR NOTICE OF CITIZEN SUITS--Table of Contents




            Subpart A--Prior Notice Under the Clean Water Act

Sec.
135.1  Purpose.
135.2  Service of notice.
135.3  Contents of notice.
135.4  Service of complaint.
135.5  Service of proposed consent judgment.

        Subpart B--Prior Notice Under the Safe Drinking Water Act

135.10  Purpose.
135.11  Service of notice.
135.12  Contents of notice.
135.13  Timing of notice.

    Authority: Subpart A, issued under Sec. 505, Clean Water Act, as 
amended 1987; Sec. 504, Pub. L. 100-4; 101 Stat. 7 (33 U.S.C. 1365). 
Subpart B, issued under Sec. 1449, Safe Drinking Water Act (42 U.S.C. 
300j-8).

    Source: 38 FR 15040, June 7, 1973, unless otherwise noted.



            Subpart A--Prior Notice Under the Clean Water Act



Sec. 135.1  Purpose.

    (a) Section 505(a)(1) of the Clean Water Act (hereinafter the Act) 
authorizes any person or persons having an interest which is or may be 
adversely affected to commence a civil action on his own behalf to 
enforce the Act or to enforce certain requirements promulgated pursuant 
to the Act. In addition, section 505(c)(3) of the Act provides that, for 
purposes of protecting the interests of the United States, whenever a 
citizen enforcement action is brought under section 505(a)(1) of the Act 
in a court of the United States, the Plaintiff shall serve a copy of the 
complaint on the Attorney General and the Administrator. Section 
505(c)(3) also provides that no consent judgment shall be entered in any 
citizen action in which the United States is not a party prior to 45 
days following the receipt of a copy of the proposed consent judgment by 
the Attorney General and the Administrator.
    (b) The purpose of this subpart is to prescribe procedures governing 
the giving of notice required by section 505(b) of the Act as a 
prerequisite to the commencing of such actions, and governing the 
service of complaints and proposed consent judgments as required by 
section 505(c)(3) of the Act.

[56 FR 11515, Mar. 19, 1991]



Sec. 135.2  Service of notice.

    (a) Notice of intent to file suit pursuant to section 505(a)(1) of 
the Act shall be served upon an alleged violator of an effluent standard 
or limitation under the Act, or an order issued by the Administrator or 
a State with respect to such a standard or limitation, in the following 
manner:
    (1) If the alleged violator is an individual or corporation, service 
of notice shall be accomplished by certified mail addressed to, or by 
personal service upon, the owner or managing agent of the building, 
plant, installation, vessel, facility, or activity alleged to be in 
violation. A copy of the notice shall be mailed to the Administrator of 
the Environmental Protection Agency, the Regional Administrator of the 
Environmental Protection Agency for the region in which such violation 
is alleged to have occurred, and the chief administrative officer of the 
water pollution control agency for the State in which the violation is 
alleged to have occurred. If the alleged violator is a corporation, a 
copy of such notice also shall be mailed to the registered agent, if 
any, of such corporation in the State in which such violation is alleged 
to have occurred.
    (2) If the alleged violator is a State or local agency, service of 
notice shall be accomplished by certified mail addressed to, or by 
personal service upon, the head of such agency. A copy of such notice 
shall be mailed to the chief administrative officer of the water 
pollution control agency for the State in which the violation is alleged 
to have occurred, the Administrator of the Environmental Protection 
Agency, and the Regional Administrator of the Environmental Protection 
Agency for the region in which such violation is alleged to have 
occurred.
    (3) If the alleged violator is a Federal agency, service of notice 
shall be accomplished by certified mail addressed to, or by personal 
service upon, the

[[Page 1051]]

head of such agency. A copy of such notice shall be mailed to the 
Administrator of the Environmental Protection Agency, the Regional 
Administrator of the Environmental Protection Agency for the region in 
which such violation is alleged to have occurred, the Attorney General 
of the United States, and the Chief administrative officer of the water 
pollution control agency for the State in which the violation is alleged 
to have occurred.
    (b) Service of notice of intent to file suit pursuant to section 
505(a)(2) of the Act shall be accomplished by certified mail addressed 
to, or by personal service upon, the Administrator, Environmental 
Protection Agency, Washington, DC, 20460. A copy of such notice shall be 
mailed to the Attorney General of the United States.
    (c) Notice given in accordance with the provisions of this subpart 
shall be deemed to have been served on the postmark date if mailed, or 
on the date of receipt if served personally.



Sec. 135.3  Contents of notice.

    (a) Violation of standard, limitation or order. Notice regarding an 
alleged violation of an effluent standard or limitation or of an order 
with respect thereto, shall include sufficient information to permit the 
recipient to identify the specific standard, limitation, or order 
alleged to have been violated, the activity alleged to constitute a 
violation, the person or persons responsible for the alleged violation, 
the location of the alleged violation, the date or dates of such 
violation, and the full name, address, and telephone number of the 
person giving notice.
    (b) Failure to act. Notice regarding an alleged failure of the 
Administrator to perform any act or duty under the Act which is not 
discretionary with the Administrator shall identify the provision of the 
Act which requires such act or creates such duty, shall describe with 
reasonable specificity the action taken or not taken by the 
Administrator which is alleged to constitute a failure to perform such 
act or duty, and shall state the full name, address and telephone number 
of the person giving the notice.
    (c) Identification of counsel. The notice shall state the name, 
address, and telephone number of the legal counsel, if any, representing 
the person giving the notice.



Sec. 135.4  Service of complaint.

    (a) A citizen plaintiff shall mail a copy of a complaint filed 
against an alleged violator under section 505(a)(1) of the Act to the 
Administrator of the Environmental Protection Agency, the Regional 
Administrator of the EPA Region in which the violations are alleged to 
have occurred, and the Attorney General of the United States.
    (b) The copy so served shall be of a filed, date-stamped complaint, 
or shall be a conformed copy of the filed complaint which indicates the 
assigned civil action number, accompanied by a signed statement by the 
plaintiff or his attorney as to when the complaint was filed.
    (c) A citizen plaintiff shall mail a copy of the complaint on the 
same date on which the plaintiff files the complaint with the court, or 
as expeditiously thereafter as practicable.
    (d) If the alleged violator is a Federal agency, a citizen plaintiff 
must serve the complaint on the United States in accordance with 
relevant Federal law and court rules affecting service on defendants, in 
addition to complying with the service requirements of this subpart.

[56 FR 11515, Mar. 19, 1991]



Sec. 135.5  Service of proposed consent judgment.

    (a) The citizen plaintiff in a citizen enforcement suit filed 
against an alleged violator under section 505(a)(1) of the Act shall 
serve a copy of a proposed consent judgment, signed by all parties to 
the lawsuit, upon the Administrator, Environmental Protection Agency, 
Washington, DC 20460, and the Attorney General, Department of Justice, 
Citizen Suit Coordinator, Room 2615, Washington, DC 20530. The plaintiff 
shall serve the Administrator and the Attorney General by personal 
service or by certified mail (return receipt requested.) The plaintiff 
shall also mail a copy of a proposed consent judgment at the same time 
to the Regional Administrator of the EPA Region in which the violations 
were alleged to have occurred.

[[Page 1052]]

    (b) When the parties in an action in which the United States is not 
a party file or lodge a proposed consent judgment with the court, the 
plaintiff shall notify the court of the statutory requirement that the 
consent judgment shall not be entered prior to 45 days following receipt 
by both the Administrator and the Attorney General of a copy of the 
consent judgment.
    (1) If the plaintiff knows the dates upon which the Administrator 
and the Attorney General received copies of the proposed consent 
judgment, the plaintiff shall so notify the court.
    (2) If the plaintiff does not know the date upon which the 
Administrator and Attorney General received copies of the proposed 
consent judgment, the plaintiff shall so notify the court, but upon 
receiving such information regarding the dates of service of the 
proposed consent judgment upon the Administrator and Attorney General, 
the plaintiff shall so notify the court of the dates of service.

[56 FR 11515, Mar. 19, 1991]



        Subpart B--Prior Notice Under the Safe Drinking Water Act

    Source: 54 FR 20771, May 12, 1989, unless otherwise noted.



Sec. 135.10  Purpose.

    Section 1449 of the Safe Drinking Water Act (the Act) authorizes any 
person to commence a civil action to enforce the Act against an alleged 
violator of any requirements prescribed by or under the Act, or against 
the Administrator for failure to perform any duty which is not 
discretionary under the Act. No citizen suit may be commenced prior to 
sixty days after giving notice of the alleged violation to the 
Administrator, any alleged violator, and to the State. The purpose of 
this subpart is to prescribe procedures for giving the notice required 
by section 1449(b).



Sec. 135.11  Service of notice.

    (a) Notice of intent to file suit pursuant to section 1449(a)(1) of 
the Act shall be served in the following manner upon an alleged violator 
of any requirement prescribed by or under the Act:
    (1) If the alleged violator is an individual or corporation, service 
of notice shall be accomplished by certified mail, return receipt 
requested, addressed to, or by personal service upon, such individual or 
corporation. If a public water system or underground injection well is 
alleged to be in violation, service shall be upon the owner or operator. 
A copy of the notice shall be sent by certified mail, return receipt 
requested, to the Administrator of the Environmental Protection Agency, 
the Regional Administrator of the Environmental Protection Agency for 
the region in which such violation is alleged to have occurred, the 
chief administrative officer of the responsible state agency (if any), 
and the Attorney General for the State in which the violation is alleged 
to have occurred. If the alleged violator is a corporation, a copy of 
the notice shall also be sent by certified mail, return receipt 
requested, to the registered agent (if any) of the corporation in the 
State in which the violation is alleged to have occurred.
    (2) If the alleged violator is a State or local agency, service of 
notice shall be accomplished by certified mail, return receipt 
requested, addressed to, or by personal service upon, the head of such 
agency. A copy of the notice shall be sent by certified mail, return 
receipt requested, to the Administrator of the Environmental Protection 
Agency, the Regional Administrator of the Environmental Protection 
Agency for the region in which the violation is alleged to have 
occurred, the chief administrative officer of the responsible state 
agency (if any), and the Attorney General for the State in which the 
violation is alleged to have occurred.
    (3) If the alleged violator is a Federal agency, service of notice 
shall be accomplished by certified mail, return receipt requested, 
addressed to, or by personal service upon, the head of the Federal 
agency. A copy of the notice shall be sent by certified mail, return 
receipt requested, to the Administrator of the Environmental Protection 
Agency, the Regional Administrator of the Environmental Protection 
Agency for the region in which the violation is alleged to have 
occurred, the Attorney General of the United States, the chief

[[Page 1053]]

administrative officer of the responsible state agency (if any), and the 
Attorney General for the State in which the violation is alleged to have 
occurred.
    (b) Service of notice of intent to file suit pursuant to section 
1449(a)(2) of the Act shall be accomplished by certified mail, return 
receipt requested, addressed to, or by personal service upon, the 
Administrator of the Environmental Protection Agency, Washington, DC 
20460. A copy of the notice shall be sent by certified mail to the 
Attorney General of the United States.
    (c) Notice given in accordance with the provisions of this subpart 
shall be deemed to have been given on the date of receipt of service, if 
served personally. If service was accomplished by mail, the date of 
receipt will be considered to be the date noted on the return receipt 
card.



Sec. 135.12  Contents of notice.

    (a) Violation of standard or requirement. Notice regarding an 
alleged violation of any requirement prescribed by or under the Act 
shall include sufficient information to permit the recipient to identify 
the specific requirement alleged to have been violated, the activity 
alleged to constitute a violation, the person or persons responsible for 
the alleged violation, the location of the alleged violation, the date 
or dates of the alleged violation, and the full name, address, and 
telephone number of the person giving notice.
    (b) Failure to act. Notice regarding an alleged failure of the 
Administrator to perform any act or duty under the Act which is not 
discretionary with the Administrator shall identify the provision of the 
Act which requires the act or creates the duty, and shall describe with 
reasonable specificity the action taken or not taken by the 
Administrator which is alleged to constitute a failure to perform such 
act or duty, and shall state the full name, address, and telephone 
number of the person giving notice.
    (c) Identification of counsel. All notices shall include the name, 
address, and telephone number of the legal counsel, if any, representing 
the person giving notice.



Sec. 135.13  Timing of notice.

    No action may be commenced under section 1449(a)(1) or (a)(2) until 
the plaintiff has given each of the appropriate parties sixty days 
notice of intent to file such an action. Actions concerning injection 
wells disposing of hazardous waste which allege jurisdiction solely 
under section 7002(c) of the Resource Conservation and Recovery Act may 
proceed immediately after notice to the appropriate parties.


[[Page 1055]]



                              FINDING AIDS




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

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Material Approved for Incorporation by Reference
  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 1057]]

            Material Approved for Incorporation by Reference

                      (Revised as of July 1, 1999)

  The Director of the Federal Register has approved under 5 U.S.C. 
552(a) and 1 CFR Part 51 the incorporation by reference of the following 
publications. This list contains only those incorporations by reference 
effective as of the revision date of this volume. Incorporations by 
reference found within a regulation are effective upon the effective 
date of that regulation. For more information on incorporation by 
reference, see the preliminary pages of this volume.


40 CFR (PARTS 87 TO 135)

ENVIRONMENTAL PROTECTION AGENCY
                                                                  40 CFR


American National Standards Institute

  11 West 42nd Street, New York, NY 10036
ANSI B109.1-1992, Diaphragm Type Gas Displacement                 92.117
  Meters.


American Society for Testing and Materials

  100 Barr Harbor Drive, West Conshohocken, PA 
  19428-2959; Telephone: (610) 832-9585, FAX: 
  (610) 832-9555
ASTM D 86-90, Standard Test Method for                              89.6
  Distillation of Petroleum Products.
ASTM D 86-93 Standard Test Method for Distillation Appendix A to Subpart 
  of Petroleum Products.                                      D, Table 3
ASTM D 86-95, Standard Test Method for                            92.113
  Distillation of Petroleum Products.
ASTM D 93-90, Standard Test Methods for Flash       89.6; Appendix A to 
  Point by Pensky-Martens Closed Tester.                       Subpart D
ASTM D 93-94, Standard Test Methods for Flash-                    92.113
  Point by Pensky-Martens Closed Cup Tester.
ASTM D 129-91, Standard Test Method for Sulfur in   89.6; Appendix A to 
  Petroleum Products (General Bomb Method).                    Subpart D
ASTM D 287-92, Standard Test Method for API         89.6; Appendix A to 
  Gravity of Crude Petroleum and Petroleum             Subpart D; 92.113
  Products (Hydrometer Method).
ASTM D 323-90, Standard Test Method for Vapor      Appendix A to Subpart 
  Pressure of Petroleum Products (Reid Method).                        D
ASTM D 445-88, Standard Test Method for Kinematic   89.6; Appendix A to 
  Viscosity of Transparent and Opaque Liquids (And             Subpart D
  the Calculation of Dynamic Viscosity).
ASTM D 445-94, Standard Test Method for Kinematic                 92.113
  Viscosity of Transparent and Opaque Liquids (the 
  Calculation of Dynamic Viscosity).
ASTM D445-97, Standard Test Method for Kinematic    Part 89, Appendix A 
  Viscosity of Transparent and Opaque Liquids (the          to Subpart D
  Calculation of Dynamic Viscosity).
ASTM D 613-86, Standard Test Method for Ignition    89.6; Appendix A to 
  Quality of Diesel Fuels by the Cetane Method.                Subpart D
ASTM D 613-95, Standard Test Method for Cetane                    92.113
Number of Diesel Fuel Oil.
[[Page 1058]]

ASTM D 976-91, Standard Test Method for Calculated                92.113
  Cetane Index of Distillate Fuels.
ASTM D 1319-89, Standard Test Method for            89.6; Appendix A to 
  Hydrocarbon Types in Liquid Petroleum Products      Subpart D, Table 3
  by Fluorescent Indicator Adsorption.
ASTM D 1319-93, Standard Test Method for            Part 89, Appendix A 
  Hydrocarbon Types in Liquid Petroleum Products            to Subpart D
  by Fluorescent Indicator Adsorption.
ASTM D 1319-95, Standard Test Method for                          92.113
  Hydrocarbon Types in Liquid Petroleum Products 
  by Fluorescent Indicator Adsorption.
ASTM D 1319-98, Standard Test Method for            Part 89, Appendix A 
  Hydrocarbon Types in Liquid Petroleum Products            to Subpart D
  by Fluorescent Indicator Adsorption.
ASTM D 1945-91, Standard Test Method for Analysis                 92.113
  of Natural Gas by Gas Chromatography.
ASTM D 2622-92, Standard Test Method for Sulfur in  89.6; Appendix A to 
  Petroleum Products by X-ray Spectrometry.           Subpart D, Table 3
ASTM D 2622-94, Standard Test Method for Sulfur in                92.113
  Petroleum Products by X-ray Spectrometry.
ASTM D2622-98, Standard Test Method for Sulfur in   Part 89, Appendix A 
  Petroleum Products by Wavelength Dispersive X-            to Subpart D
  ray Fluorescence Spectrometry.
ASTM D 2699-92 Standard Test Method for Knock      Appendix A of Subpart 
  Characteristics of Motor Fuels by the Method                D, Table 3
  Research.
ASTM D 2700-92 Standard Test Method for Knock      Appendix A to Subpart 
  Characteristics of Motor and Aviation Fuels by              D, Table 3
  the Motor Method.
ASTM D 3231-89 Standard Test Method for Phosphorus Appendix A to Subpart 
  in Gasoline.                                                D, Table 3
ASTM D 3606-92 Standard Test Method for            Appendix A to Subpart 
  Determination of Benzene and Toluene in Finished            D, Table 3
  Motor and Aviation Gasoline by Gas 
  Chromatography.
ASTM D 5186-91, Standard Test Method for                          92.113
  Determination of Aromatic Content of Diesel 
  Fuels by Supercritical Fluid Chromatography.
ASTM D 5191-93a Standard Test Method for Vapor     Appendix A to Subpart 
  Pressure of Petroleum Products (Mini Method).               D, Table 3
ASTM E 29-93a Standard Practice for Using               90.116; 90.509; 
  Significant Digits in Test Data to Determine          91.120; 91.207; 
  Conformance with Specifications.                       91.509; 91.1307
ASTM E29-90, Standard Practice for Using               89.6; 89.207-96; 
  Significant Digits in Test Data to Determine                 89.509-96
  Conformance with Specifications.
ASTM E29-93a, Standard Practice for Using           92.9; 92.305; 92.509
  Significant Digits in Test Data to Determine 
  Conformance with Specification.


California State Regulations

  California Air Resources Board, Haagen-Smit 
  Laboratory, 9528 Telstar Avenue, El Monte, CA 
  91731-2990
California Air Resources Board Resolution 92-2,        89.6; 89.112-96; 
  California Regulations for New 1996 and Later     89.119-96; 89.508-96
  Heavy-Duty Off-Road Diesel Cycle Engines.


Environmental Protection Agenvy

  OAR, 401 M St. SW., Washington, DC 20460

[[Page 1059]]

California Regulatory Requirements Applicable to               88.104-94
  the Clean Fuel Fleet and California Pilot 
  Programs, April 1, 1990.


International Civil Aviation Organization

  PO Box 400, Succurale: Place de L'Aviation 
  International, 1000 Sherbrooke Street West, 
  Montreal, Quebec, Canada H3A2R2
ICAO Annex 16, Volume II, Aircraft Engine                   87.64; 87.82
  Emissions (June 1981).
ICAO Annex 16, Volume II, Aircraft Engine                          87.82
  Emissions (Second Ed. 1993), Appendix 2.
ICAO Annex 16, Volume II, Aircraft Engine                          87.64
  Emissions (Second Ed. 1993), Appendixes 3 and 5.
ICAO Annex 16, Volume II, Aircraft Engine                   87.71; 87.89
  Emissions (Second Ed. 1993), Appendix 6.


Society of Automotive Engineers

  400 Commonwealth Dr. Warrendale, PA 15096-0001; 
  Telephone: (724) 776-4841
SAE J244, June 83, Recommended Practice for            89.6; 89.416-96; 
  Measurement of Intake Air or Exhaust Gas Flow of                92.108
  Diesel Engines.
SAE J1228/ISO 8665, Small Craft-Marine Propulsion       91.104; 91.115; 
  Engine and Systems-Power Measurements and             91.118; 91.207; 
  Declarations, November 1991.                                   91.1307
SAE J1930, September 1991, Electrical/Electronic          90.114; 91.113
  Systems Diagnostic Terms, Definitions, 
  Abbreviations, and Acronyms.
SAE J1937, November 89, Recommended Practice for         89.6; 89.327-96
  Engine Testing with Low Temperature Charge Air 
  Cooler Systems in a Dynamometer Test Cell.
SAE Paper 770141, Optimization of a Flame              89.6; 89.319-96; 
  Ionization Detector for Determination of              90.316; 91.316; 
  Hydrocarbon in Diluted Automotive Exhausts,                     92.119
  Glenn D. Reschke, 1977.



[[Page 1061]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 1999)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                          Title 2--[Reserved]

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  General Accounting Office (Parts 1--99)
        II  Federal Claims Collection Standards (General 
                Accounting Office--Department of Justice) (Parts 
                100--299)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
        IV  Advisory Committee on Federal Pay (Parts 1400--1499)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
       VII  Advisory Commission on Intergovernmental Relations 
                (Parts 1700--1799)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)

[[Page 1062]]

      XXII  Federal Deposit Insurance Corporation (Part 3201)
     XXIII  Department of Energy (Part 3301)
      XXIV  Federal Energy Regulatory Commission (Part 3401)
       XXV  Department of the Interior (Part 3501)
      XXVI  Department of Defense (Part 3601)
    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Part 6401)
      LVII  General Services Administration (Part 6701)
     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
       LXI  National Labor Relations Board (Part 7101)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)
     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)
    LXXVII  Office of Management and Budget (Part 8701)

                          Title 6--[Reserved]

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture

[[Page 1063]]

         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
      XIII  Northeast Dairy Compact Commission (Parts 1300--1399)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy, Department of Agriculture (Parts 
                2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)

[[Page 1064]]

    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Immigration and Naturalization Service, Department of 
                Justice (Parts 1--499)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)

[[Page 1065]]

        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Export Administration, Department of 
                Commerce (Parts 700--799)

[[Page 1066]]

      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  United States Customs Service, Department of the 
                Treasury (Parts 1--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)

[[Page 1067]]

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  United States Information Agency (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board Regulations (Parts 
                900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Board for International Broadcasting (Parts 1300--
                1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

[[Page 1068]]

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Multifamily Housing Assistance 
                Restructuring, Department of Housing and Urban 
                Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--999)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

[[Page 1069]]

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Part 1001)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Part 1200)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--799)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Bureau of Alcohol, Tobacco and Firearms, Department of 
                the Treasury (Parts 1--299)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--199)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)

[[Page 1070]]

       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Pension and Welfare Benefits Administration, 
                Department of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
        VI  Bureau of Mines, Department of the Interior (Parts 
                600--699)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)

[[Page 1071]]

       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)
      XXIX  Presidential Commission on the Assignment of Women in 
                the Armed Forces (Part 2900)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Transportation (Parts 1--
                199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799)
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

[[Page 1072]]

                        Title 35--Panama Canal

         I  Panama Canal Regulations (Parts 1--299)

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
       XIV  Assassination Records Review Board (Parts 1400--1499)

             Title 37--Patents, Trademarks, and Copyrights

         I  Patent and Trademark Office, Department of Commerce 
                (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Rate Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--799)
         V  Council on Environmental Quality (Parts 1500--1599)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts

[[Page 1073]]

        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans 
                Employment and Training, Department of Labor 
                (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300.99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Parts 303-1--303-2)
       304  Payment from a Non-Federal Source for Travel Expenses 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Health Care Financing Administration, Department of 
                Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)

[[Page 1074]]

       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10005)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
      XXII  Christopher Columbus Quincentenary Jubilee Commission 
                (Parts 2200--2299)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

[[Page 1075]]

                          Title 46--Shipping

         I  Coast Guard, Department of Transportation (Parts 1--
                199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Transportation (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Department of Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  United States Agency for International Development 
                (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  United States Information Agency (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)

[[Page 1076]]

        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  Panama Canal Commission (Parts 3500--3599)
        44  Federal Emergency Management Agency (Parts 4400--4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)
        54  Defense Logistics Agency, Department of Defense (Part 
                5452)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Research and Special Programs Administration, 
                Department of Transportation (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Highway Administration, Department of 
                Transportation (Parts 300--399)
        IV  Coast Guard, Department of Transportation (Parts 400--
                499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
        XI  Bureau of Transportation Statistics, Department of 
                Transportation (Parts 1400--1499)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)

[[Page 1077]]

        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR



[[Page 1079]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 1999)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Commission on Intergovernmental          5, VII
     Relations
Advisory Committee on Federal Pay                 5, IV
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development, United      22, II
     States
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Alcohol, Tobacco and Firearms, Bureau of          27, I
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX

[[Page 1080]]

Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Assassination Records Review Board                36, XIV
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Board for International Broadcasting              22, XIII
Census Bureau                                     15, I
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Christopher Columbus Quincentenary Jubilee        45, XXII
     Commission
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Export Administration, Bureau of                15, VII
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office                     37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Corporation for National and Community Service    45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Customs Service, United States                    19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51

[[Page 1081]]

  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 2
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   5, LIV; 40, I, VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                25, III, LXXVII; 48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export Administration, Bureau of                  15, VII
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               4, II

[[Page 1082]]

Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II; 49, III
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Pay, Advisory Committee on                5, IV
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Property Management Regulations System    41, Subtitle C
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Accounting Office                         4, I, II
General Services Administration                   5, LVII
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Property Management Regulations System  41, 101, 105
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III

[[Page 1083]]

Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Health Care Financing Administration            42, IV
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Health Care Financing Administration              42, IV
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Inspector General, Office of                    24, XII
  Multifamily Housing Assistance Restructuring,   24, IV
       Office of
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Human Development Services, Office of             45, XIII
Immigration and Naturalization Service            8, I
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Information Agency, United States                 22, V
  Federal Acquisition Regulation                  48, 19
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Intergovernmental Relations, Advisory Commission  5, VII
     on
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  Mines, Bureau of                                30, VI
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
     of
[[Page 1084]]

  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
  International Development, United States        22, II; 48, 7
       Agency for
  Overseas Private Investment Corporation         5, XXXIII; 22, VII
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                5, XXVIII; 28, I
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             4, II
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration and Naturalization Service          8, I
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Pension and Welfare Benefits Administration     29, XXV
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training, Office of    41, 61; 20, IX
       the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
Management and Budget, Office of                  5, III, LXXVII; 48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II
Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Mines, Bureau of                                  30, VI
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Multifamily Housing Assistance Restructuring,     24, IV
     Office of
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18

[[Page 1085]]

National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National Archives and Records Administration      5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National and Community Service, Corporation for   45, XII, XXV
National Council on Disability                    34, XII
National Credit Union Administration              12, VII
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Dairy Compact Commission                7, XIII
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Panama Canal Commission                           48, 35
Panama Canal Regulations                          35, I
Patent and Trademark Office                       37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension and Welfare Benefits Administration       29, XXV
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Commission on the Assignment of      32, XXIX
   Women in the Armed Forces
[[Page 1086]]

Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Special Programs Administration      49, I
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  22, I
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II; 49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Research and Special Programs Administration    49, I
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Statistics Brureau                 49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV
  Alcohol, Tobacco and Firearms, Bureau of        27, I

[[Page 1087]]

  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs Service, United States                  19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training, Office of the  41, 61; 20, IX
     Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 1089]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations which were 
made by documents published in the Federal Register since January 1, 
1986, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
Title 40 was established at 36 FR 12213, June 29, 1971. For the period 
before January 1, 1986, see the ``List of CFR Sections Affected, 1964-
1972 and 1973-1985'' published in six separate volumes.

                                  1986

40 CFR
                                                                   51 FR
                                                                    Page
Chapter I
117.3  Table 117.3 revised.........................................34547
122.21  (g) introductory text revised; (h), (i) heading, (j) 
        heading, and (k) through (o) redesignated as (i), (j) 
        heading, (k) heading, and (l) through (p); new (h) and (k) 
        text added; OMB number.....................................26991
122.62  (a)(2) amended.............................................26993
    (a)(7) revised; eff. 7-7-86....................................20431
122.63  (g) added; eff. 7-7-86.....................................20431
124.62  (b)(1) and (3) removed; (b)(2) and (4) redesignated as 
        (b)(1) and (2); (e) and (f) added..........................16030
124.63  (a)(1) revised.............................................16030
131.33  Removed....................................................11581

                                  1987

40 CFR
                                                                   52 FR
                                                                    Page
Chapter I
110  Revised.......................................................10719
123  State program approved........................................45823
131.34  Added.......................................................9105

                                  1988

40 CFR
                                                                   53 FR
                                                                    Page
Chapter I
122.21  (c)(2) removed; (c)(1) redesignated as (c)..................4158
    (d)(2)(ii) removed.............................................33007
122.26  Removed.....................................................4158
123.62  (e) amended................................................33007
122.63  (g) revised................................................40616
124.2  (a) amended.................................................37410
124.5  (c) (1) and (3) revised.....................................37934
124.10  (c)(1) (viii) and (ix) redesignated as (c)(1) (ix) and 
        (x); new (c)(1)(viii) added................................28147
    (c)(1)(iii) revised............................................37410

                                  1989

40 CFR
                                                                   54 FR
                                                                    Page
Chapter I
116  Technical correction..........................................47022
116.4  Tables amended..............................................33482
117  Technical correction..........................................47022
117.3  Table revised; Note republished.............................33482
122.1  (g) (5) through (8) redesignated as (g) (7) through (10); 
        (b) (3) and (4) and (g) (5) and (6) added; (a)(1), (d)(2), 
        and new (g)(7) revised.....................................18781
122.2  Amended......................................................254,
18781, 23895
122.3  (e) revised...................................................254
    (d) corrected....................................................258
122.5  (a) revised.................................................18782
122.21  (m) (1) through (4), (n)(2) and (o) revised..................254
    (a) and (d)(3) revised; (c) redesignated as (c)(1); (c)(2) and 
(p) introductory text added........................................18782
122.26  Added........................................................255

[[Page 1090]]

122.28  (b)(2)(i)(A) removed; (b)(2)(i) (B) through (F) 
        redesignated as (b)(2)(i) (A) through (E)....................258
    (a)(1) and (2)(ii) introductory text amended; (a)(2)(ii) (B) 
and (C), and (b)(2)(i) (B), (C), and (F) revised...................18782
122.29  (c)(4)(i) corrected..........................................258
    (c) (4) and (5) removed..........................................255
122.41  (a)(2), (i) introductory text, and (j)(5) revised; (a)(3) 
        added........................................................255
    (a)(1), (d), (j)(4), and (l)(4) (i) and (ii) revised; 
(l)(1)(iii) and (j)(2) introductory text added.....................18783
122.44  (l)(2) and (o) revised.......................................256
    (b) redesignated as (b)(1); (b)(2), (c)(4), and (j)(3) added; 
(i)(1)(iii) and (l)(1) revised; (i)(2) amended.....................18783
    (d)(1) revised.................................................23895
    (e) heading revised............................................23896
122.45  (a) corrected................................................258
    (b)(1) revised.................................................18784
122.47  (a)(3)(i) revised..........................................18784
122.62  (a)(15) removed; (a) (16), (17), and (18) redesignated as 
        (a) (15), (16), and (17).....................................256
    Introductory text corrected......................................258
    (a) (1) and (7) revised; (a)(18) added.........................18784
122.64  (a)(4) revised.............................................18784
123  NPDES State program approval..................................40664
123.1  (g) revised...................................................256
    (b) and (c) revised............................................18784
123.2  Revised.....................................................18784
123.22  (f) added..................................................18784
123.24  (d) introductory text amended; (d)(8) added................18784
123.25  (a) introductory text and (37) revised.....................18784
123.26  (e)(5) revised.............................................18785
123.27  Second note corrected........................................258
123.44  (c) (5) and (6) revised....................................18785
    (c)(8) added...................................................23896
123.45  (e) added..................................................18785
123.46  Added........................................................256
    (a) revised; (c), (d), (e), and (f) added......................23896
123.63  (a)(5) added...............................................23897
124.1  (a) amended...........................................9607, 18785
124.2  (a) amended.................................................18785
124.3  (c) amended.................................................18785
124.5  (d) amended.................................................18785
124.6  (d)(4)(v) revised...........................................18785
124.8  (a) amended.................................................18786
124.10  (c)(2)(i) Note corrected.....................................258
    (c)(1)(ii) revised; (c)(2)(i) and (d)(1)(vii) amended..........18786
124.12  (a)(2) corrected.............................................258
124.15  (a) amended; (b) introductory text revised..................9607
124.19  (a) introductory text amended...............................9607
124.56  (a) corrected................................................258
    (a), (b)(1)(iv), and (c) revised; (e) added....................18786
124.59  (b) corrected................................................258
124.62  (e) introductory text revised................................256
    (c) and (d) corrected............................................258
124.65  Removed......................................................258
124.71  (a) amended................................................18786
124.111  (a)(1)(i) amended.........................................18786
125.3  (a)(2) revised................................................257
125.21  Revised......................................................257
125.23  Introductory text revised....................................257
125.24  Introductory text and (b) revised............................257
125.27  (a) revised..................................................257
130.1  (a) amended; interim........................................14359
130.2  (b) through (m) redesignated as (c) through (n); new (b) 
        added; interim.............................................14359
130.4  (a) amended; interim........................................14359
130.6  (d) revised; interim........................................14360
130.10  (d) added....................................................258
    (d) (4) through (11) added.....................................23897
130.15  Added; interim.............................................14360
131.35  Added......................................................28625
133.103  (e) added..................................................4228
135  Authority citation revised....................................20771
135.1--135.3  Designated as Subpart A and Subpart heading added; 
        nomenclature change........................................20771
135.10--135.13 (Subpart B) Added...................................20771

                                  1990

40 CFR
                                                                   55 FR
                                                                    Page
Chapter I
122.1  (b)(2)(iv) revised..........................................48062
122.21  (j)(1) through (4) added...................................30128
    (c)(1), (g)(7) introductory text and (k) introductory text 
revised; (f)(7) and (g)(3) amended; (f)(9) and (g)(10) removed.....48062

[[Page 1091]]

122.22  (b) introductory text revised..............................48063
122.26  Revised....................................................48063
122.28  (b)(2)(i) revised..........................................48072
122.42  (c) added..................................................48073
122  Appendixes E through I added..................................48073
123  Interpretative rule....................................22748, 26201
123.25  (a)(9) revised.............................................48075
124.52  Revised....................................................48075
130  Interpretative rule....................................22748, 26201

                                  1991

40 CFR
                                                                   56 FR
                                                                    Page
Chapter I
122.26  (e)(2)(i) amended; (e)(2)(iii) revised.....................12100
    (e)(1) amended; (e)(2)(iv) and (6) revised.....................56554
131.3  (j) revised; (k) and (l) added..............................64893
131.4  Revised.....................................................64893
131.5  (a) through (e) redesignated as (a)(1) through (5); 
        introductory text designated as (a) introductory text; (b) 
        added......................................................64894
131.7  Added.......................................................64894
131.8  Added.......................................................64895
131.34  Removed....................................................13593
135  Authority citation revised....................................11515
135.1  Revised.....................................................11515
135.4  Added.......................................................11515
135.5  Added.......................................................11515

                                  1992

40 CFR
                                                                   57 FR
                                                                    Page
Chapter I
88  Added..........................................................60046
91.215  (a) revised................................................34618
112  Authority citation revised....................................52705
112.6  Revised; interim............................................52705
114  Authority citation revised....................................52705
114.1  Revised; interim............................................52705
114.10  Amended.....................................................5334
114.11  (c) removed; (a) and (b) redesignated as (b) and (c); new 
        (a) added; new (b), (c)(4) and (d) revised..................5334
117  Authority citation revised....................................52706
117.22  Revised....................................................52706
122.26  (b)(15) added; (c)(2)(i)(D), (e)(1), (2)(i), (iii) and 
        (iv) revised...............................................11412
    (e)(7) added...................................................60447
122.28  (b)(2) redesignated as (b)(3); new (b)(2) added............11412
    (b)(3)(ii) and (c)(3) amended..................................11413
122.42  (d) added..................................................60448
122.44  (i)(2) revised; (i)(3) through (5) added...................11413
    (d)(1)(vi)(B) revised..........................................33049
123.46  (a) revised................................................33049
123.64  (b)(3)(ii)(B) revised.......................................5335
124.2  Amended......................................................5335
    Amended........................................................60129
124.5  (b) amended.................................................60129
124.19  (a) introductory text and (c) amended; (a)(2), (b), (d) 
        introductory text, (e), (f)(1)(i), (ii) and (iii) revised; 
        (g) added...................................................5335
124.72  Amended.....................................................5335
124.74  (b)(1) amended..............................................5336
124.75  (b) amended.................................................5336
124.78  (a)(2) amended..............................................5336
    Correctly designated...........................................30657
124.89  (b)(1) and (2) revised......................................5336
124.90  (a) and (c) amended; (b) introductory text and (d) revised
                                                                    5336
124.91  (a)(1) introductory text and (g) amended; (a)(1)(ii), (3), 
        (b), (c)(1), (2), (d), (e), (f), and (h) revised; (i) 
        added.......................................................5336
124.115  Amended....................................................5337
124.124  Amended....................................................5337
124.125  Revised....................................................5337
124.126  Revised....................................................5337
124.127  Revised....................................................5337
124.128  Revised....................................................5337
124  Appendix A amended.......................................5337, 5338
130.7  (d)(1) redesignated in part as (d)(2); (b) revised; (c)(1) 
        introductory text, (ii), (2), (d) introductory text, (1), 
        (2) and (e) amended........................................33049
130.8  (b)(5) added................................................33050
130.10  (b)(2) and (d)(3) revised..................................33050
131  Authority citation revised....................................60910
131.36  Added......................................................60910

                                  1993

40 CFR
                                                                   58 FR
                                                                    Page
Chapter I
88  Authority citation revised.....................................11901
88.301-93--88.313-93 (Subpart C)  Added............................11901
88.302-94  Added...................................................64691

[[Page 1092]]

88.308-94  Revised.................................................64692
93  Added..........................................................62235
93.150--93.160 (Subpart B)  Added (OMB number pending).............63253
93.150  (c)(2)(i) corrected........................................67442
110  Technical correction..........................................48424
110.1  Amended.....................................................45036
112  Technical correction..........................................48424
112.2  (k) amended.................................................45037
116  Technical correction..........................................48424
116.3  Amended.....................................................45037
117  Technical correction..........................................48424
117.1  Amended.....................................................45037
117.3  Table amended; eff. 7-30-93.................................35327
122  OMB number....................................................34370
      Technical correction.........................................48424
122.1  (b)(4) amended; OMB number...................................9413
122.2  Amended..............................................45037, 67980
122.21  (c)(2)(i), (ii) and (iii) redesignated as (c)(2)(ii), 
        (iii) and (v); new (c)(2)(ii) and (iii) revised; new 
        (c)(2)(i) and (iv) added....................................9413
122.41  OMB number.................................................18016
122.44  OMB number.................................................18016
122.48  OMB number.................................................18016
123.1  (b) and (h) revised; (d) redesignated as (b)(1); (b)(2) 
        added......................................................67981
123.21  (a)(1) revised; (b) redesignated as (b)(1); (b)(2) added 
                                                                   67981
123.22  (g) added..................................................67981
123.23  (b) revised................................................67981
123.24  (b)(1) redesignated as (b)(1)(i); (b)(1)(ii) added.........67981
123.25  (a)(4) revised..............................................9414
123.25  (a)(12) revised............................................67981
123.27  (e) added..................................................67981
123.31  Added......................................................67981
123.32  Added......................................................67982
123.33  Added......................................................67982
123.34  Added......................................................67983
123.62  (a) amended................................................67983
124  Authority citation revised....................................67983
124.2  Amended.....................................................67983
124.51  (c) added..................................................67983
131.36  (b)(1)   table   cor-
    rected..................................................31177, 31178
    Regulation at 58 FR 31178 corrected............................34499
      (d)(14)(ii) amended..........................................36142

                                  1994

40 CFR
                                                                   59 FR
                                                                    Page
Chapter I
88.101-94  Redesignated as 88.102-94; new 88.101-94 added (OMB 
        number pending)............................................50074
88.102-94  Redesignated as 88.103-94; new 88.102-94 redesignated 
        from 88.101-94 and amended.................................50074
88.103-94  Redesignated from 88.102-94 and amended.................50074
88.104-94  Added (OMB number pending)..............................50074
88.105-94  Added...................................................50077
88.201-94  (a) revised (OMB number pending)........................50077
88.201-94--88.206-94 (Subpart B)  Tables revised...................50079
88.204-94  Added (OMB number pending)..............................50078
88.206-94  Added (OMB number pending)..............................50078
88.301-93--88.313-93 (Subpart C)  Tables C93-6, C93-6.1 and C93-
        6.2 removed; Tables C94-1, C94-1.1, C94-1.2, C94-1.3, C94-
        2, C94-2.1, C94-2.2, C94-2.3, C94-3, C94-3.1, C94-3.2 and 
        C94-3.3 revised............................................50082
88.302-94  Amended.................................................50080
88.305-94  Added...................................................50080
88.306-94  Added (OMB number pending)..............................50080
88.308-94  Added...................................................50082
88.311-93  (a)(1)(iii), (c) and (d) revised........................48536
    (c) and (d) revised............................................50082
88.311-98  Added...................................................16309
89  Added..........................................................31335
89.114-96  OMB number pending......................................31341
89.115-96  OMB number pending......................................31341
89.116-96  OMB number pending......................................31341
89.117-96  OMB number pending......................................31342
89.118-96  OMB number pending......................................31342
89.119-96  OMB number pending......................................31342
89.120-96  OMB number pending......................................31342
89.122-96  OMB number pending......................................31342
89.123-96  OMB number pending......................................31342
89.124-96  OMB number pending......................................31343
89.125-96  OMB number pending......................................31343
89.126-96  OMB number pending......................................31343
89.127-96  OMB number pending......................................31344
89.129-96  OMB number pending......................................31344
89.203-96  OMB number pending......................................31346
89.204-96  OMB number pending......................................31346
89.205-96  OMB number pending......................................31346
89.206-96  OMB number pending......................................31346

[[Page 1093]]

89.207-96  OMB number pending......................................31346
89.209-96  OMB number pending......................................31346
89.210-96  OMB number pending......................................31347
89.211-96  OMB number pending......................................31347
89.304-96  OMB number pending......................................31348
89.305-96  OMB number pending......................................31348
89.306-96  OMB number pending......................................31348
89.307-96  OMB number pending......................................31348
89.308-96  OMB number pending......................................31349
89.309-96  OMB number pending......................................31349
89.310-96  OMB number pending......................................31349
89.311-96  OMB number pending......................................31350
89.312-96  OMB number pending......................................31351
89.313-96  OMB number pending......................................31352
89.314-96  OMB number pending......................................31351
89.315-96  OMB number pending......................................31351
89.316-96  OMB number pending......................................31351
89.317-96  OMB number pending......................................31351
89.318-96  OMB number pending......................................31351
89.319-96  OMB number pending......................................31352
89.320-96  OMB number pending......................................31353
89.321-96  OMB number pending......................................31353
89.322-96  OMB number pending......................................31353
89.323-96  OMB number pending......................................31354
89.324-96  OMB number pending......................................31354
89.325-96  OMB number pending......................................31354
89.326-96  OMB number pending......................................31354
89.327-96  OMB number pending......................................31354
89.328-96  OMB number pending......................................31354
89.329-96  OMB number pending......................................31354
89.330-96  OMB number pending......................................31354
89.331-96  OMB number pending......................................31355
89.404-96  OMB number pending......................................31360
89.405-96  OMB number pending......................................31360
89.406-96  OMB number pending......................................31361
89.407-96  OMB number pending......................................31361
89.408-96  OMB number pending......................................31361
89.409-96  OMB number pending......................................31362
89.410-96  OMB number pending......................................31362
89.411-96  OMB number pending......................................31362
89.412-96  OMB number pending......................................31363
89.413-96  OMB number pending......................................31363
89.414-96  OMB number pending......................................31363
89.415-96  OMB number pending......................................31364
89.416-96  OMB number pending......................................31364
89.417-96  OMB number pending......................................31364
89.418-96  OMB number pending......................................31364
89.419-96  OMB number pending......................................31365
89.420-96  OMB number pending......................................31367
89.421-96  OMB number pending......................................31367
89.422-96  OMB number pending......................................31367
89.423-96  OMB number pending......................................31369
89.424-96  OMB number pending......................................31369
95  Added..........................................................67638
112  Authority citation revised....................................34097
    Notice.........................................................53742
112.2  (a) through (l) designations removed; amended...............34097
112.20  Added......................................................34098
112.21  Added......................................................34101
112  Existing Appendix redesignated as Appendix A; Appendixes B 
        through F added............................................34102
    Appendixes D, E and F corrected................................49006
123.1  (h) amended.................................................64343
123.21  (a)(1) and (b)(2) amended..................................64343
123.22  (g) amended................................................64343
123.31  Heading revised; (a) introductory text and (4) amended.....64343
123.32  Heading, introductory text, (b) introductory text, (c), 
        (d) introductory text, (1) and (e) amended; (f) revised....64343
123.33  Heading and (a) amended; (b) through (e) removed; (f) 
        redesignated as (b)........................................64343
124.2  Amended.....................................................64343
124.51  (c) amended................................................64343
125.56--125.68 (Subpart G)  Authority citation revised.............40658
    Revised........................................................40658
130.1  (a) amended; interim........................................13817
130.6  (d) introductory text amended; interim......................13818
130.15  Heading and (a) amended; (a) designation, (b), (c) and (d) 
        removed; interim...........................................13818
131.3  (j) amended.................................................64344
131.4  (c) amended.................................................64344
131.7  (b)(2) amended..............................................64344
131.8  Heading, (a) introductory text, (b) introductory text, (2) 
        introductory text, (3) introductory text, (ii), (4) 
        introductory text, (i), (5), (6), (c) introductory text, 
        (1), (2) introductory text, (4) and (5) amended; 
        (b)(3)(iii) removed; (b)(3)(iv) redesignated as 
        (b)(3)(iii)................................................64344

                                  1995

40 CFR
                                                                   60 FR
                                                                    Page
Chapter I
90  Added..........................................................34598
93  Authority citation revised.....................................40100
93.101  Amended....................................................57184
93.102  (b)(3)(i) revised; interim.................................44763
    (b)(3)(i) revised; (d) added...................................57184
93.114  Revised....................................................57185

[[Page 1094]]

93.115  (a) amended; (d) added.....................................57185
93.118  (b)(1)(ii) revised.........................................57185
93.128  (b)(2) and (c)(2) redesignated as (b)(3) and (c)(3); 
        (a)(4), new (b)(2), new (c)(2) and (d)(4) added; new 
        (c)(3)(iii) amended; interim; eff. 2-8-95 through 8-8-95 
                                                                    7452
    (a)(3), (b)(1) introductory text and (d)(3) revised; (g)(1) 
and (2) removed; (b)(2), (c)(2) and (g)(3) redesignated as (b)(3), 
(c)(3) and (g)(1); new (b)(2) and (c)(2) added.....................40100
    (g) removed; (h) and (i) redesignated as (g) and (h); (a) 
through (d) and new (g) revised....................................57186
93.130  (b)(5) redesignated (a)(6); (c)(1) amended.................57186
110  Authority citation revised....................................33913
110.11  Removed....................................................33913
117.3  Table amended; eff. 7-12-95.................................30938
122.1  (g) removed.................................................33931
122.2  (m)(3), (4) and (n)(2) removed..............................33931
122.21  (c)(1) amended; eff. 8-2-95................................17956
    Regulation at 60 FR 17956 eff. date corrected to 8-7-95........19464
    Regulation at 60 FR 17956 withdrawn............................40230
    (c)(1) amended.................................................40235
122.26  (a)(1) introductory text and (e)(1)(ii) amended; (a)(9) 
        and (g) added; (e) heading revised; eff. 8-2-95............17956
    Regulation at 60 FR 17956 eff. date corrected to 8-7-95; 
(g)(1)(ii) corrected...............................................19464
    Regulation at 60 FR 17956 withdrawn............................40230
    (a)(1) introductory text and (e)(1)(ii) amended; (a)(9) and 
(g) added; (e) heading revised.....................................40235
122.44  (r) added..................................................15386
122.46  (d) removed................................................33931
122.62  (a)(14) and (17) removed...................................33931
122.63  (f) removed................................................33931
123.25  (a)(36) and (37) amended; (a)(38) added....................15386
123.43  (b) removed................................................33931
123.44  (c)(9) added...............................................15386
123.62  (f) added..................................................15386
123.63  (a)(6) added...............................................15386
124.31  Added......................................................63431
124.32  Added......................................................63432
124.33  Added......................................................63432
124.52  (c) amended; eff. 8-7-95...................................17957
    Regulation at 60 FR 17956 eff. date corrected to 8-7-95........19464
    Regulation at 60 FR 17957 withdrawn............................40230
    (c) amended....................................................40235
124.58  Removed....................................................33931
125.20--125.27 (Subpart C)  Removed................................33931
125.90--125.97 (Subpart J)  Removed................................33931
125.104  (b)(4)(iii) amended.......................................53875
131.1  Revised.....................................................15386
131.5  (a)(5) revised; (b) redesignated as (c); new (b) added......15387
131.21  (b) revised................................................15387
131.36  (b)(1) Note added..........................................22228
    (b)(1) table and (c)(4)(iii) amended; (b)(2) revised; interim 
                                                                   22235
131.36  (b)(1) table corrected.....................................44120
131.37  Added.......................................................4707
132  Added.........................................................15387

                                  1996

40 CFR
                                                                   61 FR
                                                                    Page
Chapter I
88.104-94  (l) removed; undesignated center heading added............127
88.204-94  (c)(2) introductory text and (ii) revised.................127
88.205-94  (d)(1), (3)(iii) and (g) revised..........................127
88.301-93--88.313-93 (Subpart C)  Table C94-1.1 revised..............128
88.306-94  (b)(3) revised............................................129
88.311-93  (c) and (d) revised.......................................127
88.312-93  (a)(1) and (c)(2)(ii) revised.............................128
89.2  Amended......................................................52102
89.115-96  (d)(5) revised; second (b) redesignated as (e); (f) 
        added; eff. 7-8-96.........................................20741
89.908  Revised....................................................52102
89.1003  (a)(6) and (b)(4) revised; (b)(5), (6) and (7) added......58106
90.103  (a) introductory text table revised........................58300
90.107  (d)(5) and (7) revised; (g) added; eff. 7-8-96.............20742
90.109  (c) added..................................................58301
90.118  (d) revised; eff. 7-8-96...................................20742

[[Page 1095]]

90.903  Revised....................................................52102
90.908  Revised....................................................52102
91  Added (OMB numbers pending)....................................52102
110.1  Amended; introductory text revised...........................7421
110.2  Revised......................................................7421
110.3  Revised......................................................7421
110.4  Removed; new 110.4 redesignated from 110.8...................7421
110.5  Revised......................................................7421
110.6  Redesignated from 110.10 and amended.........................7421
    Corrected......................................................14032
110.7  Removed......................................................7421
110.8  Redesignated as 110.4........................................7421
110.9  First and second section removed.............................7421
110.10  Redesignated as 110.6.......................................7421
112.6  Removed......................................................9647
114  Removed........................................................9648
117.22  Removed.....................................................9648
122  Interpretation................................................41698
123.30  Added......................................................20980
125.60  (c)(1) removed; (c)(2) and (3) redesignated as (c)(1) and 
        (2); new (c)(1) introductory text revised..................45833
131  Notice of availability........................................65183
131.31  (b) and (c) added..........................................20693
131.32  Added......................................................64822
131.36  (d)(13)(ii) amended........................................60617

                                  1997

40 CFR
                                                                   62 FR
                                                                    Page
Chapter I
87.1  (a) amended; eff. 7-7-97.....................................25365
87.2  Amended; eff. 7-7-97.........................................25365
87.21  (d) and (e)(3) revised; eff. 7-7-97.........................25365
87.60  (c) revised; eff. 7-7-97....................................25366
87.61  Revised; eff. 7-7-97........................................25366
87.62  (a)(2) revised; eff. 7-7-97.................................25366
87.64  Revised; eff. 7-7-97........................................25366
87.71  Revised; eff. 7-7-97........................................25366
87.82  Revised; eff. 7-7-97........................................25366
87.89  Revised; eff. 7-7-97........................................25366
89.1--89.7 (Subpart A)  Appendix A revised.........................67736
90.103  (a)(3) revised.............................................42643
90.107  (h) added..................................................42643
90.1003  (b)(5) added..............................................42644
91.329  (a) corrected..............................................20066
91.501  (a)(1) and (2) added.......................................15808
91.1103  (b)(4) added..............................................42644
93.100--93.128 (Subpart A)  Revised................................43801
112  Petition denial...............................................54508
123  NPDES State program approval..................................61170
131.33  Added......................................................41183
131.36  (d)(13)(i) and (ii) amended; (d)(13)(iii) removed..........52927
    (d)(12)(ii) amended............................................53214
132  Tables 3 and 4 amended........................................11731
    Table 3 amended................................................52924

                                  1998

40 CFR
                                                                   63 FR
                                                                    Page
Chapter I
88.308-94  Existing text designated as (a); (b) added..............20107
89  Heading revised................................................56995
    Nomenclature change............................................56996
89.1  (a) and (b)(4) revised; (b)(3) amended; (b)(5) added.........56996
    (b)(3) revised.................................................18998
89.2  Amended...............................................18998, 56996
89.3  Amended......................................................56997
89.4  Removed......................................................56997
89.6  (b)(1) introductory text amended; (b)(1) table revised.......56997
89.101-96  Redesignated as 89.101..................................56995
89.101  Redesignated from 89.101-96................................56995
89.102-96  Redesignated as 89.102..................................56995
89.102  Redesignated from 89.102-96................................56995
    Heading and (a) revised; (c) through (h) added.................56997
89.103-96  Redesignated as 89.103..................................56995
89.103  Redesignated from 89.103-96................................56995
89.104-96  Redesignated as 89.104..................................56995
89.104  Redesignated from 89.104-96................................56995
    (a), (b) and (c) revised.......................................56998
89.105-96  Redesignated as 89.105..................................56995
89.105  Redesignated from 89.105-96................................56995
89.106-96  Redesignated as 89.106..................................56995
89.106  Redesignated from 89.106-96................................56995

[[Page 1096]]

89.107-96  Redesignated as 89.107..................................56995
89.107  Redesignated from 89.101-97................................56995
89.108-96  Redesignated as 89.108..................................56995
89.108  Redesignated from 89.108-96................................56995
89.109-96  Redesignated as 89.109..................................56995
89.109  Redesignated from 89.109-96................................56995
    Revised........................................................56999
89.110-96  Redesignated as 89.110..................................56995
89.110  Redesignated from 89.110-96................................56995
    (b)(9) and (10) amended; (b)(11) and (12) added................57000
89.111-96  Redesignated as 89.111..................................56995
89.111  Redesignated from 89.111-96................................56995
89.112-96  Redesignated as 89.112..................................56995
89.112  Redesignated from 89.112-96................................56995
    (a), (b) and (d) revised; (e) and (f) added....................57000
89.113-96  Redesignated as 89.113..................................56995
89.113  Redesignated from 89.113-96................................56995
    (b) revised; (c) added.........................................57003
89.114-96  Redesignated as 89.114..................................56995
89.114  Redesignated from 89.114-96................................56995
    Heading, (a) and (b) heading revised...........................57003
89.115-96  Redesignated as 89.115..................................56995
89.115  Redesignated from 89.115-96................................56995
89.116-96  Redesignated as 89.116..................................56995
89.116  Redesignated from 89.116-96................................56995
    (e) added......................................................57003
89.117-96  Redesignated as 89.117..................................56995
89.117  Redesignated from 89.117-96................................56995
    (a) revised; (d) added.........................................57003
89.118-96  Redesignated as 89.118..................................56995
89.118  Redesignated from 89.118-96................................56995
    Heading revised; introductory text and (e) added...............57003
89.119-96  Redesignated as 89.119..................................56995
89.119  Redesignated from 89.119-96................................56995
    (d) revised....................................................57004
89.120-96  Redesignated as 89.120..................................56995
89.120  Redesignated from 89.120-96................................56995
    (c) revised; (e) added.........................................57004
89.121-96  Redesignated as 89.121..................................56995
89.121  Redesignated from 89.121-96................................56995
89.122-96  Redesignated as 89.122..................................56995
89.122  Redesignated from 89.122-96................................56995
89.123-96  Redesignated as 89.123..................................56995
89.123  Redesignated from 89.123-96................................56995
89.124-96  Redesignated as 89.124..................................56995
89.124  Redesignated from 89.124-96................................56995
    (a)(3) added...................................................57005
89.125-96  Redesignated as 89.125..................................56995
89.125  Redesignated from 89.125-96................................56995
    (b) revised....................................................57005
89.126-96  Redesignated as 89.126..................................56995
89.126  Redesignated from 89.126-96................................56995
    (c) revised....................................................57005
89.127-96  Redesignated as 89.127..................................56995
89.127  Redesignated from 89.127-96................................56995
89.128-96  Redesignated as 89.128..................................56995
89.128  Redesignated from 89.128-96................................56995
89.129-96  Redesignated as 89.129..................................56995
89.129  Redesignated from 89.129-96................................56995
89.130  Added......................................................57005
89.201-96  Redesignated as 89.201..................................56995

[[Page 1097]]

89.201  Redesignated from 89.201-96................................56995
89.202-96  Redesignated as 89.202..................................56995
89.202  Redesignated from 89.202-96................................56995
89.203-96  Redesignated as 89.203..................................56995
89.203  Redesignated from 89.203-96................................56995
    Revised........................................................57006
89.204-96  Redesignated as 89.204..................................56995
89.204  Redesignated from 89.204-96................................56995
    Revised........................................................57007
89.205-96  Redesignated as 89.205..................................56995
89.205  Redesignated from 89.205-96................................56995
    Revised........................................................57008
89.206-96  Redesignated as 89.206..................................56995
89.206  Redesignated from 89.206-96................................56995
    Revised........................................................57008
89.207-96  Redesignated as 89.207..................................56995
89.207  Redesignated from 89.207-96................................56995
    Revised........................................................57008
89.208-96  Redesignated as 89.208..................................56995
89.208  Redesignated from 89.208-96................................56995
    Revised........................................................57009
89.209-96  Redesignated as 89.209..................................56995
89.209  Redesignated from 89.209-96................................56995
    (a) revised....................................................57009
89.210-96  Redesignated as 89.210..................................56995
89.210  Redesignated from 89.210-96................................56995
    (b) and (c) revised............................................57009
89.211-96  Redesignated as 89.211..................................56995
89.211  Redesignated from 89.211-96................................56995
    (a) and (c) revised............................................57009
89.212-96  Redesignated as 89.212..................................56995
89.212  Redesignated from 89.212-96................................56995
    Revised........................................................57010
89.301-96  Redesignated as 89.301..................................56995
89.301  Redesignated from 89.301-96................................56995
89.302-96  Redesignated as 89.302..................................56995
89.302  Redesignated from 89.302-96................................56995
    Revised........................................................57010
89.303-96  Redesignated as 89.303..................................56995
89.303  Redesignated from 89.303-96................................56995
89.304-96  Redesignated as 89.304..................................56995
89.304  Redesignated from 89.304-96................................56995
    (c) revised....................................................57010
89.305-96  Redesignated as 89.305..................................56995
89.305  Redesignated from 89.305-96................................56995
89.306-96  Redesignated as 89.306..................................56995
89.306  Redesignated from 89.306-96................................56995
89.307-96  Redesignated as 89.307..................................56995
89.307  Redesignated from 89.307-96................................56995
    (b)(7) and (8) revised.........................................57010
89.308-96  Redesignated as 89.308..................................56995
89.308  Redesignated from 89.308-96................................56995
    (b) revised....................................................57010
89.309-96  Redesignated as 89.309..................................56995
89.309  Redesignated from 89.309-96................................56995
    (a)(3) removed; (a)(4)(iii), (5)(i)(C) and (D) revised.........57010
89.310-96  Redesignated as 89.310..................................56995
89.310  Redesignated from 89.310-96................................56995
    (a)(1) and (c) revised.........................................57010
89.311-96  Redesignated as 89.311..................................56995
89.311  Redesignated from 89.311-96................................56995
89.312-96  Redesignated as 89.312..................................56995
89.312  Redesignated from 89.312-96................................56995

[[Page 1098]]

    (b)(2) removed; (c)(2), (d) and (f) revised; (g) added.........57010
89.313-96  Redesignated as 89.313..................................56995
89.313  Redesignated from 89.313-96................................56995
89.314-96  Redesignated as 89.314..................................56995
89.314  Redesignated from 89.314-96................................56995
    (a) and (b) revised............................................57011
89.315-96  Redesignated as 89.315..................................56995
89.315  Redesignated from 89.315-96................................56995
89.316-96  Redesignated as 89.316..................................56995
89.316  Redesignated from 89.316-96................................56995
    (b) removed....................................................57011
89.317-96  Redesignated as 89.317..................................56995
89.317  Redesignated from 89.317-96................................56995
    (g), (h) and (k) revised.......................................57011
89.318-96  Redesignated as 89.318..................................56995
89.318  Redesignated from 89.318-96................................56995
    (c)(2) heading, (i) and (iv) revised...........................57011
    (c)(2)(iv)(B) corrected........................................58101
89.319-96  Redesignated as 89.319..................................56995
89.319  Redesignated from 89.319-96................................56995
    (b)(1), (2), (c), (d) heading, introductory text, (2) and (6) 
revised............................................................57011
89.320-96  Redesignated as 89.320..................................56995
89.320  Redesignated from 89.320-96................................56995
    (c) revised....................................................57012
89.321-96  Redesignated as 89.321..................................56995
89.321  Redesignated from 89.321-96................................56995
    (c) revised....................................................57012
89.322-96  Redesignated as 89.322..................................56995
89.322  Redesignated from 89.322-96................................56995
    (a) revised....................................................57012
89.323-96  Redesignated as 89.323..................................56995
89.323  Redesignated from 89.323-96................................56995
89.324-96  Redesignated as 89.324..................................56995
89.324  Redesignated from 89.324-96................................56995
    Revised........................................................57013
89.325-96  Redesignated as 89.325..................................56995
89.325  Redesignated from 89.325-96................................56995
89.326-96  Redesignated as 89.326..................................56995
89.326  Redesignated from 89.326-96................................56995
89.327-96  Redesignated as 89.327..................................56995
89.327  Redesignated from 89.327-96................................56995
89.328-96  Redesignated as 89.328..................................56995
89.328  Redesignated from 89.328-96................................56995
    (b)(1) and (2) revised.........................................57013
89.329-96  Redesignated as 89.329..................................56995
89.329  Redesignated from 89.329-96................................56995
89.330-96  Redesignated as 89.330..................................56995
89.330  Redesignated from 89.330-96................................56995
    (b)(2) revised; (b)(3) added...................................57013
89.331-96  Redesignated as 89.331..................................56995
89.331  Redesignated from 89.331-96................................56995
89.301--89.331 (Subpart D)  Appendix A amended.....................57013
89.401-96  Redesignated as 89.401..................................56995
89.401  Redesignated from 89.401-96................................56995
    (b) revised....................................................57015
89.402-96  Redesignated as 89.402..................................56995
89.402  Redesignated from 89.402-96................................56995
    Revised........................................................57015
89.403-96  Redesignated as 89.403..................................56995
89.403  Redesignated from 89.403-96................................56995
89.404-96  Redesignated as 89.404..................................56995

[[Page 1099]]

89.404  Redesignated from 89.404-96................................56995
    (b) revised; (e) removed.......................................57015
89.405-96  Redesignated as 89.405..................................56995
89.405  Redesignated from 89.405-96................................56995
    (d), (e) and (f) revised.......................................57015
89.406-96  Redesignated as 89.406..................................56995
89.406  Redesignated from 89.406-96................................56995
    (b) and (c)(1) revised.........................................57015
89.407-96  Redesignated as 89.407..................................56996
89.407  Redesignated from 89.407-96................................56996
    (a), (c) and (d)(2) revised....................................57015
89.408-96  Redesignated as 89.408..................................56996
89.408  Redesignated from 89.408-96................................56996
    (e) revised....................................................57016
89.409-96  Redesignated as 89.409..................................56996
89.409  Redesignated from 89.409-96................................56996
89.410-96  Redesignated as 89.410..................................56996
89.410  Redesignated from 89.410-96................................56996
    (a), (b) and (c) revised.......................................57016
89.411-96  Redesignated as 89.411..................................56996
89.411  Redesignated from 89.411-96................................56996
    (d)(5) and (e)(5) revised......................................57016
89.412-96  Redesignated as 89.412..................................56996
89.412  Redesignated from 89.412-96................................56996
    (c)(3) revised; (g)(1) removed.................................57016
89.413-96  Redesignated as 89.413..................................56996
89.413  Redesignated from 89.413-96................................56996
    (d) revised; (e) removed.......................................57016
89.414-96  Redesignated as 89.414..................................56996
89.414  Redesignated from 89.414-96................................56996
    (a) revised....................................................57017
89.415-96  Redesignated as 89.415..................................56996
89.415  Redesignated from 89.415-96................................56996
    Revised........................................................57017
89.416-96  Redesignated as 89.416..................................56996
89.416  Redesignated from 89.416-96................................56996
89.417-96  Redesignated as 89.417..................................56996
89.417  Redesignated from 89.417-96................................56996
89.418-96  Redesignated as 89.418..................................56996
89.418  Redesignated from 89.418-96................................56996
    (b), (c), (d), (e) table, (f) introductory text, (1) and (g) 
revised............................................................57017
89.419-96  Redesignated as 89.419..................................56996
89.419  Redesignated from 89.419-96................................56996
89.420-96  Redesignated as 89.420..................................56996
89.420  Redesignated from 89.420-96................................56996
    (a) introductory text revised..................................57018
89.421-96  Redesignated as 89.421..................................56996
89.421  Redesignated from 89.421-96................................56996
89.422-96  Redesignated as 89.422..................................56996
89.422  Redesignated from 89.422-96................................56996
    (d)(3) table revised...........................................57016
89.423-96  Redesignated as 89.423..................................56996
89.423  Redesignated from 89.423-96................................56996
    Removed........................................................57018
89.424-96  Redesignated as 89.424..................................56996
89.424  Redesignated from 89.424-96................................56996
    (a), (d)(6) and (e) revised; (d)(3) amended....................57018
89.425-96  Redesignated as 89.425..................................56996
89.425  Redesignated from 89.425-96................................56996
    Removed........................................................57019
89.401--89.425 (Subpart E)  Appendix B revised.....................57019
89.501-96  Redesignated as 89.501..................................56996
89.501  Redesignated from 89.501-96................................56996

[[Page 1100]]

89.502-96  Redesignated as 89.502..................................56996
89.502  Redesignated from 89.502-96................................56996
89.503-96  Redesignated as 89.503..................................56996
89.503  Redesignated from 89.503-96................................56996
89.504-96  Redesignated as 89.504..................................56996
89.504  Redesignated from 89.504-96................................56996
89.505-96  Redesignated as 89.505..................................56996
89.505  Redesignated from 89.505-96................................56996
    (e) revised....................................................57020
89.506-96  Redesignated as 89.506..................................56996
89.506  Redesignated from 89.506-96................................56996
    (g) revised....................................................57020
89.507-96  Redesignated as 89.507..................................56996
89.507  Redesignated from 89.507-96................................56996
89.508-96  Redesignated as 89.508..................................56996
89.508  Redesignated from 89.508-96................................56996
89.509-96  Redesignated as 89.509..................................56996
89.509  Redesignated from 89.509-96................................56996
    (a) and (b) revised............................................57020
89.510-96  Redesignated as 89.510..................................56996
89.510  Redesignated from 89.510-96................................56996
89.511-96  Redesignated as 89.511..................................56996
89.511  Redesignated from 89.511-96................................56996
89.512-96  Redesignated as 89.512..................................56996
89.512  Redesignated from 89.512-96................................56996
    (b) revised....................................................57020
89.513-96  Redesignated as 89.513..................................56996
89.513  Redesignated from 89.513-96................................56996
    (e)(2) revised.................................................57020
89.514-96  Redesignated as 89.514..................................56996
89.514  Redesignated from 89.514-96................................56996
89.515-96  Redesignated as 89.515..................................56996
89.515  Redesignated from 89.515-96................................56996
89.516-96  Redesignated as 89.516..................................56996
89.516  Redesignated from 89.516-96................................56996
89.601-96  Redesignated as 89.601..................................56996
89.601  Redesignated from 89.601-96................................56996
89.602-96  Redesignated as 89.602..................................56996
89.602  Redesignated from 89.602-96................................56996
    Amended........................................................57020
89.603-96  Redesignated as 89.603..................................56996
89.603  Redesignated from 89.603-96................................56996
    (d) revised....................................................57021
89.604-96  Redesignated as 89.604..................................56996
89.604  Redesignated from 89.604-96................................56996
    (c)(4) and (d) revised.........................................57021
89.605-96  Redesignated as 89.605..................................56996
89.605  Redesignated from 89.605-96................................56996
    (a)(2)(i), (3)(vi) and (c) revised.............................57021
89.606-96  Redesignated as 89.606..................................56996
89.606  Redesignated from 89.606-96................................56996
89.607-96  Redesignated as 89.607..................................56996
89.607  Redesignated from 89.607-96................................56996
89.608-96  Redesignated as 89.608..................................56996
89.608  Redesignated from 89.608-96................................56996
89.609-96  Redesignated as 89.609..................................56996
89.609  Redesignated from 89.609-96................................56996
    (d) revised....................................................57021
89.610-96  Redesignated as 89.610..................................56996
89.610  Redesignated from 89.610-96................................56996
    (b)(1) revised.................................................57021

[[Page 1101]]

89.611-96  Redesignated as 89.611..................................56996
89.611  Redesignated from 89.611-96................................56996
    (g) revised....................................................57022
89.612-96  Redesignated as 89.612..................................56996
89.612  Redesignated from 89.612-96................................56996
89.613-96  Redesignated as 89.613..................................56996
89.613  Redesignated from 89.613-96................................56996
89.903  (b) revised................................................57022
89.905  (f) revised................................................57022
89.906  (a)(3) introductory text, (iii)(D) and (b) revised.........57022
89.911  Revised....................................................57022
89.1003  (a)(3), (5), (6), (b)(4) and (7) revised..................57022
89.1007  (c) revised...............................................57023
92  Added..........................................................18998
92.133  Effective date pending.....................................19044
92.213  Effective date pending.....................................19051
92.216  Effective date pending.....................................19053
92.308  Effective date pending.....................................19056
92.309  Effective date pending.....................................19057
92.406  Effective date pending.....................................19059
92.504  Effective date pending.....................................19060
92.606  Effective date pending.....................................19066
92.708  Effective date pending.....................................19069
92.910  Effective date pending.....................................19077
96  Added..........................................................57514
96.42  (f) amended.................................................71225
123.1  (a) and (c) revised.........................................45122
123.2  Revised.....................................................45122
123.22  (f) removed; (g) redesignated as (f).......................45122
123.24  (d)(8) removed.............................................45122
123.25  (a) introductory text and (37) revised.....................45122
123.26  (e)(5) revised.............................................45122
123.42  Introductory text revised..................................45122
123.44  (d)(1), (2), (e) and (j) revised...........................45122
123.45  (e) removed................................................45123
123.62  (b)(3) and (c) revised.....................................45123
123.63  (a) introductory text and (4) revised......................45123
123.64  (a) introductory text and (b)(1) revised...................45123
131.36  (d)(12)(ii) table amended..................................10144
132  Appendix F amended............................................20110

                                  1999

      (Regulations published January 1, 1999, through July 1, 1999)

40 CFR
                                                                   64 FR
                                                                    Page
Chapter I
88.301-93  (c) added...............................................23973
90.1  (b)(5)(iv) amended; (b)(6) and (d) added; (c) revised........15235
90.3  Amended......................................................15235
90.103  (a) introductory text, (3) and (5) revised; (a)(6), (7) 
        and (8) added..............................................15236
90.104  Introductory text and (d) through (h) added................15237
90.105  Revised....................................................15238
90.106  (a) revised; (b)(3) added..................................15238
90.107  (d)(5), (9) and (10) amended; (d)(11) added................15238
90.108  (c) and (d) added..........................................15238
90.113  Heading revised; (a) amended...............................15239
90.114  (c)(9) and (10) amended; (c)(11) and (f) added.............15239
90.116  (d)(6) and (7) revised; (d)(8), (9) and (10) added.........15239
90.117  (a) revised................................................15239
90.118  Heading revised; (e) added.................................15239
90.120  (c) added..................................................15239
90.122  (a) amended; (d)(4) added..................................15239
90.201--90.211 (Subpart C)  Added..................................15239
90.207  (a) corrected..............................................16526
90.301  (a) revised; (d) added.....................................15243
90.302  Revised....................................................15243
90.308  (c) revised................................................15243
90.329  (c) added..................................................15243
90.401  (c) and (d) added..........................................15244
90.404  (b) amended................................................15244
90.409  (a)(3) revised.............................................15244
90.410  (b) revised................................................15244
90.427  (a) revised................................................15244
90.503  (f)(3) and (4) revised.....................................15244
90.509  (b) revised................................................15244
90.510  (b) revised................................................15244
90.512  (b) revised................................................15245
90.612  (g) revised................................................15245
90.701--90.713 (Subpart H)  Added..................................15245
90.706  (b)(7) corrected....................................34313, 35256
90.801--90.807 (Subpart I)  Heading revised........................15251
90.801  Existing text designated as (a); (b) through (g) added.....15251
90.802  Introductory text amended..................................15251

[[Page 1102]]

90.803  (c) revised................................................15251
90.805  (a) revised................................................15251
90.808  Added......................................................15251
90.905  (f) revised................................................15252
90.906  (a) introductory text and (3) introductory text revised....15252
90.909  (c) revised................................................15252
90.911  Revised....................................................15252
90.1003  (a)(2), (4)(i), (b)(4) and (5) revised; (a)(4)(iii) and 
        (iv) redesignated as (a)(4)(iv) and (v); new (a)(4)(iii) 
        and (b)(6) added...........................................15252
90.1103  (a) and (b) revised.......................................15253
90.1104  (e) added.................................................15253
90.1201--90.1207 (Subpart M)  Added................................15254
93.129  Added......................................................13483

                                  1999

                   (Correction published July 6, 1999)

40 CFR
                                                                   64 FR
                                                                    Page
90.706  (b)(7) corrected...........................................36423


                                  
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