[Title 40 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2008 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          40


          Parts 190 to 259

                         Revised as of July 1, 2008


          Protection of Environment
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2008
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

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                            Table of Contents



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

  Title 40:
          Chapter I--Environmental Protection Agency 
          (Continued)                                                1
  Finding Aids:
      Material Approved for Incorporation by Reference........     477
      Table of CFR Titles and Chapters........................     479
      Alphabetical List of Agencies Appearing in the CFR......     499
      List of CFR Sections Affected...........................     509

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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 40 CFR 190.01 refers 
                       to title 40, part 190, 
                       section 01.

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

[[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 
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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

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Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
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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 
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1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
the period beginning January 1, 1986, a ``List of CFR Sections 
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INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
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to materials already published elsewhere. For an incorporation to be 
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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 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

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separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
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also included in this volume.
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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

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in the Code of Federal Regulations.

INQUIRIES

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    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    July 1, 2008.







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                               THIS TITLE

    Title 40--Protection of Environment is composed of thirty-one 
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 (60.1-End), part 60 (Appendices), parts 61-62, part 
63 (63.1-63.599), part 63 (63.600-63.1199), part 63 (63.1200-63.1439), 
part 63 (63.1440-63.6175), part 63 (63.6580-63.8830), part 63 (63.8980-
End) parts 64-71, parts 72-80, parts 81-84, part 85-Sec.  86.599-99, 
part 86 (86.600-1-End), parts 87-99, parts 100-135, 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, 2008.

    Chapter I--Environmental Protection Agency appears in all thirty-one 
volumes. Regulations issued by the Council on Environmental Quality, 
including an Index to Parts 1500 through 1508, 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, Susannah C. Hurley and Moja N. Mwaniki were Chief 
Editors. The Code of Federal Regulations publication program is under 
the direction of Michael L. White, assisted by Ann Worley.


[[Page 1]]



                   TITLE 40--PROTECTION OF ENVIRONMENT




                  (This book contains parts 190 to 259)

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

chapter i--Environmental Protection Agency (Continued)......         190

[[Page 3]]



         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)




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


  Editorial Note: Nomenclature changes to chapter I appear at 65 FR 
47324, 47325, Aug. 2, 2000; 66 FR 34375, 34376, June 28, 2001.

               SUBCHAPTER F--RADIATION PROTECTION PROGRAMS
Part                                                                Page
190             Environmental radiation protection standards 
                    for nuclear power operations............           5
191             Environmental radiation protection standards 
                    for management and disposal of spent 
                    nuclear fuel, high-level and transuranic 
                    radioactive wastes......................           6
192             Health and environmental protection 
                    standards for uranium and thorium mill 
                    tailings................................          17
194             Criteria for the certification and re-
                    certification of the Waste Isolation 
                    Pilot Plant's compliance with the 40 CFR 
                    part 191 disposal regulations...........          36
195             Radon proficiency programs..................          59
197             Public health and environmental radiation 
                    protection standards for Yucca Mountain, 
                    Nevada..................................          62
                 SUBCHAPTER G--NOISE ABATEMENT PROGRAMS
201             Noise emission standards for transportation 
                    equipment; interstate rail carriers.....          69
202             Motor carriers engaged in interstate 
                    commerce................................          82
203             Low-noise-emission products.................          84
204             Noise emission standards for construction 
                    equipment...............................          87
205             Transportation equipment noise emission 
                    controls................................         104
209             Rules of practice governing proceedings 
                    under the Noise Control Act of 1972.....         158
210             Prior notice of citizen suits...............         169
211             Product noise labeling......................         171
                       SUBCHAPTER H--OCEAN DUMPING
220             General.....................................         187
221             Applications for ocean dumping permits under 
                    section 102 of the Act..................         190

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222             Action on ocean dumping permit applications 
                    under section 102 of the Act............         192
223             Contents of permits; revision, revocation or 
                    limitation of ocean dumping permits 
                    under section 104(d) of the Act.........         199
224             Records and reports required of ocean 
                    dumping permittees under section 102 of 
                    the Act.................................         202
225             Corps of Engineers dredged material permits.         203
227             Criteria for the evaluation of permit 
                    applications for ocean dumping of 
                    materials...............................         204
228             Criteria for the management of disposal 
                    sites for ocean dumping.................         217
229             General permits.............................         252
230             Section 404(b)(1) guidelines for 
                    specification of disposal sites for 
                    dredged or fill material................         255
231             Section 404(c) procedures...................         308
232             404 Program definitions; exempt activities 
                    not requiring 404 permits...............         312
233             404 State program regulations...............         319
238             Degradable plastic ring carriers............         342
                       SUBCHAPTER I--SOLID WASTES
239             Requirements for state permit program 
                    determination of adequacy...............         343
240             Guidelines for the thermal processing of 
                    solid wastes............................         351
243             Guidelines for the storage and collection of 
                    residential, commercial, and 
                    institutional solid waste...............         359
246             Source separation for materials recovery 
                    guidelines..............................         366
247             Comprehensive procurement guideline for 
                    products containing recovered materials.         375
254             Prior notice of citizen suits...............         383
255             Identification of regions and agencies for 
                    solid waste management..................         385
256             Guidelines for development and 
                    implementation of State solid waste 
                    management plans........................         391
257             Criteria for classification of solid waste 
                    disposal facilities and practices.......         403
258             Criteria for municipal solid waste landfills         426
259             [Reserved]

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               SUBCHAPTER F_RADIATION PROTECTION PROGRAMS



PART 190_ENVIRONMENTAL RADIATION PROTECTION STANDARDS FOR NUCLEAR POWER 

OPERATIONS--Table of Contents




                      Subpart A_General Provisions

Sec.
190.01 Applicability.
190.02 Definitions.

      Subpart B_Environmental Standards for the Uranium Fuel Cycle

190.10 Standards for normal operations.
190.11 Variances for unusual operations.
190.12 Effective date.

    Authority: Atomic Energy Act of 1954, as amended; Reorganization 
Plan No. 3, of 1970.

    Source: 42 FR 2860, Jan. 13, 1977, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 190.01  Applicability.

    The provisions of this part apply to radiation doses received by 
members of the public in the general environment and to radioactive 
materials introduced into the general environment as the result of 
operations which are part of a nuclear fuel cycle.



Sec. 190.02  Definitions.

    (a) Nuclear fuel cycle means the operations defined to be associated 
with the production of electrical power for public use by any fuel cycle 
through utilization of nuclear energy.
    (b) Uranium fuel cycle means the operations of milling of uranium 
ore, chemical conversion of uranium, isotopic enrichment of uranium, 
fabrication of uranium fuel, generation of electricity by a light-water-
cooled nuclear power plant using uranium fuel, and reprocessing of spent 
uranium fuel, to the extent that these directly support the production 
of electrical power for public use utilizing nuclear energy, but 
excludes mining operations, operations at waste disposal sites, 
transporta tion of any radioactive material in sup port of these 
operations, and the reuse of recovered non-uranium special nu clear and 
by-product materials from the cycle.
    (c) General environment means the total terrestrial, atmospheric and 
aquatic environments outside sites upon which any operation which is 
part of a nuclear fuel cycle is conducted.
    (d) Site means the area contained within the boundary of a location 
under the control of persons possessing or using radioactive material on 
which is conducted one or more operations covered by this part.
    (e) Radiation means any or all of the following: Alpha, beta, gamma, 
or X-rays; neutrons; and high-energy electrons, protons, or other atomic 
particles; but not sound or radio waves, nor visible, infrared, or ultra 
violet light.
    (f) Radioactive material means any material which spontaneously 
emits radiation.
    (g) Curie (Ci) means that quantity of radioactive material producing 
37 billion nuclear transformations per second. (One millicurie 
(mCi)=0.001 Ci.)
    (h) Dose equivalent means the product of absorbed dose and 
appropriate factors to account for differences in biological 
effectiveness due to the quality of radiation and its spatial 
distribution in the body. The unit of dose equivalent is the ``rem.'' 
(One millirem (mrem)= 0.001 rem.)
    (i) Organ means any human organ exclusive of the dermis, the 
epidermis, or the cornea.
    (j) Gigawatt-year refers to the quantity of electrical energy 
produced at the busbar of a generating station. A gigawatt is equal to 
one billion watts. A gigawatt-year is equivalent to the amount of energy 
output represented by an average electric power level of one gigawatt 
sustained for one year.
    (k) Member of the public means any individual that can receive a 
radiation dose in the general environment, whether he may or may not 
also be exposed to radiation in an occupation associated with a nuclear 
fuel cycle. However, an individual is not considered a member of the 
public during any

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period in which he is engaged in carrying out any operation which is 
part of a nuclear fuel cycle.
    (l) Regulatory agency means the government agency responsible for 
issuing regulations governing the use of sources of radiation or 
radioactive materials or emissions therefrom and carrying out inspection 
and enforcement activities to assure compliance with such regulations.



      Subpart B_Environmental Standards for the Uranium Fuel Cycle



Sec. 190.10  Standards for normal operations.

    Operations covered by this subpart shall be conducted in such a 
manner as to provide reasonable assurance that:
    (a) The annual dose equivalent does not exceed 25 millirems to the 
whole body, 75 millirems to the thyroid, and 25 millirems to any other 
organ of any member of the public as the result of exposures to planned 
discharges of radioactive materials, radon and its daughters excepted, 
to the general environment from uranium fuel cycle operations and to 
radiation from these operations.
    (b) The total quantity of radioactive materials entering the general 
environment from the entire uranium fuel cycle, per gigawatt-year of 
electrical energy produced by the fuel cycle, contains less than 50,000 
curies of krypton-85, 5 millicuries of iodine-129, and 0.5 millicuries 
combined of plutonium-239 and other alpha-emitting transuranic 
radionuclides with half-lives greater than one year.



Sec. 190.11  Variances for unusual operations.

    The standards specified in Sec. 190.10 may be exceeded if:
    (a) The regulatory agency has granted a variance based upon its 
determination that a temporary and unusual operating condition exists 
and continued operation is in the public interest, and
    (b) Information is promptly made a matter of public record 
delineating the nature of unusual operating conditions, the degree to 
which this operation is expected to result in levels in excess of the 
standards, the basis of the variance, and the schedule for achieving 
conformance with the standards.



Sec. 190.12  Effective date.

    (a) The standards in Sec. 190.10(a) shall be effective December 1, 
1979, except that for doses arising from operations associated with the 
milling of uranium ore the effective date shall be December 1, 1980.
    (b) The standards in Sec. 190.10(b) shall be effective December 1, 
1979, except that the standards for krypton-85 and iodine-129 shall be 
effective January 1, 1983, for any such radioactive materials generated 
by the fission process after these dates.



PART 191_ENVIRONMENTAL RADIATION PROTECTION STANDARDS FOR MANAGEMENT AND 

DISPOSAL OF SPENT NUCLEAR FUEL, HIGH-LEVEL AND TRANSURANIC RADIOACTIVE 

WASTES--Table of Contents




      Subpart A_Environmental Standards for Management and Storage

Sec.
191.01 Applicability.
191.02 Definitions.
191.03 Standards.
191.04 Alternative standards.
191.05 Effective date.

             Subpart B_Environmental Standards for Disposal

191.11 Applicability.
191.12 Definitions.
191.13 Containment requirements.
191.14 Assurance requirements.
191.15 Individual protection requirements.
191.16 Alternative provisions for disposal.
191.17 Effective date.

      Subpart C_Environmental Standards for Ground-Water Protection

191.21 Applicability.
191.22 Definitions.
191.23 General provisions.
191.24 Disposal standards.
191.25 Compliance with other Federal regulations.
191.26 Alternative provisions.
191.27 Effective date.

Appendix A to Part 191--Table for Subpart B
Appendix B to Part 191--Calculation of Annual Committed Effective Dose
Appendix C to Part 191--Guidance for Implementation of Subpart B


[[Page 7]]


    Authority: The Atomic Energy Act of 1954, as amended, 42 U.S.C. 
2011-2296; Reorganization Plan No. 3 of 1970, 5 U.S.C. app. 1; the 
Nuclear Waste Policy Act of 1982, as amended, 42 U.S.C. 10101-10270; and 
the Waste Isolation Pilot Plant Land Withdrawal Act, Pub. L. 102-579, 
106 Stat. 4777.

    Source: 50 FR 38084, Sept. 19, 1985, unless otherwise noted.



      Subpart A_Environmental Standards for Management and Storage



Sec. 191.01  Applicability.

    This subpart applies to:
    (a) Radiation doses received by members of the public as a result of 
the management (except for transportation) and storage of spent nuclear 
fuel or high-level or transuranic radioactive wastes at any facility 
regulated by the Nuclear Regulatory Commission or by Agreement States, 
to the extent that such management and storage operations are not 
subject to the provisions of part 190 of title 40; and
    (b) Radiation doses received by members of the public as a result of 
the management and storage of spent nuclear fuel or high-level or 
transuranic wastes at any disposal facility that is operated by the 
Department of Energy and that is not regulated by the Commission or by 
Agreement States.



Sec. 191.02  Definitions.

    Unless otherwise indicated in this subpart, all terms shall have the 
same meaning as in Subpart A of Part 190.
    (a) Agency means the Environmental Protection Agency.
    (b) Administrator means the Administrator of the Environmental 
Protection Agency.
    (c) Commission means the Nuclear Regulatory Commission.
    (d) Department means the Department of Energy.
    (e) NWPA means the Nuclear Waste Policy Act of 1982 (Pub. L. 97-
425).
    (f) Agreement State means any State with which the Commission or the 
Atomic Energy Commission has entered into an effective agreement under 
subsection 274b of the Atomic Energy Act of 1954, as amended (68 Stat. 
919).
    (g) Spent nuclear fuel means fuel that has been withdrawn from a 
nuclear reactor following irradiation, the constituent elements of which 
have not been separated by reprocessing.
    (h) High-level radioactive waste, as used in this part, means high-
level radioactive waste as defined in the Nuclear Waste Policy Act of 
1982 (Pub. L. 97-425).
    (i) Transuranic radioactive waste, as used in this part, means waste 
containing more than 100 nanocuries of alpha-emitting transuranic 
isotopes, with half-lives greater than twenty years, per gram of waste, 
except for: (1) High-level radioactive wastes; (2) wastes that the 
Department has determined, with the concurrence of the Administrator, do 
not need the degree of isolation required by this part; or (3) wastes 
that the Commission has approved for disposal on a case-by-case basis in 
accordance with 10 CFR Part 61.
    (j) Radioactive waste, as used in this part, means the high-level 
and transuranic radioactive waste covered by this part.
    (k) Storage means retention of spent nuclear fuel or radioactive 
wastes with the intent and capability to readily retrieve such fuel or 
waste for subsequent use, processing, or disposal.
    (l) Disposal means permanent isolation of spent nuclear fuel or 
radioactive waste from the accessible environment with no intent of 
recovery, whether or not such isolation permits the recovery of such 
fuel or waste. For example, disposal of waste in a mined geologic 
repository occurs when all of the shafts to the repository are 
backfilled and sealed.
    (m) Management means any activity, operation, or process (except for 
transportation) conducted to prepare spent nuclear fuel or radioactive 
waste for storage or disposal, or the activities associated with placing 
such fuel or waste in a disposal system.
    (n) Site means an area contained within the boundary of a location 
under the effective control of persons possessing or using spent nuclear 
fuel or radioactive waste that are involved in any activity, operation, 
or process covered by this subpart.

[[Page 8]]

    (o) General environment means the total terrestrial, atmospheric, 
and aquatic environments outside sites within which any activity, 
operation, or process associated with the management and storage of 
spent nuclear fuel or radioactive waste is conducted.
    (p) Member of the public means any individual except during the time 
when that individual is a worker engaged in any activity, operation, or 
process that is covered by the Atomic Energy Act of 1954, as amended.
    (q) Critical organ means the most exposed human organ or tissue 
exclusive of the integumentary system (skin) and the cornea.



Sec. 191.03  Standards.

    (a) Management and storage of spent nuclear fuel or high-level or 
transuranic radioactive wastes at all facilities regulated by the 
Commission or by Agreement States shall be conducted in such a manner as 
to provide reasonable assurance that the combined annual dose equivalent 
to any member of the public in the general environment resulting from: 
(1) Discharges of radioactive material and direct radiation from such 
manage ment and storage and (2) all operations covered by Part 190; 
shall not exceed 25 millirems to the whole body, 75 millirems to the 
thyroid, and 25 millirems to any other critical organ.
    (b) Management and storage of spent nuclear fuel or high-level or 
transuranic radioactive wastes at all facilities for the disposal of 
such fuel or waste that are operated by the Department and that are not 
regulated by the Commission or Agreement States shall be conducted in 
such a manner as to provide reasonable assurance that the combined 
annual dose equivalent to any member of the public in the general 
environment resulting from discharges of radioactive material and direct 
radiation from such management and storage shall not exceed 25 millirems 
to the whole body and 75 millirems to any critical organ.



Sec. 191.04  Alternative standards.

    (a) The Administrator may issue alternative standards from those 
standards established in Sec. 191.03(b) for waste management and 
storage activities at facilities that are not regulated by the 
Commission or Agreement States if, upon review of an application for 
such alternative standards:
    (1) The Administrator determines that such alternative standards 
will prevent any member of the public from receiving a continuous 
exposure of more than 100 millirems per year dose equivalent and an 
infrequent exposure of more than 500 millirems dose equivalent in a year 
from all sources, excluding natural background and medical procedures; 
and
    (2) The Administrator promptly makes a matter of public record the 
degree to which continued operation of the facility is expected to 
result in levels in excess of the standards specified in Sec. 
191.03(b).
    (b) An application for alternative standards shall be submitted as 
soon as possible after the Department determines that continued 
operation of a facility will exceed the levels specified in Sec. 
191.03(b) and shall include all information necessary for the 
Administrator to make the determinations called for in Sec. 191.04(a).
    (c) Requests for alternative standards shall be submitted to the 
Administrator, U.S. Environmental Protection Agency, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460.

[50 FR 38084, Sept. 19, 1985, as amended at 65 FR 47325, Aug. 2, 2000]



Sec. 191.05  Effective date.

    The standards in this subpart shall be effective on November 18, 
1985.



             Subpart B_Environmental Standards for Disposal



Sec. 191.11  Applicability.

    (a) This subpart applies to:
    (1) Radioactive materials released into the accessible environment 
as a result of the disposal of spent nuclear fuel or high-level or 
transuranic radioactive wastes;
    (2) Radiation doses received by members of the public as a result of 
such disposal; and
    (3) Radioactive contamination of certain sources of ground water in 
the vicinity of disposal systems for such fuel or wastes.

[[Page 9]]

    (b) This subpart does not apply to:
    (1) Disposal directly into the oceans or ocean sediments;
    (2) Wastes disposed of before November 18, 1985; and
    (3) The characterization, licensing, construction, operation, or 
closure of any site required to be characterized under section 113(a) of 
Public Law 97-425, 96 Stat. 2201.

[50 FR 38084, Sept. 19, 1985, as amended at 58 FR 66414, Dec. 20, 1993]



Sec. 191.12  Definitions.

    Unless otherwise indicated in this subpart, all terms shall have the 
same meaning as in subpart A of this part.
    Accessible environment means: (1) The atmosphere; (2) land surfaces; 
(3) surface waters; (4) oceans; and (5) all of the lithosphere that is 
beyond the controlled area.
    Active institutional control means: (1) Controlling access to a 
disposal site by any means other than passive institutional controls; 
(2) performing maintenance operations or remedial actions at a site, (3) 
controlling or cleaning up releases from a site, or (4) monitoring 
parameters related to disposal system performance.
    Annual committed effective dose means the committed effective dose 
resulting from one-year intake of radionuclides released plus the annual 
effective dose caused by direct radiation from facilities or activities 
subject to subparts B and C of this part.
    Aquifer means an underground geological formation, group of 
formations, or part of a formation that is capable of yielding a 
significant amount of water to a well or spring.
    Barrier means any material or structure that prevents or 
substantially delays movement of water or radionuclides toward the 
accessible environment. For example, a barrier may be a geologic 
structure, a canister, a waste form with physical and chemical 
characteristics that significantly decrease the mobility of 
radionuclides, or a material placed over and around waste, provided that 
the material or structure substantially delays movement of water or 
radionuclides.
    Controlled area means: (1) A surface location, to be identified by 
passive institutional controls, that encompasses no more than 100 square 
kilometers and extends horizontally no more than five kilometers in any 
direction from the outer boundary of the original location of the 
radioactive wastes in a disposal system; and (2) the subsurface 
underlying such a surface location.
    Disposal system means any combination of engineered and natural 
barriers that isolate spent nuclear fuel or radioactive waste after 
disposal.
    Dose equivalent means the product of absorbed dose and appropriate 
factors to account for differences in biological effectiveness due to 
the quality of radiation and its spatial distribution in the body; the 
unit of dose equivalent is the ``rem'' (``sievert'' in SI units).
    Effective dose means the sum over specified tissues of the products 
of the dose equivalent received following an exposure of, or an intake 
of radionuclides into, specified tissues of the body, multiplied by 
appropriate weighting factors. This allows the various tissue-specific 
health risks to be summed into an overall health risk. The method used 
to calculate effective dose is described in appendix B of this part.
    Ground water means water below the land surface in a zone of 
saturation.
    Heavy metal means all uranium, plutonium, or thorium placed into a 
nuclear reactor.
    Implementing agency means:
    (1) The Commission for facilities licensed by the Commission;
    (2) The Agency for those implementation responsibilities for the 
Waste Isolation Pilot Plant, under this part, given to the Agency by the 
Waste Isolation Pilot Plant Land Withdrawal Act (Pub. L. 102-579, 106 
Stat. 4777) which, for the purposes of this part, are:
    (i) Determinations by the Agency that the Waste Isolation Pilot 
Plant is in compliance with subpart A of this part;
    (ii) Issuance of criteria for the certifications of compliance with 
subparts B and C of this part of the Waste Isolation Pilot Plant's 
compliance with subparts B and C of this part;
    (iii) Certifications of compliance with subparts B and C of this 
part of

[[Page 10]]

the Waste Isolation Pilot Plant's compliance with subparts B and C of 
this part;
    (iv) If the initial certification is made, periodic recertification 
of the Waste Isolation Pilot Plant's continued compliance with subparts 
B and C of this part;
    (v) Review and comment on performance assessment reports of the 
Waste Isolation Pilot Plant; and
    (vi) Concurrence by the Agency with the Department's determination 
under Sec. 191.02(i) that certain wastes do not need the degree of 
isolation required by subparts B and C of this part; and
    (3) The Department of Energy for any other disposal facility and all 
other implementation responsibilities for the Waste Isolation Pilot 
Plant, under this part, not given to the Agency.
    International System of Units is the version of the metric system 
which has been established by the International Bureau of Weights and 
Measures and is administered in the United States by the National 
Institute of Standards and Technology. The abbreviation for this system 
is ``SI.''
    Lithosphere means the solid part of the Earth below the surface, 
including any ground water contained within it.
    Passive institutional control means: (1) Permanent markers placed at 
a disposal site, (2) public records and archives, (3) government 
ownership and regulations regarding land or resource use, and (4) other 
methods of preserving knowledge about the location, design, and contents 
of a disposal system.
    Performance assessment means an analysis that: (1) Identifies the 
processes and events that might affect the disposal system; (2) examines 
the effects of these processes and events on the performance of the 
disposal system; and (3) estimates the cumulative releases of 
radionuclides, considering the associated uncertainties, caused by all 
significant processes and events. These estimates shall be incorporated 
into an overall probability distribution of cumulative release to the 
extent practicable.
    Radioactive material means matter composed of or containing 
radionuclides, with radiological half-lives greater than 20 years, 
subject to the Atomic Energy Act of 1954, as amended.
    SI unit means a unit of measure in the International System of 
Units.
    Sievert is the SI unit of effective dose and is equal to 100 rem or 
one joule per kilogram. The abbreviation is ``Sv.''
    Undisturbed performance means the predicted behavior of a disposal 
system, including consideration of the uncertainties in predicted 
behavior, if the disposal system is not disrupted by human intrusion or 
the occurrence of unlikely natural events.
    Waste, as used in this subpart, means any spent nuclear fuel or 
radioactive waste isolated in a disposal system.
    Waste form means the materials comprising the radioactive components 
of waste and any encapsulating or stabilizing matrix.

[50 FR 38084, Sept. 19, 1985, as amended at 58 FR 66414, Dec. 20, 1993]



Sec. 191.13  Containment requirements.

    (a) Disposal systems for spent nuclear fuel or high-level or 
transuranic radioactive wastes shall be designed to provide a reasonable 
expectation, based upon performance assessments, that the cumulative 
releases of radionuclides to the accessible environment for 10,000 years 
after disposal from all significant processes and events that may affect 
the disposal system shall:
    (1) Have a likelihood of less than one chance in 10 of exceeding the 
quantities calculated according to Table 1 (appendix A); and
    (2) Have a likelihood of less than one chance in 1,000 of exceeding 
ten times the quantities calculated according to Table 1 (appendix A).
    (b) Performance assessments need not provide complete assurance that 
the requirements of Sec. 191.13(a) will be met. Because of the long 
time period involved and the nature of the events and processes of 
interest, there will inevitably be substantial uncertainties in 
projecting disposal system performance. Proof of the future performance 
of a disposal system is not to be had in the ordinary sense of the word 
in situations that deal with much shorter time frames. Instead, what is 
required is a reasonable expectation, on the basis of the record before 
the implementing

[[Page 11]]

agency, that compliance with Sec. 191.13 (a) will be achieved.



Sec. 191.14  Assurance requirements.

    To provide the confidence needed for long-term compliance with the 
requirements of Sec. 191.13, disposal of spent nuclear fuel or high-
level or transuranic wastes shall be conducted in accordance with the 
following provisions, except that these provisions do not apply to 
facilities regulated by the Commission (see 10 CFR Part 60 for 
comparable provisions applicable to facilities regulated by the 
Commission):
    (a) Active institutional controls over disposal sites should be 
maintained for as long a period of time as is practicable after 
disposal; however, performance assessments that assess isolation of the 
wastes from the accessible environment shall not consider any 
contributions from active institutional controls for more than 100 years 
after disposal.
    (b) Disposal systems shall be monitored after disposal to detect 
substantial and detrimental deviations from expected performance. This 
monitoring shall be done with techniques that do not jeopardize the 
isolation of the wastes and shall be conducted until there are no 
significant concerns to be addressed by further monitoring.
    (c) Disposal sites shall be designated by the most permanent 
markers, records, and other passive institutional controls practicable 
to indicate the dangers of the wastes and their location.
    (d) Disposal systems shall use different types of barriers to 
isolate the wastes from the accessible environment. Both engineered and 
natural barriers shall be included.
    (e) Places where there has been mining for resources, or where there 
is a reasonable expectation of exploration for scarce or easily 
accessible resources, or where there is a significant concentration of 
any material that is not widely available from other sources, should be 
avoided in selecting disposal sites. Resources to be considered shall 
include minerals, petroleum or natural gas, valuable geologic 
formations, and ground waters that are either irreplaceable because 
there is no reasonable alternative source of drinking water available 
for substantial populations or that are vital to the preservation of 
unique and sensitive eco systems. Such places shall not be used for 
disposal of the wastes covered by this part unless the favorable char 
acter is tics of such places com pen sate for their greater likelihood 
of being dis turbed in the future.
    (f) Disposal systems shall be selected so that removal of most of 
the wastes is not precluded for a reasonable period of time after 
disposal.



Sec. 191.15  Individual protection requirements.

    (a) Disposal systems for waste and any associated radioactive 
material shall be designed to provide a reasonable expectation that, for 
10,000 years after disposal, undisturbed performance of the disposal 
system shall not cause the annual committed effective dose, received 
through all potential pathways from the disposal system, to any member 
of the public in the accessible environment, to exceed 15 millirems (150 
microsieverts).
    (b) Annual committed effective doses shall be calculated in 
accordance with appendix B of this part.
    (c) Compliance assessments need not provide complete assurance that 
the requirements of paragraph (a) of this section will be met. Because 
of the long time period involved and the nature of the processes and 
events of interest, there will inevitably be substantial uncertainties 
in projecting disposal system performance. Proof of the future 
performance of a disposal system is not to be had in the ordinary sense 
of the word in situations that deal with much shorter time frames. 
Instead, what is required is a reasonable expectation, on the basis of 
the record before the implementing agency, that compliance with 
paragraph (a) of this section will be achieved.
    (d) Compliance with the provisions in this section does not negate 
the necessity to comply with any other applicable Federal regulations or 
requirements.
    (e) The standards in this section shall be effective on January 19, 
1994.

[58 FR 66414, Dec. 20, 1993]

[[Page 12]]



Sec. 191.16  Alternative provisions for disposal.

    The Administrator may, by rule, substitute for any of the provisions 
of subpart B alternative provisions chosen after:
    (a) The alternative provisions have been proposed for public comment 
in the Federal Register together with information describing the costs, 
risks, and benefits of disposal in accordance with the alternative 
provisions and the reasons why compliance with the existing provisions 
of Subpart B appears inappropriate;
    (b) A public comment period of at least 90 days has been completed, 
during which an opportunity for public hearings in affected areas of the 
country has been provided; and
    (c) The public comments received have been fully considered in 
developing the final version of such alternative provisions.

[50 FR 38084, Sept. 19, 1985. Redesignated at 58 FR 66414, Dec. 20, 
1993]



Sec. 191.17  Effective date.

    The standards in this subpart shall be effective on November 18, 
1985.

[50 FR 38084, Sept. 19, 1985; 50 FR 40003, Oct. 1, 1985. Redesignated at 
58 FR 66414, Dec. 20, 1993]



      Subpart C_Environmental Standards for Ground-Water Protection

    Source: 58 FR 66415, Dec. 20, 1993, unless otherwise noted.



Sec. 191.21  Applicability.

    (a) This subpart applies to:
    (1) Radiation doses received by members of the public as a result of 
activities subject to subpart B of this part; and
    (2) Radioactive contamination of underground sources of drinking 
water in the accessible environment as a result of such activities.
    (b) This subpart does not apply to:
    (1) Disposal directly into the oceans or ocean sediments;
    (2) Wastes disposed of before the effective date of this subpart; 
and
    (3) The characterization, licensing, construction, operation, or 
closure of any site required to be characterized under section 113(a) of 
Public Law 97-425, 96 Stat. 2201.



Sec. 191.22  Definitions.

    Unless otherwise indicated in this subpart, all terms have the same 
meaning as in subparts A and B of this part.
    Public water system means a system for the provision to the public 
of piped water for human consumption, if such system has at least 
fifteen service connections or regularly serves at least twenty-five 
individuals. Such term includes:
    (1) Any collection, treatment, storage, and distribution facilities 
under control of the operator of such system and used primarily in 
connection with such system; and
    (2) Any collection or pretreatment storage facilities not under such 
control which are used primarily in connection with such system.
    Total dissolved solids means the total dissolved (filterable) solids 
in water as determined by use of the method specified in 40 CFR part 
136.
    Underground source of drinking water means an aquifer or its portion 
which:
    (1) Supplies any public water system; or
    (2) Contains a sufficient quantity of ground water to supply a 
public water system; and
    (i) Currently supplies drinking water for human consumption; or
    (ii) Contains fewer than 10,000 milligrams of total dissolved solids 
per liter.



Sec. 191.23  General provisions.

    (a) Determination of compliance with this subpart shall be based 
upon underground sources of drinking water which have been identified on 
the date the implementing agency determines compliance with subpart C of 
this part.
    (b) [Reserved]



Sec. 191.24  Disposal standards.

    (a) Disposal systems.
    (1) General. Disposal systems for waste and any associated 
radioactive material shall be designed to provide a reasonable 
expectation that 10,000 years of undisturbed performance after disposal 
shall not cause the levels of radioactivity in any underground

[[Page 13]]

source of drinking water, in the accessible environment, to exceed the 
limits specified in 40 CFR part 141 as they exist on January 19, 1994.
    (2) Disposal systems above or within a formation which within one-
quarter (\1/4\) mile contains an underground source of drinking water. 
[Reserved]
    (b) Compliance assessments need not provide complete assurance that 
the requirements of paragraph (a) of this section will be met. Because 
of the long time period involved and the nature of the processes and 
events of interest, there will inevitably be substantial uncertainties 
in projecting disposal system performance. Proof of the future 
performance of a disposal system is not to be had in the ordinary sense 
of the word in situations that deal with much shorter time frames. 
Instead, what is required is a reasonable expectation, on the basis of 
the record before the implementing agency, that compliance with 
paragraph (a) of this section will be achieved.



Sec. 191.25  Compliance with other Federal regulations.

    Compliance with the provisions in this subpart does not negate the 
necessity to comply with any other applicable Federal regulations or 
requirements.



Sec. 191.26  Alternative provisions.

    The Administrator may, by rule, substitute for any of the provisions 
of this subpart alternative provisions chosen after:
    (a) The alternative provisions have been proposed for public comment 
in the Federal Register together with information describing the costs, 
risks, and benefits of disposal in accordance with the alternative 
provisions and the reasons why compliance with the existing provisions 
of this subpart appears inappropriate;
    (b) A public comment period of at least 90 days has been completed, 
during which an opportunity for public hearings in affected areas of the 
country has been provided; and
    (c) The public comments received have been fully considered in 
developing the final version of such alternative provisions.



Sec. 191.27  Effective date.

    The standards in this subpart shall be effective on January 19, 
1994.



            Sec. Appendix A to Part 191--Table for Subpart B

          Table 1--Release Limits for Containment Requirements
   [Cumulative releases to the accessible environment for 10,000 years
                             after disposal]
------------------------------------------------------------------------
                                                                Release
                                                               limit per
                                                                 1,000
                                                                MTHM or
                                                                 other
                         Radionuclide                           unit of
                                                                 waste
                                                                  (see
                                                                 notes)
                                                                (curies)
------------------------------------------------------------------------
Americium-241 or -243........................................        100
Carbon-14....................................................        100
Cesium-135 or -137...........................................      1,000
Iodine-129...................................................        100
Neptunium-237................................................        100
Plutonium-238, -239, -240, or -242...........................        100
Radium-226...................................................        100
Strontium-90.................................................      1,000
Technetium-99................................................     10,000
Thorium-230 or -232..........................................         10
Tin-126......................................................      1,000
Uranium-233, -234, -235, -236, or -238.......................        100
Any other alpha-emitting radionuclide with a half-life               100
 greater than 20 years.......................................
Any other radionuclide with a half-life greater than 20 years      1,000
 that does not emit alpha particles..........................
------------------------------------------------------------------------

                         Application of Table 1

    Note 1: Units of Waste. The Release Limits in Table 1 apply to the 
amount of wastes in any one of the following:
    (a) An amount of spent nuclear fuel containing 1,000 metric tons of 
heavy metal (MTHM) exposed to a burnup between 25,000 megawatt-days per 
metric ton of heavy metal (MWd/MTHM) and 40,000 MWd/MTHM;
    (b) The high-level radioactive wastes generated from reprocessing 
each 1,000 MTHM exposed to a burnup between 25,000 MWd/MTHM and 40,000 
MWd/MTHM;
    (c) Each 100,000,000 curies of gamma or beta-emitting radionuclides 
with half-lives greater than 20 years but less than 100 years (for use 
as discussed in Note 5 or with materials that are identified by the 
Commission as high-level radioactive waste in accordance with part B of 
the definition of high-level waste in the NWPA);
    (d) Each 1,000,000 curies of other radionuclides (i.e., gamma or 
beta-emitters with half-lives greater than 100 years or any alpha-
emitters with half-lives greater than 20 years) (for use as discussed in 
Note 5 or with materials that are identified by the Commission as high-
level radioactive waste in accordance with part B of the definition of 
high-level waste in the NWPA); or

[[Page 14]]

    (e) An amount of transuranic (TRU) wastes containing one million 
curies of alpha-emitting transuranic radionuclides with half-lives 
greater than 20 years.
    Note 2: Release Limits for Specific Disposal Systems. To develop 
Release Limits for a particular disposal system, the quantities in Table 
1 shall be adjusted for the amount of waste included in the disposal 
system compared to the various units of waste defined in Note 1. For 
example:
    (a) If a particular disposal system contained the high-level wastes 
from 50,000 MTHM, the Release Limits for that system would be the 
quantities in Table 1 multiplied by 50 (50,000 MTHM divided by 1,000 
MTHM).
    (b) If a particular disposal system contained three million curies 
of alpha-emitting transuranic wastes, the Release Limits for that system 
would be the quantities in Table 1 multiplied by three (three million 
curies divided by one million curies).
    (c) If a particular disposal system contained both the high-level 
wastes from 50,000 MTHM and 5 million curies of alpha-emitting 
transuranic wastes, the Release Limits for that system would be the 
quantities in Table 1 multiplied by 55:
[GRAPHIC] [TIFF OMITTED] TC11NO91.000

    Note 3: Adjustments for Reactor Fuels with Different Burnup. For 
disposal systems containing reactor fuels (or the high-level wastes from 
reactor fuels) exposed to an average burnup of less than 25,000 MWd/MTHM 
or greater than 40,000 MWd/MTHM, the units of waste defined in (a) and 
(b) of Note 1 shall be adjusted. The unit shall be multiplied by the 
ratio of 30,000 MWd/MTHM divided by the fuel's actual average burnup, 
except that a value of 5,000 MWd/MTHM may be used when the average fuel 
burnup is below 5,000 MWd/MTHM and a value of 100,000 MWd/MTHM shall be 
used when the average fuel burnup is above 100,000 MWd/MTHM. This 
adjusted unit of waste shall then be used in determining the Release 
Limits for the disposal system.
    For example, if a particular disposal system contained only high-
level wastes with an average burnup of 3,000 MWd/MTHM, the unit of waste 
for that disposal system would be:
[GRAPHIC] [TIFF OMITTED] TC11NO91.001

    If that disposal system contained the high-level wastes from 60,000 
MTHM (with an average burnup of 3,000 MWd/MTHM), then the Release Limits 
for that system would be the quantities in Table 1 multiplied by ten:
[GRAPHIC] [TIFF OMITTED] TC11NO91.002

which is the same as:
[GRAPHIC] [TIFF OMITTED] TC11NO91.003

    Note 4: Treatment of Fractionated High-Level Wastes. In some cases, 
a high-level waste stream from reprocessing spent nuclear fuel may have 
been (or will be) separated into two or more high-level waste components 
destined for different disposal systems. In such cases, the implementing 
agency may allocate the Release Limit multiplier (based upon the 
original MTHM and the average fuel burnup of the high-level waste 
stream) among the various disposal systems as it chooses, provided that 
the total Release Limit multiplier used for that waste stream at all of 
its disposal systems may not exceed the Release Limit multiplier that 
would be used if the entire waste stream were disposed of in one 
disposal system.
    Note 5: Treatment of Wastes with Poorly Known Burnups or Original 
MTHM. In some cases, the records associated with particular high-level 
waste streams may not be adequate to accurately determine the original 
metric tons of heavy metal in the reactor fuel that created the waste, 
or to determine the average burnup that the fuel was exposed to. If the 
uncertainties are such that the original amount of heavy metal or the 
average fuel burnup for particular high-level waste streams cannot be 
quantified, the units of waste derived from (a) and (b) of Note 1 shall 
no longer be used. Instead, the units of waste defined in (c) and (d) of 
Note 1 shall be used for such high-level waste streams. If the 
uncertainties in such information allow a range of values to be 
associated with the original amount of heavy metal or the average fuel 
burnup, then the calculations described in previous Notes will be 
conducted using the values that result in the smallest Release Limits, 
except that the Release Limits need not be smaller than those that would 
be calculated using the units of waste defined in (c) and (d) of Note 1.
    Note 6: Uses of Release Limits to Determine Compliance with Sec. 
191.13 Once release limits for a particular disposal system have been 
determined in accordance with Notes 1 through 5, these release limits 
shall be used to determine compliance with the requirements of Sec. 
191.13 as follows. In cases where a mixture of radionuclides is 
projected to be released to the accessible environment, the limiting 
values shall be determined as follows: For each radionuclide in the 
mixture, determine the ratio between the cumulative release quantity 
projected over 10,000 years

[[Page 15]]

and the limit for that radionuclide as determined from Table 1 and Notes 
1 through 5. The sum of such ratios for all the radionuclides in the 
mixture may not exceed one with regard to Sec. 191.13(a)(1) and may not 
exceed ten with regard to Sec. 191.13(a)(2).
    For example, if radionuclides A, B, and C are projected to be 
released in amounts Qa, Qb, and Qc, and 
if the applicable Release Limits are RLa, RLb, and 
RLc, then the cumulative releases over 10,000 years shall be 
limited so that the following relationship exists:
[GRAPHIC] [TIFF OMITTED] TC11NO91.004


[50 FR 38084, Sept. 19, 1985, as amended at 58 FR 66415, Dec. 20, 1993]



 Sec. Appendix B to Part 191--Calculation of Annual Committed Effective 
                                  Dose

                           I. Equivalent Dose

    The calculation of the committed effective dose (CED) begins with 
the determination of the equivalent dose, HT, to a tissue or 
organ, T, listed in Table B.2 below by using the equation:
[GRAPHIC] [TIFF OMITTED] TR20DE93.009

where DT, R is the absorbed dose in rads (one gray, an SI 
unit, equals 100 rads) averaged over the tissue or organ, T, due to 
radiation type, R, and wR is the radiation weighting factor 
which is given in Table B.1 below. The unit of equivalent dose is the 
rem (sievert, in SI units).

              Table B.1--Radiation Weighting Factors, wR\1\
------------------------------------------------------------------------
                                                                    wR
               Radiation type and energy range \2\                 value
------------------------------------------------------------------------
Photons, all energies...........................................       1
Electrons and muons, all energies...............................       1
Neutrons, energy < 10 keV.......................................       5
          10 keV to 100 keV.....................................      10
          100 keV to 2 MeV...........................      20
          2 MeV to 20 MeV............................      10
          20 MeV.....................................       5
Protons, other than recoil protons, 2 MeV............       5
Alpha particles, fission fragments, heavy nuclei................     20
------------------------------------------------------------------------
\1\ All values relate to the radiation incident on the body or, for
  internal sources, emitted from the source.
\2\ See paragraph A14 in ICRP Publication 60 for the choice of values
  for other radiation types and energies not in the table.

                           II. Effective Dose

    The next step is the calculation of the effective dose, E. The 
probability of occurrence of a stochastic effect in a tissue or organ is 
assumed to be proportional to the equivalent dose in the tissue or 
organ. The constant of proportionality differs for the various tissues 
of the body, but in assessing health detriment the total risk is 
required. This is taken into account using the tissue weighting factors, 
wT in Table B.2, which represent the proportion of the 
stochastic risk resulting from irradiation of the tissue or organ to the 
total risk when the whole body is irradiated uniformly and HT 
is the equivalent dose in the tissue or organ, T, in the equation:
[GRAPHIC] [TIFF OMITTED] TR20DE93.010


               Table B.2--Tissue Weighting Factors, wT \1\
------------------------------------------------------------------------
                     Tissue or organ                         wT value
------------------------------------------------------------------------
Gonads..................................................            0.25
Breast..................................................            0.15
Red bone marrow.........................................            0.12
Lung....................................................            0.12
Thyroid.................................................            0.03
Bone surfaces...........................................            0.03
Remainder...............................................       \2\ 0.30
------------------------------------------------------------------------
\1\ The values are considered to be appropriate for protection for
  individuals of both sexes and all ages.
\2\ For purposes of calculation, the remainder is comprised of the five
  tissues or organs not specifically listed in Table B.2 that receive
  the highest dose equivalents; a weighting factor of 0.06 is applied to
  each of them, including the various sections of the gastrointestinal
  tract which are treated as separate organs. This covers all tissues
  and organs except the hands and forearms, the feet and ankles, the
  skin and the lens of the eye. The excepted tissues and organs should
  be excluded from the computation of HE.

          III. Annual Committed Tissue or Organ Equivalent Dose

    For internal irradiation from incorporated radionuclides, the total 
absorbed dose will be spread out in time, being gradually delivered as 
the radionuclide decays. The time distribution of the absorbed dose rate 
will vary with the radionuclide, its form, the mode of intake and the 
tissue within which it is incorporated. To take account of this 
distribution the quantity committed equivalent dose, H[Tau]([tau]) where 
is the integration time in years following an intake over any particular 
year, is used and is the integral over time of the equivalent dose rate 
in a particular tissue or organ that will be received by an individual 
following an intake of radioactive material into the body. The time 
period, [tau], is taken as 50 years as an average time of exposure 
following intake:
[GRAPHIC] [TIFF OMITTED] TR20DE93.011

for a single intake of activity at time t0 where 
HT(t) is the relevant equivalent-dose rate in a tissue or 
organ at time t. For the purposes of this part, the previously mentioned 
single intake may be considered to be an annual intake.

[[Page 16]]

                   IV. Annual Committed Effective Dose

    If the committed equivalent doses to the individual tissues or 
organs resulting from an annual intake are multiplied by the appropriate 
weighting factors, wT, and then summed, the result will be 
the annual committed effective dose, E([tau]):
[GRAPHIC] [TIFF OMITTED] TR20DE93.012


[58 FR 66415, Dec. 20, 1993]



  Sec. Appendix C to Part 191--Guidance for Implementation of Subpart B

    [Note: The supplemental information in this appendix is not an 
integral part of 40 CFR part 191. Therefore, the implementing agencies 
are not bound to follow this guidance. However, it is included because 
it describes the Agency's assumptions regarding the implementation of 
subpart B. This appendix will appear in the Code of Federal 
Regulations.]

    The Agency believes that the implementing agencies must determine 
compliance with Sec. Sec. 191.13, 191.15, and 191.16 of subpart B by 
evaluating long-term predictions of disposal system performance. 
Determining compliance with Sec. 191.13 will also involve predicting 
the likelihood of events and processes that may disturb the disposal 
system. In making these various predictions, it will be appropriate for 
the implementing agencies to make use of rather complex computational 
models, analytical theories, and prevalent expert judgment relevant to 
the numerical predictions. Substantial uncertainties are likely to be 
encountered in making these predictions. In fact, sole reliance on these 
numerical predictions to determine compliance may not be appropriate; 
the implementing agencies may choose to supplement such predictions with 
qualitative judgments as well. Because the procedures for determining 
compliance with subpart B have not been formulated and tested yet, this 
appendix to the rule indicates the Agency's assumptions regarding 
certain issues that may arise when implementing Sec. Sec. 191.13, 
191.15, and 191.16. Most of this guidance applies to any type of 
disposal system for the wastes covered by this rule. However, several 
sections apply only to disposal in mined geologic repositories and would 
be inappropriate for other types of disposal systems.
    Consideration of Total Disposal System. When predicting disposal 
system performance, the Agency assumes that reasonable projections of 
the protection expected from all of the engineered and natural barriers 
of a disposal system will be considered. Portions of the disposal system 
should not be disregarded, even if projected performance is uncertain, 
except for portions of the system that make negligible contributions to 
the overall isolation provided by the disposal system.
    Scope of Performance Assessments. Section 191.13 requires the 
implementing agencies to evaluate compliance through performance 
assessments as defined in Sec. 191.12(q). The Agency assumes that such 
performance assessments need not consider categories of events or 
processes that are estimated to have less than one chance in 10,000 of 
occurring over 10,000 years. Furthermore, the performance assessments 
need not evaluate in detail the releases from all events and processes 
estimated to have a greater likelihood of occurrence. Some of these 
events and processes may be omitted from the performance assessments if 
there is a reasonable expectation that the remaining probability 
distribution of cumulative releases would not be significantly changed 
by such omissions.
    Compliance with Sec. 191.13. The Agency assumes that, whenever 
practicable, the implementing agency will assemble all of the results of 
the performance assessments to determine compliance with Sec. 191.13 
into a ``complementary cumulative distribution function'' that indicates 
the probability of exceeding various levels of cumulative release. When 
the uncertainties in parameters are considered in a performance 
assessment, the effects of the uncertainties considered can be 
incorporated into a single such distribution function for each disposal 
system considered. The Agency assumes that a disposal system can be 
considered to be in compliance with Sec. 191.13 if this single 
distribution function meets the requirements of Sec. 191.13(a).
    Compliance with Sec. Sec. 191.15 and 191.16. When the uncertainties 
in undisturbed performance of a disposal system are considered, the 
implementing agencies need not require that a very large percentage of 
the range of estimated radiation exposures or radionuclide 
concentrations fall below limits established in Sec. Sec. 191.15 and 
191.16, respectively. The Agency assumes that compliance can be 
determined based upon ``best estimate'' predictions (e.g., the mean or 
the median of the appropriate distribution, whichever is higher).
    Institutional Controls. To comply with Sec. 191.14(a), the 
implementing agency will assume that none of the active institutional 
controls prevent or reduce radionuclide releases for more than 100 years 
after disposal. However, the Federal Government is committed to 
retaining ownership of all disposal sites for spent nuclear fuel and 
high-level and transuranic radioactive wastes and will establish 
appropriate markers and records, consistent with Sec. 191.14(c). The 
Agency assumes that, as long as such passive institutional controls 
endure and are understood, they: (1) Can be effective in deterring 
systematic or persistent exploitation of these

[[Page 17]]

disposal sites; and (2) can reduce the likelihood of inadvertent, 
intermittent human intrusion to a degree to be determined by the 
implementing agency. However, the Agency believes that passive 
institutional controls can never be assumed to eliminate the chance of 
inadvertent and intermittent human intrusion into these disposal sites.
    Consideration of Inadvertent Human Intrusion into Geologic 
Repositories. The most speculative potential disruptions of a mined 
geologic repository are those associated with inadvertent human 
intrusion. Some types of intrusion would have virtually no effect on a 
repository's containment of waste. On the other hand, it is possible to 
conceive of intrusions (involving widespread societal loss of knowledge 
regarding radioactive wastes) that could result in major disruptions 
that no reasonable repository selection or design precautions could 
alleviate. The Agency believes that the most productive consideration of 
inadvertent intrusion concerns those realistic possibilities that may be 
usefully mitigated by repository design, site selection, or use of 
passive controls (although passive institutional controls should not be 
assumed to completely rule out the possibility of intrusion). Therefore, 
inadvertent and intermittent intrusion by exploratory drilling for 
resources (other than any provided by the disposal system itself) can be 
the most severe intrusion scenario assumed by the implementing agencies. 
Furthermore, the implementing agencies can assume that passive 
institutional controls or the intruders' own exploratory procedures are 
adequate for the intruders to soon detect, or be warned of, the 
incompatibility of the area with their activities.
    Frequency and Severity of Inadvertent Human Intrusion into Geologic 
Repositories. The implementing agencies should consider the effects of 
each particular disposal system's site, design, and passive 
institutional controls in judging the likelihood and consequences of 
such inadvertent exploratory drilling. However, the Agency assumes that 
the likelihood of such inadvertent and intermittent drilling need not be 
taken to be greater than 30 boreholes per square kilometer of repository 
area per 10,000 years for geologic repositories in proximity to 
sedimentary rock formations, or more than 3 boreholes per square 
kilometer per 10,000 years for repositories in other geologic 
formations. Furthermore, the Agency assumes that the consequences of 
such inadvertent drilling need not be assumed to be more severe than: 
(1) Direct release to the land surface of all the ground water in the 
repository horizon that would promptly flow through the newly created 
borehole to the surface due to natural lithostatic pressure--or (if 
pumping would be required to raise water to the surface) release of 200 
cubic meters of ground water pumped to the surface if that much water is 
readily available to be pumped; and (2) creation of a ground water flow 
path with a permeability typical of a borehole filled by the soil or 
gravel that would normally settle into an open hole over time--not the 
permeability of a carefully sealed borehole.

[50 FR 38084, Sept. 19, 1985. Redesignated and amended at 58 FR 66415, 
Dec. 20, 1993]



PART 192_HEALTH AND ENVIRONMENTAL PROTECTION STANDARDS FOR URANIUM AND THORIUM 

MILL TAILINGS--Table of Contents




 Subpart A_Standards for the Control of Residual Radioactive Materials 
                 from Inactive Uranium Processing Sites

Sec.
192.00 Applicability.
192.01 Definitions.
192.02 Standards.
192.03 Monitoring.
192.04 Corrective action.

Table 1 to Subpart A--Maximum Concentration of Constituents for 
          Groundwater Protection

Subpart B_Standards for Cleanup of Land and Buildings Contaminated with 
  Residual Radioactive Materials from Inactive Uranium Processing Sites

192.10 Applicability.
192.11 Definitions.
192.12 Standards.

                        Subpart C_Implementation

192.20 Guidance for implementation.
192.21 Criteria for applying supplemental standards.
192.22 Supplemental standards.
192.23 Effective date.

   Subpart D_Standards for Management of Uranium Byproduct Materials 
   Pursuant to Section 84 of the Atomic Energy Act of 1954, as Amended

192.30 Applicability.
192.31 Definitions and cross-references.
192.32 Standards.
192.33 Corrective action programs.
192.34 Effective date.

Table A to Subpart D

   Subpart E_Standards for Management of Thorium Byproduct Materials 
   Pursuant to Section 84 of the Atomic Energy Act of 1954, as Amended

192.40 Applicability.

[[Page 18]]

192.41 Provisions.
192.42 Substitute provisions.
192.43 Effective date.

Appendix I to Part 192--Listed Constituents

    Authority: Sec. 275 of the Atomic Energy Act of 1954, 42 U.S.C. 
2022, as added by the Uranium Mill Tailings Radiation Control Act of 
1978, Pub. L. 95-604, as amended.

    Source: 48 FR 602, Jan. 5, 1983, unless otherwise noted.



 Subpart A_Standards for the Control of Residual Radioactive Materials 
                 from Inactive Uranium Processing Sites



Sec. 192.00  Applicability.

    This subpart applies to the control of residual radioactive material 
at designated processing or depository sites under section 108 of the 
Uranium Mill Tailings Radiation Control Act of 1978 (henceforth 
designated ``the Act''), and to restoration of such sites following any 
use of subsurface minerals under section 104(h) of the Act.



Sec. 192.01  Definitions.

    (a) Residual radioactive material means:
    (1) Waste (which the Secretary determines to be radioactive) in the 
form of tailings resulting from the processing of ores for the 
extraction of uranium and other valuable constituents of the ores; and
    (2) Other wastes (which the Secretary determines to be radioactive) 
at a processing site which relate to such processing, including any 
residual stock of unprocessed ores or low-grade materials.
    (b) Remedial action means any action performed under section 108 of 
the Act.
    (c) Control means any remedial action intended to stabilize, inhibit 
future misuse of, or reduce emissions or effluents from residual 
radioactive materials.
    (d) Disposal site means the region within the smallest perimeter of 
residual radioactive material (excluding cover materials) following 
completion of control activities.
    (e) Depository site means a site (other than a processing site) 
selected under Section 104(b) or 105(b) of the Act.
    (f) Curie (Ci) means the amount of radioactive material that 
produces 37 billion nuclear transformation per second. One picocurie 
(pCi) = 10 -12 Ci.
    (g) Act means the Uranium Mill Tailings Radiation Control Act of 
1978, as amended.
    (h) Administrator means the Administrator of the Environmental 
Protection Agency.
    (i) Secretary means the Secretary of Energy.
    (j) Commission means the Nuclear Regulatory Commission.
    (k) Indian tribe means any tribe, band, clan, group, pueblo, or 
community of Indians recognized as eligible for services provided by the 
Secretary of the Interior to Indians.
    (l) Processing site means:
    (1) Any site, including the mill, designated by the Secretary under 
Section 102(a)(1) of the Act; and
    (2) Any other real property or improvement thereon which is in the 
vicinity of such site, and is determined by the Secretary, in 
consultation with the Commission, to be contaminated with residual 
radioactive materials derived from such site.
    (m) Tailings means the remaining portion of a metal-bearing ore 
after some or all of such metal, such as uranium, has been extracted.
    (n) Disposal period means the period of time beginning March 7, 1983 
and ending with the completion of all subpart A requirements specified 
under a plan for remedial action except those specified in Sec. 192.03 
and Sec. 192.04.
    (o) Plan for remedial action means a written plan (or plans) for 
disposal and cleanup of residual radioactive materials associated with a 
processing site that incorporates the results of site characterization 
studies, environmental assessments or impact statements, and engineering 
assessments so as to satisfy the requirements of subparts A and B of 
this part. The plan(s) shall be developed in accordance with the 
provisions of Section 108(a) of the Act with the concurrence of the 
Commission and in consultation, as appropriate, with the Indian Tribe 
and the Secretary of Interior.
    (p) Post-disposal period means the period of time beginning 
immediately after the disposal period and ending at

[[Page 19]]

termination of the monitoring period established under Sec. 192.03.
    (q) Groundwater means water below the ground surface in a zone of 
saturation.
    (r) Underground source of drinking water means an aquifer or its 
portion:
    (1)(i) Which supplies any public water system as defined in Sec. 
141.2 of this chapter; or
    (ii) Which contains a sufficient quantity of groundwater to supply a 
public water system; and
    (A) Currently supplies drinking water for human consumption; or
    (B) Contains fewer than 10,000 mg/l total dissolved solids; and
    (2) Which is not an exempted aquifer as defined in Sec. 144.7 of 
this chapter.

[48 FR 602, Jan. 5, 1983, as amended at 60 FR 2865, Jan. 11, 1995]



Sec. 192.02  Standards.

    Control of residual radioactive materials and their listed 
constituents shall be designed \1\ to:
---------------------------------------------------------------------------

    \1\ Because the standard applies to design, monitoring after 
disposal is not required to demonstrate compliance with respect to Sec. 
192.02(a) and (b).
---------------------------------------------------------------------------

    (a) Be effective for up to one thousand years, to the extent 
reasonably achievable, and, in any case, for at least 200 years, and,
    (b) Provide reasonable assurance that releases of radon-222 from 
residual radioactive material to the atmosphere will not:
    (1) Exceed an average \2\ release rate of 20 picocuries per square 
meter per second, or
---------------------------------------------------------------------------

    \2\ This average shall apply over the entire surface of the disposal 
site and over at least a one-year period. Radon will come from both 
residual radioactive materials and from materials covering them. Radon 
emissions from the covering materials should be estimated as part of 
developing a remedial action plan for each site. The standard, however, 
applies only to emissions from residual radioactive materials to the 
atmosphere.
---------------------------------------------------------------------------

    (2) Increase the annual average concentration of radon-222 in air at 
or above any location outside the disposal site by more than one-half 
picocurie per liter.
    (c) Provide reasonable assurance of conformance with the following 
groundwater protection provisions:
    (1) The Secretary shall, on a site-specific basis, determine which 
of the constituents listed in Appendix I to Part 192 are present in or 
reasonably derived from residual radioactive materials and shall 
establish a monitoring program adequate to determine background levels 
of each such constituent in groundwater at each disposal site.
    (2) The Secretary shall comply with conditions specified in a plan 
for remedial action which includes engineering specifications for a 
system of disposal designed to ensure that constituents identified under 
paragraph (c)(1) of this section entering the groundwater from a 
depository site (or a processing site, if residual radioactive materials 
are retained on the site) will not exceed the concentration limits 
established under paragraph (c)(3) of this section (or the supplemental 
standards established under Sec. 192.22) in the uppermost aquifer 
underlying the site beyond the point of compliance established under 
paragraph (c)(4) of this section.
    (3) Concentration limits:
    (i) Concentration limits shall be determined in the groundwater for 
listed constituents identified under paragraph (c)(1) of this section. 
The concentration of a listed constituent in groundwater must not 
exceed:
    (A) The background level of that constituent in the groundwater; or
    (B) For any of the constituents listed in Table 1 to subpart A, the 
respective value given in that Table if the background level of the 
constituent is below the value given in the Table; or
    (C) An alternate concentration limit established pursuant to 
paragraph (c)(3)(ii) of this section.
    (ii)(A) The Secretary may apply an alternate concentration limit if, 
after considering remedial or corrective actions to achieve the levels 
specified in paragraphs (c)(3)(i)(A) and (B) of this section, he has 
determined that the constituent will not pose a substantial present or 
potential hazard to human health and the environment as long as the 
alternate concentration limit is not exceeded, and the Commission has 
concurred.
    (B) In considering the present or potential hazard to human health 
and the

[[Page 20]]

environment of alternate concentration limits, the following factors 
shall be considered:
    (1) Potential adverse effects on groundwater quality, considering:
    (i) The physical and chemical characteristics of constituents in the 
residual radioactive material at the site, including their potential for 
migration;
    (ii) The hydrogeological characteristics of the site and surrounding 
land;
    (iii) The quantity of groundwater and the direction of groundwater 
flow;
    (iv) The proximity and withdrawal rates of groundwater users;
    (v) The current and future uses of groundwater in the region 
surrounding the site;
    (vi) The existing quality of groundwater, including other sources of 
contamination and their cumulative impact on the groundwater quality;
    (vii) The potential for health risks caused by human exposure to 
constituents;
    (viii) The potential damage to wildlife, crops, vegetation, and 
physical structures caused by exposure to constituents;
    (ix) The persistence and permanence of the potential adverse 
effects;
    (x) The presence of underground sources of drinking water and 
exempted aquifers identified under Sec. 144.7 of this chapter; and
    (2) Potential adverse effects on hydraulically-connected surface-
water quality, considering:
    (i) The volume and physical and chemical characteristics of the 
residual radioactive material at the site;
    (ii) The hydrogeological characteristics of the site and surrounding 
land;
    (iii) The quantity and quality of groundwater, and the direction of 
groundwater flow;
    (iv) The patterns of rainfall in the region;
    (v) The proximity of the site to surface waters;
    (vi) The current and future uses of surface waters in the region 
surrounding the site and any water quality standards established for 
those surface waters;
    (vii) The existing quality of surface water, including other sources 
of contamination and their cumulative impact on surface water quality;
    (viii) The potential for health risks caused by human exposure to 
constituents;
    (ix) The potential damage to wildlife, crops, vegetation, and 
physical structures caused by exposure to constituents; and
    (x) The persistence and permanence of the potential adverse effects.
    (4) Point of compliance: The point of compliance is the location at 
which the groundwater concentration limits of paragraph (c)(3) of this 
section apply. The point of compliance is the intersection of a vertical 
plane with the uppermost aquifer underlying the site, located at the 
hydraulically downgradient limit of the disposal area plus the area 
taken up by any liner, dike, or other barrier designed to contain the 
residual radioactive material.
    (d) Each site on which disposal occurs shall be designed and 
stabilized in a manner that minimizes the need for future maintenance.

[60 FR 2865, Jan. 11, 1995]



Sec. 192.03  Monitoring.

    A groundwater monitoring plan shall be implemented, to be carried 
out over a period of time commencing upon completion of remedial actions 
taken to comply with the standards in Sec. 192.02, and of a duration 
which is adequate to demonstrate that future performance of the system 
of disposal can reasonably be expected to be in accordance with the 
design requirements of Sec. 192.02(c). This plan and the length of the 
monitoring period shall be modified to incorporate any corrective 
actions required under Sec. 192.04 or Sec. 192.12(c).

[60 FR 2866, Jan. 11, 1995]



Sec. 192.04  Corrective action.

    If the groundwater concentration limits established for disposal 
sites under provisions of Sec. 192.02(c) are found or projected to be 
exceeded, a corrective action program shall be placed into operation as 
soon as is practicable, and in no event later than eighteen (18) months 
after a finding of exceedance. This corrective action program will 
restore the performance of the system of disposal to the original 
concentration limits established under

[[Page 21]]

Sec. 192.02(c)(3), to the extent reasonably achievable, and, in any 
case, as a minimum shall:
    (a) Conform with the groundwater provisions of Sec. 192.02(c)(3), 
and
    (b) Clean up groundwater in conformance with subpart B, modified as 
appropriate to apply to the disposal site.

[60 FR 2866, Jan. 11, 1995]



    Sec. Table 1 to Subpart A of Part 192--Maximum Concentration of 
                 Constituents for Groundwater Protection

------------------------------------------------------------------------
      Constituent concentration \1\                   Maximum
------------------------------------------------------------------------
Arsenic.................................  0.05
Barium..................................  1.0
Cadmium.................................  0.01
Chromium................................  0.05
Lead....................................  0.05
Mercury.................................  0.002
Selenium................................  0.01
Silver..................................  0.05
Nitrate (as N)..........................  10.
Molybdenum..............................  0.1
Combined radium-226 and radium-228......  5 pCi/liter
Combined uranium-234 and uranium-238 \2\  30 pCi/liter
Gross alpha-particle activity (excluding  15 pCi/liter
 radon and uranium).
Endrin (1,2,3,4,10,10-hexachloro-6,7-     0.0002
 exposy-1,4,4a,5,6,7,8,8a-octahydro-1,4-
 endo,endo-5,8-dimethanonaphthalene).
Lindane (1,2,3,4,5,6-                     0.004
 hexachlorocyclohexane, gamma insomer).
Methoxychlor (1,1,1-trichloro-2,2'-bis(p- 0.1
 methoxyphenylethane)).
Toxaphene (C10 H10 Cl6, technical         0.005
 chlorinated camphene, 67-69 percent
 chlorine).
2,4-D (2,4-dichlorophenoxyacetic acid)..  0.1
2,4,5-TP Silvex (2,4,5-                   0.01
 trichlorophenoxypropionic acid).
------------------------------------------------------------------------
\1\ Milligrams per liter, unless stated otherwise.
\2\ Where secular equilibrium obtains, this criterion will be satisfied
  by a concentration of 0.044 milligrams per liter (0.044 mg/l). For
  conditions of other than secular equilibrium, a corresponding value
  may be derived and applied, based on the measured site-specific ratio
  of the two isotopes of uranium.


[60 FR 2866, Jan. 11, 1995]



Subpart B_Standards for Cleanup of Land and Buildings Contaminated with 
  Residual Radioactive Materials from Inactive Uranium Processing Sites



Sec. 192.10  Applicability.

    This subpart applies to land and buildings that are part of any 
processing site designated by the Secretary of Energy under section 102 
of the Act. section 101 of the Act, states, in part, that ``processing 
site'' means--
    (a) Any site, including the mill, containing residual radioactive 
materials at which all or substantially all of the uranium was produced 
for sale to any Federal agency prior to January 1, 1971, under a 
contract with any Federal agency, except in the case of a site at or 
near Slick Rock, Colorado, unless--
    (1) Such site was owned or controlled as of Januray 1, 1978, or is 
thereafter owned or controlled, by any Federal agency, or
    (2) A license (issued by the (Nuclear Regulatory) Commission or its 
predecessor agency under the Atomic Energy Act of 1954 or by a State as 
permitted under section 274 of such Act) for the production at site of 
any uranium or thorium product derived from ores is in effect on January 
1, 1978, or is issued or renewed after such date; and
    (b) Any other real property or improvement thereon which--
    (1) Is in the vicinity of such site, and
    (2) Is determined by the Secretary, in consultation with the 
Commission, to be contaminated with residual radioactive materials 
derived from such site.



Sec. 192.11  Definitions.

    (a) Unless otherwise indicated in this subpart, all terms shall have 
the same meaning as defined in subpart A.
    (b) Land means any surface or subsurface land that is not part of a 
disposal site and is not covered by an occupiable building.
    (c) Working Level (WL) means any combination of short-lived radon 
decay products in one liter of air that will result in the ultimate 
emission of alpha particles with a total energy of 130 billion electron 
volts.
    (d) Soil means all unconsolidated materials normally found on or 
near the surface of the earth including, but not limited to, silts, 
clays, sands, gravel, and small rocks.
    (e) Limited use groundwater means groundwater that is not a current 
or potential source of drinking water because (1) the concentration of 
total dissolved solids is in excess of 10,000 mg/l,

[[Page 22]]

or (2) widespread, ambient contamination not due to activities involving 
residual radioactive materials from a designated processing site exists 
that cannot be cleaned up using treatment methods reasonably employed in 
public water systems, or (3) the quantity of water reasonably available 
for sustained continuous use is less than 150 gallons per day. The 
parameters for determining the quantity of water reasonably available 
shall be determined by the Secretary with the concurrence of the 
Commission.

[48 FR 602, Jan. 5, 1983, as amended at 60 FR 2866, Jan. 11, 1995]



Sec. 192.12  Standards.

    Remedial actions shall be conducted so as to provide reasonable 
assurance that, as a result of residual radioactive materials from any 
designated processing site:
    (a) The concentration of radium-226 in land averaged over any area 
of 100 square meters shall not exceed the background level by more 
than--
    (1) 5 pCi/g, averaged over the first 15 cm of soil below the 
surface, and
    (2) 15 pCi/g, averaged over 15 cm thick layers of soil more than 15 
cm below the surface.
    (b) In any occupied or habitable building--
    (1) The objective of remedial action shall be, and reasonable effort 
shall be made to achieve, an annual average (or equivalent) radon decay 
product concentration (including background) not to exceed 0.02 WL. In 
any case, the radon decay product concentration (including background) 
shall not exceed 0.03 WL, and
    (2) The level of gamma radiation shall not exceed the background 
level by more than 20 microroentgens per hour.
    (c) The Secretary shall comply with conditions specified in a plan 
for remedial action which provides that contamination of groundwater by 
listed constituents from residual radioactive material at any designated 
processing site (Sec. 192.01(1)) shall be brought into compliance as 
promptly as is reasonably achievable with the provisions of Sec. 
192.02(c)(3) or any supplemental standards established under Sec. 
192.22. For the purposes of this subpart:
    (1) A monitoring program shall be carried out that is adequate to 
define backgroundwater quality and the areal extent and magnitude of 
groundwater contamination by listed constituents from residual 
radioactive materials (Sec. 192.02(c)(1)) and to monitor compliance 
with this subpart. The Secretary shall determine which of the 
constituents listed in Appendix I to part 192 are present in or could 
reasonably be derived from residual radioactive material at the site, 
and concentration limits shall be established in accordance with Sec. 
192.02(c)(3).
    (2) (i) If the Secretary determines that sole reliance on active 
remedial procedures is not appropriate and that cleanup of the 
groundwater can be more reasonably accomplished in full or in part 
through natural flushing, then the period for remedial procedures may be 
extended. Such an extended period may extend to a term not to exceed 100 
years if:
    (A) The concentration limits established under this subpart are 
projected to be satisfied at the end of this extended period,
    (B) Institutional control, having a high degree of permanence and 
which will effectively protect public health and the environment and 
satisfy beneficial uses of groundwater during the extended period and 
which is enforceable by the administrative or judicial branches of 
government entities, is instituted and maintained, as part of the 
remedial action, at the processing site and wherever contamination by 
listed constituents from residual radioactive materials is found in 
groundwater, or is projected to be found, and
    (C) The groundwater is not currently and is not now projected to 
become a source for a public water system subject to provisions of the 
Safe Drinking Water Act during the extended period.
    (ii) Remedial actions on groundwater conducted under this subpart 
may occur before or after actions under Section 104(f)(2) of the Act are 
initiated.
    (3) Compliance with this subpart shall be demonstrated through the 
monitoring program established under paragraph (c)(1) of this section at 
those locations not beneath a disposal site

[[Page 23]]

and its cover where groundwater contains listed constituents from 
residual radioactive material.

[48 FR 602, Jan. 5, 1983, as amended at 60 FR 2867, Jan. 11, 1995]



                        Subpart C_Implementation



Sec. 192.20  Guidance for implementation.

    Section 108 of the Act requires the Secretary of Energy to select 
and perform remedial actions with the concurrence of the Nuclear 
Regulatory Commission and the full participation of any State that pays 
part of the cost, and in consultation, as appropriate, with affected 
Indian Tribes and the Secretary of the Interior. These parties, in their 
respective roles under section 108, are referred to hereafter as ``the 
implementing agencies.'' The implementing agencies shall establish 
methods and procedures to provide ``reasonable assurance'' that the 
provisions of Subparts A and B are satisfied. This should be done as 
appropriate through use of analytic models and site-specific analyses, 
in the case of Subpart A, and for Subpart B through measurements 
performed within the accuracy of currently available types of field and 
laboratory instruments in conjunction with reasonable survey and 
sampling procedures. These methods and procedures may be varied to suit 
conditions at specific sites. In particular:
    (a)(1) The purpose of Subpart A is to provide for long-term 
stabilization and isolation in order to inhibit misuse and spreading of 
residual radioactive materials, control releases of radon to air, and 
protect water. Subpart A may be implemented through analysis of the 
physical properties of the site and the control system and projection of 
the effects of natural processes over time. Events and processes that 
could significantly affect the average radon release rate from the 
entire disposal site should be considered. Phenomena that are localized 
or temporary, such as local cracking or burrowing of rodents, need to be 
taken into account only if their cumulative effect would be significant 
in determining compliance with the standard. Computational models, 
theories, and prevalent expert judgment may be used to decide that a 
control system design will satisfy the standard. The numerical range 
provided in the standard for the longevity of the effectiveness of the 
control of residual radioactive materials allows for consideration of 
the various factors affecting the longevity of control and stabilization 
methods and their costs. These factors have different levels of 
predictability and may vary for the different sites.
    (2) Protection of water should be considered on a case-specific 
basis, drawing on hydrological and geochemical surveys and all other 
relevant data. The hydrologic and geologic assessment to be conducted at 
each site should include a monitoring program sufficient to establish 
background groundwater quality through one or more upgradient or other 
appropriately located wells. The groundwater monitoring list in Appendix 
IX of part 264 of this chapter (plus the additional constituents in 
Table A of this paragraph) may be used for screening purposes in place 
of Appendix I of part 192 in the monitoring program. New depository 
sites for tailings that contain water at greater than the level of 
``specific retention'' should use aliner or equivalent. In considering 
design objectives for groundwater protection, the implementing agencies 
should give priority to concentration levels in the order listed under 
Sec. 192.02(c)(3)(i). When considering the potential for health risks 
caused by human exposure to known or suspected carcinogens, alternate 
concentration limits pursuant to paragraph 192.02(c)(3)(ii) should be 
established at concentration levels which represent an excess lifetime 
risk, at a point of exposure, to an average individual no greater than 
between 10-4 and 10-6.

     Table A to Sec.  192.20(a)(2)--Additional Listed Constituents
Nitrate (as N)
Molybdenum
Combined radium-226 and radium-228
Combined uranium-234 and uranium-238
Gross alpha-particle activity (excluding radon and uranium)
 

    (3) The plan for remedial action, concurred in by the Commission, 
will specify how applicable requirements of subpart A are to be 
satisfied. The plan

[[Page 24]]

should include the schedule and steps necessary to complete disposal 
operations at the site. It should include an estimate of the inventory 
of wastes to be disposed of in the pile and their listed constituents 
and address any need to eliminate free liquids; stabilization of the 
wastes to a bearing capacity sufficient to support the final cover; and 
the design and engineering specifications for a cover to manage the 
migration of liquids through the stabilized pile, function without 
maintenance, promote drainage and minimize erosion or abrasion of the 
cover, and accommodate settling and subsidence so that cover integrity 
is maintained. Evaluation of proposed designs to conform to subpart A 
should be based on realistic technical judgments and include use of 
available empirical information. The consideration of possible failure 
modes and related corrective actions should be limited to reasonable 
failure assumptions, with a demonstration that the disposal design is 
generally amenable to a range of corrective actions.
    (4) The groundwater monitoring list in Appendix IX of part 264 of 
this chapter (plus the additional constituents in Table A in paragraph 
(a)(2) of this section) may be used for screening purposes in place of 
Appendix I of part 192 in monitoring programs. The monitoring plan 
required under Sec. 192.03 should be designed to include verification 
of site-specific assumptions used to project the performance of the 
disposal system. Prevention of contamination of groundwater may be 
assessed by indirect methods, such as measuring the migration of 
moisture in the various components of the cover, the tailings, and the 
area between the tailings and the nearest aquifer, as well as by direct 
monitoring of groundwater. In the case of vicinity properties (Sec. 
192.01(l)(2)), such assessments may not be necessary, as determined by 
the Secretary, with the concurrence of the Commission, considering such 
factors as local geology and the amount of contamination present. 
Temporary excursions from applicable limits of groundwater 
concentrations that are attributable to a disposal operation itself 
shall not constitute a basis for considering corrective action under 
Sec. 192.04 during the disposal period, unless the disposal operation 
is suspended prior to completion for other than seasonal reasons.
    (b)(1) Compliance with Sec. 192.12(a) and (b) of subpart B, to the 
extent practical, should be demonstrated through radiation surveys. Such 
surveys may, if appropriate, be restricted to locations likely to 
contain residual radioactive materials. These surveys should be designed 
to provide for compliance averaged over limited areas rather than point-
by-point compliance with the standards. In most cases, measurement of 
gamma radiation exposure rates above and below the land surface can be 
used to show compliance with Sec. 192.12(a). Protocols for making such 
measurements should be based on realistic radium distributions near the 
surface rather than extremes rarely encountered.
    (2) In Sec. 192.12(a), ``background level'' refers to the native 
radium concentration in soil. Since this may not be determinable in the 
presence of contamination by residual radioactive materials, a surrogate 
``background level'' may be established by simple direct or indirect 
(e.g., gamma radiation) measurements performed nearby but outside of the 
contaminated location.
    (3) Compliance with Sec. 192.12(b) may be demonstrated by methods 
that the Department of Energy has approved for use under Pub. L. 92-314 
(10 CFR part 712), or by other methods that the implementing agencies 
determine are adequate. Residual radioactive materials should be removed 
from buildings exceeding 0.03 WL so that future replacement buildings 
will not pose a hazard [unless removal is not practical--see Sec. 
192.21(c)]. However, seal ants, filtration, and ventilation devices may 
provide reasonable as sur ance of reductions from 0.03 WL to below 0.02 
WL. In unusual cases, indoor radiation may exceed the levels specified 
in Sec. 192.12(b) due to sources other than residual radioactive 
materials. Re medial actions are not required in order to comply with 
the standard when there is reasonable assurance that residual 
radioactive materials are not the cause of such an excess.

[[Page 25]]

    (4) The plan(s) for remedial action will specify how applicable 
requirements of subpart B would be satisfied. The plan should include 
the schedule and steps necessary to complete the cleanup of groundwater 
at the site. It should document the extent of contamination due to 
releases prior to final disposal, including the identification and 
location of listed constituents and the rate and direction of movement 
of contaminated groundwater, based upon the monitoring carried out under 
Sec. 192.12(c)(1). In addition, the assessment should consider future 
plume movement, including an evaluation of such processes as attenuation 
and dilution and future contamination from beneath a disposal site. 
Monitoring for assessment and compliance purposes should be sufficient 
to establish the extent and magnitude of contamination, with reasonable 
assurance, through use of a carefully chosen minimal number of sampling 
locations. The location and number of monitoring wells, the frequency 
and duration of monitoring, and the selection of indicator analytes for 
long-term groundwater monitoring, and, more generally, the design and 
operation of the monitoring system, will depend on the potential for 
risk to receptors and upon other factors, including characteristics of 
the subsurface environment, such as velocity of groundwater flow, 
contaminant retardation, time of groundwater or contaminant transit to 
receptors, results of statistical evaluations of data trends, and 
modeling of the dynamics of the groundwater system. All of these factors 
should be incorporated into the design of a site-specific monitoring 
program that will achieve the purpose of the regulations in this subpart 
in the most cost-effective manner. In the case of vicinity properties 
(Sec. 192.01(l)(2)), such assessments will usually not be necessary. 
The Secretary, with the concurrence of the Commission, may consider such 
factors as local geology and amount of contamination present in 
determining criteria to decide when such assessments are needed. In 
cases where Sec. 192.12(c)(2) is invoked, the plan should include a 
monitoring program sufficient to verify projections of plume movement 
and attenuation periodically during the extended cleanup period. 
Finally, the plan should specify details of the method to be used for 
cleanup of groundwater.

[48 FR 602, Jan. 5, 1983, as amended at 60 FR 2867, Jan. 11, 1995]



Sec. 192.21  Criteria for applying supplemental standards.

    Unless otherwise indicated in this subpart, all terms shall have the 
same meaning as defined in Title I of the Act or in subparts A and B. 
The implementing agencies may (and in the case of paragraph (h) of this 
section shall) apply standards under Sec. 192.22 in lieu of the 
standards of subparts A or B if they determine that any of the following 
circumstances exists:
    (a) Remedial actions required to satisfy subpart A or B would pose a 
clear and present risk of injury to workers or to members of the public, 
notwithstanding reasonable measures to avoid or reduce risk.
    (b) Remedial actions to satisfy the cleanup standards for land, 
Sec. 192.12(a), and groundwater, Sec. 192.12(c), or the acquisition of 
minimum materials required for control to satisfy Sec. Sec. 192.02(b) 
and (c), would, notwithstanding reasonable measures to limit damage, 
directly produce health and environmental harm that is clearly excessive 
compared to the health and environmental benefits, now or in the future. 
A clear excess of health and environmental harm is harm that is long-
term, manifest, and grossly disproportionate to health and environmental 
benefits that may reasonably be anticipated.
    (c) The estimated cost of remedial action to satisfy Sec. 192.12(a) 
at a ``vicinity'' site (described under section 101(6)(B) of the Act) is 
unreasonably high relative to the long-term benefits, and the residual 
radioactive materials do not pose a clear present or future hazard. The 
likelihood that buildings will be erected or that people will spend long 
periods of time at such a vicinity site should be considered in 
evaluating this hazard. Remedial action will generally not be necessary 
where residual radioactive materials have been placed semi-permanently 
in a location where site-specific factors limit their hazard and from 
which they are costly or difficult to remove, or

[[Page 26]]

where only minor quantities of residual radioactive materials are 
involved. Examples are residual radioactive materials under hard surface 
public roads and sidewalks, around public sewer lines, or in fence post 
foundations. Supplemental standards should not be applied at such sites, 
however, if individuals are likely to be exposed for long periods of 
time to radiation from such materials at levels above those that would 
prevail under Sec. 192.12(a).
    (d) The cost of a remedial action for cleanup of a building under 
Sec. 192.12(b) is clearly unreasonably high relative to the benefits. 
Factors that should be included in this judgment are the anticipated 
period of occupancy, the incremental radiation level that would be 
affected by the remedial action, the residual useful lifetime of the 
building, the potential for future construction at the site, and the 
applicability of less costly remedial methods than removal of residual 
radioactive materials.
    (e) There is no known remedial action.
    (f) The restoration of groundwater quality at any designated 
processing site under Sec. 192.12(c) is technically impracticable from 
an engineering perspective.
    (g) The groundwater meets the criteria of Sec. 192.11(e).
    (h) Radionuclides other than radium-226 and its decay products are 
present in sufficient quantity and concentration to constitute a 
significant radiation hazard from residual radioactive materials.

[48 FR 602, Jan. 5, 1983, as amended at 60 FR 2868, Jan. 11, 1995]



Sec. 192.22  Supplemental standards.

    Federal agencies implementing subparts A and B may in lieu thereof 
proceed pursuant to this section with respect to generic or individual 
situations meeting the eligibility requirements of Sec. 192.21.
    (a) When one or more of the criteria of Sec. 192.21(a) through (g) 
applies, the Secretary shall select and perform that alternative 
remedial action that comes as close to meeting the otherwise applicable 
standard under Sec. 192.02(c)(3) as is reasonably achievable.
    (b) When Sec. 192.21(h) applies, remedial actions shall reduce 
other residual radioactivity to levels that are as low as is reasonably 
achievable and conform to the standards of subparts A and B to the 
maximum extent practicable.
    (c) The implementing agencies may make general determinations 
concerning remedial actions under this section that will apply to all 
locations with specified characteristics, or they may make a 
determination for a specific location. When remedial actions are 
proposed under this section for a specific location, the Department of 
Energy shall inform any private owners and occupants of the affected 
location and solicit their comments. The Department of Energy shall 
provide any such comments to the other implementing agencies. The 
Department of Energy shall also periodically inform the Environmental 
Protection Agency of both general and individual determinations under 
the provisions of this section.
    (d) When Sec. 192.21(b), (f), or (g) apply, implementing agencies 
shall apply any remedial actions for the restoration of contamination of 
groundwater by residual radioactive materials that is required to 
assure, at a minimum, protection of human health and the environment. In 
addition, when Sec. 192.21(g) applies, supplemental standards shall 
ensure that current and reasonably projected uses of the affected 
groundwater are preserved.

[48 FR 602, Jan. 5, 1983, as amended at 60 FR 2868, Jan. 11, 1995]



Sec. 192.23  Effective date.

    Subparts A, B, and C shall be effective March 7, 1983.



   Subpart D_Standards for Management of Uranium Byproduct Materials 

   Pursuant to Section 84 of the Atomic Energy Act of 1954, as Amended

    Source: 48 FR 45946, Oct. 7, 1983, unless otherwise noted.



Sec. 192.30  Applicability.

    This subpart applies to the management of uranium byproduct 
materials under section 84 of the Atomic Energy Act of 1954 (henceforth 
designated ``the

[[Page 27]]

Act''), as amended, during and following processing of uranium ores, and 
to restoration of disposal sites following any use of such sites under 
section 83(b)(1)(B) of the Act.



Sec. 192.31  Definitions and cross-references.

    References in this subpart to other parts of the Code of Federal 
Regulations are to those parts as codified on January 1, 1983.
    (a) Unless otherwise indicated in this subpart, all terms shall have 
the same meaning as in Title II of the Uranium Mill Tailings Rediation 
Control Act of 1978, subparts A and B of this part, or parts 190, 260, 
261, and 264 of this chapter. For the purposes of this subpart, the 
terms ``waste,'' ``hazardous waste,'' and related terms, as used in 
parts 260, 261, and 264 of this chapter shall apply to byproduct 
material.
    (b) Uranium byproduct material means the tailings or wastes produced 
by the extraction or concentration of uranium from any ore processed 
primarily for its source material content. Ore bodies depleted by 
uranium solution extraction operations and which remain underground do 
not constitute ``byproduct material'' for the purpose of this subpart.
    (c) Control means any action to stabilize, inhibit future misuse of, 
or reduce emissions or effluents from uranium byproduct materials.
    (d) Licensed site means the area contained within the boundary of a 
location under the control of persons generating or storing uranium 
byproduct materials under a license issued pursuant to section 84 of the 
Act. For purposes of this subpart, ``licensed site'' is equivalent to 
``regulated unit'' in subpart F of part 264 of this chapter.
    (e) Disposal site means a site selected pursuant to section 83 of 
the Act.
    (f) Disposal area means the region within the perimeter of an 
impoundment or pile containing uranium by product materials to which the 
post-closure requirements of Sec. 192.32(b)(1) of this subpart apply.
    (g) Regulatory agency means the U.S. Nuclear Regulatory Commission.
    (h) Closure period means the period of time beginning with the 
cessation, with respect to a waste impoundment, of uranium ore 
processing operations and ending with completion of requirements 
specified under a closure plan.
    (i) Closure plan means the plan required under Sec. 264.112 of this 
chapter.
    (j) Existing portion means that land surface area of an existing 
surface impoundment on which significant quantities of uranium byproduct 
materials have been placed prior to promulgation of this standard.
    (k) As expeditiously as practicable considering technological 
feasibility means as quickly as possible considering: the physical 
characteristics of the tailings and the site; the limits of available 
technology; the need for consistency with mandatory requirements of 
other regulatory programs; and factors beyond the control of the 
licensee. The phrase permits consideration of the cost of compliance 
only to the extent specifically provided for by use of the term 
``available technology.''
    (l) Permanent Radon Barrier means the final radon barrier 
constructed to achieve compliance with, including attainment of, the 
limit on releases of radon-222 in Sec. 192.32(b)(1)(ii).
    (m) Available technology means technologies and methods for 
emplacing a permanent radon barrier on uranium mill tailings piles or 
impoundments. This term shall not be construed to include extraordinary 
measures or techniques that would impose costs that are grossly 
excessive as measured by practice within the industry or one that is 
reasonably analogous, (such as, by way of illustration only, 
unreasonable overtime, staffing or transportation requirements, etc., 
considering normal practice in the industry; laser fusion, of soils, 
etc.), provided there is reasonable progress toward emplacement of a 
permanent radon barrier. To determine grossly excessive costs, the 
relevant baseline against which cost increases shall be compared is the 
cost estimate for tailings impoundment closure contained in the 
licensee's tailings closure plan, but costs beyond such estimates shall 
not automatically be considered grossly excessive.
    (n) Tailings Closure Plan (Radon) means the Nuclear Regulatory 
Commission or Agreement State approved plan detailing activities to 
accomplish timely emplacement of a permanent

[[Page 28]]

radon barrier. A tailings closure plan shall include a schedule for key 
radon closure milestone activities such as wind blown tailings retrieval 
and placement on the pile, interim stabilization (including dewatering 
or the removal of freestanding liquids and recontouring), and 
emplacement of a permanent radon barrier constructed to achieve 
compliance with the 20 pCi/m\2\-s flux standard as expeditiously as 
practicable considering technological feasibility (including factors 
beyond the control of the licensee).
    (o) Factors beyond the control of the licensee means factors 
proximately causing delay in meeting the schedule in the applicable 
license for timely emplacement of the permanent radon barrier 
notwithstanding the good faith efforts of the licensee to achieve 
compliance. These factors may include, but are not limited to, physical 
conditions at the site; inclement weather or climatic conditions; an act 
of God; an act of war; a judicial or administrative order or decision, 
or change to the statutory, regulatory, or other legal requirements 
applicable to the licensee's facility that would preclude or delay the 
performance of activities required for compliance; labor disturbances; 
any modifications, cessation or delay ordered by state, Federal or local 
agencies; delays beyond the time reasonably required in obtaining 
necessary governmental permits, licenses, approvals or consent for 
activities described in the tailings closure plan (radon) proposed by 
the licensee that result from agency failure to take final action after 
the licensee has made a good faith, timely effort to submit legally 
sufficient applications, responses to requests (including relevant data 
requested by the agencies), or other information, including approval of 
the tailings closure plan by NRC or the affected Agreement State; and an 
act or omission of any third party over whom the licensee has no 
control.
    (p) Operational means that a uranium mill tailings pile or 
impoundment is being used for the continued placement of uranium 
byproduct material or is in standby status for such placement. A 
tailings pile or impoundment is operational from the day that uranium 
byproduct material is first placed in the pile or impoundment until the 
day final closure begins.
    (q) Milestone means an enforceable date by which action, or the 
occurrence of an event, is required for purposes of achieving compliance 
with the 20 pCi/m\2\-s flux standard.

[48 FR 45946, Oct. 7, 1983, as amended at 58 FR 60355, Nov. 15, 1993]



Sec. 192.32  Standards.

    (a) Standards for application during processing operations and prior 
to the end of the closure period. (1) Surface impoundments (except for 
an existing portion) subject to this subpart must be designed, 
constructed, and installed in such manner as to conform to the 
requirements of Sec. 264.221 of this chapter, except that at sites 
where the annual precipitation falling on the impoundment and any 
drainage area contributing surface runoff to the impoundment is less 
than the annual evaporation from the impoundment, the requirements of 
Sec. 264.228(a)(2) (iii)(E) referenced in Sec. 264.221 do not apply.
    (2) Uranium byproduct materials shall be managed so as to conform to 
the ground water protection standard in Sec. 264.92 of this chapter, 
except that for the purposes of this subpart:
    (i) To the list of hazardous constituents referenced in Sec. 264.93 
of this chapter are added the chemical elements molybdenum and uranium,
    (ii) To the concentration limits provided in Table 1 of Sec. 264.94 
of this chapter are added the radioactivity limits in Table A of this 
subpart,
    (iii) Detection monitoring programs required under Sec. 264.98 to 
establish the standards required under Sec. 264.92 shall be completed 
within one (1) year of promulgation,
    (iv) The regulatory agency may establish alternate concentration 
limits (to be satisfied at the point of compliance specified under Sec. 
264.95) under the criteria of Sec. 264.94(b), provided that, after 
considering practicable corrective actions, these limits are as low as 
reasonably achievable, and that, in any case, the standards of Sec. 
264.94(a) are satisfied at all points at a greater distance than 500 
meters from the edge of the disposal area and/or outside the site 
boundary, and

[[Page 29]]

    (v) The functions and responsibilities designated in Part 264 of 
this chapter as those of the ``Regional Administrator'' with respect to 
``facility permits'' shall be carried out by the regulatory agency, 
except that exemptions of hazardous constituents under Sec. 264.93 (b) 
and (c) of this chapter and alter nate concentration limits established 
under Sec. 264.94 (b) and (c) of this chapter (except as otherwise 
provided in Sec. 192.32(a)(2)(iv)) shall not be effective until EPA has 
concurred therein.
    (3)(i) Uranium mill tailings piles or impoundments that are 
nonoperational and subject to a license by the Nuclear Regulatory 
Commission or an Agreement State shall limit releases of radon-222 by 
emplacing a permanent radon barrier. This permanent radon barrier shall 
be constructed as expeditiously as practicable considering technological 
feasibility (including factors beyond the control of the licensee) after 
the pile or impoundment ceases to be operational. Such control shall be 
carried out in accordance with a written tailings closure plan (radon) 
to be incorporated by the Nuclear Regulatory Commission or Agreement 
State into individual site licenses.
    (ii) The Nuclear Regulatory Commission or Agreement State may 
approve a licensee's request to extend the time for performance of 
milestones if, after providing an opportunity for public participation, 
the Nuclear Regulatory Commission or Agreement State finds that 
compliance with the 20 pCi/m\2\-s flux standard has been demonstrated 
using a method approved by the NRC, in the manner required in 
192.32(a)(4)(i). Only under these circumstances and during the period of 
the extension must compliance with the 20 pCi/m\2\-s flux standard be 
demonstrated each year.
    (iii) The Nuclear Regulatory Commission or Agreement State may 
extend the final compliance date for emplacement of the permanent radon 
barrier, or relevant milestone, based upon cost if the new date is 
established after a finding by the Nuclear Regulatory Commission or 
Agreement State, after providing an opportunity for public 
participation, that the licensee is making good faith efforts to emplace 
a permanent radon barrier; the delay is consistent with the definition 
of ``available technology'' in Sec. 192.31(m); and the delay will not 
result in radon releases that are determined to result in significant 
incremental risk to the public health.
    (iv) The Nuclear Regulatory Commission or Agreement State may, in 
response to a request from a licensee, authorize by license or license 
amendment a portion of the site to remain accessible during the closure 
process to accept uranium byproduct material as defined in section 
11(e)(2) of the Atomic Energy Act, 42 U.S.C. 2014(e)(2), or to accept 
materials similar to the physical, chemical and radiological 
characteristics of the in situ uranium mill tailings and associated 
wastes, from other sources. No such authorization may be used as a means 
for delaying or otherwise impeding emplacement of the permanent radon 
barrier over the remainder of the pile or impoundment in a manner that 
will achieve compliance with the 20 pCi/m\2\-s flux standard, averaged 
over the entire pile or impoundment.
    (v) The Nuclear Regulatory Commission or Agreement State may, in 
response to a request from a licensee, authorize by license or license 
amendment a portion of a pile or impoundment to remain accessible after 
emplacement of a permanent radon barrier to accept uranium byproduct 
material as defined in section 11(e)(2) of the Atomic Energy Act, 42 
U.S.C. 2014(e)(2), if compliance with the 20 pCi/m\2\-s flux standard of 
Sec. 192.32(b)(1)(ii) is demonstrated by the licensee's monitoring 
conducted in a manner consistent with Sec. 192.32(a)(4)(i). Such 
authorization may be provided only if the Nuclear Regulatory Commission 
or Agreement State makes a finding, constituting final agency action and 
after providing an opportunity for public participation, that the site 
will continue to achieve the 20 pCi/m2-s flux standard when averaged 
over the entire impoundment.
    (4)(i) Upon emplacement of the permanent radon barrier pursuant to 
40 CFR 192.32(a)(3), the licensee shall conduct appropriate monitoring 
and analysis of the radon-222 releases to demonstrate that the design of 
the permanent radon barrier is effective in limiting releases of radon-
222 to a level

[[Page 30]]

not exceeding 20 pCi/m\2\-s as required by 40 CFR 192.32(b)(1)(ii). This 
monitoring shall be conducted using the procedures described in 40 CFR 
part 61, Appendix B, Method 115, or any other measurement method 
proposed by a licensee that the Nuclear Regulatory Commission or 
Agreement State approves as being at least as effective as EPA Method 
115 in demonstrating the effectiveness of the permanent radon barrier in 
achieving compliance with the 20 pCi/m\2\-s flux standard.
    (ii) When phased emplacement of the permanent radon barrier is 
included in the applicable tailings closure plan (radon), then radon 
flux monitoring required under Sec. 192.32(a)(4)(i) shall be conducted, 
however the licensee shall be allowed to conduct such monitoring for 
each portion of the pile or impoundment on which the radon barrier has 
been emplaced by conducting flux monitoring on the closed portion.
    (5) Uranium byproduct materials shall be managed so as to conform to 
the provisions of:
    (i) Part 190 of this chapter, ``Environmental Radiation Protection 
Standards for Nuclear Power Operations'' and
    (ii) Part 440 of this chapter, ``Ore Mining and Dressing Point 
Source Category: Effluent Limitations Guidelines and New Source 
Performance Standards, Subpart C, Uranium, Radium, and Vanadium Ores 
Subcategory.''
    (6) The regulatory agency, in conformity with Federal Radiation 
Protection Guidance (FR, May 18, 1960, pgs. 4402-4403), shall make every 
effort to maintain radiation doses from radon emissions from surface 
impoundments of uranium byproduct materials as far below the Federal 
Radiation Protection Guides as is practicable at each licensed site.
    (b) Standards for application after the closure period. At the end 
of the closure period:
    (1) Disposal areas shall each comply with the closure performance 
standard in Sec. 264.111 of this chapter with respect to 
nonradiological hazards and shall be designed \1\ to provide reasonable 
assurance of control of radiological hazards to
---------------------------------------------------------------------------

    \1\ The standard applies to design with a monitoring requirement as 
specified in Sec. 192.32(a)(4).
---------------------------------------------------------------------------

    (i) Be effective for one thousand years, to the extent reasonably 
achievable, and, in any case, for at least 200 years, and,
    (ii) Limit releases of radon-222 from uranium byproduct materials to 
the atmosphere so as to not exceed an average \2\ release rate of 20 
picocuries per square meter per second (pCi/m2s).
---------------------------------------------------------------------------

    \2\ This average shall apply to the entire surface of each disposal 
area over periods of at least one year, but short compared to 100 years. 
Radon will come from both uranium byproduct materials and from covering 
materials. Radon emissions from covering materials should be estimated 
as part of developing a closure plan for each site. The standard, 
however, applies only to emissions from uranium byproduct materials to 
the atmosphere.
---------------------------------------------------------------------------

    (2) The requirements of Sec. 192.32(b)(1) shall not apply to any 
portion of a licensed and/or disposal site which contains a 
concentration of radium-226 in land, averaged over areas of 100 square 
meters, which, as a result of uranium byproduct material, does not 
exceed the background level by more than:
    (i) 5 picocuries per gram (pCi/g), averaged over the first 15 
centimeters (cm) below the surface, and
    (ii) 15 pCi/g, averaged over 15 cm thick layers more than 15 cm 
below the surface.

[48 FR 45946, Oct. 7, 1983, as amended at 58 FR 60355-60356, Nov. 15, 
1993]



Sec. 192.33  Corrective action programs.

    If the ground water standards established under provisions of Sec. 
192.32(a)(2) are exceeded at any licensed site, a corrective action 
program as specified in Sec. 264.100 of this chapter shall be put into 
operation as soon as is practicable, and in no event later than eighteen 
(18) months after a finding of exceedance.



Sec. 192.34  Effective date.

    Subpart D shall be effective December 6, 1983.



                  Sec. Table A to Subpart D of Part 192

------------------------------------------------------------------------
                                                               pCi/liter
------------------------------------------------------------------------
Combined radium-226 and radium-228...........................          5

[[Page 31]]

 
Gross alpha-particle activity (excluding radon and uranium)..         15
------------------------------------------------------------------------



   Subpart E_Standards for Management of Thorium Byproduct Materials 

   Pursuant to Section 84 of the Atomic Energy Act of 1954, as Amended

    Source: 48 FR 45947, Oct. 7, 1983, unless otherwise noted.



Sec. 192.40  Applicability.

    This subpart applies to the management of thorium byproduct 
materials under section 84 of the Atomic Energy Act of 1954, as amended, 
during and following processing of thorium ores, and to restoration of 
disposal sites following any use of such sites under section 83(b)(1)(B) 
of the Act.



Sec. 192.41  Provisions.

    Except as otherwise noted in Sec. 192.41(e), the provisions of 
subpart D of this part, including Sec. Sec. 192.31, 192.32, and 192.33, 
shall apply to thorium byproduct material and:
    (a) Provisions applicable to the element uranium shall also apply to 
the element thorium;
    (b) Provisions applicable to radon-222 shall also apply to radon-
220; and
    (c) Provisions applicable to radium-226 shall also apply to radium-
228.
    (d) Operations covered under Sec. 192.32(a) shall be conducted in 
such a manner as to provide reasonable assurance that the annual dose 
equivalent does not exceed 25 millirems to the whole body, 75 millirems 
to the thyroid, and 25 millirems to any other organ of any member of the 
public as a result of exposures to the planned discharge of radioactive 
materials, radon-220 and its daughters excepted, to the general 
environment.
    (e) The provisions of Sec. 192.32(a) (3) and (4) do not apply to 
the management of thorium byproduct material.

[48 FR 45946, Oct. 7, 1983, as amended at 58 FR 60356, Nov. 15, 1993]



Sec. 192.42  Substitute provisions.

    The regulatory agency may, with the concurrence of EPA, substitute 
for any provisions of Sec. 192.41 of this subpart alternative 
provisions it deems more practical that will provide at least an 
equivalent level of protection for human health and the environment.



Sec. 192.43  Effective date.

    Subpart E shall be effective December 6, 1983.



            Sec. Appendix I to Part 192--Listed Constituents

Acetonitrile
Acetophenone (Ethanone, 1-phenyl)
2-Acetylaminofluorene (Acetamide, N-9H-fluoren-2-yl-)
Acetyl chloride
1-Acetyl-2-thiourea (Acetamide, N-(aminothioxymethyl)-)
Acrolein (2-Propenal)
Acrylamide (2-Propenamide)
Acrylonitrile (2-Propenenitrile)
Aflatoxins
Aldicarb (Propenal, 2-methyl-2-(methyl thio)-,O-
[(methylamino)carbonyl]oxime
Aldrin (1,4:5,8-Dimethanonaphthalene, 1,2,3,4,10,10-hexachloro-
1,4,4a,5,8,8a-
hexahydro(1[alpha],4[alpha],4a[beta],5[alpha],8[alpha],8[alpha][beta])-)
Allyl alcohol (2-Propen-1-ol)
Allyl chloride (1-Propane,3-chloro)
Aluminum phosphide
4-Aminobiphenyl ([1,1'-Biphenyl]-4-amine)
5-(Aminomethyl)-3-isoxazolol (3(2H)-Isoxazolone,5-(aminomethyl)-)
4-Aminopyridine (4-Pyridineamine)
Amitrole (lH-1,2,4-Triazol-3-amine)
Ammonium vanadate (Vanadic acid, ammonium salt)
Aniline (Benzenamine)
Antimony and compounds, N.O.S.\1\
---------------------------------------------------------------------------

    \1\ The abbreviation N.O.S. (not otherwise specified) signifies 
those members of the general class not specifically listed by name in 
this appendix.
---------------------------------------------------------------------------

Aramite (Sulfurous acid, 2-chloroethyl 2-[4-(1,1-dimethylethyl)phenoxy]-
1-methylethyl ester)
Arsenic and compounds, N.O.S.
Arsenic acid (Arsenic acid H3 AsO4)
Arsenic pentoxide (Arsenic oxide As2 O5)
Auramine (Benzamine, 4,4'-carbonimidoylbis[N,N-dimethyl-])
Azaserine (L-Serine, diazoacetate (ester))
Barium and compounds, N.O.S.
Barium cyanide
Benz[c]acridine (3,4-Benzacridine)
Benz[a]anthracene (1,2-Benzanthracene)
Benzal chloride (Benzene, dichloromethyl-)
Benzene (Cyclohexatriene)
Benzenearsonic acid (Arsenic acid, phenyl-)
Benzidine ([1,1'-Biphenyl]-4,4'-diamine)
Benzo[b]fluoranthene (Benz[e]acephananthrylene)

[[Page 32]]

Benzo[j]fluoranthene
Benzo[k]fluoranthene
Benzo[a]pyrene
p-Benzoquinone (2,5-Cyclohexadiene-1,4-dione)
Benzotrichloride (Benzene, (trichloro-methyl)-)
Benzyl chloride (Benzene, (chloromethyl)-)
Beryllium and compounds, N.O.S.
Bromoacetone (2-Propanone, 1-bromo-)
Bromoform (Methane, tribromo-)
4-Bromophenyl phenyl ether (Benzene, l-bromo-4-phenoxy-)
Brucine (Strychnidin-10-one, 2,3-dimeth-oxy-)
Butyl benzyl phthalate (1,2-Benzenedicarbozylic acid, butyl phenylmethyl 
ester)
Cacodylic acid (Arsinic acid, dimethyl)
Cadmium and compounds, N.O.S.
Calcium chromate (Chromic acid H2 CrO4, calcium 
salt)
Calcium cyanide (Ca(CN)2)
Carbon disulfide
Carbon oxyfluoride (Carbonic difluoride)
Carbon tetrachloride (Methane, tetrachloro-)
Chloral (Acetaldehyde, trichloro-)
Chlorambucil (Benzenebutanoic acid, 4-[bis(2-chloroethyl)amino]-)
Chlordane (4,7-Methano-1H-indene,1,2,4,5,6,7,8,8-octachloro-
2,3,3a,4,7,7a-hexahydro-)
Chlorinated benzenes, N.O.S.
Chlorinated ethane, N.O.S.
Chlorinated fluorocarbons, N.O.S.
Chlorinated naphthalene, N.O.S.
Chlorinated phenol, N.O.S.
Chlornaphazin (Naphthalenamine, N,N'-bis(2-chlorethyl)-)
Chloroacetaldehyde (Acetaldehyde, chloro-)
Chloroalkyl ethers, N.O.S.
p-Chloroaniline (Benzenamine, 4-chloro-)
Chlorobenzene (Benzene, chloro-)
Chlorobenzilate (Benzeneacetic acid, 4-chloro-[alpha]-(4-chlorophenyl)-
[alpha]-hydroxy-, ethyl ester)
p-Chloro-m-cresol (Phenol, 4-chloro-3-methyl)
2-Chloroethyl vinyl ether (Ethene, (2-chloroethoxy)-)
Chloroform (Methane, trichloro-)
Chloromethyl methyl ether (Methane, chloromethoxy-)
[beta]-Chloronapthalene (Naphthalene, 2-chloro-)
o-Chlorophenol (Phenol, 2-chloro-)
1-(o-Chlorophenyl)thiourea (Thiourea, (2-chlorophenyl-))
3-Chloropropionitrile (Propanenitrile, 3-chloro-)
Chromium and compounds, N.O.S.
Chrysene
Citrus red No. 2 (2-Naphthalenol, 1-[(2,5-dimethoxyphenyl)azo]-)
Coal tar creosote
Copper cyanide (CuCN)
Creosote
Cresol (Chresylic acid) (Phenol, methyl-)
Crotonaldehyde (2-Butenal)
Cyanides (soluble salts and complexes), N.O.S.
Cyanogen (Ethanedinitrile)
Cyanogen bromide ((CN)Br)
Cyanogen chloride ((CN)Cl)
Cycasin (beta-D-Glucopyranoside, (methyl-ONN-azoxy)methyl)
2-Cyclohexyl-4,6-dinitrophenol (Phenol, 2-cyclohexyl-4,6-dinitro-)
Cyclophosphamide (2H-1,3,2-Oxazaphosphorin-2-amine,N,N-bis(2-
chloroethyl) tetrahydro-,2-oxide)
2,4-D and salts and esters (Acetic acid, (2,4-dichlorophenoxy)-)
Daunomycin (5,12-Naphthacenedione,8-acetyl-10-[(3-amino-2,3,6-trideoxy-
[alpha]-Llyxo-hexopyranosyl)oxy]-7,8,9,10-tetrahydro-6,8,11-trihydroxy-
1-methoxy-,(8S-cis))
DDD (Benzene, 1,1'-(2,2-dichloroethylidene)bis[4-chloro-)
DDE (Benzene, 1,1-(dichloroethylidene)bis[4-chloro-)
DDT (Benzene, 1,1'-(2,2,2-trichloroethlyidene)bis[4-chloro-)
Diallate (Carbomothioic acid, bis(1-methylethyl)-,S-(2,3-dichloro-2-
propenyl) ester)
Dibenz[a,h]acridine
Dibenz[a,j]acridine
Dibenz[a,h]anthracene
7H-Dibenzo[c,g]carbazole
Dibenzo[a,e]pyrene (Naphtho[1,2,4,5-def)crysene)
Dibenzo[a,h]pyrene (Dibenzo[b,def]crysene)
Dibenzo[a,i]pyrene (Benzo[rst]pentaphene)
1,2-Dibromo-3-chloropropane (Propane, 1,2-dibromo-3-chloro-)
Dibutylphthalate (1,2-Benzenedicarboxylic acid, dibutyl ester)
o-Dichlorobenzene (Benzene, 1,2-dichloro-)
m-Dichlorobenzene (Benzene, 1,3-dichloro-)
p-Dichlorobenzene (Benzene, 1,4-dichloro-)
Dichlorobenzene, N.O.S. (Benzene; dichloro-, N.O.S.)
3,3'-Dichlorobenzidine ([1,1'-Biphenyl]-4,4'-diamine, 3,3'-dichloro-)
1,4-Dichloro-2-butene (2-Butene, 1,4-dichloro-)
Dichlorodifluoromethane (Methane, dichlorodifluoro-)
Dichloroethylene, N.O.S.
1,1-Dichloroethylene (Ethene, 1,1-dichloro-)
1,2-Dichloroethylene (Ethene, 1,2-dichloro-,(E)-)
Dichloroethyl ether (Ethane, 1,1'-oxybis[2-chloro-)
Dichloroisopropyl ether (Propane, 2,2'-oxybis[2-chloro-)
Dichloromethoxy ethane (Ethane, 1,1'-[methylenebis(oxy)bis[2-chloro-)
Dichloromethyl ether (Methane, oxybis[chloro-)
2,4-Dichlorophenol (Phenol, 2,4-dichloro-)
2,6-Dichlorophenol (Phenol, 2,6-dichloro-)
Dichlorophenylarsine (Arsinous dichloride, phenyl-)

[[Page 33]]

Dichloropropane, N.O.S. (Propane, dichloro-,)
Dichloropropanol, N.O.S. (Propanol, dichloro-,)
Dichloropropene; N.O.S. (1-Propane, dichloro-,)
1,3-Dichloropropene (1-Propene, 1,3-dichloro-)
Dieldrin (2,7:3,6-Dimethanonaphth[2,3-b]oxirene,3,4,5,6,9,9-hexachloro-
1a,2,2a,3,6,6a,7,7a,octahydro-
,(1a[alpha],2[beta],2a[alpha],3[beta],6[beta],6a[alpha],7[beta],7a[alpha]
)-)
1,2:3,4-Diepoxybutane (2,2'-Bioxirane)
Diethylarsine (Arsine, diethyl-)
1,4 Diethylene oxide (1,4-Dioxane)
Diethylhexyl phthalate (1,2-Benzenedicarboxlyic acid, bis(2-ethylhexl) 
ester)
N,N-Diethylhydrazine (Hydrazine, 1,2-diethyl)
O,O-Diethyl S-methyl dithiophosphate (Phosphorodithioic acid, O,O-
diethyl S-methyl ester)
Diethyl-p-nitrophenyl phosphate (Phosphoric acid, diethyl 4-nitrophenyl 
ester)
Diethyl phthalate (1,2-Benzenedicarboxylic acid, diethyl ester)
O,O-Diethyl O-pyrazinyl phosphorothioate (Phosphorothioic acid, O,O-
diethyl O-pyrazinyl ester)
Diethylstilbesterol (Phenol, 4,4'-(1,2-diethyl-1,2-ethenediyl)bis-,(E)-)
Dihydrosafrole (1,3-Benxodioxole, 5-propyl-)
Diisopropylfluorophosphate (DFP) (Phosphorofluoridic acid, bis(1-methyl 
ethyl) ester)
Dimethoate (Phosphorodithioic acid, O,O-dimethyl S-[2-(methylamino) 2-
oxoethyl] ester)
3,3'-Dimethoxybenzidine ([1,1'-Biphenyl]-4,4'-diamine, 3,3'-dimethoxy-)
p-Dimethylaminoazobenzene (Benzenamine, N,N-dimethyl-4-(phenylazo)-)
7,12-Dimethylbenz[a]anthracene (Benz[a]anthracene, 7,12-dimethyl-)
3,3'-Dimethylbenzidine ([1,1'-Biphenyl]-4,4'-diamine, 3,3'-dimethyl-)
Dimethylcarbamoyl chloride (carbamic chloride, dimethyl-)
1,1-Dimethylhydrazine (Hydrazine, 1,1-dimethyl-)
1,2-Dimethylhydrazine (Hydrazine, 1,2-dimethyl-)
[alpha],[alpha]-Dimethylphenethylamine (Benzeneethanamine, 
[alpha],[alpha]-dimethyl-)
2,4-Dimethylphenol (Phenol, 2,4-dimethyl-)
Dimethylphthalate (1,2-Benzenedicarboxylic acid, dimethyl ester)
Dimethyl sulfate (Sulfuric acid, dimethyl ester)
Dinitrobenzene, N.O.S. (Benzene, dinitro-)
4,6-Dinitro-o-cresol and salts (Phenol, 2-methyl-4,6-dinitro-)
2,4-Dinitrophenol (Phenol, 2,4-dinitro-)
2,4-Dinitrotoluene (Benzene, 1-methyl-2,4-dinitro-)
2,6-Dinitrotoluene (Benzene, 2-methyl-1,3-dinitro-)
Dinoseb (Phenol, 2-(1-methylpropyl)-4,6-dinitro-)
Di-n-octyl phthalate (1,2-Benzenedicarboxylic acid, dioctyl ester)
1,4-Dioxane (1,4-Diethyleneoxide)
Diphenylamine (Benzenamine, N-phenyl-)
1,2-Diphenylhydrazine (Hydrazine, 1,2-diphenyl-)
Di-n-propylnitrosamine (1-Propanamine,N-nitroso-N-propyl-)
Disulfoton (Phosphorodithioic acid, O,O-diethyl S-[2-(ethylthio)ethyl] 
ester)
Dithiobiuret (Thioimidodicarbonic diamide [(H2 
N)C(S)]2 NH)
Endosulfan (6,9,Methano-2,4,3-benzodioxathiepin,6,7,8,9,10,10-
hexachloro-1,5,5a,6,9,9ahexahydro,3-oxide)
Endothall (7-Oxabicyclo[2.2.1]heptane-2,3-dicarboxylic acid)
Endrin and metabolites (2,7:3,6-Dimethanonaphth[2,3-
b]oxirene,3,4,5,6,9,9-hexachloro1a,2,2a,3,6,6a,7,7a-octa-
hydro,(1a[alpha],2[beta],2a[beta],3[alpha],6[alpha],6a[beta],7[beta],7a[a
lpha])-)
Epichlorohydrin (Oxirane, (chloromethyl)-)
Epinephrine (1,2-Benzenediol,4-[1-hydroxy-2-(methylamino)ethyl]-,(R)-,)
Ethyl carbamate (urethane) (Carbamic acid, ethyl ester)
Ethyl cyanide (propanenitrile)
Ethylenebisdithiocarbamic acid, salts and esters (Carbamodithioic acid, 
1,2-Ethanediylbis-)
Ethylene dibromide (1,2-Dibromoethane)
Ethylene dichloride (1,2-Dichloroethane)
Ethylene glycol monoethyl ether (Ethanol, 2-ethoxy-)
Ethyleneimine (Aziridine)
Ethylene oxide (Oxirane)
Ethylenethiourea (2-Imidazolidinethione)
Ethylidene dichloride (Ethane, 1,1-Dichloro-)
Ethyl methacrylate (2-Propenoic acid, 2-methyl-, ethyl ester)
Ethylmethane sulfonate (Methanesulfonic acid, ethyl ester)
Famphur (Phosphorothioic acid, O-[4-[(dimethylamino)sulphonyl]phenyl] 
O,O-dimethyl ester)
Fluoranthene
Fluorine
Fluoroacetamide (Acetamide, 2-fluoro-)
Fluoroacetic acid, sodium salt (Acetic acid, fluoro-, sodium salt)
Formaldehyde (Methylene oxide)
Formic acid (Methanoic acid)
Glycidylaldehyde (Oxiranecarboxyaldehyde)
Halomethane, N.O.S.
Heptachlor (4,7-Methano-1H-indene, 1,4,5,6,7,8,8-heptachloro-3a,4,7,7a-
tetrahydro-)
Heptachlor epoxide ([alpha], [beta], and [gamma] isomers) (2,5-Methano-
2H-indeno[1,2-b]-oxirene, 2,3,4,5,6,7,7-heptachloro-1a,1b,5,5a,6,6a-
hexa-hydro-
,(1a[alpha],1b[beta],2[alpha],5[alpha],5a[beta],6[beta],6a[alpha])-)
Hexachlorobenzene (Benzene, hexachloro-)
Hexachlorobutadiene (1,3-Butadiene, 1,1,2,3,4,4-hexachloro-)

[[Page 34]]

Hexachlorocyclopentadiene (1,3-Cyclopentadiene, 1,2,3,4,5,5-hexachloro-)
Hexachlorodibenzofurans
Heptachlorodibenzo-p-dioxins
Hexachloroethane (Ethane, hexachloro-)
Hexachlorophene (phenol, 2,2'-Methylenebis[3,4,6-trichloro-)
Hexachloropropene (1-Propene, 1,1,2,3,3,3-hexachloro-)
Hexaethyl tetraphosphate (Tetraphosphoric acid, hexaethyl ester)
Hydrazine
Hydrocyanic acid
Hydrofluoric acid
Hydrogen sulfide (H2 S)
Indeno(1,2,3-cd)pyrene
Isobutyl alcohol (1-Propanol, 2-methyl-)
Isodrin (1,4,5,8-Dimethanonaphthalene, 1,2,3,4,10,10-hexachloro-
1,4,4a,5,8,8a-hexahydro, 
(1[alpha],4[alpha],4a[beta],5[beta],8[beta],8a[beta])-)
Isosafrole (1,3-Benzodioxole, 5-(1-propenyl)-)
Kepone (1,3,4-Metheno-2H-cyclobuta[cd]pentalen-2-one, 
1,1a,3,3a,4,5,5,5a,5b,6-decachlorooctahydro-)
Lasiocarpine (2-Butenoic acid, 2-methyl-,7-[[2,3-dihydroxy-2-(1-
methoxyethyl)-3-methyl-1-oxobutoxy]methyl]-2,3,5,7a-tetrahydro-1H-
pyrrolizin-l-yl ester)
Lead and compounds, N.O.S.
Lead acetate (Acetic acid, lead(2+) salt)
Lead phosphate (Phosphoric acid, lead(2+) salt(2:3))
Lead subacetate (Lead, bis(acetato-O)tetrahydroxytri-)
Lindane (Clohexane, 1,2,3,4,5,6-hexachloro-, 
(1[alpha],2[alpha],3[beta],4[alpha],5[alpha],6[beta])-)
Maleic anhydride (2,5-Furandione)
Maleic hydrazide (3,6-Pyridazinedione, 1,2-dihydro-)
Malononitrile (Propanedinitrile)
Melphalan (L-Phenylalanine, 4-[bis(2-chloroethyl)aminol]-)
Mercury and compounds, N.O.S.
Mercury fulminate (Fulminic acid, mercury(2+) salt)
Methacrylonitrile (2-Propenenitrile, 2-methyl-)
Methapyrilene (1,2-Ethanediamine, N,N-dimethyl-N'-2-pyridinyl-N'-(2-
thienylmethyl)-)
Metholmyl (Ethamidothioic acid, N-[[(methylamino)carbonyl]oxy]thio-, 
methyl ester)
Methoxychlor (Benzene, 1,1'-(2,2,2-trichloroethylidene)bis[4-methoxy-)
Methyl bromide (Methane, bromo-)
Methyl chloride (Methane, chloro-)
Methyl chlorocarbonate (Carbonchloridic acid, methyl ester)
Methyl chloroform (Ethane, 1,1,1-trichloro-)
3-Methylcholanthrene (Benz[j]aceanthrylene, 1,2-dihydro-3-methyl-)
4,4'-Methylenebis(2-chloroaniline) (Benzenamine, 4,4'-methylenebis(2-
chloro-)
Methylene bromide (Methane, dibromo-)
Methylene chloride (Methane, dichloro-)
Methyl ethyl ketone (MEK) (2-Butanone)
Methyl ethyl ketone peroxide (2-Butanone, peroxide)
Methyl hydrazine (Hydrazine, methyl-)
Methyl iodide (Methane, iodo-)
Methyl isocyanate (Methane, isocyanato-)
2-Methyllactonitrile (Propanenitrile, 2-hydroxy-2-methyl-)
Methyl methacrylate (2-Propenoic acid, 2-methyl-, methyl ester)
Methyl methanesulfonate (Methanesulfonic acid, methyl ester)
Methyl parathion (Phosphorothioic acid, O,O-dimethyl O-(4-nitrophenyl) 
ester)
Methylthiouracil (4(1H)Pyrimidinone, 2,3-dihydro-6-methyl-2-thioxo-)
Mitomycin C (Azirino[2',3':3,4]pyrrolo[1,2-a]indole-4,7-dione,6-amino-8-
[[(aminocarbonyl) oxy]methyl]-1,1a,2,8,8a,8b-hexahydro-8a-methoxy-5-
methy-, [1aS-(1a[alpha],8[beta],8a[alpha],8b[alpha])]-)
MNNG (Guanidine, N-methyl-N'-nitro-N-nitroso-)
Mustard gas (Ethane, 1,1'-thiobis[2-chloro-)
Naphthalene
1,4-Naphthoquinone (1,4-Naphthalenedione)
[alpha]-Naphthalenamine (1-Naphthylamine)
[beta]-Naphthalenamine (2-Naphthylamine)
[alpha]-Naphthylthiourea (Thiourea, 1-naphthalenyl-)
Nickel and compounds, N.O.S.
Nickel carbonyl (Ni(CO)4 (T-4)-)
Nickel cyanide (Ni(CN)2)
Nicotine and salts (Pyridine, 3-(1-methyl-2-pyrrolidinyl)-, (S)-)
Nitric oxide (Nitrogen oxide NO)
p-Nitroaniline (Benzenamine, 4-nitro-)
Nitrobenzene (Benzene, nitro-)
Nitrogen dioxide (Nitrogen oxide NO2)
Nitrogen mustard, and hydrochloride salt (Ethanamine, 2-chloro-N-(2-
chloroethyl)-N-methyl-)
Nitrogen mustard N-oxide and hydrochloride salt (Ethanamine, 2chloro-N-
(2-chloroethyl)N-methyl-, N-oxide)
Nitroglycerin (1,2,3-Propanetriol, trinitrate)
p-Nitrophenol (Phenol, 4-nitro-)
2-Nitropropane (Propane, 2-nitro-)
Nitrosamines, N.O.S.
N-Nitrosodi-n-butylamine (l-Butanamine, N-butyl-N-nitroso-)
N-Nitrosodiethanolamine (Ethanol, 2,2'-(nitrosoimino)bis-)
N-Nitrosodiethylamine (Ethanamine, N-ethyl-N-nitroso-1)
N-Nitrosodimethylamine (Methanamine, N-methyl-N-nitroso-)
N-Nitroso-N-ethylurea (Urea, N-ethyl-N-nitroso-)
N-Nitrosomethylethylamine (Ethanamine, N-methyl-N-nitroso-)
N-Nitroso-N-methylurea (Urea, N-methyl-N-nitroso-)
N-Nitroso-N-methylurethane (Carbamic acid, methylnitroso-, ethyl ester)
N-Nitrosomethylvinylamine (Vinylamine, N-methyl-N-nitroso-)

[[Page 35]]

N-Nitrosomorpholine (Morpholine, 4-nitroso-)
N-Nitrosonornicotine (Pyridine, 3-(1-nitroso-2-pyrrolidinyl)-, (S)-)
N-Nitrosopiperidine (Piperidine, 1-nitroso-)
Nitrosopyrrolidine (Pyrrolidine, 1-nitroso-)
N-Nitrososarcosine (Glycine, N-methyl-N-nitroso-)
5-Nitro-o-toluidine (Benzenamine, 2-methyl-5-nitro-)
Octamethylpyrophosphoramide (Diphosphoramide, octamethyl-)
Osmium tetroxide (Osmium oxide OsO4, (T-4)-)
Paraldehyde (1,3,5-Trioxane, 2,4,6-trimethyl-)
Parathion (Phosphorothioic acid, O,O-diethyl O-(4-nitrophenyl) ester)
Pentachlorobenzene (Benzene, pentachloro-)
Pentachlorodibenzo-p-dioxins
Pentachlorodibenzofurans
Pentachloroethane (Ethane, pentachloro-)
Pentachloronitrobenzene (PCNB) (Benzene, pentachloronitro-)
Pentachlorophenol (Phenol, pentachloro-)
Phenacetin (Acetamide, N-(4-ethoxyphenyl)-)
Phenol
Phenylenediamine (Benzenediamine)
Phenylmercury acetate (Mercury, (acetato-O)phenyl-)
Phenylthiourea (Thiourea, phenyl-)
Phosgene (Carbonic dichloride)
Phosphine
Phorate (Phosphorodithioic acid, O,O-diethyl S-[(ethylthiomethyl] ester)
Phthalic acid esters, N.O.S.
Phthalic anhydride (1,3-isobenzofurandione)
2-Picoline (Pyridine, 2-methyl-)
Polychlorinated biphenyls, N.O.S.
Potassium cyanide (K(CN))
Potassium silver cyanide (Argentate(l-), bis(cyano-C)-, potassium)
Pronamide (Benzamide, 3,5-dichloro-N-(1,1-dimethyl-2-propynyl)-)
1,3-Propane sultone (1,2-Oxathiolane, 2,2-dioxide)
n-Propylamine (1-Propanamine)
Propargyl alcohol (2-Propyn-1-ol)
Propylene dichloride (Propane, 1,2-dichloro-)
1,2-Propylenimine (Aziridine, 2-methyl-)
Propylthiouracil (4(1H)-Pyrimidinone, 2,3-dihydro-6-propyl-2-thioxo-)
Pyridine
Reserpinen (Yohimban-16-carboxylic acid, 11,17-dimethoxy-18-[(3,4,5-
trimethoxybenzoyl)oxy]-smethyl ester, (3[beta],16 
[beta],17[alpha],18[beta],20[alpha])-)
Resorcinol (1,3-Benzenediol)
Saccharin and salts (1,2-Benzisothiazol-3(2H)-one, 1,1-dioxide)
Safrole (1,3-Benzodioxole, 5-(2-propenyl)-)
Selenium and compounds, N.O.S.
Selenium dioxide (Selenious acid)
Selenium sulfide (SeS2)
Selenourea
Silver and compounds, N.O.S.
Silver cyanide (Silver cyanide Ag(CN))
Silvex (Propanoic acid, 2-(2,4,5-trichlorophenoxy)-)
Sodium cyanide (Sodium cyanide Na(CN))
Streptozotocin (D-Glucose, 2-deoxy-2-
[[methylnitrosoamino)carbonyl]amino]-)
Strychnine and salts (Strychnidin-10-one)
TCDD (Dibenzo[b,e][1,4]dioxin, 2,3,7,8-tetrachloro-)
1,2,4,5-Tetrachlorobenzene (Benzene, 1,2,4,5-tetrachloro-)
Tetrachlorodibenzo-p-dioxins
Tetrachlorodibenxofurans
Tetrachloroethane, N.O.S. (Ethane, tetrachloro-, N.O.S.)
1,1,1,2-Tetrachloroethane (Ethane, 1,1,1,2-tetrachloro-)
1,1,2,2-Tetrachloroethane (Ethane, 1,1,2,2-tetrachloro-)
Tetrachloroethylene (Ethene, tetrachloro-)
2,3,4,6-Tetrachlorophenol (Phenol, 2,3,4,6-tetrachloro-)
Tetraethyldithiopyrophosphate (Thiodiphosphoric acid, tetraethyl ester)
Tetraethyl lead (Plumbane, tetraethyl-)
Tetraethyl pyrophosphate (Diphosphoric acid, tetraethyl ester)
Tetranitromethane (Methane, tetranitro-)
Thallium and compounds, N.O.S.
Thallic oxide (Thallium oxide Tl2 O3)
Thallium (I) acetate (Acetic acid, thallium (1+) salt)
Thallium (I) carbonate (Carbonic acid, dithallium (1+) salt)
Thallium (I) chloride (Thallium chloride TlCl)
Thallium (I) nitrate (Nitric acid, thallium (1+) salt)
Thallium selenite (Selenius acid, dithallium (1+) salt)
Thallium (I) sulfate (Sulfuric acid, thallium (1+) salt)
Thioacetamide (Ethanethioamide)
3,Thiofanox (2-Butanone, 3,3-dimethyl-1-(methylthio)-, O-
[(methylamino)carbonyl] oxime)
Thiomethanol (Methanethiol)
Thiophenol (Benzenethiol)
Thiosemicarbazide (Hydrazinecarbothioamide)
Thiourea
Thiram (Thioperoxydicarbonic diamide [(H2 
N)C(S)]2S2, tetramethyl-)
Toluene (Benzene, methyl-)
Toluenediamine (Benzenediamine, ar-methyl-)
Toluene-2,4-diamine (1,3-Benzenediamine, 4-methyl-)
Toluene-2,6-diamine (1,3-Benzenediamine, 2-methyl-)
Toluene-3,4-diamine (1,2-Benzenediamine, 4-methyl-)
Toluene diisocyanate (Benzene, 1,3-diisocyanatomethyl-)
o-Toluidine (Benzenamine, 2-methyl-)
o-Toluidine hydrochloride (Benzenamine, 2-methyl-, hydrochloride)
p-Toluidine (Benzenamine, 4-methyl-)

[[Page 36]]

Toxaphene
1,2,4-Trichlorobenzene (Benzene, 1,2,4-trichloro-)
1,1,2-Trichloroethane (Ethane, 1,1,2-trichloro-)
Trichloroethylene (Ethene,trichloro-)
Trichloromethanethiol (Methanethiol, trichloro-)
Trichloromonofluoromethane (Methane, trichlorofluoro-)
2,4,5-Trichlorophenol (Phenol, 2,4,5-tri chlo-ro-)
2,4,6-Trichlorophenol (Phenol, 2,4,6-tri chlo-ro-)
2,4,5-T (Acetic acid, 2,4,5- trichloro-phenoxy-)
Trichloropropane, N.O.S.
1,2,3-Trichloropropane (Propane, 1,2,3-trichloro-)
O,O,O-Triethyl phosphorothioate (Phosphorothioic acid, O,O,O-triethyl 
ester)
Trinitrobenzene (Benzene, 1,3,5-trinitro-)
Tris(1-aziridinyl)phosphine sulfide (Aziridine, 
1,1',1''phosphinothioylidyne-tris-))
Tris(2,3-dibromopropyl) phosphate (1-Propanol, 2,3-dibromo-, phosphate 
(3:1))
Trypan blue (2,7-Naphthalendisulfonic acid, 3,3'-[(3,3'-dimethyl[1,1'-
biphenyl]-4,4'-diyl)bis(azo)]bis(5-amino-4-hydroxy-, tetrasodium salt)
Uracil mustard (2,4-(1H,3H)-Pyrimidinedione, 5-[bis(2-
chloroethyl)amino]-)
Vanadium pentoxide (Vanadium oxide V2 O5)
Vinyl chloride (Ethene, chloro-)
Wayfarin (2H-1-Benzopyran-2-one, 4-hydroxy-3-(3-oxo-1-phenlybutyl)-)
Zinc cyanide (Zn(CN)2)
Zinc phosphide (Zn3 P2)

[60 FR 2868, Jan. 11, 1995]



PART 194_CRITERIA FOR THE CERTIFICATION AND RE-CERTIFICATION OF THE WASTE 

ISOLATION PILOT PLANT'S COMPLIANCE WITH THE 40 CFR PART 191 DISPOSAL 

REGULATIONS--Table of Contents




                      Subpart A_General Provisions

Sec.
194.1 Purpose, scope, and applicability.
194.2 Definitions.
194.3 Communications.
194.4 Conditions of compliance certification.
194.5 Publications incorporated by reference.
194.6 Alternative provisions.
194.7 Effective date.
194.8 Approval process for waste shipment from waste generator sites for 
          disposal at the WIPP.

  Subpart B_Compliance Certification and Re-certification Applications

194.11 Completeness and accuracy of compliance applications.
194.12 Submission of compliance applications.
194.13 Submission of reference materials.
194.14 Content of compliance certification application.
194.15 Content of compliance re-certification application(s).

         Subpart C_Compliance Certification and Re-certification

                          General Requirements

194.21 Inspections.
194.22 Quality assurance.
194.23 Models and computer codes.
194.24 Waste characterization.
194.25 Future state assumptions.
194.26 Expert judgment.
194.27 Peer review.

                        Containment Requirements

194.31 Application of release limits.
194.32 Scope of performance assessments.
194.33 Consideration of drilling events in performance assessments.
194.34 Results of performance assessments.

                         Assurance Requirements

194.41 Active institutional controls.
194.42 Monitoring.
194.43 Passive institutional controls.
194.44 Engineered barriers.
194.45 Consideration of the presence of resources.
194.46 Removal of waste.

           Individual and Ground-water Protection Requirements

194.51 Consideration of protected individual.
194.52 Consideration of exposure pathways.
194.53 Consideration of underground sources of drinking water.
194.54 Scope of compliance assessments.
194.55 Results of compliance assessments.

                     Subpart D_Public Participation

194.61 Advance notice of proposed rulemaking for certification.
194.62 Notice of proposed rulemaking for certification.
194.63 Final rule for certification.
194.64 Documentation of continued compliance.
194.65 Notice of proposed rulemaking for modification or revocation.
194.66 Final rule for modification or revocation.
194.67 Dockets.

Appendix A to Part 194--Certification of the Waste Isolation Pilot 
          Plant's

[[Page 37]]

          Compliance with the 40 CFR Part 191 Disposal Regulations and 
          the 40 CFR Part 194 Compliance Criteria

    Authority: Pub. L. 102-579, 106 Stat. 4777, as amended by Pub. L. 
104-201,110 Stat. 2422; Reorganization Plan No. 3 of 1970, 35 FR 15623, 
Oct. 6, 1970, 5 U.S.C. app. 1; Atomic Energy Act of 1954, as amended, 42 
U.S.C. 2011-2296 and 10101-10270.

    Source: 61 FR 5235, Feb. 9, 1996, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 194.1  Purpose, scope, and applicability.

    This part specifies criteria for the certification or any re-
certification, or subsequent actions relating to the terms or conditions 
of certification of the Department of Energy's Waste Isolation Pilot 
Plant's compliance with the disposal regulations found at part 191 of 
this chapter and pursuant to section 8(d)(1) and section 8(f), 
respectively, of the WIPP LWA. The compliance certification application 
submitted pursuant to section 8(d)(1) of the WIPP LWA and any compliance 
re-certification application submitted pursuant to section 8(f) of the 
WIPP LWA shall comply with the requirements of this part.



Sec. 194.2  Definitions.

    Unless otherwise indicated in this part, all terms have the same 
meaning as in part 191 of this chapter.
    Acceptable knowledge means any information about the process used to 
generate waste, material inputs to the process, and the time period 
during which the waste was generated, as well as data resulting from the 
analysis of waste, conducted prior to or separate from the waste 
certification process authorized by EPA's Certification Decision, to 
show compliance with Condition 3 of the certification decision (appendix 
A of this part).
    Administrator's authorized representative means the director in 
charge of radiation programs at the Agency.
    Certification means any action taken by the Administrator pursuant 
to section 8(d)(1) of the WIPP LWA.
    Compliance application(s) means the compliance certification 
application submitted to the Administrator pursuant to section 8(d)(1) 
of the WIPP LWA or any compliance re-certification applications 
submitted to the Administrator pursuant to section 8(f) of the WIPP LWA.
    Compliance assessment(s) means the analysis conducted to determine 
compliance with Sec. 191.15, and part 191, subpart C of this chapter.
    Delaware Basin means those surface and subsurface features which lie 
inside the boundary formed to the north, east and west of the disposal 
system by the innermost edge of the Capitan Reef, and formed, to the 
south, by a straight line drawn from the southeastern point of the Davis 
Mountains to the most southwestern point of the Glass Mountains.
    Deep drilling means those drilling events in the Delaware Basin that 
reach or exceed a depth of 2,150 feet below the surface relative to 
where such drilling occurred.
    Department means the United States Department of Energy.
    Disposal regulations means part 191, subparts B and C of this 
chapter.
    Management systems review means the qualitative assessment of a data 
collection operation or organization(s) to establish whether the 
prevailing quality management structure, policies, practices, and 
procedures are adequate to ensure that the type and quality of data 
needed are obtained.
    Minor alternative provision means an alternative provision to the 
Compliance Criteria that only clarifies an existing regulatory 
provision, or does not substantively alter the existing regulatory 
requirements.
    Modification means action(s) taken by the Administrator that alters 
the terms or conditions of certification pursuant to section 8(d)(1) of 
the WIPP LWA. Modification of any certification shall comply with this 
part and part 191 of this chapter.
    Population of CCDFs means all possible complementary, cumulative 
distribution functions (CCDFs) that can be generated from all disposal 
system parameter values used in performance assessments.
    Population of estimates means all possible estimates of radiation 
doses and radionuclide concentrations that can be generated from all 
disposal system

[[Page 38]]

parameter values used in compliance assessments.
    Quality assurance means those planned and systematic actions 
necessary to provide adequate confidence that the disposal system will 
comply with the disposal regulations set forth in part 191 of this 
chapter. Quality assurance includes quality control, which comprises 
those actions related to the physical characteristics of a material, 
structure, component, or system that provide a means to control the 
quality of the material, structure, component, or system to 
predetermined requirements.
    Re-certification means any action taken by the Administrator 
pursuant to section 8(f) of the WIPP LWA.
    Regulatory time frame means the time period beginning at disposal 
and ending 10,000 years after disposal.
    Revocation means any action taken by the Administrator to terminate 
the certification pursuant to section 8(d)(1) of the WIPP LWA.
    Secretary means the Secretary of Energy.
    Shallow drilling means those drilling events in the Delaware Basin 
that do not reach a depth of 2,150 feet below the surface relative to 
where such drilling occurred.
    Suspension means any action taken by the Administrator to withdraw, 
for a limited period of time, the certification pursuant to section 
8(d)(1) of the WIPP LWA.
    Waste means the radioactive waste, radioactive material and 
coincidental material subject to the requirements of part 191 of this 
chapter.
    Waste characteristic means a property of the waste that has an 
impact on the containment of waste in the disposal system.
    Waste component means an ingredient of the total inventory of the 
waste that influences a waste characteristic.
    WIPP means the Waste Isolation Pilot Plant, as authorized pursuant 
to section 213 of the Department of Energy National Security and 
Military Applications of Nuclear Energy Authorization Act of 1980 (Pub. 
L. 96-164; 93 Stat. 1259, 1265).
    WIPP LWA means the Waste Isolation Pilot Plant Land Withdrawal Act 
of 1992 (Pub.L. 102-579, 106 Stat. 4777).

[61 FR 5235, Feb. 9, 1996, as amended at 63 FR 27404, May 18, 1998; 69 
FR 42580, July 16, 2004]



Sec. 194.3  Communications.

    (a) Compliance application(s) shall be:
    (1) Addressed to the Administrator; and
    (2) Signed by the Secretary.
    (b) Communications and reports concerning the criteria in this part 
shall be:
    (1) Addressed to the Administrator or the Administrator's authorized 
representative; and
    (2) Signed by the Secretary or the Secretary's authorized 
representative.



Sec. 194.4  Conditions of compliance certification.

    (a) Any certification of compliance issued pursuant to section 
8(d)(1) of the WIPP LWA may include such conditions as the Administrator 
finds necessary to support such certification.
    (b) Whether stated therein or not, the following conditions shall 
apply in any such certification:
    (1) The certification shall be subject to modification, suspension 
or revocation by the Administrator. Any suspension of the certification 
shall be done at the discretion of the Administrator. Any modification 
or revocation of the certification shall be done by rule pursuant to 5 
U.S.C. 553. If the Administrator revokes the certification, the 
Department shall retrieve, as soon as practicable and to the extent 
practicable, any waste emplaced in the disposal system.
    (2) Any time after the Administrator issues a certification, the 
Administrator or the Administrator's authorized representative may 
submit a written request to the Department for information to enable the 
Administrator to determine whether the certification should be modified, 
suspended or revoked. Unless otherwise specified by the Administrator or 
the Administrator's authorized representative, the Department shall 
submit such information to the Administrator or the Administrator's 
authorized representative

[[Page 39]]

within 30 calendar days of receipt of the request.
    (3) Any time after the Administrator issues a certification, the 
Department shall report any planned or unplanned changes in activities 
or conditions pertaining to the disposal system that differ 
significantly from the most recent compliance application.
    (i) The Department shall inform the Administrator, in writing, prior 
to making such a planned change in activity or disposal system 
condition.
    (ii) In the event of an unplanned change in activity or condition, 
the Department shall immediately cease emplacement of waste in the 
disposal system if the Department determines that one or more of the 
following conditions is true:
    (A) The containment requirements established pursuant to Sec. 
191.13 of this chapter have been or are expected to be exceeded;
    (B) Releases from already-emplaced waste lead to committed effective 
doses that are or are expected to be in excess of those established 
pursuant to Sec. 191.15 of this chapter. For purposes of this paragraph 
(b)(3)(ii)(B), emissions from operations covered pursuant to part 191, 
subpart A of this chapter are not included; or
    (C) Releases have caused or are expected to cause concentrations of 
radionuclides or estimated doses due to radionuclides in underground 
sources of drinking water in the accessible environment to exceed the 
limits established pursuant to part 191, subpart C of this chapter.
    (iii) If the Department determines that a condition described in 
paragraph (b)(3)(ii) of this section has occurred or is expected to 
occur, the Department shall notify the Administrator, in writing, within 
24 hours of the determination. Such notification shall, to the extent 
practicable, include the following information:
    (A) Identification of the location and environmental media of the 
release or the expected release;
    (B) Identification of the type and quantity of waste (in activity in 
curies of each radionuclide) released or expected to be released;
    (C) Time and date of the release or the estimated time of the 
expected release;
    (D) Assessment of the hazard posed by the release or the expected 
release; and
    (E) Additional information requested by the Administrator or the 
Administrator's authorized representative.
    (iv) The Department may resume emplacement of waste in the disposal 
system upon written notification that the suspension has been lifted by 
the Administrator.
    (v) If the Department discovers a condition or activity that differs 
significantly from what is indicated in the most recent compliance 
application, but does not involve conditions or activities listed in 
paragraph (b)(3)(ii) of this section, then the difference shall be 
reported, in writing, to the Administrator within 10 calendar days of 
its discovery.
    (vi) Following receipt of notification, the Administrator will 
notify the Secretary in writing whether any condition or activity 
reported pursuant to paragraph (b)(3) this section:
    (A) Does not comply with the terms of the certification; and, if it 
does not comply,
    (B) Whether the compliance certification must be modified, suspended 
or revoked. The Administrator or the Administrator's authorized 
representative may request additional information before determining 
whether modification, suspension or revocation of the compliance 
certification is required.
    (4) Not later than six months after the Administrator issues a 
certification, and at least annually thereafter, the Department shall 
report to the Administrator, in writing, any changes in conditions or 
activities pertaining to the disposal system that were not required to 
be reported by paragraph (b)(3) of this section and that differ from 
information contained in the most recent compliance application.



Sec. 194.5  Publications incorporated by reference.

    (a) The following publications are incorporated into this part by 
reference:
    (1) U.S. Nuclear Regulatory Commission, NUREG-1297 ``Peer Review for

[[Page 40]]

High-Level Nuclear Waste Repositories,'' published February 1988; 
incorporation by reference (IBR) approved for Sec. Sec. 194.22, 194.23 
and 194.27.
    (2) American Society of Mechanical Engineers (ASME) Nuclear Quality 
Assurance (NQA) Standard, NQA-1-1989 edition, ``Quality Assurance 
Program Requirements for Nuclear Facilities;'' IBR approved for Sec. 
194.22.
    (3) ASME NQA-2a-1990 addenda, part 2.7, to ASME NQA-2-1989 edition 
``Quality Assurance Requirements for Nuclear Facility Applications;'' 
IBR approved for Sec. 194.22 and Sec. 194.23.
    (4) ASME NQA-3-1989 edition, ``Quality Assurance Program 
Requirements for the Collection of Scientific and Technical Information 
for Site Characterization of High-Level Nuclear Waste Repositories'' 
(excluding section 2.1 (b) and (c)); IBR approved for Sec. 194.22.
    (b) The publications listed in paragraph (a) of this section were 
approved for incorporation by reference 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 or obtained from the Air Docket, Docket No. A-92-56, 
room M1500 (LE131), U.S. Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460, or copies may be inspected 
at the National Archives and Records Administration (NARA). For 
information on the availability of this material at NARA, call 202-741-
6030, or go to: http://www.archives.gov/federal--register/code--of--
federal--regulations/ibr--locations.html. or copies may be obtained from 
the following addresses:
    (1) For ASME standards, contact American Society of Mechanical 
Engineers, 22 Law Drive, P.O. Box 2900, Fairfield, NJ 07007-2900, phone 
1-800-843-2763.
    (2) For Nuclear Regulatory Commission documents, contact Division of 
Information Support Services, Distribution Service, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555, or contact National 
Technical Information Service, 5285 Port Royal Road, Springfield, VA 
22161, phone 703-487-4650.

[61 FR 5235, Feb. 9, 1996, as amended at 65 FR 47325, Aug. 2, 2000; 69 
FR 18803, Apr. 9, 2004]



Sec. 194.6  Alternative provisions.

    The Administrator may, by rule pursuant to 5 U.S.C. 553, substitute 
for any of the provisions of this part alternative provisions, or minor 
alternative provisions, in accordance with the following procedures:
    (a) Alternative provisions may be substituted after:
    (1) Alternative provisions have been proposed for public comment in 
the Federal Register together with information describing how the 
alternative provisions comport with the disposal regulations, the 
reasons why the existing provisions of this part appear inappropriate, 
and the costs, risks and benefits of compliance in accordance with the 
alternative provisions;
    (2) A public comment period of at least 120 days has been completed 
and public hearings have been held in New Mexico;
    (3) The public comments received have been fully considered; and
    (4) A notice of final rulemaking is published in the Federal 
Register.
    (b) Minor alternative provisions may be substituted after:
    (1) The minor alternative provisions have been proposed for public 
comment in the Federal Register together with information describing how 
they comport with the disposal regulations, the reasons why the existing 
provisions of this part appear inappropriate, and the benefit of 
compliance in accordance with the minor alternative provision;
    (2) A public comment period of at least 30 days has been completed 
for the minor alternative provisions and the public comments received 
have been fully considered;
    (3) A notice of final rulemaking is published in the Federal 
Register for the minor alternative provisions.

[69 FR 42581, July 16, 2004]



Sec. 194.7  Effective date.

    The criteria in this part shall be effective on April 9, 1996. The 
incorporation by reference of certain publications listed in the 
criteria is approved by the Director of the Federal Register as of April 
9, 1996.

[[Page 41]]



Sec. 194.8  Approval process for waste shipment from waste generator sites for 

disposal at the WIPP.

    (a) Quality Assurance Programs at Waste Generator Sites. The Agency 
will determine compliance with requirements for site-specific quality 
assurance programs as set forth below:
    (1) Upon submission by the Department of a site-specific quality 
assurance program plan the Agency will evaluate the plan to determine 
whether it establishes the applicable Nuclear Quality Assurance (NQA) 
requirements of Sec. 194.22(a)(1) for the items and activities of 
Sec. Sec. 194.22(a)(2)(i), 194.24(c)(3) and 194.24(c)(5). The program 
plan and other documentation submitted by the Department will be placed 
in the dockets described in Sec. 194.67.
    (2) The Agency will conduct a quality assurance audit or an 
inspection of a Department quality assurance audit at the relevant site 
for the purpose of verifying proper execution of the site-specific 
quality assurance program plan. The Agency will publish a notice in the 
Federal Register announcing a scheduled inspection or audit. In that or 
another notice, the Agency will also solicit public comment on the 
quality assurance program plan and appropriate Department documentation 
described in paragraph (a)(1) of this section. A public comment period 
of at least 30 days will be allowed.
    (3) The Agency's written decision regarding compliance with the 
requisite quality assurance requirements at a waste generator site will 
be conveyed in a letter from the Administrator's authorized 
representative to the Department. No such compliance determination shall 
be granted until after the end of the public comment period described in 
paragraph (a)(2) of this section. A copy of the Agency's compliance 
determination letter will be placed in the public dockets in accordance 
with Sec. 194.67. The results of any inspections or audits conducted by 
the Agency to evaluate the quality assurance programs described in 
paragraph (a)(1) of this section will also be placed in the dockets 
described in Sec. 194.67.
    (4) Subsequent to any positive determination of compliance as 
described in paragraph (a)(3) of this section, the Agency intends to 
conduct inspections, in accordance with Sec. Sec. 194.21 and 194.22(e), 
to confirm the continued compliance of the programs approved under 
paragraphs (a)(2) and (a)(3) of this section. The results of such 
inspections will be made available to the public through the Agency's 
public dockets, as described in Sec. 194.67.
    (b) Waste characterization programs at transuranic waste sites. The 
Agency will establish compliance with Condition 3 of the certification 
using the following process:
    (1) DOE will implement waste characterization programs and processes 
in accordance with Sec. 194.24(c)(4) to confirm that the total amount 
of each waste component that will be emplaced in the disposal system 
will not exceed the upper limiting value or fall below the lower 
limiting value described in the introductory text of Sec. 194.24(c). 
Waste characterization processes will include the collection and use of 
acceptable knowledge; destructive and/or nondestructive techniques for 
identifying and measuring waste components; and the validation, control, 
and transmittal to the WIPP Waste Information System database of waste 
characterization data, in accordance with Sec. 194.24(c)(4).
    (2) The Agency will verify the compliance of waste characterization 
programs and processes identified in paragraph (b)(1) of this section at 
sites without EPA approval prior to October 14, 2004, using the 
following process:
    (i) DOE will notify EPA by letter that a transuranic waste site is 
prepared to ship waste to the WIPP and has established adequate waste 
characterization processes and programs. DOE also will provide the 
relevant waste characterization program plans and documentation. EPA may 
request additional information from DOE.
    (ii) EPA will conduct a baseline compliance inspection at the site 
to verify that adequate waste characterization program plans and 
technical procedures have been established, and that those plans and 
procedures are effectively implemented. The inspection will include a 
demonstration or test by the site of the waste characterization 
processes identified in paragraph (b)(1) of this section. If an 
inspection does not lead to approval, we will send an

[[Page 42]]

inspection report to DOE identifying deficiencies and place the report 
in the public docket described in Sec. 194.67. More than one inspection 
may be necessary to resolve compliance issues.
    (iii) The Agency will announce in the Federal Register a proposed 
Baseline Compliance Decision to accept the site's compliance with Sec. 
194.24(c)(4). We will place the inspection report(s) and any supporting 
documentation in the public docket described in Sec. 194.67. The site 
inspection report supporting the proposal will describe any limitations 
on approved waste streams or waste characterization processes. It will 
also identify (through tier designations in accordance with paragraph 
(b)(4) of this section) what changes to the approved waste 
characterization processes must be reported to and approved by EPA 
before they can be implemented. In the notice, we will solicit public 
comment (for a minimum of 45 days) on the proposed Baseline Compliance 
Decision, including any limitations and the tier designations for future 
changes or expansions to the site's waste characterization program.
    (iv) Our written decision regarding compliance with the requirements 
for waste characterization programs and processes described in paragraph 
(b)(1) of this section will be conveyed in a letter from the 
Administrator's authorized representative to DOE. EPA will not issue a 
compliance decision until after the end of the public comment period 
described in paragraph (b)(2)(iii) of this section. EPA's compliance 
decision will respond to significant and timely-received comments. A 
copy of our compliance decision will be placed in the public docket 
described in Sec. 194.67. DOE will comply with any requirements 
identified in the compliance decision and the accompanying inspection 
report.
    (3) Subsequent to any positive determination of compliance as 
described in paragraph (b)(2)(iv) of this section, the Agency intends to 
conduct inspections, in accordance with Sec. 194.24(h), to confirm the 
continued compliance of approved waste characterization programs and 
processes at transuranic waste sites. EPA will make the results of these 
inspections available to the public in the dockets described in Sec. 
194.67.
    (4) Subsequent to any positive determination of compliance as 
described in paragraph (b)(2)(iv) of this section, the Department must 
report changes or expansions to the approved waste characterization 
program at a site in accordance with the tier designations established 
in the Baseline Compliance Decision.
    (i) For changes or expansions to the waste characterization program 
designated as ``Tier 1,'' the Department shall provide written 
notification to the Agency. The Department shall not ship for disposal 
at WIPP any waste that has been characterized using the new or revised 
processes, equipment, or waste streams until EPA has provided written 
approval of such new or revised systems.
    (ii) For changes or expansions to the waste characterization program 
designated as ``Tier 2,'' the Department shall provide written 
notification to the Agency. Waste characterized using the new or revised 
processes, equipment, or waste streams may be disposed at WIPP without 
written EPA approval.
    (iii) EPA may conduct inspections in accordance with Sec. 194.24(h) 
to evaluate the implementation of Tier 1 and Tier 2 changes or 
expansions to the waste characterization program at a site.
    (iv) Waste characterization program changes or expansions that are 
not identified as either ``Tier 1'' or ``Tier 2'' will not require 
written notification by the Department to the Agency before 
implementation or before shipping waste for disposal at WIPP.
    (5) Subsequent to any positive determination of compliance as 
described in paragraph (b)(2)(iii) of this section, EPA may revise the 
tier designations for approving changes or expansions to the waste 
characterization program at a site using the following process:
    (i) The Agency shall announce the proposed tier changes in a letter 
to the Department. The letter will describe the Agency's reasons for the 
proposed change in tier designation(s). The letter and any supporting 
inspection report(s) or other documentation will be placed in the 
dockets described in Sec. 194.67.

[[Page 43]]

    (ii) If the revised designation entails more stringent notification 
and approval requirements (e.g., from Tier 2 to Tier 1, or from 
undesignated to Tier 2), the change shall become effective immediately 
and the site shall operate under the more stringent requirements without 
delay.
    (iii) If the revised designated entails less stringent notification 
and approval requirements, (e.g., from Tier 1 to Tier 2, or from Tier 2 
to undesignated), EPA will solicit comments from the public for a 
minimum of 30 days. The site will continue to operate under the more 
stringent approval requirements until the public comment period is 
closed and EPA notifies DOE in writing of the Agency's final decision.
    (6) A waste generator site that EPA approved for characterizing and 
disposing transuranic waste at the WIPP under this section prior to 
October 14, 2004, may continue characterizing and disposing such waste 
at the WIPP under paragraph (c) of this section until EPA has conducted 
a baseline compliance inspection and provided a Baseline Compliance 
Decision under paragraph (b)(2) of this section.
    (i) Until EPA provides a Baseline Compliance Decision for such a 
site, EPA may approve additional transuranic waste streams for disposal 
at WIPP under the provisions of paragraph (c) of this section. Prior to 
the effective date of EPA's Baseline Compliance Decision for such a 
site, EPA will continue to conduct inspections of the site in accordance 
with Sec. 194.24(c).
    (ii) EPA shall conduct a baseline compliance inspection and issue a 
Baseline Compliance Decision for such previously approved sites in 
accordance with the provisions of paragraph (b) of this section, except 
that the site shall not be required to provide written notification of 
readiness as described in paragraph (b)(2)(i) of this section.
    (c) Waste characterization programs at waste generator sites with 
prior approval. For a waste generator site that EPA approved for 
characterizing and disposing transuranic waste at the WIPP under this 
section prior to October 14, 2004, the Agency will determine compliance 
with the requirements for use of process knowledge and a system of 
controls at waste generator sites as set in this paragraph (c). 
Approvals for a site to characterize and dispose of transuranic waste at 
WIPP will proceed according to this section only until EPA has conducted 
a baseline compliance inspection and provided a Baseline Compliance 
Decision for a site under paragraph (b)(2) of this section.
    (1) For each waste stream or group of waste streams at a site, the 
Department must:
    (i) Provide information on how process knowledge will be used for 
waste characterization of the waste stream(s) proposed for disposal at 
the WIPP; and
    (ii) Implement a system of controls at the site, in accordance with 
Sec. 194.24(c)(4), to confirm that the total amount of each waste 
component that will be emplaced in the disposal system will not exceed 
the upper limiting value or fall below the lower limiting value 
described in the introductory text of Sec. 194.24(c). The 
implementation of such a system of controls shall include a 
demonstration that the site has procedures in place for adding data to 
the WIPP Waste Information System (``WWIS''), and that such information 
can be transmitted from that site to the WWIS database; and a 
demonstration that measurement techniques and control methods can be 
implemented in accordance with Sec. 194.24(c)(4) for the waste 
stream(s) proposed for disposal at the WIPP.
    (2) The Agency will conduct an audit or an inspection of a 
Department audit for the purpose of evaluating the use of process 
knowledge and the implementation of a system of controls for each waste 
stream or group of waste streams at a waste generator site. The Agency 
will announce a scheduled inspection or audit by the Agency with a 
notice in the Federal Register. In that or another notice, the Agency 
will also solicit public comment on the relevant waste characterization 
program plans and Department documentation, which will be placed in the 
dockets described in Sec. 194.67. A public comment period of at least 
30 days will be allowed.
    (3) The Agency's written decision regarding compliance with the 
requirements for waste characterization programs described in paragraph 
(b)(1) of this section for one or more waste

[[Page 44]]

streams from a waste generator site will be conveyed in a letter from 
the Administrator's authorized representative to the Department. No such 
compliance determination shall be granted until after the end of the 
public comment period described in paragraph (b)(2) of this section. A 
copy of the Agency's compliance determination letter will be placed in 
the public dockets in accordance with Sec. 194.67. The results of any 
inspections or audits conducted by the Agency to evaluate the plans 
described in paragraph (b)(1) of this section will also be placed in the 
dockets described in Sec. 194.67.
    (4) Subsequent to any positive determination of compliance as 
described in paragraph (b)(3) of this section, the Agency intends to 
conduct inspections, in accordance with Sec. Sec. 194.21 and 194.24(h), 
to confirm the continued compliance of the programs approved under 
paragraphs (b)(2) and (b)(3) of this section. The results of such 
inspections will be made available to the public through the Agency's 
public dockets, as described in Sec. 194.67.

[63 FR 27404, May 18, 1998, as amended at 69 FR 42581, July 16, 2004]



  Subpart B_Compliance Certification and Re-certification Applications



Sec. 194.11  Completeness and accuracy of compliance applications.

    Information provided to the Administrator in support of any 
compliance application shall be complete and accurate. The 
Administrator's evaluation for certification pursuant to section 
8(d)(1)(B) of the WIPP LWA and evaluation for recertification pursuant 
to section 8(f)(2) of the WIPP LWA shall not begin until the 
Administrator has notified the Secretary, in writing, that a complete 
application in accordance with this part has been received.



Sec. 194.12  Submission of compliance applications.

    Unless otherwise specified by the Administrator or the 
Administrator's authorized representative, 5 copies of any compliance 
application(s), any accompanying materials, and any amendments thereto 
shall be submitted in a printed form to the Administrator's authorized 
representative. These paper copies are intended for the official docket 
in Washington, DC, as well as the four informational dockets in 
Albuquerque and Santa Fe, New Mexico. In addition, DOE shall submit 10 
copies of the complete application in alternative format (e.g., compact 
disk) or other approved format, as specified by the Administrator's 
authorized representative.

[69 FR 42582, July 16, 2004]



Sec. 194.13  Submission of reference materials.

    Information may be included by reference into compliance 
applications(s), provided that the references are clear specific and 
that unless, otherwise specified by the Administrator or the 
Administrator's authorized representative, 5 copies of reference 
information are submitted to the Administrator's authorized 
representative. These paper copies are intended for the official docket 
in Washington, DC, as well as the four informational dockets in 
Albuquerque and Santa Fe, New Mexico. Reference materials that are 
widely available in standard text books or reference books need not to 
be submitted. Whenever possible, DOE shall submit 10 copies of reference 
materials in alternative format (e.g., compact disk) or other approved 
format, as specified by the Administrator's authorized representative.

[69 FR 42582, July 16, 2004]



Sec. 194.14  Content of compliance certification application.

    Any compliance application shall include:
    (a) A current description of the natural and engineered features 
that may affect the performance of the disposal system. The description 
of the disposal system shall include, at a minimum, the following 
information:
    (1) The location of the disposal system and the controlled area;
    (2) A description of the geology, geophysics, hydrogeology, 
hydrology, and geochemistry of the disposal system and its vicinity and 
how these conditions are expected to change and interact over the 
regulatory time frame.

[[Page 45]]

Such description shall include, at a minimum:
    (i) Existing fluids and fluid hydraulic potential, including brine 
pockets, in and near the disposal system; and
    (ii) Existing higher permeability anhydrite interbeds located at or 
near the horizon of the waste.
    (3) The presence and characteristics of potential pathways for 
transport of waste from the disposal system to the accessible 
environment including, but not limited to: Existing boreholes, solution 
features, breccia pipes, and other potentially permeable features, such 
as interbeds.
    (4) The projected geophysical, hydrogeologic and geochemical 
conditions of the disposal system due to the presence of waste 
including, but not limited to, the effects of production of heat or 
gases from the waste.
    (b) A description of the design of the disposal system including:
    (1) Information on materials of construction including, but not 
limited to: Geologic media, structural materials, engineered barriers, 
general arrangement, and approximate dimensions; and
    (2) Computer codes and standards that have been applied to the 
design and construction of the disposal system.
    (c) Results of assessments conducted pursuant to this part.
    (d) A description of input parameters associated with assessments 
conducted pursuant to this part and the basis for selecting those input 
parameters.
    (e) Documentation of measures taken to meet the assurance 
requirements of this part.
    (f) A description of waste acceptance criteria and actions taken to 
assure adherence to such criteria.
    (g) A description of background radiation in air, soil and water in 
the vicinity of the disposal system and the procedures employed to 
determine such radiation.
    (h) One or more topographic map(s) of the vicinity of the disposal 
system. The contour interval shall be sufficient to show clearly the 
pattern of surface water flow in the vicinity of the disposal system. 
The map(s) shall include standard map notations and symbols, and, in 
addition, shall show boundaries of the controlled area and the location 
of any active, inactive, and abandoned injection and withdrawal wells in 
the controlled area and in the vicinity of the disposal system.
    (i) A description of past and current climatologic and meteorologic 
conditions in the vicinity of the disposal system and how these 
conditions are expected to change over the regulatory time frame.
    (j) The information required elsewhere in this part or any 
additional information, analyses, tests, or records determined by the 
Administrator or the Administrator's authorized representative to be 
necessary for determining compliance with this part.



Sec. 194.15  Content of compliance re-certification application(s).

    (a) In submitting documentation of continued compliance pursuant to 
section 8(f) of the WIPP LWA, the previous compliance application shall 
be updated to provide sufficient information for the Administrator to 
determine whether or not the WIPP continues to be in compliance with the 
disposal regulations. Updated documentation shall include:
    (1) All additional geologic, geophysical, geochemical, hydrologic, 
and meteorologic information;
    (2) All additional monitoring data, analyses and results;
    (3) All additional analyses and results of laboratory experiments 
conducted by the Department or its contractors as part of the WIPP 
program;
    (4) An identification of any activities or assumptions that deviate 
from the most recent compliance application;
    (5) A description of all waste emplaced in the disposal system since 
the most recent compliance certification or re-certification 
application. Such description shall consist of a description of the 
waste characteristics and waste components identified in Sec. Sec. 
194.24(b)(1) and 194.24(b)(2);
    (6) Any significant information not previously included in a 
compliance certification or re-certification application related to 
whether the disposal system continues to be in compliance with the 
disposal regulations; and
    (7) Any additional information requested by the Administrator or the

[[Page 46]]

Administrator's authorized representative.
    (b) To the extent that information required for a re-certification 
of compliance remains valid and has been submitted in previous 
certification or re-certification application(s), such information need 
not be duplicated in subsequent applications; such information may be 
summarized and referenced.



         Subpart C_Compliance Certification and Re-certification

                          General Requirements



Sec. 194.21  Inspections.

    (a) The Administrator or the Administrator's authorized 
representative(s) shall, at any time:
    (1) Be afforded unfettered and unannounced access to inspect any 
area of the WIPP, and any locations performing activities that provide 
information relevant to compliance application(s), to which the 
Department has rights of access. Such access shall be equivalent to 
access afforded Department employees upon presentation of credentials 
and other required documents.
    (2) Be allowed to obtain samples, including split samples, and to 
monitor and measure aspects of the disposal system and the waste 
proposed for disposal in the disposal system.
    (b) Records (including data and other information in any form) kept 
by the Department pertaining to the WIPP shall be made available to the 
Administrator or the Administrator's authorized representative upon 
request. If requested records are not immediately available, they shall 
be delivered within 30 calendar days of the request.
    (c) The Department shall, upon request by the Administrator or the 
Administrator's authorized representative, provide permanent, private 
office space that is accessible to the disposal system. The office space 
shall be for the exclusive use of the Administrator or the 
Administrator's authorized representative(s).
    (d) The Administrator or the Administrator's authorized 
representative(s) shall comply with applicable access control measures 
for security, radiological protection, and personal safety when 
conducting activities pursuant to this section.



Sec. 194.22  Quality assurance.

    (a)(1) As soon as practicable after April 9, 1996, the Department 
shall adhere to a quality assurance program that implements the 
requirements of ASME NQA-1-1989 edition, ASME NQA-2a-1990 addenda, part 
2.7, to ASME NQA-2-1989 edition, and ASME NQA-3-1989 edition (excluding 
Section 2.1 (b) and (c), and Section 17.1). (Incorporation by reference 
as specified in Sec. 194.5.)
    (2) Any compliance application shall include information which 
demonstrates that the quality assurance program required pursuant to 
paragraph (a)(1) of this section has been established and executed for:
    (i) Waste characterization activities and assumptions;
    (ii) Environmental monitoring, monitoring of the performance of the 
disposal system, and sampling and analysis activities;
    (iii) Field measurements of geologic factors, ground water, 
meteorologic, and topographic characteristics;
    (iv) Computations, computer codes, models and methods used to 
demonstrate compliance with the disposal regulations in accordance with 
the provisions of this part;
    (v) Procedures for implementation of expert judgment elicitation 
used to support applications for certification or re-certification of 
compliance;
    (vi) Design of the disposal system and actions taken to ensure 
compliance with design specifications;
    (vii) The collection of data and information used to support 
compliance application(s); and
    (viii) Other systems, structures, components, and activities 
important to the containment of waste in the disposal system.
    (b) Any compliance application shall include information which 
demonstrates that data and information collected prior to the 
implementation of the quality assurance program required pursuant to 
paragraph (a)(1) of this section have been qualified in accordance with 
an alternate methodology, approved by the Administrator or the 
Administrator's authorized representative, that employs one or more

[[Page 47]]

of the following methods: Peer review, conducted in a manner that is 
compatible with NUREG-1297, ``Peer Review for High-Level Nuclear Waste 
Repositories,'' published February 1988 (incorporation by reference as 
specified in Sec. 194.5); corroborating data; confirmatory testing; or 
a quality assurance program that is equivalent in effect to ASME NQA-1-
1989 edition, ASME NQA-2a-1990 addenda, part 2.7, to ASME NQA-2-1989 
edition, and ASME NQA-3-1989 edition (excluding Section 2.1 (b) and (c) 
and Section 17.1). (Incorporation by reference as specified in Sec. 
194.5.)
    (c) Any compliance application shall provide, to the extent 
practicable, information which describes how all data used to support 
the compliance application have been assessed for their quality 
characteristics, including:
    (1) Data accuracy, i.e., the degree to which data agree with an 
accepted reference or true value;
    (2) Data precision, i.e., a measure of the mutual agreement between 
comparable data gathered or developed under similar conditions expressed 
in terms of a standard deviation;
    (3) Data representativeness, i.e., the degree to which data 
accurately and precisely represent a characteristic of a population, a 
parameter, variations at a sampling point, or environmental conditions;
    (4) Data completeness, i.e., a measure of the amount of valid data 
obtained compared to the amount that was expected; and
    (5) Data comparability, i.e., a measure of the confidence with which 
one data set can be compared to another.
    (d) Any compliance application shall provide information which 
demonstrates how all data are qualified for use in the demonstration of 
compliance.
    (e) The Administrator will verify appropriate execution of quality 
assurance programs through inspections, record reviews and record 
keeping requirements, which may include, but may not be limited to, 
surveillance, audits and management systems reviews.



Sec. 194.23  Models and computer codes.

    (a) Any compliance application shall include:
    (1) A description of the conceptual models and scenario construction 
used to support any compliance application.
    (2) A description of plausible, alternative conceptual model(s) 
seriously considered but not used to support such application, and an 
explanation of the reason(s) why such model(s) was not deemed to 
accurately portray performance of the disposal system.
    (3) Documentation that:
    (i) Conceptual models and scenarios reasonably represent possible 
future states of the disposal system;
    (ii) Mathematical models incorporate equations and boundary 
conditions which reasonably represent the mathematical formulation of 
the conceptual models;
    (iii) Numerical models provide numerical schemes which enable the 
mathematical models to obtain stable solutions;
    (iv) Computer models accurately implement the numerical models; 
i.e., computer codes are free of coding errors and produce stable 
solutions;
    (v) Conceptual models have undergone peer review according to Sec. 
194.27.
    (b) Computer codes used to support any compliance application shall 
be documented in a manner that complies with the requirements of ASME 
NQA-2a-1990 addenda, part 2.7, to ASME NQA-2-1989 edition. 
(Incorporation by reference as specified in Sec. 194.5.)
    (c) Documentation of all models and computer codes included as part 
of any compliance application performance assessment calculation shall 
be provided. Such documentation shall include, but shall not be limited 
to:
    (1) Descriptions of the theoretical backgrounds of each model and 
the method of analysis or assessment;
    (2) General descriptions of the models; discussions of the limits of 
applicability of each model; detailed instructions for executing the 
computer codes, including hardware and software requirements, input and 
output formats with explanations of each input and output variable and 
parameter (e.g., parameter name and units); listings of input and output 
files from a sample computer run; and reports on code verification, 
benchmarking, validation, and quality assurance procedures;

[[Page 48]]

    (3) Detailed descriptions of the structure of computer codes and 
complete listings of the source codes;
    (4) Detailed descriptions of data collection procedures, sources of 
data, data reduction and analysis, and code input parameter development;
    (5) Any necessary licenses; and
    (6) An explanation of the manner in which models and computer codes 
incorporate the effects of parameter correlation.
    (d) The Administrator or the Administrator's authorized 
representative may verify the results of computer simulations used to 
support any compliance application by performing independent 
simulations. Data files, source codes, executable versions of computer 
software for each model, other material or information needed to permit 
the Administrator or the Administrator's authorized representative to 
perform independent simulations, and access to necessary hardware to 
perform such simulations, shall be provided within 30 calendar days of a 
request by the Administrator or the Administrator's authorized 
representative.



Sec. 194.24  Waste characterization.

    (a) Any compliance application shall describe the chemical, 
radiological and physical composition of all existing waste proposed for 
disposal in the disposal system. To the extent practicable, any 
compliance application shall also describe the chemical, radiological 
and physical composition of to-be-generated waste proposed for disposal 
in the disposal system. These descriptions shall include a list of waste 
components and their approximate quantities in the waste. This list may 
be derived from process knowledge, current non-destructive examination/
assay, or other information and methods.
    (b) The Department shall submit in the compliance certification 
application the results of an analysis which substantiates:
    (1) That all waste characteristics influencing containment of waste 
in the disposal system have been identified and assessed for their 
impact on disposal system performance. The characteristics to be 
analyzed shall include, but shall not be limited to: Solubility; 
formation of colloidal suspensions containing radionuclides; production 
of gas from the waste; shear strength; compactability; and other waste-
related inputs into the computer models that are used in the performance 
assessment.
    (2) That all waste components influencing the waste characteristics 
identified in paragraph (b)(1) of this section have been identified and 
assessed for their impact on disposal system performance. The components 
to be analyzed shall include, but shall not be limited to: metals; 
cellulosics; chelating agents; water and other liquids; and activity in 
curies of each isotope of the radionuclides present.
    (3) Any decision to exclude consideration of any waste 
characteristic or waste component because such characteristic or 
component is not expected to significantly influence the containment of 
the waste in the disposal system.
    (c) For each waste component identified and assessed pursuant to 
paragraph (b) of this section, the Department shall specify the limiting 
value (expressed as an upper or lower limit of mass, volume, curies, 
concentration, etc.), and the associated uncertainty (i.e., margin of 
error) for each limiting value, of the total inventory of such waste 
proposed for disposal in the disposal system. Any compliance application 
shall:
    (1) Demonstrate that, for the total inventory of waste proposed for 
disposal in the disposal system, WIPP complies with the numeric 
requirements of Sec. 194.34 and Sec. 194.55 for the upper or lower 
limits (including the associated uncertainties), as appropriate, for 
each waste component identified in paragraph (b)(2) of this section, and 
for the plausible combinations of upper and lower limits of such waste 
components that would result in the greatest estimated release.
    (2) Identify and describe the method(s) used to quantify the limits 
of waste components identified in paragraph (b)(2) of this section.
    (3) Provide information that demonstrates that the use of acceptable 
knowledge to quantify components in waste for disposal conforms with the

[[Page 49]]

quality assurance requirements of Sec. 194.22.
    (4) Provide information which demonstrates that a system of controls 
has been and will continue to be implemented to confirm that the total 
amount of each waste component that will be emplaced in the disposal 
system will not exceed the upper limiting value or fall below the lower 
limiting value described in the introductory text of paragraph (c) of 
this section. The system of controls shall include, but shall not be 
limited to: Measurement; sampling; chain of custody records; record 
keeping systems; waste loading schemes used; and other documentation.
    (5) Identify and describe such controls delineated in paragraph 
(c)(4) of this section and confirm that they are applied in accordance 
with the quality assurance requirements found in Sec. 194.22.
    (d) The Department shall include a waste loading scheme in any 
compliance application, or else performance assessments conducted 
pursuant to Sec. 194.32 and compliance assessments conducted pursuant 
to Sec. 194.54 shall assume random placement of waste in the disposal 
system.
    (e) Waste may be emplaced in the disposal system only if the 
emplaced components of such waste will not cause:
    (1) The total quantity of waste in the disposal system to exceed the 
upper limiting value, including the associated uncertainty, described in 
the introductory text to paragraph (c) of this section; or
    (2) The total quantity of waste that will have been emplaced in the 
disposal system, prior to closure, to fall below the lower limiting 
value, including the associated uncertainty, described in the 
introductory text to paragraph (c) of this section.
    (f) Waste emplacement shall conform to the assumed waste loading 
conditions, if any, used in performance assessments conducted pursuant 
to Sec. 194.32 and compliance assessments conducted pursuant to Sec. 
194.54.
    (g) The Department shall demonstrate in any compliance application 
that the total inventory of waste emplaced in the disposal system 
complies with the limitations on transuranic waste disposal described in 
the WIPP LWA.
    (h) The Administrator will use inspections and records reviews, such 
as audits, to verify compliance with this section.

[61 FR 5235, Feb. 9, 1996, as amended at 69 FR 42583, July 16, 2004]



Sec. 194.25  Future state assumptions.

    (a) Unless otherwise specified in this part or in the disposal 
regulations, performance assessments and compliance assessments 
conducted pursuant the provisions of this part to demonstrate compliance 
with Sec. 191.13, Sec. 191.15 and part 191, subpart C shall assume 
that characteristics of the future remain what they are at the time the 
compliance application is prepared, provided that such characteristics 
are not related to hydrogeologic, geologic or climatic conditions.
    (b) In considering future states pursuant to this section, the 
Department shall document in any compliance application, to the extent 
practicable, effects of potential future hydrogeologic, geologic and 
climatic conditions on the disposal system over the regulatory time 
frame. Such documentation shall be part of the activities undertaken 
pursuant to Sec. 194.14, Content of compliance certification 
application; Sec. 194.32, Scope of performance assessments; and Sec. 
194.54, Scope of compliance assessments.
    (1) In considering the effects of hydrogeologic conditions on the 
disposal system, the Department shall document in any compliance 
application, to the extent practicable, the effects of potential changes 
to hydrogeologic conditions.
    (2) In considering the effects of geologic conditions on the 
disposal system, the Department shall document in any compliance 
application, to the extent practicable, the effects of potential changes 
to geologic conditions, including, but not limited to: Dissolution; near 
surface geomorphic features and processes; and related subsidence in the 
geologic units of the disposal system.
    (3) In considering the effects of climatic conditions on the 
disposal system, the Department shall document in

[[Page 50]]

any compliance application, to the extent practicable, the effects of 
potential changes to future climate cycles of increased precipitation 
(as compared to present conditions).



Sec. 194.26  Expert judgment.

    (a) Expert judgment, by an individual expert or panel of experts, 
may be used to support any compliance application, provided that expert 
judgment does not substitute for information that could reasonably be 
obtained through data collection or experimentation.
    (b) Any compliance application shall:
    (1) Identify any expert judgments used to support the application 
and shall identify experts (by name and employer) involved in any expert 
judgment elicitation processes used to support the application.
    (2) Describe the process of eliciting expert judgment, and document 
the results of expert judgment elicitation processes and the reasoning 
behind those results. Documentation of interviews used to elicit 
judgments from experts, the questions or issues presented for 
elicitation of expert judgment, background information provided to 
experts, and deliberations and formal interactions among experts shall 
be provided. The opinions of all experts involved in each elicitation 
process shall be provided whether the opinions are used to support 
compliance applications or not.
    (3) Provide documentation that the following restrictions and 
guidelines have been applied to any selection of individuals used to 
elicit expert judgments:
    (i) Individuals who are members of the team of investigators 
requesting the judgment or the team of investigators who will use the 
judgment were not selected; and
    (ii) Individuals who maintain, at any organizational level, a 
supervisory role or who are supervised by those who will utilize the 
judgment were not selected.
    (4) Provide information which demonstrates that:
    (i) The expertise of any individual involved in expert judgment 
elicitation comports with the level of knowledge required by the 
questions or issues presented to that individual; and
    (ii) The expertise of any expert panel, as a whole, involved in 
expert judgment elicitation comports with the level and variety of 
knowledge required by the questions or issues presented to that panel.
    (5) Explain the relationship among the information and issues 
presented to experts prior to the elicitation process, the elicited 
judgment of any expert panel or individual, and the purpose for which 
the expert judgment is being used in compliance applications(s).
    (6) Provide documentation that the initial purpose for which expert 
judgment was intended, as presented to the expert panel, is consistent 
with the purpose for which this judgment was used in compliance 
application(s).
    (7) Provide documentation that the following restrictions and 
guidelines have been applied in eliciting expert judgment:
    (i) At least five individuals shall be used in any expert 
elicitation process, unless there is a lack or unavailability of experts 
and a documented rationale is provided that explains why fewer than five 
individuals were selected.
    (ii) At least two-thirds of the experts involved in an elicitation 
shall consist of individuals who are not employed directly by the 
Department or by the Department's contractors, unless the Department can 
demonstrate and document that there is a lack or unavailability of 
qualified independent experts. If so demonstrated, at least one-third of 
the experts involved in an elicitation shall consist of individuals who 
are not employed directly by the Department or by the Department's 
contractors.
    (c) The public shall be afforded a reasonable opportunity to present 
its scientific and technical views to expert panels as input to any 
expert elicitation process.



Sec. 194.27  Peer review.

    (a) Any compliance application shall include documentation of peer 
review that has been conducted, in a manner required by this section, 
for:
    (1) Conceptual models selected and developed by the Department;
    (2) Waste characterization analyses as required in Sec. 194.24(b); 
and

[[Page 51]]

    (3) Engineered barrier evaluation as required in Sec. 194.44.
    (b) Peer review processes required in paragraph (a) of this section, 
and conducted subsequent to the promulgation of this part, shall be 
conducted in a manner that is compatible with NUREG-1297, ``Peer Review 
for High-Level Nuclear Waste Repositories,'' published February 1988. 
(Incorporation by reference as specified in Sec. 194.5.)
    (c) Any compliance application shall:
    (1) Include information that demonstrates that peer review processes 
required in paragraph (a) of this section, and conducted prior to the 
implementation of the promulgation of this part, were conducted in 
accordance with an alternate process substantially equivalent in effect 
to NUREG-1297 and approved by the Administrator or the Administrator's 
authorized representative; and
    (2) Document any peer review processes conducted in addition to 
those required pursuant to paragraph (a) of this section. Such 
documentation shall include formal requests, from the Department to 
outside review groups or individuals, to review or comment on any 
information used to support compliance applications, and the responses 
from such groups or individuals.

                        Containment Requirements



Sec. 194.31  Application of release limits.

    The release limits shall be calculated according to part 191, 
appendix A of this chapter, using the total activity, in curies, that 
will exist in the disposal system at the time of disposal.



Sec. 194.32  Scope of performance assessments.

    (a) Performance assessments shall consider natural processes and 
events, mining, deep drilling, and shallow drilling that may affect the 
disposal system during the regulatory time frame.
    (b) Assessments of mining effects may be limited to changes in the 
hydraulic conductivity of the hydrogeologic units of the disposal system 
from excavation mining for natural resources. Mining shall be assumed to 
occur with a one in 100 probability in each century of the regulatory 
time frame. Performance assessments shall assume that mineral deposits 
of those resources, similar in quality and type to those resources 
currently extracted from the Delaware Basin, will be completely removed 
from the controlled area during the century in which such mining is 
randomly calculated to occur. Complete removal of such mineral resources 
shall be assumed to occur only once during the regulatory time frame.
    (c) Performance assessments shall include an analysis of the effects 
on the disposal system of any activities that occur in the vicinity of 
the disposal system prior to disposal and are expected to occur in the 
vicinity of the disposal system soon after disposal. Such activities 
shall include, but shall not be limited to, existing boreholes and the 
development of any existing leases that can be reasonably expected to be 
developed in the near future, including boreholes and leases that may be 
used for fluid injection activities.
    (d) Performance assessments need not consider processes and events 
that have less than one chance in 10,000 of occurring over 10,000 years.
    (e) Any compliance application(s) shall include information which:
    (1) Identifies all potential processes, events or sequences and 
combinations of processes and events that may occur during the 
regulatory time frame and may affect the disposal system;
    (2) Identifies the processes, events or sequences and combinations 
of processes and events included in performance assessments; and
    (3) Documents why any processes, events or sequences and 
combinations of processes and events identified pursuant to paragraph 
(e)(1) of this section were not included in performance assessment 
results provided in any compliance application.



Sec. 194.33  Consideration of drilling events in performance assessments.

    (a) Performance assessments shall examine deep drilling and shallow 
drilling that may potentially affect the disposal system during the 
regulatory time frame.
    (b) The following assumptions and process shall be used in assessing 
the likelihood and consequences of drilling

[[Page 52]]

events, and the results of such process shall be documented in any 
compliance application:
    (1) Inadvertent and intermittent intrusion by drilling for resources 
(other than those resources provided by the waste in the disposal system 
or engineered barriers designed to isolate such waste) is the most 
severe human intrusion scenario.
    (2) In performance assessments, drilling events shall be assumed to 
occur in the Delaware Basin at random intervals in time and space during 
the regulatory time frame.
    (3) The frequency of deep drilling shall be calculated in the 
following manner:
    (i) Identify deep drilling that has occurred for each resource in 
the Delaware Basin over the past 100 years prior to the time at which a 
compliance application is prepared.
    (ii) The total rate of deep drilling shall be the sum of the rates 
of deep drilling for each resource.
    (4) The frequency of shallow drilling shall be calculated in the 
following manner:
    (i) Identify shallow drilling that has occurred for each resource in 
the Delaware Basin over the past 100 years prior to the time at which a 
compliance application is prepared.
    (ii) The total rate of shallow drilling shall be the sum of the 
rates of shallow drilling for each resource.
    (iii) In considering the historical rate of all shallow drilling, 
the Department may, if justified, consider only the historical rate of 
shallow drilling for resources of similar type and quality to those in 
the controlled area.
    (c) Performance assessments shall document that in analyzing the 
consequences of drilling events, the Department assumed that:
    (1) Future drilling practices and technology will remain consistent 
with practices in the Delaware Basin at the time a compliance 
application is prepared. Such future drilling practices shall include, 
but shall not be limited to: The types and amounts of drilling fluids; 
borehole depths, diameters, and seals; and the fraction of such 
boreholes that are sealed by humans; and
    (2) Natural processes will degrade or otherwise affect the 
capability of boreholes to transmit fluids over the regulatory time 
frame.
    (d) With respect to future drilling events, performance assessments 
need not analyze the effects of techniques used for resource recovery 
subsequent to the drilling of the borehole.



Sec. 194.34  Results of performance assessments.

    (a) The results of performance assessments shall be assembled into 
``complementary, cumulative distribution functions'' (CCDFs) that 
represent the probability of exceeding various levels of cumulative 
release caused by all significant processes and events.
    (b) Probability distributions for uncertain disposal system 
parameter values used in performance assessments shall be developed and 
documented in any compliance application.
    (c) Computational techniques, which draw random samples from across 
the entire range of the probability distributions developed pursuant to 
paragraph (b) of this section, shall be used in generating CCDFs and 
shall be documented in any compliance application.
    (d) The number of CCDFs generated shall be large enough such that, 
at cumulative releases of 1 and 10, the maximum CCDF generated exceeds 
the 99th percentile of the population of CCDFs with at least a 0.95 
probability. Values of cumulative release shall be calculated according 
to Note 6 of Table 1, appendix A of part 191 of this chapter.
    (e) Any compliance application shall display the full range of CCDFs 
generated.
    (f) Any compliance application shall provide information which 
demonstrates that there is at least a 95 percent level of statistical 
confidence that the mean of the population of CCDFs meets the 
containment requirements of Sec. 191.13 of this chapter.

                         Assurance Requirements



Sec. 194.41  Active institutional controls.

    (a) Any compliance application shall include detailed descriptions 
of proposed active institutional controls, the controls' location, and 
the period of

[[Page 53]]

time the controls are proposed to remain active. Assumptions pertaining 
to active institutional controls and their effectiveness in terms of 
preventing or reducing radionuclide releases shall be supported by such 
descriptions.
    (b) Performance assessments shall not consider any contributions 
from active institutional controls for more than 100 years after 
disposal.



Sec. 194.42  Monitoring.

    (a) The Department shall conduct an analysis of the effects of 
disposal system parameters on the containment of waste in the disposal 
system and shall include the results of such analysis in any compliance 
application. The results of the analysis shall be used in developing 
plans for pre-closure and post-closure monitoring required pursuant to 
paragraphs (c) and (d) of this section. The disposal system parameters 
analyzed shall include, at a minimum:
    (1) Properties of backfilled material, including porosity, 
permeability, and degree of compaction and reconsolidation;
    (2) Stresses and extent of deformation of the surrounding roof, 
walls, and floor of the waste disposal room;
    (3) Initiation or displacement of major brittle deformation features 
in the roof or surrounding rock;
    (4) Ground water flow and other effects of human intrusion in the 
vicinity of the disposal system;
    (5) Brine quantity, flux, composition, and spatial distribution;
    (6) Gas quantity and composition; and
    (7) Temperature distribution.
    (b) For all disposal system parameters analyzed pursuant to 
paragraph (a) of this section, any compliance application shall document 
and substantiate the decision not to monitor a particular disposal 
system parameter because that parameter is considered to be 
insignificant to the containment of waste in the disposal system or to 
the verification of predictions about the future performance of the 
disposal system.
    (c) Pre-closure monitoring. To the extent practicable, pre-closure 
monitoring shall be conducted of significant disposal system 
parameter(s) as identified by the analysis conducted pursuant to 
paragraph (a) of this section. A disposal system parameter shall be 
considered significant if it affects the system's ability to contain 
waste or the ability to verify predictions about the future performance 
of the disposal system. Such monitoring shall begin as soon as 
practicable; however, in no case shall waste be emplaced in the disposal 
system prior to the implementation of pre-closure monitoring. Pre-
closure monitoring shall end at the time at which the shafts of the 
disposal system are backfilled and sealed.
    (d) Post-closure monitoring. The disposal system shall, to the 
extent practicable, be monitored as soon as practicable after the shafts 
of the disposal system are backfilled and sealed to detect substantial 
and detrimental deviations from expected performance and shall end when 
the Department can demonstrate to the satisfaction of the Administrator 
that there are no significant concerns to be addressed by further 
monitoring. Post-closure monitoring shall be complementary to monitoring 
required pursuant to applicable federal hazardous waste regulations at 
parts 264, 265, 268, and 270 of this chapter and shall be conducted with 
techniques that do not jeopardize the containment of waste in the 
disposal system.
    (e) Any compliance application shall include detailed pre-closure 
and post-closure monitoring plans for monitoring the performance of the 
disposal system. At a minimum, such plans shall:
    (1) Identify the parameters that will be monitored and how baseline 
values will be determined;
    (2) Indicate how each parameter will be used to evaluate any 
deviations from the expected performance of the disposal system; and
    (3) Discuss the length of time over which each parameter will be 
monitored to detect deviations from expected performance.



Sec. 194.43  Passive institutional controls.

    (a) Any compliance application shall include detailed descriptions 
of the

[[Page 54]]

measures that will be employed to preserve knowledge about the location, 
design, and contents of the disposal system. Such measures shall 
include:
    (1) Identification of the controlled area by markers that have been 
designed and will be fabricated and emplaced to be as permanent as 
practicable;
    (2) Placement of records in the archives and land record systems of 
local, State, and Federal governments, and international archives, that 
would likely be consulted by individuals in search of unexploited 
resources. Such records shall identify:
    (i) The location of the controlled area and the disposal system;
    (ii) The design of the disposal system;
    (iii) The nature and hazard of the waste;
    (iv) Geologic, geochemical, hydrologic, and other site data 
pertinent to the containment of waste in the disposal system, or the 
location of such information; and
    (v) The results of tests, experiments, and other analyses relating 
to backfill of excavated areas, shaft sealing, waste interaction with 
the disposal system, and other tests, experiments, or analyses pertinent 
to the containment of waste in the disposal system, or the location of 
such information.
    (3) Other passive institutional controls practicable to indicate the 
dangers of the waste and its location.
    (b) Any compliance application shall include the period of time 
passive institutional controls are expected to endure and be understood.
    (c) The Administrator may allow the Department to assume passive 
institutional control credit, in the form of reduced likelihood of human 
intrusion, if the Department demonstrates in the compliance application 
that such credit is justified because the passive institutional controls 
are expected to endure and be understood by potential intruders for the 
time period approved by the Administrator. Such credit, or a smaller 
credit as determined by the Administrator, cannot be used for more than 
several hundred years and may decrease over time. In no case, however, 
shall passive institutional controls be assumed to eliminate the 
likelihood of human intrusion entirely.



Sec. 194.44  Engineered barriers.

    (a) Disposal systems shall incorporate engineered barrier(s) 
designed to prevent or substantially delay the movement of water or 
radionuclides toward the accessible environment.
    (b) In selecting any engineered barrier(s) for the disposal system, 
the Department shall evaluate the benefit and detriment of engineered 
barrier alternatives, including but not limited to: Cementation, 
shredding, supercompaction, incineration, vitrification, improved waste 
canisters, grout and bentonite backfill, melting of metals, alternative 
configurations of waste placements in the disposal system, and 
alternative disposal system dimensions. The results of this evaluation 
shall be included in any compliance application and shall be used to 
justify the selection and rejection of each engineered barrier 
evaluated.
    (c)(1) In conducting the evaluation of engineered barrier 
alternatives, the following shall be considered, to the extent 
practicable:
    (i) The ability of the engineered barrier to prevent or 
substantially delay the movement of water or waste toward the accessible 
environment;
    (ii) The impact on worker exposure to radiation both during and 
after incorporation of engineered barriers;
    (iii) The increased ease or difficulty of removing the waste from 
the disposal system;
    (iv) The increased or reduced risk of transporting the waste to the 
disposal system;
    (v) The increased or reduced uncertainty in compliance assessment;
    (vi) Public comments requesting specific engineered barriers;
    (vii) The increased or reduced total system costs;
    (viii) The impact, if any, on other waste disposal programs from the 
incorporation of engineered barriers (e.g., the extent to which the 
incorporation of engineered barriers affects the volume of waste);
    (ix) The effects on mitigating the consequences of human intrusion.
    (2) If, after consideration of one or more of the factors in 
paragraph (c)(1)

[[Page 55]]

of this section, the Department concludes that an engineered barrier 
considered within the scope of the evaluation should be rejected without 
evaluating the remaining factors in paragraph (c)(1) of this section, 
then any compliance application shall provide a justification for this 
rejection explaining why the evaluation of the remaining factors would 
not alter the conclusion.
    (d) In considering the ability of engineered barriers to prevent or 
substantially delay the movement of water or radionuclides toward the 
accessible environment, the benefit and detriment of engineered barriers 
for existing waste already packaged, existing waste not yet packaged, 
existing waste in need of re-packaging, and to-be-generated waste shall 
be considered separately and described.
    (e) The evaluation described in paragraphs (b), (c) and (d) of this 
section shall consider engineered barriers alone and in combination.



Sec. 194.45  Consideration of the presence of resources.

    Any compliance application shall include information that 
demonstrates that the favorable characteristics of the disposal system 
compensate for the presence of resources in the vicinity of the disposal 
system and the likelihood of the disposal system being disturbed as a 
result of the presence of those resources. If performance assessments 
predict that the disposal system meets the containment requirements of 
Sec. 191.13 of this chapter, then the Agency will assume that the 
requirements of this section and Sec. 191.14(e) of this chapter have 
been fulfilled.



Sec. 194.46  Removal of waste.

    Any compliance application shall include documentation which 
demonstrates that removal of waste from the disposal system is feasible 
for a reasonable period of time after disposal. Such documentation shall 
include an analysis of the technological feasibility of mining the 
sealed disposal system, given technology levels at the time a compliance 
application is prepared.

           Individual and Ground-water Protection Requirements



Sec. 194.51  Consideration of protected individual.

    Compliance assessments that analyze compliance with Sec. 191.15 of 
this chapter shall assume that an individual resides at the single 
geographic point on the surface of the accessible environment where that 
individual would be expected to receive the highest dose from 
radionuclide releases from the disposal system.



Sec. 194.52  Consideration of exposure pathways.

    In compliance assessments that analyze compliance with Sec. 191.15 
of this chapter, all potential exposure pathways from the disposal 
system to individuals shall be considered. Compliance assessments with 
part 191, subpart C and Sec. 191.15 of this chapter shall assume that 
individuals consume 2 liters per day of drinking water from any 
underground source of drinking water in the accessible environment.



Sec. 194.53  Consideration of underground sources of drinking water.

    In compliance assessments that analyze compliance with part 191, 
subpart C of this chapter, all underground sources of drinking water in 
the accessible environment that are expected to be affected by the 
disposal system over the regulatory time frame shall be considered. In 
determining whether underground sources of drinking water are expected 
to be affected by the disposal system, underground interconnections 
among bodies of surface water, ground water, and underground sources of 
drinking water shall be considered.



Sec. 194.54  Scope of compliance assessments.

    (a) Any compliance application shall contain compliance assessments 
required pursuant to this part. Compliance assessments shall include 
information which:
    (1) Identifies potential processes, events, or sequences of 
processes and events that may occur over the regulatory time frame;

[[Page 56]]

    (2) Identifies the processes, events, or sequences of processes and 
events included in compliance assessment results provided in any 
compliance application; and
    (3) Documents why any processes, events, or sequences of processes 
and events identified pursuant to paragraph (a)(1) of this section were 
not included in compliance assessment results provided in any compliance 
application.
    (b) Compliance assessments of undisturbed performance shall include 
the effects on the disposal system of:
    (1) Existing boreholes in the vicinity of the disposal system, with 
attention to the pathways they provide for migration of radionuclides 
from the site; and
    (2) Any activities that occur in the vicinity of the disposal system 
prior to or soon after disposal. Such activities shall include, but 
shall not be limited to: Existing boreholes and the development of any 
existing leases that can be reasonably expected to be developed in the 
near future, including boreholes and leases that may be used for fluid 
injection activities.



Sec. 194.55  Results of compliance assessments.

    (a) Compliance assessments shall consider and document uncertainty 
in the performance of the disposal system.
    (b) Probability distributions for uncertain disposal system 
parameter values used in compliance assessments shall be developed and 
documented in any compliance application.
    (c) Computational techniques which draw random samples from across 
the entire range of values of each probability distribution developed 
pursuant to paragraph (b) of this section shall be used to generate a 
range of:
    (1) Estimated committed effective doses received from all pathways 
pursuant to Sec. 194.51 and Sec. 194.52;
    (2) Estimated radionuclide concentrations in USDWs pursuant to Sec. 
194.53; and
    (3) Estimated dose equivalent received from USDWs pursuant to Sec. 
194.52 and Sec. 194.53.
    (d) The number of estimates generated pursuant to paragraph (c) of 
this section shall be large enough such that the maximum estimates of 
doses and concentrations generated exceed the 99th percentile of the 
population of estimates with at least a 0.95 probability.
    (e) Any compliance application shall display:
    (1) The full range of estimated radiation doses; and
    (2) The full range of estimated radionuclide concentrations.
    (f) Any compliance application shall document that there is at least 
a 95 percent level of statistical confidence that the mean and the 
median of the range of estimated radiation doses and the range of 
estimated radionuclide concentrations meet the requirements of Sec. 
191.15 and part 191, subpart C of this chapter, respectively.



                     Subpart D_Public Participation



Sec. 194.61  Advance notice of proposed rulemaking for certification.

    (a) Upon receipt of a compliance application submitted pursuant to 
section 8(d)(1) of the WIPP LWA and Sec. 194.11, the Agency will 
publish in the Federal Register an Advance Notice of Proposed Rulemaking 
announcing that a compliance application has been received, soliciting 
comment on such application, and announcing the Agency's intent to 
conduct a rulemaking to certify whether the WIPP facility will comply 
with the disposal regulations.
    (b) A copy of the compliance application will be made available for 
inspection in Agency dockets established pursuant to Sec. 194.67.
    (c) The notice will provide a public comment period of 120 days.
    (d) A public hearing concerning the notice will be held if a written 
request is received by the Administrator or the Administrator's 
authorized representative within 30 calendar days of the date of 
publication pursuant to paragraph (a) of this section.
    (e) Any comments received on the notice will be made available for 
inspection in the dockets established pursuant to Sec. 194.67.
    (f) Any comments received on the notice will be provided to the 
Department and the Department may submit to the Agency written responses 
to the comments.

[[Page 57]]



Sec. 194.62  Notice of proposed rulemaking for certification.

    (a) The Administrator will publish a Notice of Proposed Rulemaking 
in the Federal Register announcing the Administrator's proposed 
decision, pursuant to section 8(d)(1) of the WIPP LWA, whether to issue 
a certification that the WIPP facility will comply with the disposal 
regulations and soliciting comment on the proposal.
    (b) The notice will provide a public comment period of at least 120 
days.
    (c) The notice will announce public hearings in New Mexico.
    (d) Any comments received on the notice will be made available for 
inspection in the dockets established pursuant to Sec. 194.67.



Sec. 194.63  Final rule for certification.

    (a) The Administrator will publish a Final Rule in the Federal 
Register announcing the Administrator's decision, pursuant to section 
8(d)(1) of the WIPP LWA, whether to issue a certification that the WIPP 
facility will comply with the disposal regulations.
    (b) A document summarizing significant comments and issues arising 
from comments received on the Notice of Proposed Rulemaking, as well as 
the Administrator's response to such significant comments and issues, 
will be prepared and will be made available for inspection in the 
dockets established pursuant to Sec. 194.67.



Sec. 194.64  Documentation of continued compliance.

    (a) Upon receipt of documentation of continued compliance with the 
disposal regulations pursuant to section 8(f) of the WIPP LWA and Sec. 
194.11, the Administrator will publish a notice in the Federal Register 
announcing that such documentation has been received, soliciting comment 
on such documentation, and announcing the Administrator's intent to 
determine whether or not the WIPP facility continues to be in compliance 
with the disposal regulations.
    (b) Copies of documentation of continued compliance received by the 
Administrator will be made available for inspection in the dockets 
established pursuant to Sec. 194.67.
    (c) The notice will provide a public comment period of at least 30 
days after publication pursuant to paragraph (a) of this section.
    (d) Any comments received on such notice will be made available for 
public inspection in the dockets established pursuant to Sec. 194.67.
    (e) Upon completion of review of the documentation of continued 
compliance with the disposal regulations, the Administrator will publish 
a notice in the Federal Register announcing the Administrator's decision 
whether or not to re-certify the WIPP facility.



Sec. 194.65  Notice of proposed rulemaking for modification or revocation.

    (a) If the Administrator determines that any changes in activities 
or conditions pertaining to the disposal system depart significantly 
from the most recent compliance application, the Agency will publish a 
Notice of Proposed Rulemaking in the Federal Register announcing the 
Administrator's proposed decision on modification or revocation, and 
soliciting comment on the proposal.
    (b) Any comments received on the notice will be made available for 
inspection in the dockets established pursuant to Sec. 194.67.



Sec. 194.66  Final rule for modification or revocation.

    (a) The Administrator will publish a Final Rule in the Federal 
Register announcing the Administrator's decision on modification or 
revocation.
    (b) A document summarizing significant comments and issues arising 
from comments received on the Notice of Proposed Rulemaking as well as 
the Administrator's response to such significant comments and issues 
will be prepared and will be made available for inspection in the 
dockets established pursuant to Sec. 194.67.



Sec. 194.67  Dockets.

    The Agency will establish and maintain dockets in the State of New 
Mexico and Washington, DC. The dockets will consist of all relevant, 
significant information received from outside parties and all 
significant information

[[Page 58]]

considered by the Administrator in certifying whether the WIPP facility 
will comply with the disposal regulations, in certifying whether or not 
the WIPP facility continues to be in compliance with the disposal 
regulations, and in determining whether compliance certification should 
be modified, suspended or revoked.



Sec. Appendix A to Part 194--Certification of the Waste Isolation Pilot 

Plant's Compliance With the 40 CFR Part 191 Disposal Regulations and the 

40 CFR Part 194 Compliance Criteria

    In accordance with the provisions of the WIPP Compliance Criteria of 
this part, the Agency finds that the Waste Isolation Pilot Plant 
(``WIPP'') will comply with the radioactive waste disposal regulations 
at part 191, subparts B and C, of this chapter. Therefore, pursuant to 
Section 8(d)(2) of the WIPP Land Withdrawal Act (``WIPP LWA''), as 
amended, the Administrator certifies that the WIPP facility will comply 
with the disposal regulations. In accordance with the Agency's authority 
under Sec. 194.4(a), the certification of compliance is subject to the 
following conditions:
    Condition 1: Sec. 194.14(b), Disposal system design, panel closure 
system. The Department shall implement the panel seal design designated 
as Option D in Docket A-93-02, Item II-G-1 (October 29, 1996, Compliance 
Certification Application submitted to the Agency). The Option D design 
shall be implemented as described in Appendix PCS of Docket A-93-02, 
Item II-G-1, with the exception that the Department shall use Salado 
mass concrete (consistent with that proposed for the shaft seal system, 
and as described in Appendix SEAL of Docket A-93-02, Item II-G-1) 
instead of fresh water concrete.
    Condition 2: Sec. 194.22: Quality Assurance. The Secretary shall 
not allow any waste generator site other than the Los Alamos National 
Laboratory to ship waste for disposal at the WIPP until the Agency 
determines that the site has established and executed a quality 
assurance program, in accordance with Sec. Sec. 194.22(a)(2)(i), 
194.24(c)(3) and 194.24(c)(5) for waste characterization activities and 
assumptions. The Agency will determine compliance of site-specific 
quality assurance programs at waste generator sites using the process 
set forth in Sec. 194.8.
    Condition 3: Sec. 194.24: Waste Characterization. The Secretary may 
allow shipment for disposal at the WIPP of legacy debris waste at the 
Los Alamos National Laboratory (``LANL'') that can be characterized 
using the systems and processes inspected by the Agency and documented 
in Docket A-93-02, Item II-I-70. The Secretary shall not allow shipment 
of any waste from any additional LANL waste stream(s) or from any waste 
generator site other than LANL for disposal at the WIPP until the Agency 
has approved the processes for characterizing those waste streams for 
shipment using the process set forth in Sec. 194.8.
    Condition 4: Sec. 194.43, Passive institutional controls.
    (a) Not later than the final recertification application submitted 
prior to closure of the disposal system, the Department shall provide, 
to the Administrator or the Administrator's authorized representative:
    (1) a schedule for implementing passive institutional controls that 
has been revised to show that markers will be fabricated and emplaced, 
and other measures will be implemented, as soon as possible following 
closure of the WIPP. Such schedule should describe how testing of any 
aspect of the conceptual design will be completed prior to or soon after 
closure, and what changes to the design of passive institutional 
controls may be expected to result from such testing.
    (2) documentation showing that the granite pieces for the proposed 
monuments and information rooms described in Docket A-93-02, Item II-G-
1, and supplementary information may be: quarried (cut and removed from 
the ground) without cracking due to tensile stresses from handling or 
isostatic rebound; engraved on the scale required by the design; 
transported to the site, given the weight and dimensions of the granite 
pieces and the capacity of existing rail cars and rail lines; loaded, 
unloaded, and erected without cracking based on the capacity of 
available equipment; and successfully joined.
    (3) documentation showing that archives and record centers will 
accept the documents identified and will maintain them in the manner 
identified in Docket A-93-02, Item II-G-1.
    (4) documentation showing that proposed recipients of WIPP 
information other than archives and record centers will accept the 
information and make use of it in the manner indicated by the Department 
in Docket A-93-02, Item II-G-1 and supplementary information.
    (b) Upon receipt of the information required under paragraph (a) of 
this condition, the Agency will place such documentation in the public 
dockets identified in Sec. 194.67. The Agency will determine if a 
modification to the compliance certification in effect is necessary. Any 
such modification will be conducted in accordance with the requirements 
at Sec. Sec. 194.65 and 194.66.

[63 FR 27405, May 18, 1998]

[[Page 59]]



PART 195_RADON PROFICIENCY PROGRAMS--Table of Contents




                      Subpart A_General Provisions

Sec.
195.1 Purpose and applicability.
195.2 Definitions.

                             Subpart B_Fees

195.20 Fee payments.
195.30 Failure to remit fee.

    Authority: 15 U.S.C. 2665.

    Source: 59 FR 13175, Mar. 18, 1994, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 195.1  Purpose and applicability.

    (a) Purpose. The purpose of this part is to establish and collect 
the fees from applicants and participants required by section 305 of the 
Toxic Substances Control Act, U.S.C. 2665 to defray the cost to EPA for 
operating the following programs: The National Radon Measurement 
Proficiency (RMP) Program, the individual proficiency component of the 
RMP Program, and the National Radon Contractor Proficiency (RCP) 
Program.
    (b) Applicability. This part applies to all applicants and 
participants in the following EPA programs: The National Radon 
Measurement Proficiency Program, the individual proficiency component of 
the RMP Program, and the National Radon Contractor Proficiency Program.



Sec. 195.2  Definitions.

    Definitions in 15 U.S.C. 2602 and 2662 apply to this part unless 
otherwise specified in this section. In addition, the following 
definitions apply:
    Acceptance date means the date on which EPA enters the application 
into the data system.
    Accepted application refers to an application that has been entered 
into the data system.
    Applicant means an individual or organization that submits an 
application to the RMP program, including the individual proficiency 
component of the RMP program, or the RCP program. An applicant to the 
RMP program must submit a separate application for each location from 
which it provides radon measurement services. After the application is 
accepted by EPA, the applicant becomes a ``participant'' in the 
proficiency programs.
    Application means the documents submitted to EPA by applicants to 
the RMP and RCP programs which request participation in a program.
    Device/measurement device means a unit, component, or system 
designed to measure radon gas or radon decay products.
    EPA means the U.S. Environmental Protection Agency.
    Individual proficiency/RMP exam means the exam which evaluates 
individuals who provide radon measurement services in a residential 
environment.
    Listed participant in an individual or organization who has met all 
the requirements for listing in the RMP and RCP programs.
    Measurement method is a means of measuring radon gas or radon decay 
products encompassing similar measurement devices, sampling techniques, 
or analysis procedures.
    Organization is any individual, sole proprietorship, partnership, 
business, company, corporation, college or university, government agency 
(includes Federal, State and local government entities), laboratory, or 
institution.
    Participant is an individual or organization engaged in radon 
measurement and/or mitigation activities or in offering radon 
measurement and/or mitigation services to consumers and others, whose 
proficiency program application EPA has accepted.
    Primary measurement services (primary) refers to radon measurement 
services using a specific device which services include the capability 
to read and/or analyze the results generated from the device.
    Radon Contractor Proficiency (RCP) program refers to EPA's program 
to evaluate radon mitigation contractors and the contractor's ability to 
communicate information to the public.
    Radon Measurement Proficiency (RMP) program refers to EPA's program 
to evaluate organizations and individuals

[[Page 60]]

offering measurement services to consumers. It provides a means for 
organizations to demonstrate their proficiency in measuring radon and 
its decay products in indoor air.
    Radon mitigation contractor means a contractor who provides radon 
mitigation services to the public.
    Secondary radon measurement services (secondary) refers to radon 
measurement services that do not include the reading or the ability to 
analyze the results of the measurement devices used. These services may 
include placement and retrieval of devices, reporting results, and/or 
consultation with consumers.



                             Subpart B_Fees



Sec. 195.20  Fee payments.

    (a) Fee Amounts. Applicants to and participants in the RMP and RCP 
programs shall pay fees according to the following fee schedule:
    (1) Organizations Listed for or Seeking Listing for Primary 
Measurement Services in the RMP Program. (i) In order to remain a listed 
participant, each organization that is listed for primary measurement 
services in the RMP program on the effective date of this section shall 
pay an annual fee of $390 for each device.
    (ii) Each organization seeking listing for primary measurement 
services that submits an initial application after the effective date of 
this section shall pay an annual fee of $390 per device. This fee will 
be prorated quarterly, based on the acceptance date of an organization's 
application.
    (iii) Organizations that have or are seeking a listing for secondary 
measurement services for their primary devices will not be required to 
pay the additional $50 fee applicable to secondary organizations.
    (2) Organizations Listed for or Seeking Listing for Secondary 
Measurement Services in the RMP Program. (i) In order to remain a listed 
participant, each organization that is listed for secondary measurement 
services in the RMP program on the effective date of this section shall 
pay an annual fee of $50 for each business location listed.
    (ii) Each organization seeking listing for secondary measurement 
services that submits an initial application after the effective date of 
this section shall pay an annual fee of $50 for each business location 
listed. This fee will be prorated quarterly, based on the acceptance 
date of an organization's application.
    (iii) Primary organizations that have or are seeking secondary 
listings for methods other than those for which they are listed as a 
primary, are subject to the fees.
    (3) Individual Proficiency Component of the RMP Program. (i) In 
order to remain a listed participant, each individual listed in the RMP 
individual proficiency program on the effective date of this section 
shall pay an annual fee of $105.
    (ii) Each individual who submits an initial application after the 
effective date of this section shall pay an annual fee of $105. This fee 
will be prorated quarterly, based on the acceptance date of an 
individual's application.
    (iii) Individuals who have or are seeking listing status as an RMP 
primary or secondary organization are subject to the applicable fees 
under paragraphs (a)(1) and (2) of this section.
    (4) RCP Program. (i)(A) In order to remain a listed participant, 
each individual listed in the RCP program on the effective date of this 
section shall pay an annual fee of $210.
    (B) Each individual who is not a listed participant in the RCP 
program on the effective date of this section and submits an initial 
application after the effective date of this section shall pay an annual 
fee of $210. This fee will be prorated quarterly, based on the 
acceptance date of an individual's application.
    (ii) An organization or individual who is not a listed participant 
in EPA's radon proficiency programs on the effective date of this 
section and/or whose proficiency program application has not yet been 
accepted by EPA becomes subject to the fees described above once its 
application has been accepted by EPA. Fees for such organizations or 
individuals will be prorated quarterly, based on the acceptance date of 
the application. To remain listed, each participant in the RMP or RCP 
programs, whether individual or

[[Page 61]]

organization, shall submit the appropriate annual fee to EPA each year.
    (b) Exemptions. State and local governments are exempted from these 
fees under section 305(e)(2) of TSCA, 15 U.S.C. 2665.
    (c) Determination of Fees. (1) Participants listed in the RMP and 
RCP programs on the effective date of this section will be sent, by EPA, 
a payment invoice with its fee calculation at least 30 days before the 
payment is due. Fees will be assessed based on the current information 
in EPA's proficiency data bases. Participants who intend to pay the 
invoiced fee amount must send their payment to EPA following the 
procedures in the invoice. Organizations or individuals who wish to 
notify EPA of any errors or corrections they wish to make to their 
listing status must do so by following the instructions on the payment 
invoice. Corrected payment invoices for both the RMP Program and the RCP 
Program shall be sent to: Radon Proficiency Programs User Fees, c/o 
Sanford Cohen and Associates, Inc. (SC&A), 1418 I-85 Parkway, 
Montgomery, Alabama, 36106. EPA will review the corrections noted on the 
payment invoice, adjust the payment invoice amount (as appropriate) and 
issue a new invoice. Participants must pay the amount in the corrected 
payment invoice within 30 days of the date listed on the corrected 
invoice.
    (2) If the appropriate fee or a revised payment invoice for an 
individual or organization participating in the RMP or RCP program has 
not been received by EPA on or before the payment due date, EPA will 
send, by certified mail, notice that the individual or organization will 
be delisted from the proficiency program unless he/she pays the fee 
within 30 days of this second certified notification. If payment still 
has not been received by EPA after 30 days of the second certified 
notification, the organization's or individual's listing shall be 
removed from the proficiency program.
    (3) New or initial applicants to the RMP or RCP programs will be 
assessed a fee at the time of their initial application. EPA will send a 
payment invoice to the new applicant upon acceptance of the initial 
application. The applicant will be given at least 30 days from the date 
on the payment invoice to remit payment. The fee assessed will be 
prorated quarterly, based on the acceptance date of the application. If 
the appropriate fee has not been received by EPA by the payment due 
date, the application will be placed in an inactive file with no further 
action taken by EPA.
    (d) Payment Procedures. Each remittance to EPA under this section 
shall be in United States currency and shall be paid by certified check, 
personal or business check, or money order made payable to the order of 
the ``U.S. ENVIRONMENTAL PROTECTION AGENCY'' and sent to: U.S. EPA, 
Washington Financial Management Center, Radon Proficiency Program User 
Fees (IRAA), P.O. Box 952491, St. Louis, Missouri, 63195-2491. The fee 
payment shall include the original copy of the EPA payment invoice. 
Collection of fees will begin in the calendar year beginning January 1, 
1995. Specific guidance on how and when fees must be paid can be found 
in How to Pay Your Radon Proficiency Programs User Fees, U.S. EPA/Office 
of Radiation and Indoor Air. Copies of this document can be obtained by 
contacting the RIS at (334) 272-2797 or by FAX at (334) 260-9051.
    (e) Adjustment of Fees. (1) EPA shall collect 100 percent of its 
operating costs associated with its radon proficiency programs by 
calendar year 1998. As necessary, EPA shall adjust the fees established 
by this subpart each year over the next four years to collect the 
following percentages of program costs:

------------------------------------------------------------------------
    Year 1         Year 2         Year 3         Year 4        Year 5
------------------------------------------------------------------------
       30%          47.5%            65%          82.5%           100%
------------------------------------------------------------------------


Actual fees for each fiscal year will be calculated based on program 
costs and participation rates. New fee schedules will be published in 
the Federal Register as a technical amendment final rule to this part to 
become effective 30 days or more after publication.
    (2) EPA will use a three-step process to adjust the fees annually. 
First, EPA will estimate the costs of providing each of the proficiency 
programs for the upcoming year. EPA will account for future additional 
fixed costs (e.g.,

[[Page 62]]

updating examinations) and increases/decreases in variable costs due to 
inflation and other factors. In order to calculate increases/decreases 
in costs due to inflation, EPA may use one of the three following 
indices: the Federal General Schedule (GS) pay scale, the Consumer Price 
Index (CPI), and/or a component of the CPI, such as services. Second, 
EPA will estimate the number of participants for each program. At a 
minimum, these participation rates will be based on past and current 
program participation rates. Third, EPA shall calculate the per capita 
costs that individuals and organizations should pay to enable it to 
recover its fixed and variable costs each year for each program. EPA 
shall also consider potential industry impacts as it adjusts to levels 
to ultimately achieve full cost recovery over the period of five years.

[60 FR 41816, Aug. 14, 1995]



Sec. 195.30  Failure to remit fee.

    EPA will not process an application or continue a participant's 
listing in the National Radon Measurement Proficiency program, 
individual proficiency component of the RMP program, or the National 
Radon Contractor Proficiency program until the appropriate remittance 
provided in Sec. 195.20(a) has been received by EPA. Failure by a 
currently EPA-listed organization or individual to remit the required 
fees in a timely manner will result in the loss of that organization's 
or individual's listing status as specified in Sec. 195.20(c).



PART 197_PUBLIC HEALTH AND ENVIRONMENTAL RADIATION PROTECTION STANDARDS FOR 

YUCCA MOUNTAIN, NEVADA--Table of Contents




     Subpart A_Public Health and Environmental Standards for Storage

Sec.
197.1 What does subpart A cover?
197.2 What definitions apply in subpart A?
197.3 How is subpart A implemented?
197.4 What standard must DOE meet?
197.5 When will this part take effect?

    Subpart B_Public Health and Environmental Standards for Disposal

197.11 What does subpart B cover?
197.12 What definitions apply in subpart B?
197.13 How is subpart B implemented?
197.14 What is a reasonable expectation?
197.15 How must DOE take into account the changes that will occur during 
          the 10,000 years after disposal?

                     Individual-Protection Standard

197.20 What standard must DOE meet?
197.21 Who is the reasonably maximally exposed individual?

                        Human-Intrusion Standard

197.25 What standard must DOE meet?
197.26 What are the circumstances of the human intrusion?

                    Ground Water Protection Standards

197.30 What standards must DOE meet?
197.31 What is a representative volume?

                          Additional Provisions

197.35 What other projections must DOE make?
197.36 Are there limits on what DOE must consider in the performance 
          assessments?
197.37 Can EPA amend this rule?
197.38 Are the Individual Protection and Ground Water Protection 
          Standards Severable?

    Authority: Sec. 801, Pub. L. 102-486, 106 Stat. 2921, 42 U.S.C. 
10141 n.

    Source: 66 FR 32132, June 13, 2001, unless otherwise noted.



     Subpart A_Public Health and Environmental Standards for Storage



Sec. 197.1  What does subpart A cover?

    This subpart covers the storage of radioactive material by DOE in 
the Yucca Mountain repository and on the Yucca Mountain site.



Sec. 197.2  What definitions apply in subpart A?

    Annual committed effective dose equivalent means the effective dose 
equivalent received by an individual in one year from radiation sources 
external to the individual plus the committed effective dose equivalent.
    Committed effective dose equivalent means the effective dose 
equivalent received over a period of time (e.g., 30

[[Page 63]]

years,), as determined by NRC, by an individual from radionuclides 
internal to the individual following a one-year intake of those 
radionuclides.
    DOE means the Department of Energy.
    Effective dose equivalent means the sum of the products of the dose 
equivalent received by specified tissues following an exposure of, or an 
intake of radionuclides into, specified tissues of the body, multiplied 
by appropriate weighting factors.
    EPA means the Environmental Protection Agency.
    General environment means everywhere outside the Yucca Mountain 
site, the Nellis Air Force Range, and the Nevada Test Site.
    High-level radioactive waste means:
    (1) The highly radioactive material resulting from the reprocessing 
of spent nuclear fuel, including liquid waste produced directly in 
reprocessing and any solid material derived from such liquid waste that 
contains fission products in sufficient concentrations; and
    (2) Other highly radioactive material that the Commission, 
consistent with existing law, determines by rule requires permanent 
isolation.
    Member of the public means anyone who is not a radiation worker for 
purposes of worker protection.
    NRC means the Nuclear Regulatory Commission.
    Radioactive material means matter composed of or containing 
radionuclides subject to the Atomic Energy Act of 1954, as amended (42 
U.S.C. 2014 et seq.). Radioactive material includes, but is not limited 
to, high-level radioactive waste and spent nuclear fuel.
    Spent nuclear fuel means fuel that has been withdrawn from a nuclear 
reactor following irradiation, the constituent elements of which have 
not been separated by reprocessing.
    Storage means retention (and any associated activity, operation, or 
process necessary to carry out successful retention) of radioactive 
material with the intent or capability to readily access or retrieve 
such material.
    Yucca Mountain repository means the excavated portion of the 
facility constructed underground within the Yucca Mountain site.
    Yucca Mountain site means:
    (1) The site recommended by the Secretary of DOE to the President 
under section 112(b)(1)(B) of the Nuclear Waste Policy Act of 1982 (42 
U.S.C. 10132(b)(1)(B)) on May 27, 1986; or
    (2) The area under the control of DOE for the use of Yucca Mountain 
activities at the time of licensing, if the site designated under the 
Nuclear Waste Policy Act is amended by Congress prior to the time of 
licensing.



Sec. 197.3  How is subpart A implemented?

    The NRC implements this subpart A. The DOE must demonstrate to NRC 
that normal operations at the Yucca Mountain site will and do occur in 
compliance with this subpart before NRC may grant or continue a license 
for DOE to receive and possess radioactive material within the Yucca 
Mountain site.



Sec. 197.4  What standard must DOE meet?

    The DOE must ensure that no member of the public in the general 
environment receives more than an annual committed effective dose 
equivalent of 150 microsieverts (15 millirems) from the combination of:
    (a) Management and storage (as defined in 40 CFR 191.2) of 
radioactive material that:
    (1) Is subject to 40 CFR 191.3(a); and
    (2) Occurs outside of the Yucca Mountain repository but within the 
Yucca Mountain site; and
    (b) Storage (as defined in Sec. 197.2) of radioactive material 
inside the Yucca Mountain repository.



Sec. 197.5  When will this part take effect?

    The standards in this part take effect on July 13, 2001.



    Subpart B_Public Health and Environmental Standards for Disposal



Sec. 197.11  What does subpart B cover?

    This subpart covers the disposal of radioactive material in the 
Yucca Mountain repository by DOE.

[[Page 64]]



Sec. 197.12  What definitions apply in subpart B?

    All definitions in subpart A of this part and the following:
    Accessible environment means any point outside of the controlled 
area, including:
    (1) The atmosphere (including the atmosphere above the surface area 
of the controlled area);
    (2) Land surfaces;
    (3) Surface waters;
    (4) Oceans; and
    (5) The lithosphere.
    Aquifer means a water-bearing underground geological formation, 
group of formations, or part of a formation (excluding perched water 
bodies) that can yield a significant amount of ground water to a well or 
spring.
    Barrier means any material, structure, or feature that, for a period 
to be determined by NRC, prevents or substantially reduces the rate of 
movement of water or radionuclides from the Yucca Mountain repository to 
the accessible environment, or prevents the release or substantially 
reduces the release rate of radionuclides from the waste. For example, a 
barrier may be a geologic feature, an engineered structure, a canister, 
a waste form with physical and chemical characteristics that 
significantly decrease the mobility of radionuclides, or a material 
placed over and around the waste, provided that the material 
substantially delays movement of water or radionuclides.
    Controlled area means:
    (1) The surface area, identified by passive institutional controls, 
that encompasses no more than 300 square kilometers. It must not extend 
farther:
    (a) South than 36[deg]40[min]13.6661[sec] north latitude, in the 
predominant direction of ground water flow; and
    (b) Than five kilometers from the repository footprint in any other 
direction; and
    (2) The subsurface underlying the surface area.
    Disposal means the emplacement of radioactive material into the 
Yucca Mountain disposal system with the intent of isolating it for as 
long as reasonably possible and with no intent of recovery, whether or 
not the design of the disposal system permits the ready recovery of the 
material. Disposal of radioactive material in the Yucca Mountain 
disposal system begins when all of the ramps and other openings into the 
Yucca Mountain repository are sealed.
    Ground water means water that is below the land surface and in a 
saturated zone.
    Human intrusion means breaching of any portion of the Yucca Mountain 
disposal system, within the repository footprint, by any human activity.
    Passive institutional controls means:
    (1) Markers, as permanent as practicable, placed on the Earth's 
surface;
    (2) Public records and archives;
    (3) Government ownership and regulations regarding land or resource 
use; and
    (4) Other reasonable methods of preserving knowledge about the 
location, design, and contents of the Yucca Mountain disposal system.
    Peak dose means the highest annual committed effective dose 
equivalent projected to be received by the reasonably maximally exposed 
individual.
    Performance assessment means an analysis that:
    (1) Identifies the features, events, processes, (except human 
intrusion), and sequences of events and processes (except human 
intrusion) that might affect the Yucca Mountain disposal system and 
their probabilities of occurring during 10,000 years after disposal;
    (2) Examines the effects of those features, events, processes, and 
sequences of events and processes upon the performance of the Yucca 
Mountain disposal system; and
    (3) Estimates the annual committed effective dose equivalent 
incurred by the reasonably maximally exposed individual, including the 
associated uncertainties, as a result of releases caused by all 
significant features, events, processes, and sequences of events and 
processes, weighted by their probability of occurrence.
    Period of geologic stability means the time during which the 
variability of geologic characteristics and their future behavior in and 
around the Yucca Mountain site can be bounded, that is, they can be 
projected within a reasonable range of possibilities.

[[Page 65]]

    Plume of contamination means that volume of ground water in the 
predominant direction of ground water flow that contains radioactive 
contamination from releases from the Yucca Mountain repository. It does 
not include releases from any other potential sources on or near the 
Nevada Test Site.
    Repository footprint means the outline of the outermost locations of 
where the waste is emplaced in the Yucca Mountain repository.
    Slice of the plume means a cross-section of the plume of 
contamination with sufficient thickness parallel to the prevalent 
direction of flow of the plume that it contains the representative 
volume.
    Total dissolved solids means the total dissolved (filterable) solids 
in water as determined by use of the method specified in 40 CFR part 
136.
    Undisturbed performance means that human intrusion or the occurrence 
of unlikely natural features, events, and processes do not disturb the 
disposal system.
    Undisturbed Yucca Mountain disposal system means that the Yucca 
Mountain disposal system is not affected by human intrusion.
    Waste means any radioactive material emplaced for disposal into the 
Yucca Mountain repository.
    Well-capture zone means the volume from which a well pumping at a 
defined rate is withdrawing water from an aquifer. The dimensions of the 
well-capture zone are determined by the pumping rate in combination with 
aquifer characteristics assumed for calculations, such as hydraulic 
conductivity, gradient, and the screened interval.
    Yucca Mountain disposal system means the combination of underground 
engineered and natural barriers within the controlled area that prevents 
or substantially reduces releases from the waste.



Sec. 197.13  How is subpart B implemented?

    The NRC implements this subpart B. The DOE must demonstrate to NRC 
that there is a reasonable expectation of compliance with this subpart 
before NRC may issue a license. In the case of the specific numerical 
requirements in Sec. 197.20 of this subpart, and if performance 
assessment is used to demonstrate compliance with the specific numerical 
requirements in Sec. Sec. 197.25 and 197.30 of this subpart, NRC will 
determine compliance based upon the mean of the distribution of 
projected doses of DOE's performance assessments which project the 
performance of the Yucca Mountain disposal system for 10,000 years after 
disposal.



Sec. 197.14  What is a reasonable expectation?

    Reasonable expectation means that NRC is satisfied that compliance 
will be achieved based upon the full record before it. Characteristics 
of reasonable expectation include that it:
    (a) Requires less than absolute proof because absolute proof is 
impossible to attain for disposal due to the uncertainty of projecting 
long-term performance;
    (b) Accounts for the inherently greater uncertainties in making 
long-term projections of the performance of the Yucca Mountain disposal 
system;
    (c) Does not exclude important parameters from assessments and 
analyses simply because they are difficult to precisely quantify to a 
high degree of confidence; and
    (d) Focuses performance assessments and analyses upon the full range 
of defensible and reasonable parameter distributions rather than only 
upon extreme physical situations and parameter values.



Sec. 197.15  How must DOE take into account the changes that will occur during 

the next 10,000 years after disposal?

    The DOE should not project changes in society, the biosphere (other 
than climate), human biology, or increases or decreases of human 
knowledge or technology. In all analyses done to demonstrate compliance 
with this part, DOE must assume that all of those factors remain 
constant as they are at the time of license application submission to 
NRC. However, DOE must vary factors related to the geology, hydrology, 
and climate based upon cautious, but reasonable assumptions of the 
changes in these factors that could affect the

[[Page 66]]

Yucca Mountain disposal system over the next 10,000 years.

                     Individual-Protection Standard



Sec. 197.20  What standard must DOE meet?

    The DOE must demonstrate, using performance assessment, that there 
is a reasonable expectation that, for 10,000 years following disposal, 
the reasonably maximally exposed individual receives no more than an 
annual committed effective dose equivalent of 150 microsieverts (15 
millirems) from releases from the undisturbed Yucca Mountain disposal 
system. The DOE's analysis must include all potential pathways of 
radionuclide transport and exposure.



Sec. 197.21  Who is the reasonably maximally exposed individual?

    The reasonably maximally exposed individual is a hypothetical person 
who meets the following criteria:
    (a) Lives in the accessible environment above the highest 
concentration of radionuclides in the plume of contamination;
    (b) Has a diet and living style representative of the people who now 
reside in the Town of Amargosa Valley, Nevada. The DOE must use 
projections based upon surveys of the people residing in the Town of 
Amargosa Valley, Nevada, to determine their current diets and living 
styles and use the mean values of these factors in the assessments 
conducted for Sec. Sec. 197.20 and 197.25; and
    (c) Drinks 2 liters of water per day from wells drilled into the 
ground water at the location specified in paragraph (a) of this section.

                        Human-Intrusion Standard



Sec. 197.25  What standard must DOE meet?

    The DOE must determine the earliest time after disposal that the 
waste package would degrade sufficiently that a human intrusion (see 
Sec. 197.26) could occur without recognition by the drillers. The DOE 
must:
    (a) If complete waste package penetration is projected to occur at 
or before 10,000 years after disposal:
    (1) Demonstrate that there is a reasonable expectation that the 
reasonably maximally exposed individual receives no more than an annual 
committed effective dose equivalent of 150 microsieverts (15 millirems) 
as a result of a human intrusion, at or before 10,000 years after 
disposal. The analysis must include all potential environmental pathways 
of radionuclide transport and exposure; and
    (2) If exposures to the reasonably maximally exposed individual 
occur more than 10,000 years after disposal, include the results of the 
analysis and its bases in the environmental impact statement for Yucca 
Mountain as an indicator of long-term disposal system performance; and
    (b) Include the results of the analysis and its bases in the 
environmental impact statement for Yucca Mountain as an indicator of 
long-term disposal system performance, if the intrusion is not projected 
to occur before 10,000 years after disposal.



Sec. 197.26  What are the circumstances of the human intrusion?

    For the purposes of the analysis of human intrusion, DOE must make 
the following assumptions:
    (a) There is a single human intrusion as a result of exploratory 
drilling for ground water;
    (b) The intruders drill a borehole directly through a degraded waste 
package into the uppermost aquifer underlying the Yucca Mountain 
repository;
    (c) The drillers use the common techniques and practices that are 
currently employed in exploratory drilling for ground water in the 
region surrounding Yucca Mountain;
    (d) Careful sealing of the borehole does not occur, instead natural 
degradation processes gradually modify the borehole;
    (e) Only releases of radionuclides that occur as a result of the 
intrusion and that are transported through the resulting borehole to the 
saturated zone are projected; and
    (f) No releases are included which are caused by unlikely natural 
processes and events.

[[Page 67]]

                    Ground Water Protection Standards



Sec. 197.30  What standards must DOE meet?

    The DOE must demonstrate that there is a reasonable expectation 
that, for 10,000 years of undisturbed performance after disposal, 
releases of radionuclides from waste in the Yucca Mountain disposal 
system into the accessible environment will not cause the level of 
radioactivity in the representative volume of ground water to exceed the 
limits in the following Table 1:

      Table 1--Limits on Radionuclides in the Representative Volume
------------------------------------------------------------------------
   Radionuclide or type of                               Is natural
      radiation emitted               Limit         background included?
------------------------------------------------------------------------
Combined radium-226 and       5 picocuries per      Yes.
 radium-228.                   liter.
Gross alpha activity          15 picocuries per     Yes.
 (including radium-226 but     liter.
 excluding radon and
 uranium).
Combined beta and photon      40 microsieverts (4   No.
 emitting radionuclides.       millirem) per year
                               to the whole body
                               or any organ, based
                               on drinking 2
                               liters of water per
                               day from the
                               representative
                               volume.
------------------------------------------------------------------------



Sec. 197.31  What is a representative volume?

    (a) It is the volume of ground water that would be withdrawn 
annually from an aquifer containing less than 10,000 milligrams of total 
dissolved solids per liter of water to supply a given water demand. The 
DOE must project the concentration of radionuclides released from the 
Yucca Mountain disposal system that will be in the representative 
volume. The DOE must then use the projected concentrations to 
demonstrate a reasonable expectation to NRC that the Yucca Mountain 
disposal system complies with Sec. 197.30. The DOE must make the 
following assumptions concerning the representative volume:
    (1) It includes the highest concentration level in the plume of 
contamination in the accessible environment;
    (2) Its position and dimensions in the aquifer are determined using 
average hydrologic characteristics which have cautious, but reasonable, 
values representative of the aquifers along the radionuclide migration 
path from the Yucca Mountain repository to the accessible environment as 
determined by site characterization; and
    (3) It contains 3,000 acre-feet of water (about 3,714,450,000 liters 
or 977,486,000 gallons).
    (b) The DOE must use one of two alternative methods for determining 
the dimensions of the representative volume. The DOE must propose its 
chosen method, and any underlying assumptions, to NRC for approval.
    (1) The DOE may calculate the dimensions as a well-capture zone. If 
DOE uses this approach, it must assume that the:
    (i) Water supply well(s) has (have) characteristics consistent with 
public water supply wells in the Town of Amargosa Valley, Nevada, for 
example, well-bore size and length of the screened intervals;
    (ii) Screened interval(s) include(s) the highest concentration in 
the plume of contamination in the accessible environment; and
    (iii) Pumping rates and the placement of the well(s) must be set to 
produce an annual withdrawal equal to the representative volume and to 
tap the highest concentration within the plume of contamination.
    (2) The DOE may calculate the dimensions as a slice of the plume. If 
DOE uses this approach, it must:
    (i) Propose to NRC, for its approval, where the location of the edge 
of the plume of contamination occurs. For example, the place where the 
concentration of radionuclides reaches 0.1% of the level of the highest 
concentration in the accessible environment;
    (ii) Assume that the slice of the plume is perpendicular to the 
prevalent direction of flow of the aquifer; and
    (iii) Assume that the volume of ground water contained within the 
slice of the plume equals the representative volume.

[[Page 68]]

                          Additional Provisions



Sec. 197.35  What other projections must DOE make?

    To complement the results of Sec. 197.20, DOE must calculate the 
peak dose of the reasonably maximally exposed individual that would 
occur after 10,000 years following disposal but within the period of 
geologic stability. No regulatory standard applies to the results of 
this analysis; however, DOE must include the results and their bases in 
the environmental impact statement for Yucca Mountain as an indicator of 
long-term disposal system performance.



Sec. 197.36  Are there limits on what DOE must consider in the performance 

assessments?

    Yes. The DOE's performance assessments shall not include 
consideration of very unlikely features, events, or processes, i.e., 
those that are estimated to have less than one chance in 10,000 of 
occurring within 10,000 years of disposal. The NRC shall exclude 
unlikely features, events, and processes, or sequences of events and 
processes from the assessments for the human intrusion and ground water 
protection standards. The specific probability of the unlikely features, 
events, and processes is to be specified by NRC. In addition, unless 
otherwise specified in NRC regulations, DOE's performance assessments 
need not evaluate, the impacts resulting from any features, events, and 
processes or sequences of events and processes with a higher chance of 
occurrence if the results of the performance assessments would not be 
changed significantly.



Sec. 197.37  Can EPA amend this rule?

    Yes. We can amend this rule by conducting another notice-and-comment 
rulemaking. Such a rulemaking must include a public comment period. 
Also, we may hold one or more public hearings, if we receive a written 
request to do so.



Sec. 197.38  Are the Individual Protection and Ground Water Protection Standards Severable?

    Yes. The individual protection and ground water protection standards 
are severable.

[[Page 69]]



                  SUBCHAPTER G_NOISE ABATEMENT PROGRAMS



PART 201_NOISE EMISSION STANDARDS FOR TRANSPORTATION EQUIPMENT; INTERSTATE 

RAIL CARRIERS--Table of Contents




                      Subpart A_General Provisions

Sec.
201.1 Definitions.

Appendix A to Subpart A of Part 201--Switcher Locomotives

         Subpart B_Interstate Rail Carrier Operations Standards

201.10 Applicability.
201.11 Standard for locomotive operation under stationary conditions.
201.12 Standard for locomotive operation under moving conditions.
201.13 Standard for rail car operations.
201.14 Standard for retarders.
201.15 Standard for car coupling operations.
201.16 Standard for locomotive load cell test stands.

                     Subpart C_Measurement Criteria

201.20 Applicability and purpose.
201.21 Quantities measured.
201.22 Measurement instrumentation.
201.23 Test site, weather conditions and background noise criteria for 
          measurement at a 30 meter (100 feet) distance of the noise 
          from locomotive and rail car operations and locomotive load 
          cell test stands.
201.24 Procedures for measurement at a 30 meter (100 feet) distance of 
          the noise from locomotive and rail car operations and 
          locomotive load cell test stands.
201.25 Measurement location and weather conditions for measurement on 
          receiving property of the noise of retarders, car coupling, 
          locomotive load cell test stands, and stationary locomotives.
201.26 Procedures for the measurement on receiving property of retarder 
          and car coupling noise.
201.27 Procedures for: (1) Determining applicability of the locomotive 
          load cell test stand standard and switcher locomotive standard 
          by noise measurement on a receiving property; (2) measurement 
          of locomotive load cell test stands more than 120 meters (400 
          feet) on a receiving property.
201.28 Testing by railroad to determine probable compliance with the 
          standard.

    Authority: Noise Control Act of 1972, sec. 17(a), 86 Stat. 1234 (42 
U.S.C. 4916(a)).

    Source: 45 FR 1263, Jan. 4, 1980, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 201.1  Definitions.

    As used in this part, all terms not defined herein shall have the 
meaning given them in the Act:
    (a) Act means the Noise Control Act of 1972 (Pub. L. 92-574, 86 
Stat. 1234).
    (b) Car Coupling Sound means a sound which is heard and identified 
by the observer as that of car coupling impact, and that causes a sound 
level meter indicator (FAST) to register an increase of at least ten 
decibels above the level observed immediately before hearing the sound.
    (c) Carrier means a common carrier by railroad, or partly by 
railroad and partly by water, within the continental United States, 
subject to the Interstate Commerce Act, as amended, excluding street, 
suburban, and interurban electric railways unless operated as a part of 
a general railroad system of transportation.
    (d) Classification of Railroads means the division of railroad 
industry operating companies by the Interstate Commerce Commission into 
three categories. As of 1978, Class I railroads must have annual 
revenues of $50 million or greater, Class II railroads must have annual 
revenues of between $10 and $50 million, and Class III railroads must 
have less than $10 million in annual revenues.
    (e) Commercial Property means any property that is normally 
accessible to the public and that is used for any of the purposes 
described in the following standard land use codes (reference Standard 
Land Use Coding Manual. U.S. DOT/FHWA, reprinted March 1977): 53-59, 
Retail Trade; 61-64, Finance, Insurance, Real Estate, Personal, Business 
and Repair Services; 652-659, Legal and other professional services; 
671, 672, and 673 Governmental Services; 692 and 699, Welfare, 
Charitable and Other Miscellaneous Services; 712 and 719, Nature 
exhibitions and other Cultural Activities; 721, 723, and 729, 
Entertainment, Public and other Public Assembly; and

[[Page 70]]

74-79, Recreational, Resort, Park and other Cultural Activities.
    (f) dB(A) is an abbreviation meaning A-weighted sound level in 
decibels, reference: 20 micropascals.
    (g) Day-night Sound Level means the 24-hour time of day weighted 
equivalent sound level, in decibels, for any continuous 24-hour period, 
obtained after addition of ten decibels to sound levels produced in the 
hours from 10 p.m. to 7 a.m. (2200-0700). It is abbreviated as 
Ldn.
    (h) Decibel means the unit measure of sound level, abbreviated as 
dB.
    (i) Energy Average Level means a quantity calculated by taking ten 
times the common logarithm of the arithmetic average of the antilogs of 
one-tenth of each of the levels being averaged. The levels may be of any 
consistent type, e.g. maximum sound levels, sound exposure levels, and 
day-night sound levels.
    (j) Energy Summation of Levels means a quantity calculated by taking 
ten times the common logarithm of the sum of the antilogs of one-tenth 
of each of the levels being summed. The levels may be of any consistent 
type, e.g., day-night sound level or equivalent sound level.
    (k) Equivalent Sound Level means the level, in decibels, of the 
mean-square A-weighted sound pressure during a stated time period, with 
reference to the square of the standard reference sound pressure of 20 
micropascals. It is the level of the sound exposure divided by the time 
period and is abbreviated as Leq.
    (l) Fast Meter Response means that the ``fast'' response of the 
sound level meter shall be used. The fast dynamic response shall comply 
with the meter dynamic characteristics in paragraph 5.3 of the American 
National Standard Specification for Sound Level Meters. ANSI S1.4-1971. 
This publication is available from the American National Standards 
Institute, Inc., 1430 Broadway, New York, New York 10018.
    (m) Idle means that condition where all engines capable of providing 
motive power to the locomotive are set at the lowest operating throttle 
position; and where all auxiliary non-motive power engines are not 
operating.
    (n) Interstate Commerce means the commerce between any place in a 
State and any place in another State, or between places in the same 
State through another State, whether such commerce moves wholly by rail 
or partly by rail and partly by motor vehicle, express, or water. This 
definition of ``interstate commerce'' for purposes of this regulation is 
similar to the definition of ``interstate commerce'' in section 203(a) 
of the Interstate Commerce Act (49 U.S.C. 303(a)).
    (o) Load Cell means a device external to the locomotive, of high 
electrical resistance, used in locomotive testing to simulate engine 
loading while the locomotive is stationary. (Electrical energy produced 
by the diesel generator is dissipated in the load cell resistors instead 
of the traction motors).
    (p) Locomotive means for the purpose of this regulation, a self-
propelled vehicle designed for and used on railroad tracks in the 
transport or rail cars, including self-propelled rail passenger 
vehicles.
    (q) Locomotive Load Cell Test Stand means the load cell Sec. 
201.1(o) and associated structure, equipment, trackage and locomotive 
being tested.
    (r) Maximum Sound Level means the greatest A-weighted sound level in 
decibels measured during the designated time interval or during the 
event, with either fast meter response Sec. 201.1(l) or slow meter 
response Sec. 201.1(ii) as specified. It is abbreviated as 
Lmax.
    (s) Measurement Period means a continuous period of time during 
which noise of railroad yard operations is assessed, the beginning and 
finishing times of which may be selected after completion of the 
measurements.
    (t) Rail Car means a non-self-propelled vehicle designed for and 
used on railroad tracks.
    (u) Railroad means all the roads in use by any common carrier 
operating a railroad, whether owned or operated under a contract, 
agreement, or lease.
    (v) Receiving Property Measurement Location means a location on 
receiving property that is on or beyond the railroad facility boundary 
and that meets the receiving property measurement location criteria of 
subpart C.

[[Page 71]]

    (w) Receiving Property means any residential or commercial property 
that receives the sound from railroad facility operations, but that is 
not owned or operated by a railroad; except that occupied residences 
located on property owned or controlled by the railroad are included in 
the definition of ``receiving property.'' For purposes of this 
definition railroad crew sleeping quarters located on property owned or 
controlled by the railroad are not considered as residences. If, 
subsequent to the publication date of these regulations, the use of any 
property that is currently not applicable to this regulation changes, 
and it is newly classified as either residential or commercial, it is 
not receiving property until four years have elapsed from the date of 
the actual change in use.
    (x) Residential Property means any property that is used for any of 
the purposes described in the following standard land use codes (ref. 
Standard Land Use Coding Manual. U.S. DOT/FHWA Washington, DC, reprinted 
March 1977): 1, Residential: 651, Medical and other Health Services; 68, 
Educational Services; 691, Religious Activities; and 711, Cultural 
Activities.
    (y) Retarder (Active) means a device or system for decelerating 
rolling rail cars and controlling the degree of deceleration on a car by 
car basis.
    (z) Retarder Sound means a sound which is heard and identified by 
the observer as that of a retarder, and that causes a sound level meter 
indicator at fast meter response Sec. 201.1(l) to register an increase 
of at least ten decibels above the level observed immediately before 
hearing the sound.
    (aa) Sound Level means the level, in decibels, measured by 
instrumentation which satisfies the requirements of American National 
Standard Specification for Sound Level Meters S1.4-1971 Type 1 (or S1A) 
or Type 2 if adjusted as shown in Table 1. This publication is available 
from the American National Standards Institute, Inc., 1430 Broadway, New 
York, New York 10018. For the purpose of these procedures the sound 
level is to be measured using the Aweighting of spectrum and either the 
FAST or SLOW dynamic averaging characteristics, as designated. It is 
abbreviated as LA.
    (bb) Sound Exposure Level means the level in decibels calculated as 
ten times the common logarithm of time integral of squared A-weighted 
sound pressure over a given time period or event divided by the square 
of the standard reference sound pressure of 20 micropascals and a 
reference duration of one second.
    (cc) Sound Pressure Level (in stated frequency band) means the 
level, in decibels, calculated as 20 times the common logarithm of the 
ratio of a sound pressure to the reference sound pressure of 20 
micropascals.
    (dd) Special Purpose Equipment means maintenance-of-way equipment 
which may be located on or operated from rail cars including: Ballast 
cribbing machines, ballast regulators, conditioners and scarifiers, bolt 
machines, brush cutters, compactors, concrete mixers, cranes and 
derricks, earth boring machines, electric welding machines, grinders, 
grouters, pile drivers, rail heaters, rail layers, sandblasters, snow 
plows, spike drivers, sprayers and other types of such maintenance-of-
way equipment.
    (ee) Special Track Work means track other than normal tie and 
ballast bolted or welded rail or containing devices such as retarders or 
switching mechanisms.
    (ff) Statistical Sound Level means the level in decibels that is 
exceeded in a stated percentage (x) of the duration of the measurement 
period. It is abbreviated as Lx.
    (gg) Switcher Locomotive means any locomotive designated as a 
switcher by the builder or reported to the ICC as a switcher by the 
operator-owning-railroad and including, but not limited to, all 
locomotives of the builder/model designations listed in Appendix A to 
this subpart.
    (hh) Warning Device means a sound emitting device used to alert and 
warn people of the presence of railroad equipment.
    (ii) Slow Meter Response means that the slow response of the sound 
level meter shall be used. The slow dynamic response shall comply with 
the meter dynamic characteristics in paragraph 5.4 of the American 
National Standard Specification for Sound Level Meters. ANSI S1.4-1971. 
This publication is

[[Page 72]]

available from the American National Standards Institute Inc., 1430 
Broadway, New York, New York 10018.

[45 FR 1263, Jan. 4, 1980, as amended at 47 FR 14709, Apr. 6, 1982]



     Sec. Appendix A to Subpart A of Part 201--Switcher Locomotives

[The following locomotives are considered to be ``switcher locomotives''
            under the general definition of this regulation]
------------------------------------------------------------------------
                   Type                                Engine
------------------------------------------------------------------------
                          General Electric Co.
------------------------------------------------------------------------
44 ton...................................  8-D17000(2).
70 ton...................................  6-CBFWL-6T.
95 ton...................................  6-CBFWL-6T.
------------------------------------------------------------------------
                      Electromotive Division (GMC)
------------------------------------------------------------------------
SC.......................................  8-201A.
NC.......................................  12-201A.
NC1......................................  12-201A.
NC2......................................  12-201A.
NW.......................................  12-201A.
NW1......................................  12-201A.
NW1A.....................................  12-201A.
NW2......................................  12-567.
NW2......................................  12-567A.
NW3......................................  12-567.
NW4......................................  12-201A.
NW5......................................  12-567B.
SW.......................................  8-201A/6-567.
SW1......................................  6-567A/AC.
SW2......................................  6-567.
SW3......................................  6-567.
SW600....................................  6-567C.
SW7......................................  12-567A.
SW8......................................  8-567B/BC.
SW900....................................  8-567B.
SW9......................................  12-567B/BC/C.
SW1200...................................  12-567C.
SW1000...................................  8-645E.
SW1001...................................  8-645E.
SW1500...................................  12-645E.
MP15.....................................  12-645E.
MP15AC...................................  12-645E.
GMD1.....................................  12-567C.
RS1325...................................  12-567C.
------------------------------------------------------------------------
              Transfer Switcher including ``Cow and Calf''
------------------------------------------------------------------------
T........................................  12-201A(2)
TR.......................................  12-567(2)
TR1......................................  16-567(2)
TR2......................................  12-567A(2)
TR3......................................  12-567(3)
TR4......................................  12-567A(2)
TR5......................................  12-567B(2)
TR6......................................  8-567B(2)
------------------------------------------------------------------------
                                 Baldwin
------------------------------------------------------------------------
VO-660...................................  6-VO.
DS-446...................................  6-606NA.
DS4475...................................  6-750.
S-8......................................  6-606.
VO-1000..................................  8-VO.
DS-4410..................................  8-608NA.
DS-4410..................................  6-606SC.
S-12.....................................  6-606A.
DRS-4410 \1\.............................  6-606SC.
DRS-12 \1\...............................  6-606A.
------------------------------------------------------------------------
                             Fairbanks Morse
------------------------------------------------------------------------
H-10-44..................................  6-OP.
H-12-44..................................  6-OP.
H-12-44TS................................  6-OP.
H-12-46 \1\..............................  6-OP.
------------------------------------------------------------------------
                                  Lima
------------------------------------------------------------------------
750 hp...................................  6-Hamilton.
800 hp...................................  6-Hamilton.
1000 hp..................................  8-Hamilton.
1200 hp..................................  8-Hamilton.
LRS \1\..................................  8-Hamilton.
TL \1\...................................  8-Hamilton (2).
------------------------------------------------------------------------
                              ALCO and MLW
------------------------------------------------------------------------
S1.......................................  6-539NA.
S2.......................................  6-539T.
S3.......................................  6-539NA.
S4.......................................  6-539T.
S5.......................................  6-251.
S6.......................................  6-251A,B.
S7.......................................  6-539.
S10......................................  6-539.
S11......................................  6-539.
S12......................................  6-539T.
S13......................................  6-251C.
RSD-1....................................  6-539.
RSC-13...................................  6-539.
RSC-24...................................  12-244
RS1......................................  6-539T.
RS2 \1\..................................  12-244.
RS3 \1\..................................  12-244.
RS10 \1\.................................  12-244.
RSC-2 \1\................................  12-244.
RS3 \1\..................................  12-244.
RSD-4 \1\................................  12-244.
RSD-5 \1\................................  12-244.
T6.......................................  6-251B.
C-415 \1\................................  8-251F.
M-420TR..................................  12-251.
------------------------------------------------------------------------
\1\ These models may be found assigned to road service as well as
  switcher service, but are considered switcher locomotives for the
  purpose of this regulation.



         Subpart B_Interstate Rail Carrier Operations Standards



Sec. 201.10  Applicability.

    The provisions of this subpart apply to all rail cars and all 
locomotives, except steam locomotives, operated or controlled by 
carriers as defined in subpart A of this part, except that Sec. 201.11 
(a), (b), and (c) do not apply to gas turbine-powered locomotives and to 
any locomotive type which cannot be connected by any standard method to 
a load cell. They apply to the total sound level emitted by rail cars 
and locomotives operated under the conditions specified, including the 
sound produced by refrigeration and air conditioning

[[Page 73]]

units which are an integral element of such equipment. The provisions of 
this subpart apply to all active retarders, all car coupling operations, 
all switcher locomotives, and all load cell test stands. These 
provisions do not apply to the sound emitted by a warning device, such 
as a horn, whistle or bell when operated for the purpose of safety. They 
do not apply to special purpose equipment which may be located on or 
operated from railcars; they do not apply to street, suburban or 
interurban electric railways unless operated as a part of a general 
railroad system of transportation. When land use changes after the 
publication date of this regulation from some other use to residential 
or commercial land use around a specific railyard facility, this 
regulation will become effective four (4) years from the date of that 
land use change.



Sec. 201.11  Standard for locomotive operation under stationary conditions.

    (a) Commencing December 31, 1976, no carrier subject to this 
regulation shall operate any locomotive to which this regulation is 
applicable, and of which manufacture is completed on or before December 
31, 1979, which produces A-weighted sound levels in excess of 93 dB at 
any throttle setting except idle, when operated singly and when 
connected to a load cell, or in excess of 73 dB at idle when operated 
singly, and when measured in accordance with the criteria specified in 
Subpart C of this part with slow meter response at a point 30 meters 
(100 feet) from the geometric center of the locomotive along a line that 
is both perpendicular to the centerline of the track and originates at 
the locomotive geometric center.
    (b) No carrier subject to this regulation shall operate any 
locomotive to which this regulation is applicable, and of which 
manufacture is completed after December 31, 1979, which produces A-
weighted sound levels in excess of 87 dB at any throttle setting except 
idle, when operated singly and when connected to a load cell, or in 
excess of 70 dB at idle when operated singly, and when measured in 
accordance with the criteria specified in Subpart C of this part with 
slow meter response at a point 30 meters (100 feet) from the geometric 
center of the locomotive along a line that is both perpendicular to the 
centerline of the track and originates at the locomotive geometric 
center.
    (c) Commencing January 15, 1984, no carrier subject to this 
regulation may operate any switcher locomotive to which this regulation 
is applicable, and of which manufacture is completed on or before 
December 31, 1979, which produces A-weighted sound levels in excess of 
87 dB at any throttle setting except idle, when operated singly and when 
connected to a load cell, or in excess of 70 dB at idle, and when 
measured in accordance with the criteria specified in Subpart C of this 
part with slow meter response at a point 30 meters (100 feet) from the 
geometric center of the locomotive along a line that is both 
perpendicular to the centerline of the track and originates at the 
locomotive geometric center. All switcher locomotives that operate in a 
particular railroad facility are deemed to be in compliance with this 
standard if the A-weighted sound level from stationary switcher 
locomotives, singly or in combination with other stationary locomotives, 
does not exceed 65 dB when measured with fast meter response at any 
receiving property measurement location near that particular railyard 
facility and when measured in accordance wtih Subpart C of this 
regulation.

[45 FR 1263, Jan. 4, 1980; 47 FR 14709, Apr. 6, 1982]



Sec. 201.12  Standard for locomotive operation under moving conditions.

    (a) Commencing December 31, 1976, no carrier subject to this 
regulation may operate any locomotive or combination of locomotives to 
which this regulation is applicable, and of which manufacture is 
completed on or before December 31, 1979, which produces A-weighted 
sound levels in excess of 96 dB when moving at any time or under any 
condition of grade, load, acceleration, or deceleration, when measured 
in accordance with the criteria specified in Subpart C of this 
regulation with fast meter response at 30 meters (100 feet) from the 
centerline of any section of track having less than a two (2) degree 
curve (or a radius of curvature greater than 873 meters (2865 feet)).

[[Page 74]]

    (b) No carrier subject to this regulation may operate any locomotive 
or combination of locomotives to which this regulation is applicable, 
and of which manufacture is completed after December 31, 1979, which 
produce A-weighted sound levels in excess of 90 dB when moving at any 
time or under any condition of grade, load, acceleration, or 
deceleration, when measured in accordance with the criteria specified in 
Subpart C of this part with fast meter response at 30 meters (100 feet) 
from the centerline of any section of track having less than a two (2) 
degree curve (or a radius of curvature greater than 873 meters (2,865 
feet)).
    (c) Commencing January 15, 1984, no carrier subject to this 
regulation may operate any switcher locomotive or a combination of 
switcher locomotives to which this regulation is applicable, and of 
which manufacture is completed on or before December 31, 1979 which 
produce A-weighted sound levels in excess of 90 dB when moving at any 
time or under any condition of grade, load, acceleration or 
deceleration, and when measured in accordance with the criteria in 
Subpart C of this part with fast meter response at 30 meters (100 feet) 
from the centerline of any section of track having less than a two (2) 
degree curve (or a radius of curvature greater than 873 meters (2,865 
feet)). All switcher locomotives that operate in a particular railroad 
facility are deemed to be in compliance with this standard if the A-
weighted sound level from stationary switcher locomotives, singly or in 
combination with other stationary locomotives, does not exceed 65 dB 
when measured with fast meter response at any receiving property 
measurement location near that particular railyard facility and when 
measured in accordance with Subpart C of this regulation.

[45 FR 1263, Jan. 4, 1980; 47 FR 14709, Apr. 6, 1982]



Sec. 201.13  Standard for rail car operations.

    Effective December 31, 1976, no carrier subject to this regulation 
shall operate any rail car or combination of rail cars which while in 
motion produce sound levels in excess of (1) 88 dB(A) at rail car speeds 
up to and including 75 km/hr (45 mph); or (2) 93 dB(A) at rail car 
speeds greater than 72 km/hr (45 mph); when measured in accordance with 
the criteria specified in Subpart C of this part with fast meter 
response at 30 meters (100) feet from the centerline of any section of 
track which is free of special track work or bridges or trestles and 
which exhibits less than a two (2) degree curve (or a radius of 
curvature greater than 873 meters (2,865 feet)).

[45 FR 1263, Jan. 4, 1980; 47 FR 14709, Apr. 6, 1982]



Sec. 201.14  Standard for retarders.

    Effective January 15, 1984, no carrier subject to this regulation 
shall operate retarders that exceed an adjusted average maximum A-
weighted sound level of 83 dB at any receiving property measurement 
location, when measured with fast meter response in accordance with 
Subpart C of this part.

[45 FR 1263, Jan. 4, 1980; 47 FR 14709, Apr. 6, 1982]



Sec. 201.15  Standard for car coupling operations.

    Effective January 15, 1984, no carrier subject to this regulation 
shall conduct car coupling operations that exceed an adjusted average 
maximum A-weighted sound level of 92 dB at any receiving property 
measurement location, when measured with fast meter response in 
accordance with Subpart C of this part, except, such coupling will be 
found in compliance with this standard and the carrier will be 
considered in compliance, if the railroad demonstrates that the standard 
is exceeded at the receiving property measurement locations (where the 
standard was previously exceeded) when cars representative of those 
found to exceed the standard are coupled at similar locations at 
coupling speeds of eight miles per hour or less.

[45 FR 1263, Jan. 4, 1980; 47 FR 14709, Apr. 6, 1982]



Sec. 201.16  Standard for locomotive load cell test stands.

    (a) Effective January 15, 1984, no carrier subject to this reguation 
shall operate locomotive load cell test stands that exceed an A-weighted 
sound level

[[Page 75]]

of 78 dB when measured with slow meter response in accordance with 
Subpart C of this part excluding Sec. 201.23 (b) and (c), at a point 30 
meters (100 feet) from the geometric center of the locomotive undergoing 
test, along a line that is both perpendicular to the centerline of the 
track and originates at the locomotive geometric center, and in the 
direction most nearly towards the closest receiving property measurement 
location. All locomotive load cell test stands in a particular railroad 
facility are in compliance with this standard if the A-weighted sound 
level from the load cell does not exceed 65 dB at any receiving property 
measurement location near that particular railyard facility and when 
measured with fast meter response in accordance with Subpart C of this 
regulation.
    (b) If the conditions of any part of Sec. 201.23(a) cannot be met 
at a specific load cell test stand site, then the A-weighted sound level 
from that specific load cell test stand must not exceed 65 dB when 
measured with fast meter response at a receiving property measurement 
location more than 120 meters (400 feet) from the geometric center of 
the locomotive being tested and in accordance with Subpart C of this 
regulation.

[45 FR 1263, Jan. 4, 1980; 47 FR 14709, Apr. 6, 1982]



                     Subpart C_Measurement Criteria



Sec. 201.20  Applicability and purpose.

    The following criteria are applicable to and contain the necessary 
parameters and procedures for the measurement of the noise emission 
levels prescribed in the standards of Subpart B of this part. These 
criteria are specified in order to further clarify and define such 
standards. Equivalent measurement procedures may be used for 
establishing compliance with these regulations. Any equivalent 
measurement procedure, under any circumstance, shall not result in a 
more stringent noise control requirement than those specified in this 
regulation using the measurement procedures in Subpart C.



Sec. 201.21  Quantities measured.

    The quantities to be measured under the test conditions described 
below, are the A-weighted sound levels for ``fast'' or ``slow'' meter 
response as defined in the American National Standard S1.4-1971.



Sec. 201.22  Measurement instrumentation.

    (a) A sound level meter or alternate sound level measurement system 
that meets, as a minimum, all the requirements of American National 
Standard S1.4-1971 \1\ for a Type 1 (or S1A) instrument must be used 
with the ``fast'' or ``slow'' meter response chacteristic as specified 
in Subpart B. To insure Type 1 response, the manufacturer's instructions 
regarding mounting or orienting of the microphone, and positioning of 
the observer must be observed. In the event that a Type 1 (or S1A) 
instrument is not available for determining non-compliance with this 
regulation, the measurements may be made with a Type 2 (or S2A), but 
with the measured levels reduced by the following amount to account for 
possible measurement instrument errors pertaining to specific 
measurements and sources:
---------------------------------------------------------------------------

    \1\ American National Standards are available from the American 
National Standards Institute, Inc., 1430 Broadway, New York, NY 10018.

Table 1--Sound Level Corrections When Using a Type 2 (or S2A) Instrument
------------------------------------------------------------------------
                                                                Decibels
      Measurement section                   Source                 \1\
------------------------------------------------------------------------
201.24........................  Locomotives...................        0
                                Rail cars.....................        0
                                Locomotive load cell test             0
                                 stand.
201.26........................  Retarder......................        4
                                Car coupling..................        2
201.27........................  Locomotive load cell test             0
                                 stand.
                                Stationary locomotive.........        0
------------------------------------------------------------------------
\1\ Amount of correction to be subtracted from measured level (dB).

    (b) A microphone windscreen and an acoustic calibrator of the 
coupler type must be used as recommended by: (1) the manufacturer of the 
sound level meter or (2) the manufacturer of the microphone. The choice 
of both devices must be based on ensuring that Type 1 or 2 performance, 
as appropriate, is maintained for frequencies below 10,000 Hz.

[[Page 76]]



Sec. 201.23  Test site, weather conditions and background noise criteria for 

measurement at a 30 meter (100 feet) distance of the noise from locomotive and 

rail car operations and locomotive load cell test stands.

    (a) The standard test site shall be such that the locomotive or 
train radiates sound into a free field over the ground plane. This 
condition may be considered fulfilled if the test site consists of an 
open space free of large, sound reflecting objects, such as barriers, 
hills, signboards, parked vehicles, locomotives or rail cars on adjacent 
tracks, bridges or buildings within the boundaries described by Figure 
1, as well as conforms to the other requirements of this Sec. 201.23.
    (b) Within the complete test site, the top of at least one rail upon 
which the locomotive or train is located shall be visible (line of 
sight) from a position 1.2 meters (4 feet) above the ground at the 
microphone location, except as provided in paragraph (c) of this 
section.
    (c) Ground cover such as vegetation, fenceposts, small trees, 
telephone poles, etc., shall be limited within the area in the test site 
between the vehicle under test and the measuring microphone such that 80 
percent of the top of at least one rail along the entire test section of 
track be visible from a position 1.2 meters (4 feet) above the ground at 
the microphone location; except that no single obstruction shall account 
for more than 5 percent of the total allowable obstruction.
    (d) The ground elevation at the microphone location shall be within 
plus 1.5 meters (5 feet) or minus 3.0 meters (10 feet) of the elevation 
of the top of the rail at the location in-line with the microphone.
    (e) Within the test site, the track shall exhibit less than a 2 
degree curve or a radius of curvature greater than 873 meters (2,865 
feet). This paragraph shall not apply during a stationary test. The 
track shall be tie and ballast, free of special track work and bridges 
or trestles.
    (f) Measurements shall not be made during precipitation.
    (g) The maximum A-weighted fast response sound level observed at the 
test site immediately before and after the test shall be at least 10 
dB(A) below the level measured during the test. For the locomotive and 
rail car pass-by tests this requirement applies before and after the 
train containing the rolling stock to be tested has passed. This 
background sound level measurement shall include the contribution from 
the operation of the load cell, if any, including load cell contribution 
during test.
    (h) Noise measurements may only be made if the measured wind 
velocity is 19.3 km/hr (12 mph) or less. Gust wind measurements of up to 
33.2 km/hr (20 mph) are allowed.



Sec. 201.24  Procedures for measurement at a 30 meter (100 feet) distance of 

the noise from locomotive and rail car operations and locomotive load cell 

test stands.

    (a) Microphone positions. (1) The microphone shall be located within 
the test site according to the specifications given in the test 
procedures of paragraphs (b), (c) and (d) of this section, and shall be 
positioned 1.2 meters (4 feet) above the ground. It shall be oriented 
with respect to the source in accordance with the manufacturer's 
recommendations.
    (2) The observer shall not stand between the microphone and the 
source whose sound level is being measured.
    (b) Stationary locomotive and locomotive load cell test stand tests. 
(1) For stationary locomotive and locomotive load cell test stand tests, 
the microphone shall be positioned on a line perpendicular to the track 
at a point 30 meters (100 feet) from the track centerline at the 
longitudinal midpoint of the locomotive.
    (2) The sound level meter shall be observed for thirty seconds after 
the test throttle setting is established to assure operating stability. 
The maximum sound level observed during that time shall be utilized for 
compliance purposes.
    (3) Measurement of stationary locomotive and locomotive load cell 
test stand noise shall be made with all cooling fans operating.
    (c) Rail car pass-by test. (1) For rail car pass-by tests, the 
microphone shall be positioned on a line perpendicular to the track 30 
meters (100 feet) from the track centerline.

[[Page 77]]

    (2) Rail car noise measurements shall be made when the locomotives 
have passed a distance 152.4 meters (500 feet) or 10 rail cars beyond 
the point at the intersection of the track and the line which extends 
perpendicularly from the track to the microphone location, providing any 
other locomotives are also at least 152.4 meters (500 feet) or 10 rail 
car lengths away from the measuring point. The maximum sound level 
observed in this manner which exceeds the noise levels specified in 
Sec. 201.13 shall be utilized for compliance purposes.
    (3) Measurements shall be taken on reasonably well maintained 
tracks.
    (4) Noise levels shall not be recorded if brake squeal is present 
during the test measurement.
    (d) Locomotive pass-by test. (1) For locomotive pass-by tests, the 
microphone shall be positioned on a line perpendicular to the track at a 
point 30 meters (100 feet) from the track centerline.
    (2) The noise level shall be measured as the locomotive approaches 
and passes by the microphone location. The maximum noise level observed 
during this period shall be utilized for compliance purposes.
    (3) Measurements shall be taken on reasonably well maintained 
tracks.

[[Page 78]]

[GRAPHIC] [TIFF OMITTED] TN30SE99.055


[[Page 79]]





Sec. 201.25  Measurement location and weather conditions for measurement on 

receiving property of the noise of retarders, car coupling, locomotive load 

cell test stands, and stationary locomotives.

    (a) Measurements must be conducted only at receiving property 
measurement locations.
    (b) Measurement locations on receiving property must be selected 
such that no substantially vertical plane surface, other than a 
residential or commercial unit wall or facility boundary noise barrier, 
that exceeds 1.2 meters (4 feet) in height is located within 10 meters 
(33.3 feet) of the microphone and that no exterior wall of a residential 
or commercial structure is located within 2.0 meters (6.6 feet) of the 
microphone. If the residential structure is a farm home, measurements 
must be made 2.0 to 10.0 meters (6.6 to 33.3 feet) from any exterior 
wall.
    (c) No measurement may be made when the average wind velocity during 
the period of measurement exceeds 19.3 km/hr (12 mph) or when the 
maximum wind gust velocity exceeds 32.2 km/hr (20 mph).
    (d) No measurement may be taken when precipitation, e.g., rain, 
snow, sleet, or hail, is occurring.



Sec. 201.26  Procedures for the measurement on receiving property of retarder 

and car coupling noise.

    (a) Retarders--(1) Microphone. The microphone must be located on the 
receiving property and positioned at a height between 1.2 and 1.5 meters 
(4 to 5 feet) above the ground. The microphone must be positioned with 
respect to the equipment in accordance with the manufacturers' 
recommendations for Type 1 or 2 performance as appropriate. No person 
may stand between the microphone and the equipment being measured or be 
otherwise positioned relative to the microphone at variance with the 
manufacturers' recommendations for Type 1 or 2 performance as 
appropriate.
    (2) Data. The maximum A-weighted sound levels (FAST) for every 
retarder sound observed during the measurement period must be read from 
the indicator and recorded. At least 30 consecutive retarder sounds must 
be measured. The measurement period must be at least 60 minutes and not 
more than 240 minutes.
    (3) Adjusted average maximum A-weighted sound level. The energy 
average level for the measured retarder sounds must be calculated to 
determine the value of the average maximum A-weighted sound level 
(Lave max). This value is then adjusted by adding the 
adjustment (C) from Table 2 appropriate to the number of measurements 
divided by the duration of the measurement period (n/T), to obtain the 
adjusted average maximum A-weighted sound level 
(Ladj ave max) for retarders.
    (b) Car coupling impact--(1) Microphone. The microphone must be 
located on the receiving property and at a distance of at least 30 
meters (100 feet) from the centerline of the nearest track on which car 
coupling occurs and its sound is measured (that is, either the 
microphone is located 30 meters (100 feet) from the nearest track on 
which couplings occur, or all sounds resulting from car coupling impacts 
that occur on tracks with centerlines located less than 30 meters (100 
feet) from the microphone are disregarded). The microphone shall be 
positioned at a height between 1.2 and 1.5 meters (4 and 5 feet) above 
the ground, and it must be positioned with respect to the equipment in 
accordance with the manufacturers' recommendations for Type 1 or 2 
performance as appropriate. No person may stand between the microphone 
and the equipment being measured or be otherwise positioned relative to 
the microphone at variance with the manufacturers' recommendations for 
Type 1 or 2 performance as appropriate.
    (2) Data. The maximum A-weighted sound levels (FAST) for every car 
coupling impact sound observed during the measurement period must be 
read from the indicator and recorded. At least 30 consecutive car 
coupling impact sounds must be measured. The measurement period must be 
at least 60 minutes and not more than 240 minutes, and must be reported.

[[Page 80]]



Table 2--Adjustment to Lave max To Obtain Ladj ave max for Retarders and
                        Car Coupling Impacts \1\
 [n/T=number of measurements/measurement duration (min) C=Adjustment in
                                   dB]
0.111 to 0.141..................................................      -9
0.142 to 0.178..................................................      -8
0.179 to 0.224..................................................      -7
0.225 to 0.282..................................................      -6
0.283 to 0.355..................................................      -5
0.356 to 0.447..................................................      -4
0.448 to 0.562..................................................      -3
0.563 to 0.708..................................................      -2
0.709 to 0.891..................................................      -1
0.892 to 1.122..................................................       0
1.123 to 1.413..................................................      +1
1.414 to 1.778..................................................      +2
1.779 to 2.239..................................................      +3
2.240 to 2.818..................................................      +4
2.819 to 3.548..................................................      +5
3.549 to 4.467..................................................      +6
 
\1\ Ladj ave max=Lave max +C in dB.
Values in Table 2 were calculated from [C=10 log n/T] with intervals
  selected to round off values to the nearest whole decibel. The table
  may be extended or interpolated to finer interval gradations by using
  this defining equation.

    (3) Adjusted average maximum A-weighted sound level. The energy 
average level for the measured car coupling sounds is calculated to 
determine the average maximum sound level (Lave max). It is 
then adjusted by adding the adjustment (C) from Table 2 appropriate to 
the number of measurements divided by the duration of the measurement 
period (n/T), to obtain the adjusted average maximum A-weighted sound 
level (Ladj ave max) for car coupling impacts.



Sec. 201.27  Procedures for: (1) Determining applicability of the locomotive 

load cell test stand standard and switcher locomotive standard by noise 

          measurement on a receiving property; (2) measurement of 

          locomotive load cell test stands more than 120 meters (400 

          feet) on a receiving property.

    (a) Microphone. The microphone must be located at a receiving 
property measurement location and must be positioned at a height between 
1.2 and 1.5 meters (4 and 5 feet) above the ground. Its position with 
respect to the equipment must be in accordance with the manufacturers' 
recommendations for Type 1 or 2 performance as appropriate. No person 
may stand between the microphone and the equipment being measured or be 
otherwise positioned relative to the microphone at variance to the 
manufacturers' recommendations for Type 1 or Type 2 performance as 
appropriate.
    (b) Data. (1) When there is evidence that at least one of these two 
types of nearly steady state sound sources is affecting the noise 
environment, the following measurements must be made. The purpose of 
these measurements is to determine the A-weighted L90 
statistical sound level, which is to be used as described in 
subparagraph (c) below to determine the applicability of the source 
standards. Before this determination can be made, the measured 
L90 is to be ``validated'' by comparing the measured 
L10 and L99 statistical sound levels. If the 
difference between these levels is sufficiently small (4 dB or less), 
the source(s) being measured is considered to be a nearly steady state 
source.
    (2) Data shall be collected by measuring the instantaneous A-
weighted sound level (FAST) at a rate of at least once each 10 seconds 
for a measurement period of at least 15 minutes and until 100 
measurements are obtained. The data may be taken manually by direct 
reading of the indicator at 10 second intervals (1 
second), or by attaching a statistical analyzer, graphic level recorder, 
or other equivalent device to the sound level meter for a more 
continuous recording of the instantaneous sound level.
    (3) The data shall be analyzed to determine the levels exceeded 99%, 
90%, and 10% of the time, i.e., L99, L90, and 
L10, respectively. The value of L90 is considered 
a valid measure of the A-weighted sound level for the standards in Sec. 
201.16 only if the difference between L10 and L99 
has a value of 4 dB or less. If a measured value of L90 is 
not valid for this purpose, measurements may be taken over a longer 
period to attempt to improve the certainty of the measurement and to 
validate L90. If L90 is valid and is less than the 
level in applicable standards for these source types, the sources are in 
compliance. If the measured value of L90 is valid and exceeds 
the initial 65 dB requirement for any of the source types that appear to 
be affecting the noise environments, the evaluation according to the 
following paragraph (c) is required.
    (c) Determination of applicability of the standard when 
L90 is validated and is in excess of one or more of the 
source standards. The following procedures must be

[[Page 81]]

used to determine the compliance of the various source types when 
L90 is validated and in excess of one or more of the 
applicable standards.
    (1) The principal direction of the nearly steady-state sound at the 
measurement location must be determined, if possible, by listening to 
the sound and localizing its apparent source(s). If the observer is 
clearly convinced by this localization process that the sound emanates 
only from one or both of these two sources, then:
    (i) If only stationary locomotive(s), including at least one 
switcher locomotive, are present, the value of L90 is the 
value of the A-weighted sound level to be used in determining if the 65 
dB requirement is exceeded and compliance with the standards in 
Sec. Sec. 201.11(c) and 201.12(c) is necessary.
    (ii) If only a locomotive load cell test stand and the locomotive 
being tested are present and operating, the value of L90 is 
the value of the A-weighted sound level to be used in determining 
applicability of the standard in Sec. 201.16.
    (iii) If a locomotive load cell test stand(s) and the locomotive 
being tested are present and operating with stationary locomotive(s), 
including at least one switcher locomotive, the value L90 
minus 3 dB is the value of the A-weighted sound level to be used in 
determining applicability of the standards in Sec. Sec. 201.11(c), 
201.12(c) and 201.16.
    (iv) If a locomotive load cell test stand(s) and the locomotive 
being tested are present and operating, and a stationary locomotive(s) 
is present, and if the nearly steady-state sound level is observed to 
change by 10 dB, coincident with evidence of a change in operation of 
the locomotive load cell test stand but without apparent change in the 
location of stationary locomotives, another measurement of 
L90 must be made in accordance with paragraph (b) of this 
section. If this additional measure of L90 is validated and 
differs from the initial measure of L90 by an absolute value 
of 10 dB or more, then the higher value of L90 is the value 
of the A-weighted sound level to be used in determining applicability of 
the standard in Sec. 201.16.
    (2) In order to accomplish the comparison demonstration of paragraph 
(c)(3) of this section, when one or more source types is found not to be 
in compliance with the applicable standard(s), documentation of noise 
source information shall be necessary. This will include, but not be 
limited to, the approximate location of all sources of each source type 
present and the microphone position on a diagram of the particular 
railroad facility, and the distances between the microphone location and 
each of the sources must be estimated and reported. Additionally, if 
other rail or non-rail noise sources are detected, they must be 
identified and similarly reported.
    (3) If it can be demonstrated that the validated L90 is 
less than 5 dB greater than any L90 measured at the same 
receiving property location when the source types that were operating 
during the initial measurement(s) are either turned off or moved, such 
that they can no longer be detected, the initial value(s) of 
L90 must not be used for determining applicability to the 
standards. This demonstration must be made at a time of day comparable 
to that of the initial measurements and when all other conditions are 
acoustically similar to those reported in paragraph (c)(2) of this 
section.

[45 FR 1263, Jan. 4, 1980; 47 FR 14709, Apr. 6, 1982]



Sec. 201.28  Testing by railroad to determine probable compliance with the 

standard.

    (a) To determine whether it is probably complying with the 
regulation, and therefore whether it should institute noise abatement, a 
railroad may take measurements on its own property at locations that:
    (1) Are between the source and receiving property
    (2) Derive no greater benefit from shielding and other noise 
reduction features that does the receiving property; and
    (3) Otherwise meet the requirements of Sec. 201.25.
    (b) Measurements made for this purpose should be in accordance with 
the appropriate procedures in Sec. 201.26 or Sec. 201.27. If the 
resulting level is less than the level stated in the standard, then 
there is probably compliance with the standard.

[[Page 82]]

    (c) This procedure is set forth to assist the railroad in devising 
its compliance plan, not as a substantive requirement of the regulation.



PART 202_MOTOR CARRIERS ENGAGED IN INTERSTATE COMMERCE--Table of Contents




                      Subpart A_General Provisions

Sec.
202.10 Definitions.
202.11 Effective date.
202.12 Applicability.

         Subpart B_Interstate Motor Carrier Operations Standards

202.20 Standards for highway operations.
202.21 Standard for operation under stationary test.
202.22 Visual exhaust system inspection.
202.23 Visual tire inspection.

    Authority: Sec. 18, 36 Stat. 1249, 42 U.S.C. 4917(a).



                      Subpart A_General Provisions



Sec. 202.10  Definitions.

    As used in this part, all terms not defined herein shall have the 
meaning given them in the Act:
    (a) Act means the Noise Control Act of 1972 (Pub. L. 92-574, 86 
Stat. 1234).
    (b) Common carrier by motor vehicle means any person who holds 
himself out to the general public to engage in the transportation by 
motor vehicle in interstate or foreign commerce of passengers or 
property or any class or classes thereof for compensation, whether over 
regular or irregular routes.
    (c) Contract carrier by motor vehicle means any person who engages 
in transportation by motor vehicle of passengers or property in 
interstate or foreign commerce for compensation (other than 
transportation referred to in paragraph (b) of this section) under 
continuing contracts with one person or a limited number of persons 
either (1) for the furnishing of transportation services through the 
assignment of motor vehicles for a continuing period of time to the 
exclusive use of each person served or (2) for the furnishing of 
transportation services designed to meet the distinct need of each 
individual customer.
    (d) Cutout or by-pass or similar devices means devices which vary 
the exhaust system gas flow so as to discharge the exhaust gas and 
acoustic energy to the atmosphere without passing through the entire 
length of the exhaust system, including all exhaust system sound 
attenuation components.
    (e) dB(A) means the standard abbreviation for A-weighted sound level 
in decibels.
    (f) Exhaust system means the system comprised of a combination of 
components which provides for enclosed flow of exhaust gas from engine 
parts to the atmosphere.
    (g) Fast meter response means that the fast dynamic response of the 
sound level meter shall be used. The fast dynamic response shall comply 
with the meter dynamic characteristics in paragraph 5.3 of the American 
National Standard Specification for Sound Level Meters, ANSI S1. 4-1971. 
This publication is available from the American National Standards 
Institute, Inc., 1420 Broadway, New York, New York 10018.
    (h) Gross Vehicle Weight Rating (GVWR) means the value specified by 
the manufacturer as the loaded weight of a single vehicle.
    (i) Gross Combination Weight Rating (GCWR) means the value specified 
by the manufacturer as the loaded weight of a combination vehicle.
    (j) Highway means the streets, roads, and public ways in any State.
    (k) Interstate commerce means the commerce between any place in a 
State and any place in another State or between places in the same State 
through another State, whether such commerce moves wholly by motor 
vehicle or partly by motor vehicle and partly by rail, express, water or 
air. This definition of ``interstate commerce'' for purposes of these 
regulations is the same as the definition of ``interstate commerce'' in 
section 203(a) of the Interstate Commerce Act. [49 U.S.C. 303(a)]
    (l) Motor carrier means a common carrier by motor vehicle, a 
contract carrier by motor vehicle, or a private carrier of property by 
motor vehicle as those terms are defined by paragraphs (14), (15), and 
(17) of section 203(a) of

[[Page 83]]

the Interstate Commerce Act [49 U.S.C. 303(a)].
    (m) Motor vehicle means any vehicle, machine, tractor, trailer, or 
semitrailer propelled or drawn by mechanical power and used upon the 
highways in the transportation of passengers or property, or any 
combination thereof, but does not include any vehicle, locomotive, or 
car operated exclusively on a rail or rails.
    (n) Muffler means a device for abating the sound of escaping gases 
of an internal combustion engine.
    (o) Open site means an area that is essentially free of large sound-
reflecting objects, such as barriers, walls, board fences, signboards, 
parked vehicles, bridges, or buildings.
    (p) Private carrier of property by motor vehicle means any person 
not included in terms ``common carrier by motor vehicle'' or ``contract 
carrier by motor vehicle'', who or which transports in interstate or 
foreign commerce by motor vehicle property of which such person is the 
owner, lessee, or bailee, when such transportation is for sale, lease, 
rent or bailment, or in furtherance of any commercial enterprise.
    (q) Sound level means the quantity in decibles measured by a sound 
level meter satisfying the requirements of American National Standards 
Specification for Sound Level Meters S1.4-1971. This publication is 
available from the American National Standards Institute, Inc., 1430 
Broadway, New York, New York 10018. Sound level is the frequency-
weighted sound pressure level obtained with the standardized dynamic 
characteristic ``fast'' or ``slow'' and weighting A, B, or C; unless 
indicated otherwise, the A-weighting is understood.

[39 FR 38215, Oct. 29, 1974]



Sec. 202.11  Effective date.

    The provisions of Subpart B shall become effective October 15, 1975, 
except that the provisions of Sec. 202.20(b) and Sec. 202.21(b) of 
Subpart B shall apply to motor vehicles manufactured during or after the 
1986 model year.

[51 FR 852, Jan. 8, 1986]



Sec. 202.12  Applicability.

    (a) The provisions of Subpart B apply to all motor carriers engaged 
in interstate commerce.
    (b) The provisions of Subpart B apply only to those motor vehicles 
of such motor carriers which have a gross vehicle weight rating or gross 
combination weight rating in excess of 10,000 pounds, and only when such 
motor vehicles are operating under the conditions specified in Subpart 
B.
    (c) Except as provided in paragraphs (d) and (e) of this section, 
the provisions of Subpart B apply to the total sound produced by such 
motor vehicles when operating under such conditions, including the sound 
produced by auxiliary equipment mounted on such motor vehicles.
    (d) The provisions of Subpart B do not apply to auxiliary equipment 
which is normally operated only when the transporting vehicle is 
stationary or is moving at a speed of 5 miles per hour or less. Examples 
of such equipment include, but are not limited to, cranes, asphalt 
spreaders, ditch diggers, liquid or slurry pumps, air compressors, 
welders, and trash compactors.
    (e) The provisions of Subpart B do not apply to warning devices, 
such as horns and sirens; or to emergency equipment and vehicles such as 
fire engines, ambulances, police vans, and rescue vans, when responding 
to emergency calls; or to snow plows when in operation.
    (f) The provisions of Sec. 202.20(a) and Sec. 202.21(a) of Subpart 
B apply only to applicable motor vehicles manufactured prior to the 1986 
model year.
    (g) The provisions of Sec. 202.20(b) and Sec. 202.21(b) apply to 
all applicable motor vehicles manufactured during or after the 1986 
model year.

[39 FR 38215, Oct. 29, 1974, as amended at 51 FR 852, Jan. 8, 1986]



         Subpart B_Interstate Motor Carrier Operations Standards



Sec. 202.20  Standards for highway operations.

    (a) No motor carrier subject to these regulations shall operate any 
motor vehicle of a type to which this regulation

[[Page 84]]

is applicable which at any time or under any condition of highway grade, 
load, acceleration or deceleration generates a sound level in excess of 
86dB(A) measured on an open site with fast meter response at 50 feet 
from the centerline of lane of travel on highways with speed limits of 
35 MPH or less; or 90 dB(A) measured on an open site with fast meter 
response at 50 feet from the centerline of lane of travel on highways 
with speed limits of more than 35 MPH.
    (b) No motor carrier subject to these regulations shall operate any 
motor vehicle of a type to which this regulation is applicable which at 
any time or under any condition of highway grade, load, acceleration or 
deceleration generates a sound level in excess of 83 dB(A) measured on 
an open site with fast meter response at 50 feet from the centerline of 
lane of travel on highways with speed limits of 35 MPH or less; or 87 
dB(A) measured on an open site with fast meter response at 50 feet from 
the centerline of lane of travel on highways with speed limits of more 
than 35 MPH.

[39 FR 38215, Oct. 29, 1974, as amended at 51 FR 852, Jan. 8, 1986]



Sec. 202.21  Standard for operation under stationary test.

    (a) No motor carrier subject to these regulations shall operate any 
motor vehicle of a type to which this regulation is applicable which 
generates a sound level in excess of 88 dB(A) measured on an open site 
with fast meter response at 50 feet from the longitudinal centerline of 
the vehicle, when its engine is accelerated from idle with wide open 
throttle to governed speed with the vehicle stationary, transmission in 
neutral, and clutch engaged. This section shall not apply to any vehicle 
which is not equipped with an engine speed governor.
    (b) No motor carrier subject to these regulations shall operate any 
motor vehicle of a type to which this regulation is applicable which 
generates a sound level in excess of 85 dB(A) measured on an open site 
with fast meter response at 50 feet from the longitudinal centerline of 
the vehicle when its engine is accelerated from idle with wide open 
throttle to governed speed with the vehicle stationary, transmission in 
neutral, and clutch engaged. This paragraph shall not apply to any 
vehicle which is not equipped with an engine speed governor.

[39 FR 38215, Oct. 29, 1974, as amended at 51 FR 852, Jan. 8, 1986]



Sec. 202.22  Visual exhaust system inspection.

    No motor carrier subject to these regulations shall operate any 
motor vehicle of a type to which this regulation is applicable unless 
the exhaust system of such vehicle is (a) free from defects which affect 
sound reduction; (b) equipped with a muffler or other noise dissipative 
device; and (c) not equipped with any cut-out, bypass, or similar 
device.



Sec. 202.23  Visual tire inspection.

    No motor carrier subject to these regulations shall at any time 
operate any motor vehicle of a type to which this regulation is 
applicable on a tire or tires having a tread pattern which as originally 
manufactured, or as newly retreaded, is composed primarily or cavities 
in the tread (excluding sipes and local chunking) which are not vented 
by grooves to the tire shoulder or circumferentially to each other 
around the tire. This Sec. 202.23 shall not apply to any motor vehicle 
which is demonstrated by the motor carrier which operates it to be in 
compliance with the noise emission standard specified for operations on 
highways with speed limits of more than 35 MPH in Sec. 202.20 of this 
Subpart B, if the demonstration is conducted at the highway speed limit 
in effect at the inspection location, or, if speed is unlimited, the 
demonstration is conducted at a speed of 65 MPH.

[39 FR 38215, Oct. 29, 1974]



PART 203_LOW-NOISE-EMISSION PRODUCTS--Table of Contents




Sec.
203.1 Definitions.
203.2 Application for certification.
203.3 Test procedures.
203.4 Low-noise-emission product determination.
203.5 Suitable substitute decision.

[[Page 85]]

203.6 Contracts for low-noise-emission products.
203.7 Post-certification testing.
203.8 Recertification.

    Authority: Sec. 15, Noise Control Act, 1972, Pub. L. 92-574, 86 
Stat. 1234.

    Source: 39 FR 6670, Feb. 21, 1974, unless otherwise noted.



Sec. 203.1  Definitions.

    (a) As used in this part, any term not defined herein shall have the 
meaning given it in the Noise Control Act of 1972 (Pub. L. 92-574).
    (1) Act means the Noise Control Act of 1972 (Pub. L. 92-574).
    (2) Federal Government includes the legislative, executive, and 
judicial branches of the Government of the United States, and the 
government of the District of Columbia.
    (3) Administrator means the Administrator of the Environmental 
Protection Agency.
    (4) Product means any manufactured article or goods or component 
thereof; except that such term does not include--
    (i) Any aircraft, aircraft engine, propellor or appliance, as such 
terms are defined in section 101 of the Federal Aviation Act of 1958; or
    (ii)(a) Any military weapons or equipment which are designed for 
combat use; (b) any rockets or equipment which are designed for 
research, experimental or developmental work to be performed by the 
National Aeronautics and Space Administration; or (c) to the extent 
provided by regulations of the Administrator, any other machinery or 
equipment designed for use in experimental work done by or for the 
Federal Government.
    (5) Low-Noise-Emission Product Determination means the 
Administrator's determination whether or not a product, for which a 
properly filed application has been received, meets the low-noise-
emission product criterion.
    (6) Suitable Substitute Decision means the Administrator's decision 
whether a product which the Administrator has determined to be a low-
noise-emission product is a suitable substitute for a product or 
products presently being purchased by the Federal Government.



Sec. 203.2  Application for certification.

    (a) Any person desiring certification of a class or model of product 
under section 15 of the act shall submit to the Administrator an 
application for certification. The application shall be completed upon 
such forms as the Administrator may deem appropriate and shall contain:
    (1) A description of the product, including its power source, if 
any;
    (2) Information pertaining to the test facility for the product 
establishing that the test facility meets all requirements which EPA may 
prescribe;
    (3) All noise emission data from the test of the product;
    (4) Data required by the Administrator relative, but not limited to, 
the following characteristics;
    (i) Safety;
    (ii) Performance Characteristics;
    (iii) Reliability of product and reliability of low-noise-emission 
features;
    (iv) Maintenance;
    (v) Operating Costs;
    (vi) Conformance with Federal Agency Purchase Specifications; and
    (5) Such other information as the Administrator may request.
    (b) Specific data requirements relative to paragraph (a)(4) of this 
section will be published separately from the low-noise-emission 
criterion for that product or class of products.
    (c) The Administrator will, immediately upon receipt of the 
application for certification, publish in the Federal Register a notice 
of the receipt of the application. The notice will request written 
comments and documents from interested parties in support of, or in 
opposition to, certification of the class or model of product under 
consideration.



Sec. 203.3  Test procedures.

    (a) The applicant shall test or cause his product to be tested in 
accordance with procedures contained in the regulations issued pursuant 
to section 6 of the act unless otherwise specified.
    (b) The Administrator may conduct whatever investigation is 
necessary, including actual inspection of the product at a place 
designated by him.

[[Page 86]]



Sec. 203.4  Low-noise-emission product determination.

    (a) The Administrator will, within ninety (90) days after receipt of 
a properly filed application for certification, determine whether such 
product is a low-noise-emission product. In doing so, he will determine 
if the product:
    (1) Is one for which a noise source emission standard has been 
promulgated under section 6 of the act;
    (2) Emits levels of noise in amounts significantly below the levels 
specified in noise emission standard under regulations under section 6 
of the act applicable to that product or class of products; and
    (3) Is labeled in accordance with regulations issued pursuant to 
section 8 of the act.
    (b) The Administrator will, upon making the determination whether a 
product is a low-noise-emission product, publish in the Federal Register 
notice of his determination, and the reasons therefor.
    (c) The notice of determination that a product is a low-noise-
emission product shall be revocable whenever a change in the low-noise-
emission product criterion for what product occurs between determination 
and decision. Notice of any revocation will be published in the Federal 
Register, together with a statement of the reasons therefor.
    (d) The notice of determination that a product is a low-noise-
emission product shall expire upon publication in the Federal Register 
of the Administrator's notice of a decision that a product will not be 
certified.



Sec. 203.5  Suitable substitute decision.

    (a) If the Administrator determines that a product is a low-noise-
emission product, then within one hundred and eighty (180) days of such 
determination, in consultation with the appropriate Federal agencies, 
the Administrator will decide whether such product is a suitable 
substitute for any class or model or product being purchased by the 
Federal Government for use by its agencies. Such decision will be based 
upon the data obtained under Sec. 203.2, the Administrator's evaluation 
of the data, comments of interested parties, and, as the Administrator 
deems appropriate, an actual inspection or test of the product at such 
places and times as the Administrator may designate.
    (b) In order to compare the data for any class or model of product 
with any class or model of product presently being purchased by the 
Federal Government for which the applicant seeks to have its product 
substituted, the Administrator will enter into appropriate agreements 
with other Government agencies to gather the necessary data regarding 
such class or model.
    (c) Immediately upon making the decision as to whether a product 
determined to be a low-noise-emission product is a suitable substitute 
for any product or class of products being purchased by the Federal 
Government for its use, the Administrator shall publish in the Federal 
Register notice of such decision and the reasons therefor.
    (d) If the Administrator decides that the product is a suitable 
substitute for products being purchased by the Federal Government, he 
will issue a certificate that the product is a suitable substitute for a 
product or class of products presently being purchased by the Federal 
Government and will specify with particularity the product or class of 
products for which the certified product is a suitable substitute.
    (e) Any certification made under this section shall be effective for 
a period of one year from date of issuance.



Sec. 203.6  Contracts for low-noise-emission products.

    (a) Data relied upon by the Administrator in determining that a 
product is a certified low-noise-emission product will be incorporated 
by reference in any contract for the procurement of such product.
    (b) A determination of price to the Government of any certified low-
noise-emission product will be made by the Administrator of General 
Services in coordination with the appropriate Federal agencies in 
accordance with such procedures as he may prescribe and with subsection 
c(1) of section 15 of the Act.



Sec. 203.7  Post-certification testing.

    The Administrator will, from time to time, as he deems appropriate, 
test the emissions of noise from certified low-

[[Page 87]]

noise-emission products purchased by the Federal Government. If at any 
time he finds that the noise emission levels exceed the levels on which 
certification was based, the Administrator shall give the suppliers of 
such product written notice of this finding, publish such findings in 
the Federal Register and give the supplier an opportunity to make 
necessary repairs, adjustments or replacements. If no repairs, 
adjustments or replacements are made within a period to be set by the 
Administrator, he may order the supplier to show cause why the product 
involved should be eligible for recertification.



Sec. 203.8  Recertification.

    (a) A product for which a certificate has been issued may be 
recertified for the following year upon reapplication to the 
Administrator for this purpose upon such forms as the Administrator may 
deem appropriate.
    (b) If the applicant supplies information establishing that:
    (1) The data previously submitted continues to describe his product 
for purpose of certification;
    (2) The low-noise-emission product criterion and ``suitable 
substitute'' criteria are to be the same during the period 
recertification is desired; and
    (3) No notice has been issued under Sec. 203.7, then 
recertification will be made within 30 days after receipt of an 
appropriate recertification application by the Administrator.



PART 204_NOISE EMISSION STANDARDS FOR CONSTRUCTION EQUIPMENT--Table of 

Contents




                      Subpart A_General Provisions

Sec.
204.1 General applicability.
204.2 Definitions.
204.3 Number and gender.
204.4 Inspection and monitoring.
204.5 Exemptions.
204.5-1 Testing exemption.
204.5-2 National security exemptions.
204.5-3 Export exemptions.

                   Subpart B_Portable Air Compressors

204.50 Applicability.
204.51 Definitions.
204.52 Portable air compressor noise emission standard.
204.54 Test procedures.
204.55 Requirements.
204.55-1 General standards.
204.55-2 Requirements.
204.55-3 Configuration identification.
204.55-4 Labeling.
204.56 Testing by the Administrator.
204.57 Selective enforcement auditing.
204.57-1 Test request.
204.57-2 Test compressor sample selection.
204.57-3 Test compressor preparation.
204.57-4 Testing.
204.57-5 Reporting of test results.
204.57-6 Acceptance and rejection of batches.
204.57-7 Acceptance and rejection of batch sequence.
204.57-8 Continued testing.
204.57-9 Prohibition of distribution in commerce; manufacturer's remedy.
204.58 In-use requirements.
204.58-1 Warranty.
204.58-2 Tampering.
204.58-3 Instructions for maintenance, use, and repair.
204.59 Recall of non-complying compressors.

Appendix I to Part 204

    Authority: (42 U.S.C. 4905), 86 Stat. 1237.

    Source: 41 FR 2172, Jan. 14, 1976, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 204.1  General applicability.

    The provisions of this subpart are applicable to all products for 
which regulations have been published under this part and which are 
manufactured after the effective date of such regulations.



Sec. 204.2  Definitions.

    (a) As used in this subpart, all terms not defined herein shall have 
the meaning given them in the Act.
    (1) Act means the Noise Control Act of 1972 (Pub. L. 92-574, 86 
Stat. 1234).
    (2) Administrator means the Administrator of the Environmental 
Protection Agency or his authorized representative.
    (3) Agency means the United States Environmental Protection Agency.
    (4) Export exemption means an exemption from the prohibitions of 
section 10 (a) (1), (2), (3), and (4) of the Act, granted by statute 
under section 10(b)(2) of the Act for the purpose of exporting regulated 
products.
    (5) National security exemption means an exemption from the 
prohibitions of section 10(a) (1), (2), (3), and (5) of the

[[Page 88]]

Act, which may be granted under section 10(b)(1) of the Act for the 
purpose of national security.
    (6) [Reserved]
    (7) Testing exemption means an exemption from the prohibitions of 
section 10(a) (1), (2), (3), and (5) of the Act, which may be granted 
under section 10(b)(1) of the Act for the purpose of research, 
investigations, studies, demonstrations, or training, but not including 
national security where lease or sale of the exempted product is 
involved.
    (8) Warranty means the warranty required by section 6(c)(1) of the 
Act.
    (9) Tampering means those acts prohibited by section 10(a)(2) of the 
Act.
    (10) Maintenance instructions means those instructions for 
maintenance, use, and repair, which the Administrator is authorized to 
require pursuant to section 6(c)(1) of the Act.
    (11) Type I Sound Level Meter means a sound level meter which meets 
the Type I requirements of American National Standard Specification 
S1.4-1971 for sound level meters. This publication is available from the 
American National Standards Institute, Inc., 1430 Broadway, New York, 
New York 10018.
    (12) dBA is the standard abbreviation for A-weighted sound level in 
decibels.
    (13) Reasonable assistance means providing timely and unobstructed 
access to test products or products and records required by this part 
and opportunity for copying such records or testing such test products.
    (14) Slow meter response means the meter ballistics of meter dynamic 
characteristics as specified by American National Standard S1.4-1971 or 
subsequent approved revisions.
    (15) Sound level means the weighted sound pressure level measured by 
the use of a metering characteristic and weighing A, B, or C as 
specified in American National Standard Specification for Sound Level 
Meters S1.4-1971 or subsequent approved revision. The weighting employed 
must be specified, otherwise A-weighting is understood.
    (16) Sound pressure level means, in decibels, 20 times the logarithm 
to the base ten of the ratio of a sound pressure to the reference sound 
pressure of 20 micropascals (20 micronewtons per square meter). In the 
absence of any modifier, the level is understood to be that of a root-
mean-square pressure.
    (17) Product means any construction equipment for which regulations 
have been promulgated under this part and includes ``test product.''
    (18) Test product means any product that is required to be tested 
pursuant to this part.

[41 FR 2172, Jan. 14, 1976, as amended at 47 FR 57711, Dec. 28, 1982]



Sec. 204.3  Number and gender.

    As used in this part, words in the singular shall be deemed to 
import the plural, and words in the masculine gender shall be deemed to 
import the feminine and vice versa, as the case may require.



Sec. 204.4  Inspection and monitoring.

    (a) Any inspection or monitoring activities conducted under this 
section shall be for the purpose of determining (1) whether test 
products are being selected and prepared for testing in accordance with 
the provisions of these regulations, (2) whether test product testing is 
being conducted in accordance with these regulations, and (3) whether 
products being produced for distribution into commerce comply with these 
regulations.
    (b) The Director, Noise Enforcement Division, may request that a 
manufacturer subject to this part admit an EPA Enforcement Officer 
during operating hours to any of the following:
    (1) Any facility or site where any product to be distributed into 
commerce is manufactured, assembled, or stored;
    (2) Any facility or site where any tests conducted pursuant to this 
part or any procedures or activities connected with such tests are or 
were performed; and
    (3) Any facility or site where any test product is present.
    (c)(1) An EPA Enforcement Officer, once admitted to a facility or 
site, will not be authorized to do more than:
    (i) To inspect and monitor test product manufacture and assembly, 
selection, storage, preconditioning, noise emission testing, and 
maintenance, and to verify correlation or calibration of test equipment;

[[Page 89]]

    (ii) To inspect products prior to their distribution in commerce;
    (iii) [Reserved]
    (iv) To inspect and photograph any part or aspect of any such 
product and any component used in the assembly thereof that are 
reasonably related to the purpose of his entry;
    (v) To obtain from those in charge of the facility or site such 
reasonable assistance as he may request to enable him to carry out any 
proper function listed in this section.
    (2) [Reserved]
    (3) The provisions of this section apply whether the facility or 
site is owned or controlled by the manufacturer or by one who acts for 
the manufacturer.
    (d) For purposes of this section:
    (1) An ``EPA Enforcement Officer'' is an employee of the EPA Office 
of Enforcement who displays upon arrival at a facility or site the 
credentials identifying him as such an employee and a letter signed by 
the Director, Noise Enforcement Division designating him to make the 
inspection.
    (2) Where test product 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.
    (3) Where facilities or areas other than those covered by paragraph 
(d)(2) of this section are concerned, ``operating hours'' shall mean all 
times during which product manufacture or assembly is in operation or 
all times during which product testing or maintenance, production, or 
compilation of records is taking place, or any other procedure or 
activity related to selective enforcement audit testing or to product 
manufacture or assembly is being carried out.
    (e) The manufacturer shall admit to a facility or site an EPA 
Enforcement Officer who presents a warrant authorizing entry. In the 
absence of such warrant, entry to any facility or site under this 
section will be only upon the consent of the manufacturer.
    (1) It is not a violation of this regulation or the Act for any 
person to refuse entry without a warrant.
    (2) The Administrator or his designee may proceed ex parte to obtain 
a warrant whether or not the manufacturer has refused entry.

(42 U.S.C. 4905, 4912, 86 Stat. 1237-1239, 1244)

[41 FR 2172, Jan. 14, 1976, as amended at 43 FR 27989, June 28, 1978; 47 
FR 57711, Dec. 28, 1982]



Sec. 204.5  Exemptions.



Sec. 204.5-1  Testing exemption.

    (a) A new product intended to be used solely for research, 
investigations, studies, demonstrations or training, and so labeled or 
marked on the outside of the container and on the product itself, shall 
be exempt from the prohibitions of sections 10(a) (1), (2), (3), and (5) 
of the Act.
    (b) No request for a testing exemption is required.
    (c) For purposes of section 11(d) of the Act any testing exemption 
shall be void ab initio with respect to each new product, originally 
intended for research, investigations, studies, demonstrations, or 
training, but distributed in commerce for other uses.

[47 FR 57711, Dec. 28, 1982]



Sec. 204.5-2  National security exemptions.

    (a) A new product which is produced to conform with specifications 
developed by a national security agency, and so labeled or marked on the 
outside of the container and on the product itself, shall be exempt from 
the prohibitions of sections 10(a) (1), (2), (3), and (4) of the Act.
    (b) No request for a national security exemption is required.
    (c) For purposes of section 11(d) of the Act, any national security 
exemption shall be void ab initio with respect to each new product, 
originally intended to be produced to conform with specifications 
developed by a national security agency but distributed in commerce for 
other uses.
    (d) Any manufacturer or person subject to the liabilities of section 
11(a) with respect to any product originally intended for a national 
security agency, but distributed in commerce for use in any State, may 
be excluded from the

[[Page 90]]

application of section 11(a) with respect to such product based upon a 
showing that such manufacturer:
    (1) Had no knowledge of such product being distributed in commerce 
for use in any state; and
    (2) Made reasonable efforts to ensure that such products would not 
be distributed in commerce for use in any State. Such reasonable efforts 
would include investigation, prior dealings, contract provisions, etc.

[47 FR 57711, Dec. 28, 1982]



Sec. 204.5-3  Export exemptions.

    (a) A new product intended solely for export, and so labeled or 
marked on the outside of the container and on the product itself, shall 
be exempt from the prohibitions of section 10(a), (1), (2), (3), and (4) 
of the Act.
    (b) No request for an export exemption is required.
    (c) For purposes of section 11(d) of the Noise Control Act, any 
export exemption under section 10(b)(2) shall be void ab initio with 
respect to each new product intended solely for export which is 
distributed in commerce for use in any state.
    (d) The Administrator will not institute proceedings against any 
manufacturer pursuant to section 11(d)(1) of the Noise Control Act with 
respect to any product, originally intended for export, but distributed 
in commerce for use in any state, if it is demonstrated to the 
Administrator's satisfaction that:
    (1) The manufacturer had no knowledge that such product would be 
distributed in commerce for use in any state; and
    (2) The manufacturer made reasonable efforts to ensure that such 
product would not be distributed in commerce for use in any state. Such 
reasonable efforts would include consideration of prior dealings with 
any person which resulted in introduction into commerce of a product 
manufactured for export only, investigation of prior instances known to 
the manufacturer of introduction into commerce of a product manufactured 
for export only, and contract provisions which minimize the probability 
of introduction into commerce of a product manufactured for export only.

[41 FR 2172, Jan. 14, 1976, as amended at 42 FR 61454, Dec. 5, 1977. 
Redesignated at 47 FR 57711, Dec. 28, 1982]



                   Subpart B_Portable Air Compressors



Sec. 204.50  Applicability.

    The provisions of this subpart shall apply to portable air 
compressors which are manufactured after the effective dates specified 
in Sec. 204.52, and which are ``New Products'' as defined in the Act. 
These provisions apply only to portable air compressors with a rated 
capacity equal to or above 75 cubic feet per minute which deliver air at 
pressures greater than 50 psig. The provisions do not apply to the 
pneumatic tools or equipment that the portable air compressor is 
designed to power.



Sec. 204.51  Definitions.

    (a) Portable air compressor or compressor means any wheel, skid, 
truck, or railroad car mounted, but not self-propelled, equipment 
designed to activate pneumatic tools. This consists of an air compressor 
(air end), and a reciprocating rotary or turbine engine rigidly 
connected in permanent alignment and mounted on a common frame. Also 
included are all cooling, lubricating, regulating, starting, and fuel 
systems, and all equipment necessary to constitute a complete, self-
contained unit with a rated capacity of 75 cfm or greater which delivers 
air at pressures greater than 50 psig, but does not include any 
pneumatic tools themselves.
    (b) Maximum Rated Capacity means that the portable air compressor, 
operating at the design full speed with the compressor on load, delivers 
its rated cfm output and pressure, as defined by the manufacturer.
    (c) Model year means the manufacturer's annual production period 
which includes January 1 of such calendar year; Provided, that if the 
manufacturer has no annual production period, the term ``model year'' 
shall mean the calendar year.

[[Page 91]]

    (d) Compressor configuration means the basic classification unit of 
a manufacturer's product line and is comprised of compressor lines, 
models or series which are identical in all material respects with 
regard to the parameters listed in Sec. 204.55-3.
    (e) Category means a group of compressor configurations which are 
identical in all aspects with respect to the parameters listed in 
paragraph (c)(1)(i) of Sec. 204.55-2.
    (f) [Reserved]
    (g) Noise emission test means a test conducted pursuant to the 
measurement methodology specified in Sec. 204.54.
    (h) Inspection Criteria means the rejection and acceptance numbers 
associated with a particular sampling plan.
    (i) Acceptable Quality Level (AQL) means the maximum percentage of 
failing compressors that, for purposes of sampling inspection can be 
considered satisfactory as a process average.
    (j) Batch means the collection of compressors of the same category 
or configuration, as designated by the Administrator in a test request, 
from which a batch sample is to be randomly drawn and inspected to 
determine conformance with the acceptability criteria.
    (k) Batch sample means the collection of compressors that are drawn 
from a batch.
    (l) Batch sample size means the number of compressors of the same 
category or configuration which is randomly drawn from the batch sample 
and which will receive emissions tests.
    (m) Test sample means the collection of compressors from the same 
category or configuration which is randomly drawn from the batch sample 
and which will receive emissions tests.
    (n) Batch size means the number, as designated by the Administrator 
in the test request, of compressors of the same category or 
configuration in a batch.
    (o) Test sample size means the number of compressors of the same 
configuration in a test sample.
    (p) Acceptable of a batch means that the number of non-complying 
compressors in the batch sample is less than or equal to the acceptance 
number as determined by the appropriate sampling plan.
    (q) Rejection of a batch means that the number of non-complying 
compressors in the batch sample is greater than or equal to the 
rejection number as determined by the appropriate sampling plan.
    (r) Acceptance of a batch sequence means that the number of rejected 
batches in the sequence is less than or equal to the sequence acceptable 
number as determined by the appropriate sampling plan.
    (s) Rejection of a batch sequence means that the number of rejected 
batches in a sequence is greater than or equal to the sequence rejection 
number as determined by the appropriate sampling plan.
    (t) Shift means the regular production work period for one group of 
workers.
    (u) Failing compressor means that the measured noise emissions of 
the compressor, when measured in accordance with the applicable 
procedure, exceeds the applicable standard.
    (v) Acceptance of a compressor means that the measured noise 
emissions of the compressor, when measured in accordance with the 
applicable procedure, conforms to the applicable standard.
    (w) Test Compressor means a compressor used to demonstrate 
compliance with the applicable noise emissions standard.
    (x) Tampering means those acts prohibited by section 10(a)(2) of the 
Act.

(Secs. 6 and 13, Noise Control Act, Pub. L. 92-574, 86 Stat. 1244; (42 
U.S.C. 4912))

[41 FR 2172, Jan. 14, 1976, as amended at 42 FR 41635, Aug. 18, 1977; 47 
FR 57711, Dec. 28, 1982]



Sec. 204.52  Portable air compressor noise emission standard.

    (a) Effective January 1, 1978, portable air compressors with maximum 
rated capacity of less than or equal to 250 cubic feet per minute (cfm) 
shall not produce an average sound level in excess of 76 dBA when 
measured and evaluated according to the methodology provided by this 
regulation. Effective July 1, 1978, portable air compressors with 
maximum rated capacity greater than 250 cfm shall not produce an average 
sound level in excess of 76 dBA

[[Page 92]]

when measured and evaluated according to the methodology provided by 
this regulation.
    (b) In-Use Standard. [Reserved]
    (c) Low Noise Emission Product. [Reserved]



Sec. 204.54  Test procedures.

    (a) General. This section prescribes the conditions under which 
noise emission standard compliance Selective Enforcement Auditing or 
Testing by the Administrator must be conducted and the measurement 
procedures that must be used to measure the sound level and to calculate 
the average sound level of portable air compressors on which the test is 
conducted.
    (b) Test site description. The location for measuring noise employed 
during noise compliance testing must consist of an open site above a 
hard reflecting plane. The reflecting plane must consist of a surface of 
sealed concrete or sealed asphalt and must extend one (1) meter beyond 
each microphone location. No reflecting surface, such as a building, 
signboard, hillside, etc., shall be located within 10 meters of a 
microphone location.
    (c) Measurement equipment. The measurement equipment must be used 
during noise standard compliance testing and must consist of the 
following or its equivalent:
    (1) A sound level meter and microphone system that conform to the 
Type I requirements of American National Standard (ANS) S1.4-1971, 
``Specification for Sound Level Meters,'' and to the requirements of the 
International Electrotechnical Commission (IEC) Publication No. 179, 
``Precision Sound Level Meters.''
    (2) A windscreen must be employed with the microphone during all 
measurements of portable air compressor noise when the wind speed 
exceeds 11 km/hr. The windscreen shall not affect the A-weighted sound 
levels from the portable air compressor in excess of 0.5 dB.
    (3) The entire acoustical instrumentation system including the 
microphone and cable shall be calibrated before each test series and 
confirmed afterward. A sound level calibrator accurate to within 0.5 dB shall be used. A calibration of the 
instrumentation shall be performed at least annually using the 
methodology of sufficient precision and accuracy to determine compliance 
with ANS S1.4-1971 and IEC 179. This calibration shall consist, at a 
minimum, of an overall frequency response calibration and an attenuator 
(gain control) calibration plus a measurement of dynamic range and 
instrument noise floor.
    (4) An anemometer or other device accurate to within 10 percent shall be used to measure wind velocity.
    (5) An indicator accurate to within 2 percent 
shall be used to measure portable air compressor engine speed.
    (6) A gauge accurate to within 5 percent shall 
be used to measure portable compressor air pressure.
    (7) A metering device accurate to within 10 
percent shall be used to measure the portable air compressor compressed 
air volumetric flow rate.
    (8) A barometer for measuring atmospheric pressure accurate to 
within 5 percent.
    (9) A thermometer for measuring temperature accurate to within 
1 degree.
    (d) Portable air compressor operation. The portable air compressor 
must be operated at the design full speed with the compressor on load, 
delivering its rated flow and output pressure, during noise emission 
standard compliance testing. The air discharge shall be provided with a 
resistive loading such that no significant pressure drop or throttling 
occurs across the compressor discharge valve. The air discharge shall be 
piped clear of the test area or fed into an effective silencer. The 
sound pressure level due to the air discharge shall be at least 10 dB 
below the sound pressure level generated by the portable air compressor.
    (e) Test conditions. Noise standard compliance testing must be 
carried out under the following conditions:
    (1) No rain or other precipitation,
    (2) No wind above 19 km/hr,
    (3) No observer located within 1 meter, in any direction, of any 
microphone location, nor between the test unit and any microphone,
    (4) Portable air compressor sound levels, at each microphone 
location, 10 dB or greater than the background sound level,

[[Page 93]]

    (5) The machine shall have been warmed up and shall be operating in 
a stable condition as for continuous service and at its maximum rated 
capacity. All cooling air vents in the engine/compressor enclosure, 
normally open during operation, shall be fully open during all sound 
level measurements. Service doors that should be closed during normal 
operation (at any and all ambient temperatures) shall be closed during 
all sound level measurements.
    (f) Microphone locations. Five microphone locations must be employed 
to acquire portable air compressor sound levels to test for noise 
standard compliance. A microphone must be located 7 .1 meters from the right, left, front, and back sides 
and top of the test unit. The microphone position to the right, left, 
front, and back sides of the test unit must be located 1.5 .1 meters above the reflecting plane.
    (g) Data required. The following data must be acquired during noise 
emission standard compliance testing:
    (1) A-weighted sound level at one microphone location prior to 
operation of the test unit and at all microphone locations during test 
unit operations, as defined in paragraph (d) of this section.
    (2) Portable air compressor engine speed.
    (3) Portable air compressor compressed gas pressure.
    (4) Portable air compressor flow rate.
    (5) All other data contained in Appendix I, Table IV.
    (h) Calculation of average sound level. The average A-weighted sound 
level from measurements at the specified microphone locations must be 
calculated by the following method:

L=10 log (1/5[Antilog L1/10+Antilog L2/10+Antilog 
    L3/10+ Antilog L4/10+ Antilog L5/
    10])

Where:

L=The average A-weighted sound level (in decibels)
L1=The A-weighted sound level (in decibels) at microphone 
position 1
L2=The A-weighted sound level (in decibels) at microphone 
position 2
L3=The A-weighted sound level (in decibels) at microphone 
position 3
L4=The A-weighted sound level (in decibels) at microphone 
position 4
L5=The A-weighted sound level (in decibels) at microphone 
position 5

    (i) The Administrator may approve applications from manufacturers of 
portable air compressors for the approval of test procedures which 
differ from those contained in this part so long as the alternate 
procedures have been demonstrated to correlate with the prescribed 
procedure. To be acceptable, alternate testing procedures shall be such 
that the test results obtained will identify all those test units which 
would not comply with the noise emission limit prescribed in Sec. 
204.52 when tested in accordance with the procedures contained in Sec. 
204.54 (a) through (h). Tests conducted by manufacturers under approved 
alternate procedures may be accepted by the Administrator for all 
purposes.
    (j) Presentation of information. All information required by this 
section may be recorded using the format recommended on the Noise Data 
Sheet shown in Appendix I, Table IV.

[41 FR 2172, Jan. 14, 1976, as amended at 41 FR 8347, Feb. 26, 1976; 47 
FR 57711, Dec. 28, 1982]



Sec. 204.55  Requirements.



Sec. 204.55-1  General standards.

    (a) Every new compressor manufactured for distribution in commerce 
in the United States which is subject to the standards prescribed in 
this subpart and not exempted in accordance with Sec. 204.5:
    (1) Shall be labeled in accordance with the requirements of Sec. 
204.55-4.
    (2) Shall conform to the applicable noise emission standard 
established in Sec. 204.52
    (b) [Reserved]

[41 FR 2172, Jan. 14, 1976, as amended at 47 FR 57711, Dec. 28, 1982]



Sec. 204.55-2  Requirements.

    (a)(1) Prior to distribution in commerce, compressors of a specific 
configuration must verify such configurations in accordance with this 
subpart.
    (2) [Reserved]
    (3) At any time with respect to a configuration under this subpart, 
the Administrator may require that the manufacturer ship test 
compressors to an

[[Page 94]]

EPA test facility in order for the Administrator to perform the tests 
required for production verification.
    (b) The requirements for purposes of testing by the Administrator 
and Selective Enforcement Auditing consist of:
    (1) Testing in accordance with Sec. 204.54 of a compressor selected 
in accordance with Sec. 204.57-2; and
    (2) Compliance of the test compressor with the applicable standards 
when tested in accordance with Sec. 204.54.
    (c)(1) In lieu of testing compressors of every configuration, as 
described in paragraph (b) of this section, the manufacturer may elect 
to verify the configuration based on representative testing, the 
requirements of which consist of:
    (i) Grouping configurations into a category where each category will 
be determined by a separate combination of at least the following 
parameters (a manufacturer may use more parameters):
    (A) Engine type.
    (1) Gasoline--two stroke cycle
    (2) Gasoline--four stroke cycle
    (3) Diesel--two stroke cycle
    (4) Diesel--four stroke cycle
    (5) Rotary--Wankel
    (6) Turbine
    (7) Other
    (B) Engine manufacturer
    (C) Compressor delivery rate (at rated pressure)
    (ii) Identifying the configuration within each category which emits 
the highest sound level in dBA based on best technical judgment, 
emission test data, or both.
    (iii) Testing in accordance with Sec. 204.54 selected in accordance 
with Sec. 204.57-2 which must be a compressor of the configuration 
which is identified pursuant to paragraph (c)(1)(iii) of this section as 
having the highest sound level (estimated or actual) within the 
category.
    (iv) Compliance of the test compressor with applicable standards 
when tested in accordance with Sec. 204.54.
    (2) Where the requirements of paragraph (c)(1) of this section are 
complied with, all those configurations contained within a category are 
considered represented by the tested compressor.
    (3) Where the manufacturer tests a compressor configuration which 
has not been determined as having the highest sound level of a category, 
but all other requirements of paragraph (c)(1) of this section are 
complied with, all those configurations contained within that category 
which are determined to have sound levels no greater than the tested 
compressor are considered to be represented by the tested compressor: 
However, a manufacturer must for purposes of Testing by the 
Administrator and Selective Enforcement Auditing verify according to the 
requirements of paragraph (b)(1) and/or (c)(1) of this section any 
configurations in the subject category which have a higher sound level 
than the compressor configuration tested.
    (d) A manufacturer may elect for purposes of Testing by the 
Administrator and Selective Enforcement Auditing to use representative 
testing, pursuant to paragraph (c) of this section, all or part of his 
product line.
    (e) The manufacturer may, at his option, proceed with any of the 
following alternatives with respect to any compressor determined not in 
compliance with applicable standards:
    (1) In the case of representative testing, a new test compressor 
from another configuration must be selected according to the 
requirements of paragraph (c) of this section in order to verify the 
configurations represented by the non-compliant compressor.
    (2) Modify the test compressor and demonstrate by testing that it 
meets applicable standards. The manufacturer must modify all production 
compressors of the same configuration in the same manner as the test 
compressor before distribution into commerce.

(Secs. 6 and 13, Noise Control Act, Pub. L. 92-574, 86 Stat. 1244; (42 
U.S.C. 4912); 42 U.S.C. 4905; 86 Stat. 1237 and secs. 6, 10, 11, 13, 
Pub. L. 92-574, 86 Stat. 1234 (42 U.S.C. 4905, 4909, 4910, 4912))

[41 FR 2172, Jan. 14, 1976, as amended at 42 FR 61455, Dec. 5, 1977; 47 
FR 57711, Dec. 28, 1982; 49 FR 26738, June 29, 1984]



Sec. 204.55-3  Configuration identification.

    (a) A separate compressor configuration shall be determined by each 
combination of the following parameters:

[[Page 95]]

    (1) The compressor type (screw, sliding vane, etc.).
    (2) Number of compressor stages.
    (3) Maximum pressure (psi).
    (4) Air intake system of compressor:
    (i) Number of filters;
    (ii) Type of filters.
    (5) The engine system:
    (i) Number of cylinders and configuration (L-6, V-8, V-12);
    (ii) Displacement;
    (iii) Horsepower;
    (iv) Full load rpm.
    (6) Type cooling system, e.g., air cooled, water cooled.
    (7) Fan:
    (i) Diameter;
    (ii) Maximum fan rpm.
    (8) The compressor enclosure:
    (i) Height, length, and width;
    (ii) Acoustic material manufacturer, type, part number.
    (9) The induction system (engine):
    (i) Natural;
    (ii) Turbocharged.
    (10) The muffler:
    (i) Manufacturer;
    (ii) Manufacturer part number;
    (iii) Quantity of mufflers used;
    (11) Category parameters listed at Sec. 204.55-2.



Sec. 204.55-4  Labeling.

    (a)(1) The manufacturer of any compressor subject to the standards 
prescribed in Sec. 204.52 shall, at the time of manufacture, affix a 
permanent, legible label, of the type and in the manner described below, 
containing the information hereinafter provided, to all such compressors 
to be distributed in commerce.
    (2) The label shall be permanently attached, in a readily visible 
position, on the compressor enclosure.
    (3) The label shall be affixed by the compressor manufacturer, who 
has verified such compressor, in such a manner that it cannot be removed 
without destroying or defacing the label, and shall not be affixed to 
any equipment that is easily detached from such compressor.
    (4) Labels for compressors not manufactured solely for use outside 
the United States 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:
    (i) The label heading: Compressor Noise Emission Control 
Information;
    (ii) Full corporate name and trademark of manufacturer;
    (iii) Date of manufacture, which may consist of a serial number or 
code in those instances where records are specified and maintained.
    (iv) The statement:

    This Compressor Conforms to U.S. E.P.A. Regulations for Noise 
Emissions Applicable to Portable Air Compressors. The following acts or 
the causing thereof by any person are prohibited by the Noise Control 
Act of 1972:
    (A) The removal or rendering inoperative, other than for the purpose 
of maintenance, repair, or replacement, of any noise control device or 
element of design (listed in the owner's manual) incorporated into this 
compressor in compliance with the Noise Control Act;
    (B) The use of this compressor after such device or element of 
design has been removed or rendered inoperative.

    (b) Compressors manufactured solely for use outside the United 
States shall be clearly labeled ``For Export Only.''

(Secs. 6, 13, Pub. L. 92-574, (42 U.S.C. 4912); 42 U.S.C. 4905; 86 Stat. 
1237 and secs. 6, 10, 11, 13, Pub. L. 92-574, 86 Stat. 1234 (42 U.S.C. 
4905, 4909, 4910, 4912))

[41 FR 2172, Jan. 14, 1976, as amended at 42 FR 61455, Dec. 5, 1977. 
Redesignated at 47 FR 57712, Dec. 28, 1982, and amended at 49 FR 26738, 
June 29, 1984]



Sec. 204.56  Testing by the Administrator.

    (a)(1) The Administrator may require that any compressor tested or 
scheduled to be tested pursuant to these regulations or any other 
untested compressors be submitted to him, at such place and time as he 
may designate, for the purpose of conducting tests in accordance with 
the test procedures described in Sec. 204.54 to determine whether such 
compressors conform to applicable regulations.
    (2) The Administrator may specify that he will conduct such testing 
at the manufacturer's facility, in which case instrumentation and 
equipment of the type required by these regulations shall be made 
available by the manufacturer for test operations. The Administrator may 
conduct such tests with his own equipment, which shall be equal to or 
exceed the performance

[[Page 96]]

specifications of the instrumentation or equipment specified by the 
Administrator in these regulations.
    (b)(1) If, based on tests conducted by the Administrator or other 
relevant information, the Administrator determines that the test 
facility does not meet the requirements of Sec. 204.54-1 (a) and (b) he 
will notify the manufacturer in writing of his determination and the 
reasons therefor.
    (2) The manufacturer may at any time within 15 days after receipt of 
a notice issued under paragraph (b)(1) of this section request a hearing 
conducted in accordance with 5 U.S.C. 554 on the issue of whether his 
test facility was in conformance. Such notice will not take effect until 
15 days after receipt by the manufacturer, or if a hearing is requested 
under this paragraph, until adjudication by the hearing examiner.
    (3) After any notification issued under paragraph (b)(1) of this 
section has taken effect, no data thereafter derived from such test 
facility will be acceptable for purposes of this part.
    (4) The manufacturer may request in writing that the Administrator 
reconsider this determination under paragraph (b)(1) of this section 
based on data or information which indicates that changes have been made 
to the test facility and such changes have resolved the reasons for 
disqualification.
    (5) The Administrator will notify the manufacturer of his 
determination and an explanation of the reasons underlying it with 
regard to the requalification of the test facility within 10 working 
days after receipt of the manufacturer's request for reconsideration 
pursuant to paragraph (b)(4) of this section.

(Secs. 6, 13, Pub. L. 92-574 (42 U.S.C. 4912))

[41 FR 2172, Jan. 14, 1976, as amended at 42 FR 61455, Dec. 5, 1977]



Sec. 204.57  Selective enforcement auditing.



Sec. 204.57-1  Test request.

    (a) The Administrator will request all testing under this subpart by 
means of a test request addressed to the manufacturer.
    (b) [Reserved]
    (c) The test request will specify the compressor category or 
configuration selected for testing, the batch from which sampling is to 
begin, for testing and the batch size, the manufacturer's plant or 
storage facility from which the compressors must be selected, and the 
time at which compressors must be selected. The test request will also 
provide for situations in which the selected configuration or category 
is unavailable for testing. The test request may include an alternative 
category or configuration selected for testing in the event that 
compressors of the first specified category or configuration are not 
available for testing because the compressors are not being manufactured 
at the specified plant and/or are not being manufactured during the 
specified time or not being stored at the specified plant or storage 
facility.
    (d) Any manufacturer shall, upon receipt of the test request, select 
and test a batch sample of compressors from two consecutively produced 
batches of the compressor category or configurations specified in the 
test request in accordance with these regulations and the conditions 
specified in the test request.
    (e)(1) Any testing conducted by the manufacturer pursuant to a test 
request shall be initiated within such period as is specified in the 
test request; Except, that such initiation may be delayed for increments 
of 24 hours or one business day where ambient test site weather 
conditions in any 24-hour period do not permit testing: Provided, That 
ambient test site weather conditions for that period are recorded.
    (2) The manufacturer shall complete noise emission testing on a 
minimum of five compressors per day, unless otherwise provided for by 
the Administrator or unless ambient test site conditions only permit the 
testing of a lesser number: Provided, That ambient test site weather 
conditions for that period are recorded.
    (3) The manufacturer will be allowed 24 hours to ship compressors 
from a batch sample from the assembly plant to the testing facility if 
the facility is not located at the plant or in close proximity to the 
plant; Except, that the Administrator may approve more

[[Page 97]]

time based upon a request by the manufacturer accompanied by a 
satisfactory justification.
    (f) The Administrator may issue an order to the manufacturer to 
cease to distribute into commerce compressors of a specified category or 
configuration being manufactured at a particular facility if:
    (1) The manufacturer refuses to comply with the provisions of a test 
request issued by the Administrator pursuant to this section; or
    (2) The manufacturer refuses to comply with any of the requirements 
of this section.
    (g) A cease-to-distribute order shall not be issued under paragraph 
(f) of this section if such refusal is caused by conditions and 
circumstances outside the control of the manufacturer which render it 
impossible to comply with the provisions of a test request or any other 
requirements of this section. Such conditions and circumstances shall 
include, but are not limited to, any uncontrollable factors which result 
in the temporary unavailability of equipment and personnel needed to 
conduct the required tests, such as equipment breakdown or failure or 
illness of personnel, but shall not include failure of the manufacturer 
to adequately plan for and provide the equipment and personnel needed to 
conduct the tests. The manufacturer will bear the burden of establishing 
the presence of the conditions and circumstances required by this 
paragraph.
    (h) Any such order shall be issued only after a notice and 
opportunity for a hearing in accordance with section 554 of Title 5 of 
the United States Code.

(Secs. 6, 11 and 13, Noise Control Act, Pub. L. 92-574, 86 Stat. 1244; 
(42 U.S.C. 4910 and 4912))

[41 FR 2172, Jan. 14, 1976, as amended at 42 FR 41635, Aug. 18, 1977; 42 
FR 61455, Dec. 5, 1977; 47 FR 57712, Dec. 28, 1982]



Sec. 204.57-2  Test compressor sample selection.

    (a) Compressors comprising the batch sample which are required to be 
tested pursuant to a test request in accordance with this subpart will 
be randomly selected from a batch of compressors of the category or 
configuration specified in the test request. The random selection will 
be achieved by sequentially numbering all of the compressors in the 
batch and then using a table of random numbers to select the number of 
compressors, as specified in paragraph (c) of this section, based on the 
batch size designated by the Administrator in the test request. An 
alternative selection plan may be used by a manufacturer: Provided, That 
such a plan is approved by the Administrator.
    (b) The Acceptable Quality Level is 10 percent. The appropriate 
sampling plans associated with the designated AQL are contained in 
Appendix I, Table II.
    (c) The appropriate batch sample size will be determined by 
reference to Appendix I, Tables I and II. A code letter is obtained from 
Table I based on the batch size designated by the Administrator in a 
test request. The batch sample size will be equal to the maximum 
cumulative sample size as listed in Table II for the appropriate code 
letter obtained from Table I plus an additional ten percent rounded off 
to the next highest number.
    (d) Individual compressors comprising the test sample will be 
randomly selected from the batch sample using the same random selection 
plan as in paragraph (a) of this section. Test sample size will be 
determined by entering Table II.
    (e) The test compressor of the category or configuration selected 
for testing shall have been assembled by the manufacturer for 
distribution in commerce using the manufacturers normal production 
process.
    (f) Unless otherwise indicated in the test request, the manufacturer 
will select the batch sample from the production batch next scheduled 
after receipt of the test request of the category or configuration 
specified in the test request.
    (g) Unless otherwise indicated in the test request, the manufacturer 
shall select the compressors designated in the test request for testing.
    (h) At their discretion, EPA Enforcement Officers, rather than the 
manufacturer, may select the compressors designated in the test request.

[[Page 98]]

    (i) The manufacturer will keep on hand all compressors in the batch 
sample until such time as the batch is accepted or rejected in 
accordance with Sec. 204.57-6; Except, that compressors actually tested 
and found to be in conformance with these regulations need not be kept.



Sec. 204.57-3  Test compressor preparation.

    (a) Prior to the official test, the test compressor selected in 
accordance with Sec. 204.57-2 shall not be prepared, tested, modified, 
adjusted, or maintained in any manner unless such adjustments, 
preparations, modifications and/or tests are part of the manufacturer's 
prescribed manufacturing and inspection procedures and are documented in 
the manufacturer's internal compressor assembly and inspection 
procedures or unless such adjustments and/or tests are required or 
permitted under this subpart or are approved in advance by the 
Administrator. The manufacturer may perform adjustments, preparations, 
modifications and/or tests normally performed by a dealer to prepare the 
compressor for delivery to a customer or the adjustments, preparations, 
modifications and/or tests normally performed at the port-of-entry by 
the manufacturer to prepare the compressor for delivery to a dealer or 
customer.
    (b) Equipment of fixtures necessary to conduct the test may be 
installed on the compressor: Provided, That such equipment of fixtures 
shall have no effect on the noise emissions of the compressor, as 
determined by the appropriate measurement methodology.
    (c) In the event of compressor manfunction (i.e., failure to start, 
misfiring cylinder, etc.), the manufacturer may perform the maintenance 
necessary to enable the compressor to operate in a normal manner.
    (d) No quality control, testing, assembly, or selection procedures 
shall be used on the completed test compressor or any portion thereof, 
including parts and subassemblies, that will not normally be used during 
the production and assembly of all other compressors of that category 
which will be distributed in commerce, unless such procedures are 
required or permitted under this subpart or are approved in advance by 
the Administrator.

[47 FR 57712, Dec. 28, 1982]



Sec. 204.57-4  Testing.

    (a) The manufacturer shall conduct one valid test in accordance with 
the test procedures specified in Sec. 204.54 for each compressor 
selected for testing pursuant to this subpart.
    (b) No maintenance will be performed on test compressors, except as 
provided for by Sec. 204.57-3. In the event a compressor is unable to 
complete the emission test, the manufacturer may replace the compressor. 
Any replacement compressor will be a production compressor of the same 
configuration, and the replacement compressor will be randomly selected 
from the batch sample and will be subject to all the provisions of these 
regulations.



Sec. 204.57-5  Reporting of test results.

    (a)(1) The manufacturer shall submit a copy of the test report for 
all testing conducted pursuant to Sec. 204.57 at the conclusion of each 
twenty-four hour period during which testing is done.
    (2) For each test conducted the manufacturer will provide the 
following information:
    (i) Configuration and category identification, where applicable.
    (ii) Year, make, assembly date, and model of compressor.
    (iii) Compressor serial number.
    (iv) Test results by serial numbers
    (3) The first test report for each batch sample will contain a 
listing of all serial numbers in that batch.
    (b) In the case where an EPA Enforcement Officer is present during 
testing required by this subpart, the written reports requested in 
paragraph (a) of this section may be given directly to the Enforcement 
Officer.
    (c) Within five days after completion of testing of all compressors 
in a batch sample, the manufacturer shall submit to the Administrator a 
final report which will include the information required by the test 
request in the format as stipulated, in addition to the following:
    (1) The name, location, and description of the manufacturer's noise 
test facilities which meet the specifications of Sec. 204.54 and were 
utilized to conduct

[[Page 99]]

testing reported pursuant to this section; except, that a test facility 
that has been described in a previous submission under this subpart need 
not be described again but must be identified as such.
    (2) A description of the random compressor selection method used, 
referencing any tables of random numbers that were used, and the name of 
the person in charge of the random number selection.
    (3) The following information for each test conducted:
    (i) The completed data sheet required by Sec. 204.54 for all noise 
emission tests including, for each invalid test, the reason for 
invalidation.
    (ii) A complete description of any modification, repair, 
preparation, maintenance, and/or testing which was performed on the test 
compressor and will not be performed on all other production 
compressors.
    (iii) The reason for the replacement, where a replacement compressor 
was authorized by the Administrator, and, if any, the test results for 
replaced compressors.
    (4) The following statement and endorsement:

    This report is submitted pursuant to section 6 and section 13 of the 
Noise Control Act of 1972. All testing for which data is reported herein 
was conducted in strict conformance with applicable regulations under 40 
CFR Part 204 et seq. All the data reported herein are a true and 
accurate representation of such testing. All other information reported 
herein is, to the best of (company) knowledge true and accurate. I am 
aware of the penalties associated with violations of the Noise Control 
Act of 1972 and the regulations thereunder.

                                             (authorized representative)

    (d) All information required to be forwarded to the Administrator 
pursuant to this section shall be addressed to Director, Noise 
Enforcement Division (EN-387), U.S. Environmental Protection Agency, 
Washington, DC 20460.

(Secs. 6 and 13, Noise Control Act, Pub. L. 92-574, 86 Stat. 1244 (42 
U.S.C. 4912))

[41 FR 2172, Jan. 14, 1976, as amended at 42 FR 41635, Aug. 18, 1977; 43 
FR 38705, Aug. 30, 1978]



Sec. 204.57-6  Acceptance and rejection of batches.

    (a) A failing compressor is one whose measured sound level is in 
excess of the applicable noise emission standard.
    (b) The batch from which a batch sample is selected will be accepted 
or rejected based upon the number of failing compressors in the batch 
sample. A sufficient number of test samples will be drawn from the batch 
sample until the cumulative number of failing compressors is less than 
or equal to the acceptance number or greater than or equal to the 
rejection number appropriate for the cumulative number of compressors 
tested. The acceptance and rejection numbers listed in Appendix I, Table 
II at the appropriate code letter obtained according to Sec. 204.57-2 
will be used in determining whether the acceptance or rejection of a 
batch has occurred.
    (c) Acceptance or rejection of a batch takes place when a decision 
is made on the last compressor required to make a decision under 
paragraph (b) of this section.



Sec. 204.57-7  Acceptance and rejection of batch sequence.

    (a) The manufacturer will continue to inspect consecutive batches 
until the batch sequence is accepted or rejected. The batch sequence 
will be accepted or rejected based upon the number of rejected batches. 
A sufficient number of consecutive batches will be inspected until the 
cumulative number of rejected batches is less than or equal to the 
sequence acceptance number or greater than or equal to the sequence 
rejection number appropriate for the cumulative number of batches 
inspected. The acceptance and rejection numbers listed in Appendix I, 
Table III at the appropriate code letter obtained according to Sec. 
204.57-2 will be used in determining whether the acceptance or rejection 
of a batch sequence has occurred.
    (b) Acceptance or rejection of a batch sequence takes places when 
the decision is made on the last compressor required to make a decision 
under paragraph (a) of this section.
    (c) If the batch sequence is accepted, the manufacturer will not be 
required to perform any additional testing on

[[Page 100]]

compressors from subsequent batches pursuant to the initiating test 
request.
    (d) The Administrator may terminate testing earlier than required in 
paragraph (b) of this section based on a request by the manufacturer 
accompanied by voluntary cessation of distribution in commerce, from all 
plants, of compressors from the configuration in question: Provided, 
That once production is reinitiated, the manufacturer must take the 
action described in Sec. 204.57-9 (a)(1) and (a)(2) prior to 
distribution in commerce of any compressors from any plant of the 
compressor category or configuration in question.



Sec. 204.57-8  Continued testing.

    (a) If a batch sequence is rejected in accordance with paragraph (b) 
of Sec. 204.57-7, the Administrator may require that any or all 
compressors of that category, configuration or subgroup thereof produced 
at that plant be tested before distribution in commerce.
    (b) The Administrator will notify the manufacturer in writing of his 
intent to require such continued testing of compressors pursuant to 
paragraph (a) of this section.
    (c) The manufacturer may request a hearing on the issues of whether 
the selective enforcement audit was conducted properly; whether the 
criteria for batch sequence rejection in Sec. 204.57-7 have been met; 
and, the appropriateness or scope of a continued testing order. In the 
event that a hearing is requested, the hearing shall begin no later than 
15 days after the date on which the Administrator received the hearing 
request. Neither the request for a hearing nor the fact that a hearing 
is in progress shall affect the responsibility of the manufacturer to 
commence and continue testing required by the Administrator pursuant to 
paragraph (a) of this section.
    (d) Any tested compressor which demonstrates conformance with the 
applicable standards may be distributed into commerce.
    (e) Any knowing distribution into commerce of a compressor which 
does not comply with the applicable standards is a prohibited act.

(Sec. 6, 13, Pub. L. 92-574 (42 U.S.C. 4912))

[41 FR 2172, Jan. 14, 1976, as amended at 42 FR 61455, Dec. 5, 1977; 44 
FR 54295, Sept. 19, 1979]



Sec. 204.57-9  Prohibition of distribution in commerce; manufacturer's remedy.

    (a) The Administrator will permit the cessation of continued testing 
under Sec. 204.57-8 once the manufacturer has taken the following 
actions:
    (1) Submit a written report to the Administrator which identifies 
the reason for the noncompliance of the compressors, describes the 
problem, and describes the proposed quality control and/or quality 
assurance remedies to be taken by the manufacturer to correct the 
problem or follows the requirements for an engineering change. Such 
requirements include the following:
    (i) Any change to a configuration with respect to any of the 
parameters stated in Sec. 204.55-3 shall constitute the addition of a 
new and separate configuration or category to the manufacturer's product 
line.
    (ii) When a manufacturer introduces a new category or configuration 
to his product line, he shall proceed in accordance with Sec. 204.55-2.
    (iii) If the configuration to be added can be grouped within a 
verified category and the new configuration is estimated to have a lower 
sound level than a previously verified configuration with the same 
category, the configuration shall be considered verified.
    (2) Demonstrates that the specified compressor category, 
configuration or subgroup thereof has passed a retest conducted in 
accordance with Sec. 204.57 and the conditions specified in the initial 
test request.
    (3) The manufacturer may begin testing under paragraph (a)(2) of 
this section, upon submitting such report, and may cease continued 
testing upon making the demonstration required by paragraph (a)(2) of 
this section: Provided, That the Administrator may require resumption of 
contined testing if he determines that the manufacturer has not 
satisfied the requirements of paragraphs (a) (1) and (2) of this 
section.

[[Page 101]]

    (4) In lieu of paragraphs (a) (1) and (2) of this section, the 
Administrator will permit the cessation of continued testing under Sec. 
204.57-8 with respect to any subgroup of a nonconforming category or 
configuration if the manufacturer demonstrates to the satisfaction of 
the Administrator that such subgroup does not exhibit the cause of the 
nonconformity of such category or configuration.
    (b) Any compressor failing the prescribed noise emission tests 
conducted pursuant to this Subpart B may not be distributed in commerce 
until necessary adjustments or repairs have been made and the compressor 
passes a retest.
    (c) No compressors of a rejected batch which are still in the hands 
of the manufacturer may be distributed in commerce unless the 
manufacturer has demonstrated to the satisfaction of the Administrator 
that such compressors do, in fact, conform to the regulations; except, 
that any compressor that has been tested and does, in fact, conform with 
these regulations may be distributed in commerce.

(Secs. 6, 10, 13, Pub. L. 92-574 (42 U.S.C. 4909 and 4912))

[41 FR 2172, Jan. 14, 1976, as amended at 42 FR 61455, Dec. 5, 1977; 47 
FR 57712, Dec. 28, 1982]



Sec. 204.58  In-use requirements.



Sec. 204.58-1  Warranty.

    (a) The portable air compressor manufacturer shall include in the 
owner's manual or in other information supplied to the ultimate 
purchaser, the following statement:

                        Noise Emissions Warranty

    The manufacturer warrants to the ultimate purchaser and each 
subsequent purchaser that this air compressor was designed, built, and 
equipped to conform at the time of sale to the first retail purchaser, 
with all applicable U.S. E.P.A. noise control regulations.
    This warranty is not limited to any particular part, component, or 
system of the air compressor. Defects in the design, assembly, or in any 
part, component, or system of the compressor which, at the time of sale 
to the first retail purchaser, caused noise emissions to exceed Federal 
standards are covered by this warranty for the life of the air 
compressor.

    (b) [Reserved]

(Secs. 6 and 13, Noise Control Act, Pub. L. 92-574, 86 Stat. 1244 (42 
U.S.C. 4912))

[41 FR 2172, Jan. 14, 1976, as amended at 47 FR 57712, Dec. 28, 1982]



Sec. 204.58-2  Tampering.

    (a) For each configuration of air compressors covered by this part, 
the manufacturer shall develop a list of those acts which, in his 
judgment, might be done to the air compressor in use and which would 
constitute the removal or rendering inoperative of noise control devices 
or elements of design of the compressor.
    (b) The manufacturer shall include in the owner's manual the 
following information:
    (1) The statement:

             Tampering With Noise Control System Prohibited

    Federal law prohibits the following acts or the causing thereof:
    (1) The removal or rendering inoperative by any persons, other than 
for purposes of maintenance, repair, or replacement, of any devices or 
element of design incorporated into any new compressor for the purpose 
of noise control prior to its sale or delivery to the ultimate purchaser 
or while it is in use; or (2) the use of the compressor after such 
device or element of design has been removed or rendered inoperative by 
any person.

    (2) The statement:

    Among those acts included in the prohibition against tampering are 
the acts listed below.


Immediately following this statement, the manufacturer shall include the 
list developed under paragraph (a) of this section.
    (c) Any act included in the list prepared pursuant to paragraph (a) 
of this section is presumed to constitute tampering; however, in any 
case in which a proscribed act has been committed and it can be shown 
that such act resulted in no increase in the sound level of the 
compressor or that the compressor still meets the noise emission 
standard of Sec. 204.52, such set will not constitute tampering.

[[Page 102]]

    (d) The provisions of this section are not intended to preclude any 
State or local jurisdiction from adopting and enforcing its own 
prohibitions against the removal or rendering inoperative of noise 
control systems on compressors subject to this part.

(Secs. 6 and 13, Noise Control Act, Pub. L. 92-574, 86 Stat. 1244 (42 
U.S.C. 4912))

[41 FR 2172, Jan. 14, 1976, as amended at 47 FR 57713, Dec. 28, 1982]



Sec. 204.58-3  Instructions for maintenance, use, and repair.

    (a)(1) The manufacturer shall provide to the ultimate purchaser of 
each portable air compressor covered by this part written instructions 
for the proper maintenance, use, and repair of the compressor in order 
to provide reasonable assurance of the elimination or minimization of 
noise emission degradation throughout the life of the compressor.
    (2) The purpose of the instructions is to inform purchasers and 
mechanics of those acts necessary to reasonably assure that degradation 
of noise emission levels is eliminated or minimized during the life of 
the compressor. Manufacturers should prepare the instructions with this 
purpose in mind. The instructions should be clear and, to the extent 
practicable, written in non-technical language.
    (3) The instructions must not be used to secure an unfair 
competitive advantage. They should not restrict replacement equipment to 
original equipment or service to dealer service. Manufacturers who so 
restrict replacement equipment must make public any performance 
specifications on such equipment.
    (b) For the purpose of encouraging proper maintenance, the 
manufacturer shall provide a record or log book which shall contain a 
performance schedule for all required noise emission control 
maintenance. Space shall be provided in this record book so that the 
purchaser can note what maintenance was done, by whom, where and when.

(Secs. 6, 13, Pub. L. 92-574 (42 U.S.C. 4912))

[41 FR 2172, Jan. 14, 1976, as amended at 47 FR 57713, Dec. 28, 1982]



Sec. 204.59  Recall of non-complying compressors.

    (a) Pursuant to section 11(d)(1) of the Act, the Administrator may 
issue an order to the manufacturer to recall and repair or modify any 
compressor distributed in commerce not in compliance with this subpart.
    (b) A recall order issued pursuant to this section shall be based 
upon a determination by the Administrator that compressors of a 
specified category or configuration have been distributed in commerce 
which do not conform to the regulations. Such determination may be based 
on:
    (1) A technical analysis of the noise emission characteristics of 
the category or configuration in question; or
    (2) Any other relevant information, including test data.
    (c) For the purposes of this section, noise emissions may be 
measured by any test prescribed in Sec. 204.54 for testing prior to 
sale or any other test which has been demonstrated to correlate with the 
prescribed test procedure.
    (d) Any such order shall be issued only after notice and an 
opportunity for a hearing in accordance with section 554 of Title 5 of 
the United States Code.
    (e) All costs, including labor and parts, associated with the recall 
and repair or modification of non-complying compressors under this 
section shall be borne by the manufacturer.
    (f) This section shall not limit the discretion of the Administrator 
to take any other actions which are authorized by the Act.

(Secs. 6, 11, Pub. L. 92-574 (42 U.S.C. 4910))

[41 FR 2172, Jan. 14, 1976, as amended at 42 FR 61456, Dec. 5, 1977]



                       Sec. Appendix I to Part 204

                    Table I--Sample Size Code Letters
------------------------------------------------------------------------
                  Batch size                          Code letter
------------------------------------------------------------------------
4 to 8.......................................  A.
9 to 15......................................  B.
16 to 25.....................................  C.
26 and larger................................  D.
------------------------------------------------------------------------


[[Page 103]]


                                 Table II--Sampling Plans for Inspecting Batches
----------------------------------------------------------------------------------------------------------------
                                                                                             Batch inspection
                                                                     Test     Cumulative         criteria
        Sample size code letter                Test sample          sample       test    -----------------------
                                                                     size       sample    Acceptance   Rejection
                                                                                 size       number      number
----------------------------------------------------------------------------------------------------------------
A.....................................  1st.....................           4           4           0           1
B.....................................  1st.....................           3           3           0           1
C.....................................  1st.....................           3           3           0           2
                                        2d......................           3           6           1           2
D.....................................  1st.....................           2           2       (\1\)           2
                                        2d......................           2           4       (\1\)           2
                                        3d......................           2           6           0           2
                                        4th.....................           2           8           0           3
                                        5th.....................           2          10           1           3
                                        6th.....................           2          12           1           3
                                        7th.....................           2          14           2           3
----------------------------------------------------------------------------------------------------------------
\1\ Batch acceptance not permitted at this sample size.


                                         Table III--Batch Sequence Plans
----------------------------------------------------------------------------------------------------------------
                                                                                            Sequence inspection
                                                                              Cumulative         criteria
                     Sample size code letter                        Number      number   -----------------------
                                                                    batches     batches   Acceptance   Rejection
                                                                                            number      number
----------------------------------------------------------------------------------------------------------------
A...............................................................           2           2           1       (\1\)
                                                                           2           4           2           4
                                                                           2           6           3           5
                                                                           2           8           4           5
B...............................................................           2           2           0       (\1\)
                                                                           2           4           1           4
                                                                           2           6           2           5
                                                                           2           8           3           5
                                                                           2          10           4           6
                                                                           2          12           5           6
C...............................................................           2           2       (\2\)           2
                                                                           2           4           0           2
                                                                           2           6           0           3
                                                                           2           8           1           3
                                                                           2          10           2           4
                                                                           2          12           3           4
D...............................................................           2           2           0           2
                                                                           2           4           1           3
                                                                           2           6           2           4
                                                                           2           8           3           4
----------------------------------------------------------------------------------------------------------------
\1\ Batch sequence rejection not permitted for this number of batches.
\2\ Batch sequence acceptance not permitted for this number of batches.


                    Table IV--Recommended Format for Portable Air Compressor Noise Data Sheet
 
Test report number:............  ..................
Subject:
  Manufacturer:....................................  Model:.............  Serial No.:.......  ..................
  Rated speed:.................  Rpm:..............  Rated capacity:....  ..................  cfm (m\3\/in).
  Configuration identification:....................  Category             ..................  ..................
                                                      identification:.
  Portable air compressor identification No.:......  Build date:........  ..................  ..................
Test conditions:
  Manufacturer's test site identification and location:.....................................  ..................
  Reflecting plane composition:.............................................................  ..................
Operating speed as tested:
    Beginning of test..........  rpm
    End of test................  rpm
  Air pressure supplied:.......  psi (kg/cm\2\)      Ambient wind speed--
                                                      ----mph (km/hr).
  Actual flow rate:............  cfm (m\3\/min.)     Atmospheric
                                                      pressure------psi
                                                      (kg/cm\2\).
  Temperature:.................   [deg]F ( [deg]C)
Instrumentation:
  Microphone Manufacturer:.........................  Model No.:.........  Serial No.:.......  ..................
  Sound Level Meter Manufacturer:..................  Model No.:.........  Serial No.:.......  ..................
  Calibrator Manufacturer:.........................  Model No.:.........  Serial No.:.......  ..................

[[Page 104]]

 
  Other and Manufacturer:..........................  Model No.:.........  Serial No.:.......  ..................
Data:
 


--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                         Location
                                                                ----------------------------------------------------------------------------------------
                                        Background sound level                                                                                  Average
       Sound levels (decibels)         at location 1 (decibels)                                                                                  sound
                                                                    1        2        3                4                        5                level
                                                                                                                                              (decibels)
--------------------------------------------------------------------------------------------------------------------------------------------------------
A-Weighted
--------------------------------------------------------------------------------------------------------------------------------------------------------
Tested by:.........................................................................................................  Date:..................  ..........
Reported by:.......................................................................................................  Date:..................  ..........
Supervisory personnel:....................................................................  Title:.................  .......................  ..........
                                                                 .......  .......  .......  Title:.................  .......................  ..........
--------------------------------------------------------------------------------------------------------------------------------------------------------



PART 205_TRANSPORTATION EQUIPMENT NOISE EMISSION CONTROLS--Table of Contents




                      Subpart A_General Provisions

Sec.
205.1 General applicability.
205.2 Definitions.
205.3 Number and gender.
205.4 Inspection and monitoring.
205.5 Exemptions.
205.5-1 Testing exemption.
205.5-2 National security exemptions.
205.5-3 Export exemptions.

                    Subpart B_Medium and Heavy Trucks

205.50 Applicability.
205.51 Definitions.
205.52 Vehicle noise emission standards.
205.54 Test procedures.
205.54-1 Low speed sound emission test procedures.
205.54-2 Sound data acquisition system.
205.55 Requirements.
205.55-1 General requirements.
205.55-2 Compliance with standards.
205.55-3 Configuration identification.
205.55-4 Labeling-compliance.
205.55-5 Labeling-exterior. [Reserved]
205.56 Testing by the Administrator.
205.57 Selective enforcement auditing requirements.
205.57-1 Test request.
205.57-2 Test vehicle sample selection.
205.57-3 Test vehicle preparation.
205.57-4 Testing procedures.
205.57-5 Reporting of the test results.
205.57-6 Acceptance and rejection of batches.
205.57-7 Acceptance and rejection of batch sequence.
205.57-8 Continued testing.
205.57-9 Prohibition on distribution in commerce; manufacturer's remedy.
205.58 In-use requirements.
205.58-1 Warranty.
205.58-2 Tampering.
205.58-3 Instructions for maintenance, use and repair.
205.59 Recall of noncomplying vehicles.

Appendix I to Subpart B

Subpart C [Reserved]

                          Subpart D_Motorcycles

205.150 Applicability.
205.151 Definitions.
205.152 Noise emission standards.
205.153 Engine displacement.
205.154 Consideration of alternative test procedures.
205.155 Motorcycle class and manufacturer abbreviation.
205.156 [Reserved]
205.157 Requirements.
205.157-1 General requirements.
205.157-2 Compliance with standards.
205.157-3 Configuration identification.
205.158 Labeling requirements.
205.159 Testing by the Administrator.
205.160 Selective enforcement auditing (SEA) requirements.
205.160-1 Test request.
205.160-2 Test sample selection and preparation.
205.160-3 [Reserved]
205.160-4 Testing procedures.
205.160-5 Reporting of the test results.
205.160-6 Passing or failing under SEA.
205.160-7 Continued testing.
205.160-8 Prohibition of distribution in commerce; manufacturer's 
          remedy.
205.162 In-use requirements.
205.162-1 Warranty.
205.162-2 Tampering.
205.162-3 Instructions for maintenance, use, and repair.
205.163 Recall of noncomplying motorcycles; relabeling of mislabled 
          motorcycles.

Appendix I to Subparts D and E--Motorcycle Noise Emission Test 
          Procedures [Note]

[[Page 105]]

                  Subpart E_Motorcycle Exhaust Systems

205.164 Applicability.
205.165 Definitions.
205.166 Noise emission standards.
205.167 Consideration of alternative test procedures.
205.168 Requirements.
205.168-1 General requirements.
205.168-11 Order to cease distribution.
205.169 Labeling requirements.
205.170 Testing by the Administrator.
205.171 Selective enforcement auditing (SEA) requirements.
205.171-1 Test request.
205.171-2 Test exhaust system sample selection and preparation.
205.171-3 Test motorcycle sample selection.
205.171-6 Testing procedures.
205.171-7 Reporting of the test results.
205.171-8 Passing or failing under SEA.
205.171-9 Continued testing.
205.171-10 Prohibition on distribution in commerce; manufacturer's 
          remedy.
205.172 Maintenance of records; submittal of information.
205.173 In-use requirements.
205.173-1 Warranty.
205.173-2 Tampering.
205.173-3 Warning statement.
205.173-4 Information sheet.
205.174 Remedial orders.

Appendix I to Subparts D and E--Motorcycle Noise Emission Test 
          Procedures
Appendix II to Subpart E--Sampling Tables

    Authority: Secs. 6, 10, 11, 13, Pub. L. 92-574, 86 Stat. 1234 (42 
U.S.C. 4905, 4909, 4910, 4912).

    Source: 41 FR 15544, Apr. 13, 1976, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 205.1  General applicability.

    The provisions of this subpart are applicable to all products for 
which regulations have been published under this part and which are 
manufactured after the effective date of such regulations.



Sec. 205.2  Definitions.

    (a) As used in this subpart, all terms not defined herein shall have 
the meaning given them in the Act.
    (1) Act means the Noise Control Act of 1972 (Pub. L. 92-574, 86 
Stat. 1234).
    (2) Administrator means the Ad ministrator of the Environmental Pro 
tec tion Agency or his authorized rep re sen ta tive.
    (3) Agency means the United States Environmental Protection Agency.
    (4) Export exemption means an exemption from the prohibitions of 
section 10(a) (1), (2), (3), and (4) of the Act, granted by statute 
under section 10(b)(2) of the Act for the purpose of exporting regulated 
products.
    (5) National security exemption means an exemption from the 
prohibitions of section 10(a) (1), (2), (3), and (5) of the Act, which 
may be granted under section 10(b)(1) of the Act for the purpose of 
national security.
    (6) [Reserved]
    (7) Sound Level means 20 times the logarithm to base 10 of the ratio 
of pressure of a sound to the reference pressure. The reference pressure 
is 20 micropascals (20 micronewtons per square meter). NOTE: Unless 
otherwise explicitly stated, it is to be understood that the sound 
pressure is the effective (rms) sound pressure, per American National 
Standards Institute, Inc., 1430 Broadway, New York, New York 10018.
    (8) Sound Pressure Level means in decibels, 20 times the logarithm 
to the base 10 of the ratio of a sound pressure to the reference sound 
pressure of 20 micropascals (20 micronewtons per square meter). In the 
absence of any modifier, the level is understood to be that of a root-
mean-square pressure. The unit of any sound level is the decibel, having 
the unit symbol dB.
    (9) dB(A) means the standard abbreviation for A-weighted sound 
levels in decibels.
    (10) Highway means the streets, roads, and public ways in any State.
    (11) Fast Meter Response means that the fast dynamic response of the 
sound level meter shall be used. The fast dynamic response shall comply 
with the meter dynamic characteristics in paragraph 5.3 of the American 
National Standard Specification for Sound Level Meters, ANSI SI.4-1971. 
This publication is available from the American National Standards 
Institute, Inc., 1430 Broadway, New York, New York 10018.
    (12) Person means an individual, corporation, partnership, or 
association, and except as provided in sections 11(e) and 12(a) of the 
Act includes any officer, employee, department, agency or 
instrumentality of the United States, a State or any political 
subdivision of a State.

[[Page 106]]

    (13) Reasonable assistance means providing timely and unobstructed 
access to test products or products and records required by this part, 
and opportunity for copying such records or testing such test products.
    (14) Ultimate purchaser means the first person who in good faith 
purchases a product for purposes other than resale.
    (15) New product means (i) a product the equitable or legal title of 
which has never been transferred to an ultimate purchaser, or (ii) a 
product which is imported or offered for importation into the United 
States and which is manufactured after the effective date of a 
regulation under section 6 or 8 which would have been applicable to such 
product had it been manufactured in the United States.
    (16) Manufacturer means any person engaged in the manufacturing or 
assembling of new products, or the importing of new products for resale, 
or who acts for and is controlled by any such person in connection with 
the distribution of such products.
    (17) Commerce means trade, traffic, commerce, or transportation:
    (i) Between a place in a State and any place outside thereof, or
    (ii) Which affects trade, traffic, commerce, or transportation 
described in paragraph (a)(17)(i) of this section.
    (18) Distribute in commerce means sell in, offer for sale in, or 
introduce or deliver for introduction into, commerce.
    (19) State includes the District of Columbia, the Commonwealth of 
Puerto Rico, the Virgin Islands, American Samoa, Guam, and the Trust 
Territory of the Pacific Islands.
    (20) Federal Agency means an ex ecutive agency (as defined in 
section 105 of title 5, United States Code) and includes the United 
States Postal Service.
    (21) Environmental noise means the intensity, duration, and the 
character of sounds from all sources.
    (22) Warranty means the warranty required by section 6(c)(1) of the 
Act.
    (23) Tampering means those acts prohibited by section 10(a)(2) of 
the Act.
    (24) Maintenance instructions or instructions means those 
instructions for maintenance, use, and repair, which the Administrator 
is authorized to require pursuant to section 6(c)(1) of the Act.
    (25) Type I Sound Level Meter means a sound level meter which meets 
the Type I requirements of ANSI SI.4-1972 specification for sound level 
meters. This publication is available from the American National 
Standards Institute, Inc., 1430 Broadway, New York, New York 10018.
    (26) Testing exemption means an exemption from the prohibitions of 
section 10(a) (1), (2), (3), and (5) of the Act, which may be granted 
under section 10(b)(1) of the Act for the purpose of research, 
investigations, studies, demonstrations, or training, but not including 
national security.
    (27) Product means any transportation equipment for which 
regulations have been promulgated under this part and includes ``test 
product.''
    (28) Test product means any product that is required to be tested 
pursuant to this part.

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61457, Dec. 5, 1977]



Sec. 205.3  Number and gender.

    As used in this part, words in the singular shall be deemed to 
import the plural, and words in the masculine gender shall be deemed to 
import the feminine and vice versa, as the case may require.



Sec. 205.4  Inspection and monitoring.

    (a) Any inspection or monitoring activities conducted under this 
section shall be for the purpose of determining (1) whether test 
products are being selected and prepared for testing in accordance with 
the provisions of these regulations, (2) whether test product testing is 
being conducted in accordance with these regulations, and (3) whether 
products being produced for distribution into commerce comply with these 
regulations.
    (b) The Director, Noise Enforcement Division, may request that a 
manufacturer subject to this part admit an EPA Enforcement Officer 
during operating hours to any of the following:
    (1) Any facility or site where any product to be distributed into 
commerce is manufactured, assembled, or stored;

[[Page 107]]

    (2) Any facility or site where any tests conducted pursuant to this 
part or any procedures or activities connected with such tests are or 
were performed; and
    (3) Any facility or site where any test product is present.
    (c)(1) An EPA Enforcement Officer, once admitted to a facility or 
site, will not be authorized to do more than:
    (i) To inspect and monitor test product manufacture and assembly, 
selection, storage, preconditioning, noise emission testing, and 
maintenance, and to verify correlation or calibration of test equipment;
    (ii) To inspect products prior to their distribution in commerce:
    (iii) To inspect and photograph any part or aspect of any such 
product and any component used in the assembly thereof that are 
reasonably related to the purpose of his entry.
    (iv) [Reserved]
    (v) To obtain from those in charge of the facility or site such 
reasonable assistance as he may request to enable him to carry out any 
proper function listed in this section.
    (2) [Reserved]
    (3) The provisions of this section apply whether the facility or 
site is owned or controlled by the manufacturer or by one who acts for 
the manufacturer.
    (d) For purposes of this section:
    (1) An ``EPA Enforcement Officer'' is an employee of the EPA Office 
of Enforcement who displays upon arrival at a facility or site the 
credentials identifying him as such an employee and a letter signed by 
the Director, Noise Enforcement Division designating him to make the 
inspection.
    (2) Where test product 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.
    (3) Where facilities or areas other than those covered by paragraph 
(d)(2) of this section are concerned, ``operating hours'' shall mean all 
times during which product manufacture or assembly is in operation or 
all times during which product testing and maintenance is taking place 
and/or production or compilation of records is taking place, or any 
other procedure or activity related to selective enforcement audit 
testing or product manufacture or assembly being carried out in a 
facility.
    (e) The manufacturer shall admit to a facility or site an EPA 
Enforcement Officer who presents a warrant authorizing entry. In the 
absence of such warrant, entry to any facility or site under this 
section will be only upon the consent of the manufacturer.
    (1) It is not a violation of this regulation or the Act for any 
person to refuse entry without a warrant.
    (2) The Administrator or his designee may proceed ex parte to obtain 
a warrant whether or not the manufacturer has refused entry.

[41 FR 15544, Apr. 13, 1976, as amended at 43 FR 27990, June 28, 1978; 
47 FR 57713, Dec. 28, 1982]



Sec. 205.5  Exemptions.



Sec. 205.5-1  Testing exemption.

    (a) A new product intended to be used solely for research, 
investigations, studies, demonstrations or training, and so labeled or 
marked on the outside of the container and on the product itself, shall 
be exempt from the prohibitions of section 10(a)(1), (2), (3), and (5) 
of the Act.
    (b) No request for a testing exemption is required.
    (c) For purposes of section 11(d) of the Act, any testing exemption 
shall be void ab initio with respect to each new product, originally 
intended for research, investigations, studies, demonstrations, or 
training, but distributed in commerce for other uses.

[47 FR 57713, Dec. 28, 1982]



Sec. 205.5-2  National security exemptions.

    (a) A new product which is produced to conform with specifications 
developed by a national security agency, and so labeled or marked on the 
outside of the container and on the product itself, shall be exempt from 
the prohibitions of section 10(a)(1), (2), (3), and (5) of the Act.
    (b) No request for a national security exemption is required.

[[Page 108]]

    (c) For purposes of section 11(d) of the Act, any national security 
exemption shall be void ab initio with respect to each new product, 
originally intended to be produced to conform with specifications 
developed by a national security agency, but distributed in commerce for 
other uses.
    (d) Any manufacturer or person subject to the liabilities of section 
11(a) with respect to any product originally intended for a national 
security agency, but distributed in commerce for use in any State, may 
be excluded from the application of section 11(a) with respect to such 
product based upon a showing that such manufacturer:
    (1) Had no knowledge of such product being distributed in commerce 
for use in any state; and
    (2) Made reasonable effort to ensure that such products would not be 
distributed in commerce for use in any State. Such reasonable efforts 
would include investigation, prior dealings, contract provisions, etc.

[47 FR 57714, Dec. 28, 1982]



Sec. 205.5-3  Export exemptions.

    (a) A new product intended solely for export, and so labeled or 
marked on the outside of the container and on the product itself, shall 
be exempt from the prohibitions of section 10(a), (1), (2), (3), and (4) 
of the Act.
    (b) No request for an export exemption is required.
    (c) For purposes of section 11(d) of the Noise Control Act, the 
Administrator may consider any export exemption under section 10(b)(2) 
as void ab initio with respect to each new product intended solely for 
export which is distributed in commerce for use in any State.
    (d) In deciding whether to institute proceedings against a 
manufacturer pursuant to section 11(d)(1) of the Act with respect to any 
product originally intended solely for export but distributed in 
commerce for use in any state, the Administrator will consider:
    (1) Whether the manufacturer had knowledge that such product would 
be distributed in commerce for use in any state; and
    (2) Whether the manufacturer made reasonable efforts to ensure that 
such product would not be distributed in commerce for use in any state. 
Such reasonable efforts would include consideration of prior dealings 
with any person which resulted in introduction into commerce of a 
product manufactured for export only, investigation of prior instances 
known to the manufacturer of introduction into commerce of a product 
manufactured for export only, and contract provisions which minimize the 
probability of introduction into commerce of a product manufactured for 
export only.

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61457, Dec. 5, 1977. 
Redesignated at 47 FR 57714, Dec. 28, 1982]



                    Subpart B_Medium and Heavy Trucks



Sec. 205.50  Applicability.

    (a) Except as otherwise provided for in these regulations the 
provisions of this subpart apply to any vehicle which has a gross 
vehicle weight rating (GVWR) in excess of 10,000 pounds, which is 
capable of transportation of property on a highway or street and which 
meets the definition of the term ``new product'' in the Act.
    (b) The provisions of the subpart do not apply to highway, city, and 
school buses or to special purpose equipment which may be located on or 
operated from vehicles. Tests performed on vehicles containing such 
equipment may be carried out with the special purpose equipment in 
nonoperating condition. For purposes of this regulation special purpose 
equipment includes, but is not limited to, construction equipment, snow 
plows, garbage compactors and refrigeration equipment.



Sec. 205.51  Definitions.

    (a) As used in this subpart, all terms not defined herein shall have 
the meaning given them in the Act or in other subparts of this part.
    (1) Acceptable Quality Level means the maximum percentage of failing 
vehicles that for purposes of sampling inspection, can be considered 
satisfactory as a process average.
    (2) Acceptance of a batch means that the number of noncomplying 
vehicles in the batch sample is less than or

[[Page 109]]

equal to the acceptance number as determined by the appropriate sampling 
plan.
    (3) Batch means the collection of vehicles of the same category, 
configuration or subgroup thereof as designated by the Administrator in 
a test request, from which a batch sample is to be drawn, and inspected 
to determine conformance with the acceptability criteria.
    (4) Batch size means the number as designated by the Administrator 
in the test request of vehicles of the same category or configuration in 
a batch.
    (5) Batch sample means the collection of vehicles of the same 
category, configuration or subgroup thereof which are drawn from a batch 
and from which test samples are drawn.
    (6) Batch sample size means the number of vehicles of the same 
category or configuration in a batch sample.
    (7) Cab over axle or cab over engine means the cab which contains 
the operator/passenger compartment is directly above the engine and 
front axle and the entire cab can be tilted forward to permit access to 
the engine compartment.
    (8) Category means a group of vehicle configurations which are 
identical in all material aspects with respect to the parameters listed 
in Sec. 205.55-2.
    (9) Configuration means the basic classification unit of a 
manufacturer's product line and is comprised of all vehicle designs, 
models or series which are identical in material aspects with respect to 
the parameters listed in Sec. 205.55-3.
    (10) Acceptance of a Batch sequence means that the number of 
rejected batches in the sequence is less than or equal to the acceptance 
number as determined by the appropriate sampling plan.
    (11) Rejection of a Batch sequence means that the number of rejected 
batches in a sequence is equal to or greater than the rejection number 
as determined by the appropriate sampling plan.
    (12) Capable of Transportation of Property on a street or highway 
means that the vehicle:
    (i) Is self propelled and is capable of transporting any material or 
fixed apparatus, or is capable of drawing a trailer or semi-trailer;
    (ii) Is capable of maintaining a cruising speed of at least 25 mph 
over level, paved surface;
    (iii) Is equipped or can readily be equipped with features 
customarily associated with practical street or highway use, such 
features including but not being limited to: A reverse gear and a 
differential, fifth wheel, cargo platform or cargo enclosure, and
    (iv) Does not exhibit features which render its use on a street or 
highway impractical, or highly unlikely, such features including, but 
not being limited to, tracked road means, an inordinate size or features 
ordinarily associated with combat or tactical vehicles.
    (13) Exhaust System means the system comprised of a combination of 
components which provides for enclosed flow of exhaust gas from engine 
exhaust port to the atmosphere.
    (14) Gross Combination Weight Rating (GCWR) means the value 
specified by the manufacturer as the loaded weight of a combination 
vehicle.
    (15) Gross Vehicle Weight Rating (GVWR) means the value specified by 
the manufacturer as the loaded weight of a single vehicle.
    (16) Inspection Criteria means the rejection and acceptance numbers 
associated with a particular sampling plan.
    (17) Model year means the manufacturer's annual production period 
which includes January 1 of such calendar year: Provided, that if the 
manufacturer has no annual production period, the term ``model year'' 
shall mean the calendar year.
    (18) Noise Control System includes any vehicle part, component or 
system the primary purpose of which is to control or cause the reduction 
of noise emitted from a vehicle.
    (19) Noise emission test means a test conducted pursuant to the 
measurement methodology specified in this subpart.
    (20) [Reserved]
    (21) Rejection of a batch means the number of noncomplying vehicles 
in the batch sample is greater than or equal to the rejection number as 
determined by the appropriate sampling plan.
    (22) Shift means the regular pro duction work period for one group 
of workers.

[[Page 110]]

    (23) Test sample means the collection of vehicles from the same 
category, configuration or subgroup thereof which is drawn from the 
batch sample and which will receive noise emissions tests.
    (24) Failing vehicle means that the measured emissions of the 
vehicle, when measured in accordance with the applicable procedure, 
exceeds the applicable standard.
    (25) Acceptance of a vehicle means that the measured emissions of 
the vehicle when measured in accordance with the applicable procedure, 
conforms to the applicable standard.
    (26) Tampering means those acts prohibited by section 10(a)(2) of 
the Act.
    (27) Test sample size means the number of vehicles of the same 
category or configuration in a test sample.
    (28) Test vehicle means a vehicle selected and used to demonstrate 
compliance with the applicable noise emission standards.
    (29) Vehicle means any motor vehicle, machine or tractor, which is 
propelled by mechanical power and capable of transportation of property 
on a street or highway and which has a gross vehicle weight rating in 
excess of 10,000 pounds and a partially or fully enclosed operator's 
compartment.

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61456, 61458, Dec. 5, 
1977; 47 FR 57714, Dec. 28, 1982]



Sec. 205.52  Vehicle noise emission standards.

    (a) Low Speed Noise Emission Standard. Vehicles which are 
manufactured after the following effective dates shall be designed, 
built and equipped so that they will not produce sound emissions in 
excess of the levels indicated.

------------------------------------------------------------------------
                       Effective date                           Level
------------------------------------------------------------------------
(i) January 1, 1979........................................      83 dBA.
(ii) January 1, 1988.......................................      80 dBA.
------------------------------------------------------------------------

    (b) The standards set forth in paragraph (a) of this section refer 
to the sound emissions as measured in accordance with the procedures 
prescribed in Sec. 205.54-1,2.
    (c) Every manufacturer of a new motor vehicle subject to the 
standards prescribed in this paragraph shall, prior to taking any of the 
actions specified in section 10(a)(1) of the Act, comply with the other 
provisions of this subpart or Subpart A, as applicable.
    (d) In-Use Standard. [Reserved]
    (e) Low Noise Emission Product. [Reserved]

(Sec. 6, Pub. L. 92-574, 86 Stat. 1237 (42 U.S.C. 4905, 4906))

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61456, Dec. 5, 1977; 51 
FR 852, Jan. 8, 1986]



Sec. 205.54  Test procedures.

    The procedures described in this and subsequent sections will be the 
test program to determine the conformity of vehicles with the standards 
set forth in Sec. 205.52 for the purposes of Selective Enforcement 
Auditing and Testing by the Administrator.

[47 FR 57714, Dec. 28, 1982]



Sec. 205.54-1  Low speed sound emission test procedures.

    (a) Instrumentation. The following instrumentation shall be used, 
where applicable.
    (1) A sound level meter which meets the Type 1 requirements of ANSI 
S1.4-1971, Specification for Sound Level Meters, or a sound level meter 
may be used with a magnetic tape recorder and/or a graphic level 
recorder or indicating meter, providing the system meets the 
requirements of Sec. 205.54-2.
    (2) A sound level calibrator. The calibrator shall produce a sound 
pressure level, at the microphone diaphragm, that is known to within an 
accuracy of 0.5 dB. The calibrator shall be 
checked annually to verify that its output has not changed.
    (3) An engine-speed tachometer which is accurate within 2 percent of meter reading.
    (4) An anemometer or other device for measurement of ambient wind 
speed accurate within 10 percent.
    (5) A thermometer for measurement of ambient temperature accurate 
within 1 C.
    (6) A barometer for measurement of ambient pressure accurate within 
1 percent.
    (b)(1) The test site shall be such that the truck radiates sound 
into a free field over a reflecting plane. This condition may be 
considered fulfilled if the test site consists of an open space free

[[Page 111]]

of large reflecting surfaces, such as parked vehicles, signboards, 
buildings or hillsides, located within 100 feet (30.4 meters) of either 
the vehicle path or the microphone.
    (2) The microphone shall be located 50 feet 4 
in. (15.2 0.1 meter) from the centerline of truck 
travel and 4 feet 4 in. (1.2 0.1 meters) above the ground plane. The microphone point 
is defined as the point of intersection of the vehicle path and the 
normal to the vehicle path drawn from the microphone. The microphone 
shall be oriented in a fixed position to minimize the deviation from the 
flattest system response over the frequency range 100 Hz to 10 kHz for a 
vehicle traversing from the acceleration point through the end zone.

The microphone shall be oriented with respect to the source so that the 
sound strikes the diaphragm at the angle for which the microphone was 
calibrated to have the flattest frequency response characteristic over 
the frequency range 100 Hz to 10 kHz.
    (3) An acceleration point shall be established on the vehicle path 
50 feet (15 m) before the microphone point.
    (4) An end point shall be established on the vehicle path 100 feet 
(30 m) from the acceleration point and 50 feet (15 m) from the 
microphone point.
    (5) The end zone is the last 40 feet (12 m) of vehicle path prior to 
the end point.
    (6) The measurement area shall be the triangular paved (concrete or 
sealed asphalt) area formed by the acceleration point, the end point, 
and the microphone location.
    (7) The reference point on the vehicle, to indicate when the vehicle 
is at any of the points on the vehicle path, shall be the front of the 
vehicle except as follows:
    (i) If the horizontal distance from the front of the vehicle to the 
exhaust outlet is more than 200 inches (5.1 meters), tests shall be run 
using both the front and rear of the vehicle as reference points.
    (ii) If the engine is located rearward to the center of the chassis, 
the rear of the vehicle shall be used as the reference point.
    (8) The plane containing the vehicle path and the microphone 
location (plane ABCDE in Figure 1) shall be flat within 2 inches (.05 meters).
    (9) Measurements shall not be made when the road surface is wet, 
covered with snow, or during precipitation.
    (10) Bystanders have an appreciable influence on sound level meter 
readings when they are in the vicinity of the vehicle or microphone; 
therefore not more than one person, other than the observer reading the 
meter, shall be within 50 feet (15.2 meters) of the vehicle path or 
instrument and the person shall be directly behind the observer reading 
the meter, on a line through the microphone and observer. To minimize 
the effect of the observer and the container of the sound level meter 
electronics on the measurements, cable should be used between the 
microphone and the sound level meter. No observer shall be located 
within 1 m in any direction of the microphone location.
    (11) The maximum A-weighted fast response sound level observed at 
the test site immediately before and after the test shall be at least 10 
dB below the regulated level.
    (12) The road surface within the test site upon which the vehicle 
travels, and, at a minimum, the measurements area (BCD in figure 205.1) 
shall be smooth concrete or smooth sealed asphalt, free of extraneous 
material such as gravel.

[[Page 112]]

[GRAPHIC] [TIFF OMITTED] TC01FE92.052

    (13) Vehicles with diesel engines shall be tested using Number 1D or 
Number 2D diesel fuel possessing a cetane rating from 42 to 50 
inclusive.
    (14) Vehicles with gasoline engines shall use the grade of gasoline 
recommended by the manufacturer for use by the purchaser.
    (15) Vehicles equipped with thermo- statically controlled radiator 
fans may be tested with the fan not operating.
    (c) Procedures--(1) Vehicle operation for vehicles with standard 
transmissions. Full throttle acceleration and closed throttle 
deceleration tests are to be used. A beginning engine speed and proper 
gear ratio must be determined for use during measurements. Closed 
throttle deceleration tests are required only for those vehicles 
equipped with an engine brake.
    (i) Select the highest rear axle and/or transmission gear (``highest 
gear'' is used in the usual sense; it is synonymous to the lowest 
numerical ratio) and an initial vehicle speed such that at wide-open 
throttle the vehicle will accelerate from the acceleration point.
    (a) Starting at no more than two-thirds (66 percent) of maximum 
rated or of governed engine speed.
    (b) Reaching maximum rated or governed engine speed within the end 
zone.
    (c) Without exceeding 35 mph (56 k/h) before reaching the end point.
    (1) Should maximum rated or governed rpm be attained before reaching 
the end zone, decrease the approach rpm in 100 rpm increments until 
maximum rated or governed rpm is attained within the end zone.
    (2) Should maximum rated or governed rpm not be attained until 
beyond the end zone, select the next lower gear until maximum rated or 
governed rpm is attained within the end zone.
    (3) Should the lowest gear still result in reaching maximum rated or 
governed rpm beyond the permissible end zone, unload the vehicle and/or 
increase the approach rpm in 100 rpm increments until the maximum rated 
or

[[Page 113]]

governed rpm is reached within the end zone.
    (ii) For the acceleration test, approach the acceleration point 
using the engine speed and gear ratio selected in paragraph (c)(1) of 
this section and at the acceleration point rapidly establish wide-open 
throttle. The vehicle reference shall be as indicated in paragraph 
(b)(7) of this section. Acceleration shall continue until maximum rated 
or governed engine speed is reached.
    (iii) Wheel slip which affects maximum sound level must be avoided.
    (2) Vehicle operation for vehicles with automatic transmissions. 
Full throttle acceleration and closed throttle deceleration tests are to 
be used. Closed throttle deceleration tests are required only for those 
vehicles equipped with an engine brake.
    (i) Select the highest gear axle and/or transmission gear (highest 
gear is used in the usual sense; it is synonymous to the lowest 
numerical ratio) in which no up or down shifting will occur under any 
operational conditions of the vehicle during the test run. Also, select 
an initial vehicle speed such that at wide-open throttle the vehicle 
will accelerate from the acceleration point.
    (a) Starting at two-thirds (66 percent) of maximum rated or of 
governed engine speed.
    (b) Reaching maximum rated or governed engine speed within the end 
zone.
    (c) Without exceeding 35 mph (56 k/h) before reaching the end point.
    (1) Should maximum rated or governed rpm be attained before reaching 
the end zone, decrease the approach rpm in 100 rpm increments until 
maximum rated or governed rpm is attained within the end zone.
    (2) Should maximum rated or governed rpm not be attained until 
beyond the end zone, select the next lower gear until maximum rated or 
governed rpm is attained within the end zone.
    (3) Should the lowest gear still result in reaching maximum rated or 
governed rpm beyond the permissible end zone, unload the vehicle and/or 
increase the approach rpm in 100 rpm increments until the maximum rated 
or governed rpm is reached within the end zone, notwithstanding that 
approach engine speed may now exceed two-thirds of maximum rated or of 
full load governed engine speed.
    (4) Should the maximum rated or governed rpm still be attained 
before entering the end zone, and the engine rpm during approach cannot 
be further lowered, begin acceleration at a point 10 feet closer to the 
beginning of the end zone. The approach rpm to be used is to be that rpm 
used prior to the moving of the acceleration point 10 feet closer to the 
beginning of the end zone.
    (5) Should the maximum rated or governed rpm still be attained 
before entering the end zone, repeat the instructions in paragraph 
(c)(2)(i)(c)(4) of this section until maximum rated or governed rpm is 
attained within the end zone.
    (ii) For the acceleration test, approach the acceleration point 
using the engine speed and gear ratio selected in paragraph (c)(2)(i) of 
this section and at the acceleration point rapidly establish wide-open 
throttle. The vehicle reference shall be as indicated in paragraph 
(b)(7) of this section. Acceleration shall continue until maximum rated 
or governed engine speed is reached.
    (iii) Wheel slip which affects maximum sound level must be avoided.
    (3) Measurements. (i) The meter shall be set for ``fast response'' 
and the A-weighted network.
    (ii) The meter shall be observed during the period while the vehicle 
is accelerating or decelerating. The applicable reading shall be the 
highest sound level obtained for the run. The observer is cautioned to 
rerun the test if unrelated peaks should occur due to extraneous ambient 
noises. Readings shall be taken on both sides of the vehicle.
    (iii) The sound level associated with a side shall be the average of 
the first two pass-by measurements for that side, if they are within 2 
dB(A) of each other. Average of measurements on each side shall be 
computed separately. If the first two measurements for a given side 
differ by more than 2 dB(A), two additional measurements shall be made 
on each side, and the average of the two highest measurements on each 
side, within 2 dB(A) of each other, shall be taken as the measured 
vehicle sound level for that side. The reported vehicle

[[Page 114]]

sound level shall be the higher of the two averages.
    (d) General requirements. (1) Measurements shall be made only when 
wind velocity is below 12 mph (19 km/hr).
    (2) Proper usage of all test instrumentation is essential to obtain 
valid measurements. Operating manuals or other literature furnished by 
the instrument manufacturer shall be referred to for both recommended 
operation of the instrument and precautions to be observed. Specific 
items to be adequately considered are:
    (i) The effects of ambient weather conditions on the performance of 
the instruments (for example, temperature, humidity, and barometric 
pressure).
    (ii) Proper signal levels, terminat ing impedances, and cable 
lengths on multi-instrument measurement systems.
    (iii) Proper acoustical calibration procedure to include the 
influence of extension cables, etc. Field calibration shall be made 
immediately before and after each test sequence. Internal calibration 
means is acceptable for field use, provided that external calibration is 
accomplished immediately before or after field use.
    (3)(i) A complete calibration of the instrumentation and external 
acoustical calibrator over the entire frequency range of interest shall 
be performed at least annually and as frequently as necessary during the 
yearly period to insure compliance with the standards cited in American 
National Standard S1.4-1971 ``Specifications for Sound Level Meters'' 
for a Type 1 instrument over the frequency range 50 Hz-10,000 Hz.
    (ii) If calibration devices are utilized which are not independent 
of ambient pressure (e.g., a piston-phone) corrections must be made for 
barometric or altimetric changes according to the recommendation of the 
instrument manufacturer.
    (4) The truck shall be brought to a temperature within its normal 
operating temperature range prior to commencement of testing. During 
testing appropriate caution shall be taken to maintain the engine 
temperatures within such normal operating range.

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 11836, Mar. 1, 1977; 42 
FR 61456, Dec. 5, 1977]



Sec. 205.54-2  Sound data acquisition system.

    (a) Systems employing tape recorders and graphic level recorders may 
be established as equivalent to a Type I--ANSI S1.4-1971 sound level 
meter for use in determining compliance with this regulation by meeting 
the requirements of this section (Sec. 205.54-2(b)). This sound data 
acquisition system qualification procedure is based primarily on ANSI 
S6.1-1973.
    (1) Performance requirements--(i) System frequency response. It is 
required that the overall steady-state frequency response of the data 
acquisition system shall be within the tolerances prescribed in Table 
205.1 when measured in accordance with section (2). The tolerances in 
Table 205.1 are applicable to either flat or A-weighted response. (See 
paragraph (a)(3)(iii) of this section.)
    (ii) Detector response. To ensure that a (true) rms indication is 
provided, the difference between the level indicated for a 1000 Hz 
sinusoidal signal equivalent to a sound level of 86 dB (rms) and the 
level indicated for an octave band of random noise of equal energy as 
the sinusoidal signal centered at 1000 Hz shall be no greater than 0.5 
dB. A true rms voltmeter shall be used to determine equivalence of two 
input signals.
    (iii) Indicating meter. If an indicating meter is used to obtain 
sound levels or band pressure levels, it must meet the requirements of 
paragraphs (a)(1)(ii) and (vi)(B) of this section and the following.

                    Table 205.1--System Response Data
------------------------------------------------------------------------
                       A-weighted            Tolerance (decibels)
  Freq. (hertz)    response (Re-1000 -----------------------------------
                        Hz, dB)            Plus--            Minus--
------------------------------------------------------------------------
         31.5              -39.4                1.5               1.5
         40.0              -34.6                1.5               1.5
         50.0              -30.2                1.0               1.0
         63.0              -26.2                1.0               1.0
         80.0              -22.5                1.0               1.0
        100.0              -19.1                1.0               1.0
        125.0              -16.1                1.0               1.0
        160.0              -13.4                1.0               1.0
        200.0              -10.9                1.0               1.0
        250.0               -8.6                1.0               1.0

[[Page 115]]

 
        315.0               -6.6                1.0               1.0
        400.0               -4.8                1.0               1.0
        500.0               -3.2                1.0               1.0
        630.0               -1.9                1.0               1.0
        800.0                -.8                1.0               1.0
      1,000.0                  0                1.0               1.0
      1,250.0                 .6                1.0               1.0
      1,600.0                1.0                1.0               1.0
      2,000.0                1.2                1.0               1.0
      2,500.0                1.3                1.0               1.0
      3,150.0                1.2                1.0               1.0
      4,000.0                1.0                1.0               1.0
      5,000.0                 .5                1.5               2.0
      6,300.0                -.1                1.5               2.0
      8,000.0               -1.1                1.5               3.0
     10,000.0               -2.5                2.0               4.0
     12,500.0               -4.3                3.0               6.0
------------------------------------------------------------------------

    (A) The scale shall be graduated in 1 dB steps.
    (B) No scale indication shall be more than 0.2 dB different from the 
true value of the signal when an input signal equivalent to 86 dB sound 
level indicates correctly.
    (C) Maximum indication for an input signal of 1000 Hz tone burst of 
0.2 sec duration shall be within the range of -2 to 0 dB with respect to 
the steady-state indication for a 1000 Hz tone equivalent to 86 dB sound 
level.
    (iv) Microphone. If microphone is used which has not been provided 
as a component of a precision sound level meter, it must be determined 
to meet the microphone characteristics described in IEC Publication 179, 
Precision Sound Level Meters.
    (v) Magnetic tape recorders. No requirements are described in this 
document pertaining to tape recorders, except for frequency response. 
Generally, recorders of adequate quality to provide the frequency 
response performance required will also meet other minimum requirements 
for distortion, signal-to-noise ratio, etc.
    (vi) Graphic level recorder dynamic response. When using a graphic 
level recorder, it is necessary to select pen response settings such 
that the readings obtained are statistically equivalent to those 
obtained by directly reading a meter which meets the ``fast'' dynamic 
requirement of a precision sound level meter indicating meter system for 
the range of vehicles to be tested. To ensure statistical equivalence, 
at least 30 comparative observations of real test data shall be made and 
the average of the absolute value of the differences observed shall be 
less than 0.5 dB. The settings described in this paragraph likely assure 
appropriate dynamic response; however, different settings may be 
selected on the basis of the above requirement.
    (A) Use a pen writing speed of nominally 60-100 dB/sec. If 
adjustable, low frequency response should be limited to about 20 Hz.
    (B) Indicated overshoot for a suddenly applied 1000 Hz sinusoidal 
signal equivalent to 86 dB sound level shall be no more than 1.1 dB and 
no less than 0.1 dB.
    (2) Frequency response qualification procedure. (i) Typical noise 
measurement and analysis configurations are shown in Figures 205.2 
through 205.4. The qualification procedure described herein duplicates 
these configurations, but with the microphone replaced by an electronic 
sinewave oscillator. Caution should be exercised when connecting an 
oscillator to the input of a sound level meter to ensure, perhaps by 
using a resistive voltage divider network, that the input is not 
overloaded (see Sec. 205.54-2(a)(2)(ii)).

[[Page 116]]

[GRAPHIC] [TIFF OMITTED] TC01FE92.053

    (ii) Calibrate the oscillator to be used by measuring its output 
relative to the voltage which is equivalent to 86 dB sound level at each 
of the 27 frequencies listed in Table 205.1 using an electronic 
voltmeter of known calibration. Record the result in voltage level in dB 
re voltage corresponding to 86 dB

[[Page 117]]

sound level at 1000 Hz. This will describe the frequency response 
characteristics of the oscillator.
    (iii) If a graphic level recorder is to be used, connect it to the 
oscillator output. If the oscillator and graphic level recorder can be 
synchronized, slowly sweep the frequency over the range of 31.5 to 
12,500 Hz, recording the oscillator output. If they cannot be 
synchronized, record oscillator output for signals at the 27 frequencies 
given in Table 205.1. The differences between the combined response thus 
obtained and the oscillator response obtained previously will describe 
the frequency response of the graphic level recorder.
    (iv) If visual observation of an indicating meter is to be used for 
obtaining data, the oscillator should be connected to the indicating 
meter input (such as the microphone input of a sound level meter) and 
the meter reading observed for a fixed oscillator output voltage setting 
for signals at the 27 frequencies given in Table 205.1.
    (v) To check a tape recorder, connect the instruments as shown in 
Figure 205.4. Using a 1000 Hz tone, adjust the oscillator output level 
to obtain a reading 15 dB below maximum record level. If the 
synchronized oscillator/graphic level recorder system is to be used for 
analysis, record an oscillator sweep over the range of 31.5 to 12,500 
Hz, using an appropriate tape recorder input attenuator setting. 
Alternatively, tape-record frequency tones at the 27 frequencies given 
in Table 205.1. Replay the tape recordings using the setup shown in 
Figure 205.3. Record the data on a graphic level recorder or through 
visual observation of the indicating meter. Subtract the oscillator 
frequency response in paragraph (b)(2) of this section from the response 
obtained through the record-playback sequence to obtain the record/
reproduce frequency response of the system except for the microphone.
    (vi) To obtain the overall system frequency response, add the 
manufacturer's microphone calibration data to the response just 
obtained. This may be the frequency response for the specific microphone 
to be used, including calibration tolerances. Alternatively, use the 
manufacturer's ``typical'' microphone response plus and minus the 
maximum deviation expected from ``typical'' including calibration 
tolerances. Use the microphone response curve which corresponds to the 
manner in which it is used in the field. It may be required to add a 
correction to the response curves provided to obtain field response; 
refer to the manufacturer's manual.
    (vii) Adjustment or repair of equipment may be required to obtain 
response within the requirements of paragraph (a) of this section. After 
any adjustments, the system shall be requalified according to paragraph 
(b) of this section.
    (3) General comments. (i) Calibrate tape recorders using the brand 
and type of magnetic tape used for actual data acquisition. Differences 
in tape can cause an appreciable variation in the recorder/reproduce 
frequency response characteristics of tape recorder.
    (ii) It shall be ensured that the instrumentation used will perform 
within specifications and applicable tolerances over the temperature, 
humidity, and other environmental variation ranges which may be 
encountered in vehicle noise measurement works.
    (iii) Qualification tests shall be performed using equipment 
(including cables) and recording and playback techniques identical with 
those used while recording vehicle noise. For example, if weighted sound 
level data are normally recorded use similar weighting and apply the 
tolerances of Table 205.1 to the weighting curve for comparison with 
record-playback curves. Precautions should also be taken to ensure that 
source and load impedances are appropriate to the device being tested. 
Other data acquisition systems may use any combination of microphones, 
sound level meters, amplifiers, tape recorders, graphic level recorders, 
or indicating meters. The same approach to qualifying such a system 
shall be taken as described in this document for the systems depicted in 
Figures 205.2, 205.3 and 205.4.
    (b) Systems other than those specified in Sec. Sec. 205.54-1(a) and 
205.54-2(a) may be used for establishing compliance with this 
regulation. In each case the system must yield sound levels which are 
equivalent to those produced by a sound level meter Type 1 ANSI S1.4-

[[Page 118]]

1971. The manufacturer bears the burden of demonstrating such 
equivalence.

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61456, Dec. 5, 1977; 47 
FR 57714, Dec. 28, 1982]



Sec. 205.55  Requirements.



Sec. 205.55-1  General requirements.

    (a) Every new vehicle manufactured for distribution in commerce in 
the United States which is subject to the standards prescribed in this 
subpart and not exempted in accordance with Sec. 205.5:
    (1) Shall be labeled in accordance with the requirements of Sec. 
205.55-5 of this subpart.
    (2) Shall conform to the applicable noise emission standard 
established in Sec. 205.52 of this regulation.
    (b) The requirements of paragraph (a) apply to new products which 
conform to the definition of vehicles in these regulations and at the 
time such new products are assembled to that state of completeness in 
which the manufacturer distributes them in commerce.
    (c) Subsequent manufacturers of a new product which conforms to the 
definition of vehicle in these regulations when received by them from a 
prior manufacturer, need not fulfill the requirements of paragraph 
(a)(1) where such requirements have already been complied with by a 
prior manufacturer.

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61456, Dec. 5, 1977; 47 
FR 57714, Dec. 28, 1982]



Sec. 205.55-2  Compliance with standards.

    (a)(1) Prior to distribution in commerce of vehicles of a specific 
configuration, the first manufactures of such vehicles must verify such 
configurations in accordance with the requirements of this subpart.
    (2) [Reserved]
    (3) At any time following receipt of notice under this section with 
respect to a configuration, the Administrator may require that the 
manufacturer ship test vehicles to the EPA test facility in order for 
the Administrator to perform the tests required for production 
verification.
    (b) The requirements for purposes of testing by the Administrator 
and selective enforcement auditing with regard to each vehicle 
configuration consist of:
    (1) Testing in accordance with Sec. 205.54 of a vehicle selected in 
accordance with Sec. 205.57-2, and
    (2) Compliance of the test vehicle with the applicable standard when 
tested in accordance with Sec. 205.54.
    (c)(1) In lieu of testing vehicles of every configuration as 
described in paragraph (b) of this section, the manufacturer may elect 
to verify the configuration based on representative testing, the 
requirements of which consist of:
    (i) Grouping configurations into a category where each category will 
be determined by a separate combination of at least the following 
parameters (a manufacturer may use more parameters):
    (a) Engine type.
    (1) Gasoline--two stroke cycle.
    (2) Gasoline--four stroke cycle.
    (3) Diesel--two stroke cycle.
    (4) Diesel--four stroke cycle.
    (5) Rotary--wankel.
    (6) Turbine.
    (7) Other.
    (b) Engine manufacturer.
    (c) Engine displacement.
    (d) Engine configuration (e.g., L-6, V-8, etc.).
    (e) Series (i.e., cab design) including but not limited to 
conventional, cab over engine, and cab forward.
    (ii) Identifying the configuration within each category which emits 
the highest sound pressure level (dBA) based on his best technical 
judgment and/or emission test data;
    (iii) Testing in accordance with Sec. 205.54 of a vehicle selected 
in accordance with Sec. 205.57-2 which must be a vehicle of the 
configuration which is identified pursuant to paragraph (c)(1)(ii) of 
this section as having the highest sound pressure level (estimated or 
actual) within the category; and
    (iv) Compliance of the test vehicle with applicable standards when 
tested in accordance with Sec. 205.54.
    (2) Where the requirements of paragraph (c)(1) are complied with, 
all those configurations contained within a category are considered 
represented by the tested vehicle.
    (3) Where the manufacturer tests a vehicle configuration which has 
not

[[Page 119]]

been determined as having the highest sound pressure level of a 
category, but all other requirements of paragraph (c)(1) of this section 
are complied with all those configurations contained with that category 
which are determined to have sound pressure levels no greater than the 
tested vehicle are considered to be represented by the tested vehicle, 
however, a manufacturer must for purposes of Testing by the 
Administrator and Selective Enforcement Auditing verify according to the 
requirements of paragraphs (b)(1) and/or (c)(1) of this section any 
configurations in the subject category which have a higher sound 
pressure level than the vehicle configuration tested.
    (d) [Reserved]
    (e) The manufacturer may, at his option, proceed with any of the 
following alternatives with respect to any vehicle determined not in 
compliance with applicable standards.
    (1) In the case of representative testing a new test vehicle from 
another configuration must be selected according to the requirements of 
paragraph (c) of this section, in order to verify the configurations 
represented by the non-compliant vehicle.
    (2) Modify the test vehicle and demonstrate by testing that it meets 
applicable standards. The manufacturer must modify all production 
vehicles of the same configuration in the same manner as the test 
vehicle before distribution into commerce.

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61458, Dec. 5, 1977; 47 
FR 57714, Dec. 28, 1982; 48 FR 27040, June 13, 1983]



Sec. 205.55-3  Configuration identification.

    (a) A separate vehicle configuration shall be determined by each 
combination of the following parameters:
    (1) Exhaust system configuration. (i) Single vertical.
    (ii) Dual vertical.
    (iii) Single horizontal.
    (iv) Dual horizontal.
    (2) Air induction system (engine). (i) Natural.
    (ii) Turbocharged.
    (3) Fan. (i) Diameter.
    (ii) Drive.
    (a) Direct.
    (b) Thermostatic.
    (iii) Max fan rpm.
    (4) Engine manufacturer's horsepower rating.
    (5) Cab characteristic. (i) Sleeper.
    (ii) Non sleeper.
    (6) Category parameters listed in Sec. 205.55-2.



Sec. 205.55-4  Labeling-compliance.

    (a)(1) The manufacturer of any vehicle subject to the provisions of 
Sec. 205.52 shall, at the time of manufacture, affix a permanent, 
legible label, of the type and in the manner described below, containing 
the information hereinafter provided, to all such vehicles to be 
distributed in commerce. The labels shall be affixed in such a manner 
that they cannot be removed without destroying or defacing them, and 
shall not be affixed to any equipment which is easily detached from such 
vehicle.
    (2) A label shall be permanently attached, in a readily visible 
position, in the operator's compartment.
    (3) Labels for vehicles not manufactured solely for use outside the 
United States 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:
    (i) The label heading: Vehicle Noise Emission Control Information;
    (ii) Full corporate name and trademark of manufacturer;
    (iii) Month and year of manufacture;
    (iv) The statement:

    This Vehicle Conforms to U.S. EPA Regulations for Noise Emission 
Applicable to Medium and Heavy Trucks.
    The following acts or the causing thereof by any person are 
prohibited by the Noise Control Act of 1972:
    (A) The removal or rendering inoperative, other than for purposes of 
maintenance, repair, or replacement, of any noise control device or 
element of design (listed in the owner's manual) incorporated into this 
vehicle in compliance with the Noise Control Act;
    (B) The use of this vehicle after such device or element of design 
has been removed or rendered inoperative.

    (b) Labels for vehicles manufactured solely for use outside the 
United States shall contain the words ``For Export Only.''

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61456, 61458, Dec. 5, 
1977. Redesignated at 47 FR 57715, Dec. 28, 1982]

[[Page 120]]



Sec. 205.55-5  Labeling-exterior. [Reserved]



Sec. 205.56  Testing by the Administrator.

    (a)(1) The Administrator may require that any vehicles to be tested 
pursuant to the Act be submitted to him, at such place and time as he 
may reasonably designate and in such quantity and for such time as he 
may reasonably require for the purpose of conducting tests in accordance 
with test procedures described in Sec. 205.54 to determine whether such 
vehicles or a manufacturer's test facility conform to applicable 
regulations. It is a condition of the requirements under this section 
that the manner in which the Administrator conducts such tests, the EPA 
test facility itself, and the test procedures he employs shall be based 
upon good engineering practice and meet or exceed the requirements of 
Sec. 205.54 of the regulations.
    (2) The Administrator may specify that he will conduct such testing 
at the manufacturer's facility, in which case instrumentation and 
equipment of the type required by these regulations shall be made 
available by the manufacturer for test operations. The Administrator may 
conduct such tests with his own equipment, which shall equal or exceed 
the performance specifications of the instrumentation or equipment 
specified by the Administrator in these regulations.
    (3) The manufacturer may observe tests conducted by the 
Administrator pursuant to this section on vehicles produced by such 
manufacturer and may copy the data accumulated from such tests. The 
manufacturer may inspect any such vehicles before and after testing by 
the Administrator.
    (b)(1) If, based on tests conducted by the Administrator or other 
relevant information, the Administrator determines that the test 
facility does not meet the requirements of Sec. 205.54-1 (a) and (b) he 
will notify the manufacturer in writing of his determination and the 
reasons therefor.
    (2) The manufacturer may at any time within 15 days after receipt of 
a notice issued under paragraph (b)(1) of this section request a hearing 
conducted in accordance with 5 U.S.C. 554 on the issue of whether his 
test facility was in conformance. Such notice will not take effect until 
15 days after receipt by the manufacturer, or if a hearing is requested 
under this paragraph, until adjudication by the hearing examiner.
    (3) After any notification issued under paragraph (b)(1) of this 
section has taken effect, no data thereafter derived from such test 
facility will be acceptable for purposes of this part.
    (4) The manufacturer may request in writing that the Administrator 
reconsider his determination under paragraph (b)(1) of this section 
based on data or information which indicates that changes have been made 
to the test facility and such changes have resolved the reasons for 
disqualification.
    (5) The Administrator will notify the manufacturer of his 
determination and an explanation of the reasons under lying it with 
regard to the re quali fi ca tion of the test facility with in 10 
working days after receipt of the manufacturer's request for re con sid 
era tion pursuant to paragraph (b)(4) of this section.
    (c)(1) The Administrator will assume all reasonable costs associated 
with shipment of vehicles to the place designated pursuant to paragraph 
(a) of this section except with respect to:
    (i) [Reserved]
    (ii) Testing of a reasonable number of vehicles for purposes of 
selective enforcement auditing under Sec. 205.57 or testing of smaller 
numbers of vehicles, if the manufacturer has failed to establish that 
there is a correlation between its test facility and the EPA test 
facility or the Administrator has reason to believe, and provides the 
manufacturer a statement of such reasons, that the vehicles to be tested 
would fail to meet the standard prescribed in this subpart if tested at 
the EPA test facility, but would meet such standard if tested at the 
manufacturer's test facility;
    (iii) Any testing performed during a period when a notice of 
nonconfor- mance of the manufacturer's test facility issued pursuant to 
paragraph (b) of this section is in effect;
    (iv) Any testing performed at place other than the manufacturer's 
facility as a result of the manufacturer's failure to permit the 
Administrator to

[[Page 121]]

conduct or monitor testing as required by this part.

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61456, 61459, Dec. 5, 
1977; 47 FR 57715, Dec. 28, 1982]



Sec. 205.57  Selective enforcement auditing requirements.



Sec. 205.57-1  Test request.

    (a) The Administrator will request all testing under Sec. 205.57 by 
means of a test request addressed to the manufacturer.
    (1) Except as provided in paragraphs (a) (2) and (3) of this 
section, the Administrator will not issue to a manufacturer during any 
model year more test requests than a number determined by dividing the 
total number of vehicles subject to this regulation which the 
manufacturer projects he will produce during that model year by 25,000 
and rounding to the next higher whole number: Except, that the 
Administrator may issue one additional test request beyond the annual 
limit to any manufacturer for each time a batch sequence for any 
category, configuration or subgroup thereof of such manufacturer's 
production is rejected in accordance with Sec. 205.57-7.
    (2) Any test request issued against a category, configuration or 
subgroup thereof which the Administrator has reason to believe does not 
meet the standards specified in Sec. 205.52 will not be counted against 
the annual limit on test requests described in paragraph (a)(1) of this 
section. Any such request shall include a statement of the 
Administrator's reason for such belief.
    (3) Any test request under which testing is not completed will not 
be counted against the annual limit on test requests described in 
paragraph (a)(1) of this section.
    (b) The test request will be signed by the Assistant Administrator 
for Enforcement or his designee. The test request will be delivered by 
an EPA Enforcement Officer to the plant manager or other responsible 
official as designated by the manufacturer.
    (c) The test request will specify the vehicle category, 
configuration or subgroup thereof selected for testing, the batch from 
which sampling is to begin, the batch size, the manufacturer's plant or 
storage facility from which the vehicles must be selected, the time at 
which a vehicle must be selected. The test request will also provide for 
situations in which the selected configuration or category is 
unavailable for testing. The test request may include an alternative 
category or configuration selected for testing in the event that 
vehicles of the first specified category or configuration are not 
available for testing because the vehicles are not being manufactured at 
the specified plant and/or are not being manufactured during the 
specified time or not being stored at the specified plant or storage 
facility.
    (d) Any manufacturer shall, upon receipt of the test request, select 
and test a batch sample of vehicles from two consecutively produced 
batches of the vehicle category or configurations specified in the test 
request in accordance with these regulations and the conditions 
specified in the test request.
    (e)(1) Any testing conducted by the manufacturer pursuant to a test 
request shall be initiated within such period as is specified within the 
test request: Except, that such initiation may be delayed for increments 
of 24 hours or one business day where ambient test site weather 
conditions, or other conditions beyond the control of the manufacturer, 
in any 24-hour period do not permit testing: Provided, That these 
conditions for that period are recorded.
    (2) The manufacturer shall complete emission testing on a minimum of 
five vehicles per day unless otherwise provided for by the Administrator 
or unless ambient test site conditions only permit the testing of a 
lesser number: Provided, that ambient test site weather conditions for 
that period are recorded.
    (3) The manufacturer will be allowed 24 hours to ship vehicles from 
a batch sample from the assembly plant to the testing facility if the 
facility is not located at the plant or in close proximity to the plant: 
Except, that the Administrator may approve more time based upon a 
request by the manufacturer accompanied by a satisfactory justifi 
cation.
    (f) The Administrator may issue an order to the manufacturer to 
cease to distribute into commerce vehicles of a

[[Page 122]]

specified category or configuration being manufactured at a particular 
facility if:
    (1) The manufacturer refuses to comply with the provisions of a test 
request issued by the Administrator pursuant to this section; or
    (2) The manufacturer refuses to comply with any of the requirements 
of this section.
    (g) A cease-to-distribute order shall not be issued under paragraph 
(f) of this section if such refusal is caused by conditions and 
circumstances outside the control of the manufacturer which renders it 
impossible to comply with the provisions of a test request or any other 
requirements of this section. Such conditions and circumstances shall 
include, but are not limited to, any uncontrollable factors which result 
in the temporary unavailability of equipment and personnel needed to 
conduct the required tests, such as equipment break-down or failure or 
illness of personnel, but shall not include failure of the manufacturer 
to adequately plan for and provide the equipment and personnel needed to 
conduct the tests. The manufacturer will bear the burden of establishing 
the presence of the conditions and circumstances required by this 
paragraph.
    (h) Any such order shall be issued only after a notice and 
opportunity for a hearing.

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61459, Dec. 5, 1977; 43 
FR 12326, Mar. 24, 1978]



Sec. 205.57-2  Test vehicle sample selection.

    (a) Vehicles comprising the batch sample which are required to be 
tested pursuant to a test request in accordance with this subpart will 
be selected in the manner specified in the test request from a batch of 
vehicles of the category or configuration specified in the test request. 
If the test request specifies that the vehicles comprising the batch 
sample must be selected randomly, the random selection will be achieved 
by sequentially numbering all of the vehicles in the batch and then 
using a table of random numbers to select the number of vehicles as 
specified in paragraph (c) of this section based on the batch size 
designated by the Administrator in the test request. An alternative 
random selection plan may be used by a manufacturer: Provided, That such 
a plan is approved by the Administrator. If the test request does not 
specify that test vehicles must be randomly selected, the manufacturer 
shall select test vehicles consecutively.
    (1) Should a situation arise in which the configuration to be tested 
consists of only vehicles with automatic transmissions, they shall be 
tested in accordance with Sec. 205.54-1(c)(2).
    (2) If the configuration to be tested consists of both automatic 
transmission and standard transmission vehicles, the test vehicle shall 
be a standard transmission vehicle unless the manufacturer has reason to 
believe that the automatic transmission vehicle emits a greater sound 
level.
    (b) The Acceptable Quality Level is 10 percent. The appropriate 
sampling plans associated with the desig nated AQL are contained in 
Appendix I, Table II.
    (c) The appropriate batch sample size will be determined by 
reference to Appendix I, Table I and II. A code letter is obtained from 
Table I based on the batch size designated by the Administrator in a 
test request. The batch sample size will be obtained from Table II. The 
batch sample size will be equal to the maximum cumulative sample size 
for the appropriate code letter obtained from Table I plus an additional 
10 percent rounded off to the next highest number.
    (d) If the test request specifies that vehicles comprising the batch 
sample must be selected randomly, individual vehicles comprising the 
test sample will be randomly selected from the batch sample using the 
same random selection plan as in paragraph (a) of this section. Test 
sample size will be determined by entering Table II.
    (e) The test vehicle of the category, configuration or subgroup 
thereof selected for testing shall have been assembled by the 
manufacturer for distribution in commerce using the manufacturer's 
normal production process in accordance with Sec. 205.55-5(a).
    (f) Unless otherwise indicated in the test request, the manufacturer 
will select the batch sample from the production batch, next scheduled 
after receipt

[[Page 123]]

of the test request, of the category or configuration specified in the 
test request.
    (g) Unless otherwise indicated in the test request, the manufacturer 
shall select the vehicles designated in the test request for testing.
    (h) At their discretion, EPA Enforcement Officers, rather than the 
manufacturer, may select the vehicles designated in the test request.
    (i) The manufacturer will keep on hand all vehicles in the batch 
sample until such time as the batch is accepted or rejected in 
accordance with Sec. 205.57-6: Except, that vehicles actually tested 
and found to be in conformance with these regulations need not be kept.

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61459, Dec. 5, 1977; 47 
FR 57715, Dec. 28, 1982; 48 FR 27039, June 13, 1983]



Sec. 205.57-3  Test vehicle preparation.

    (a) Prior to the official test, the test vehicle selected in 
accordance with Sec. 205-57-2 shall not be prepared, tested, modified, 
adjusted, or maintained in any manner unless such adjustments, 
preparation, modification and/or tests are part of the manufacturer's 
prescribed manufacturing and inspection procedures, and are documented 
in the manufacturer's internal vehicle assembly and inspection 
procedures or unless such adjustments and/or tests are required or 
permitted under this subpart or are approved in advance by the 
Administrator. For purposes of this section, prescribed manufacturing 
and inspection procedures include quality control testing and assembly 
procedures normally performed by the manufacturer on like products 
during early production so long as the resulting testing is not biased 
by the procedure. In the case of imported products the manufacturer may 
perform adjustments, preparations, modification and/or tests normally 
performed at the port of entry by the manufacturer to prepare the 
vehicle for delivery to a dealer or customer.
    (b) Equipment or fixtures necessary to conduct the test may be 
installed on the vehicle: Provided, That such equipment or fixtures 
shall have no effect on the noise emissions of the vehicle, as 
determined by measurement method ology.
    (c) In the event of vehicle malfunction (i.e., failure to start, 
misfiring cylinder, etc.) the manufacturer may perform the maintenance 
that is necessary to enable the vehicle to operate in a normal manner.
    (d) No quality control, testing, assembly or selection procedures 
shall be used on the completed vehicle or any portion thereof, including 
parts and subassemblies, that will not normally be used during the 
production and assembly of all other vehicles of the category which will 
be distributed in commerce, unless such procedures are required or 
permitted under this subpart.

[47 FR 57715, Dec. 28, 1982; 48 FR 27039, June 13, 1983]



Sec. 205.57-4  Testing procedures.

    (a) The manufacturer shall conduct one valid test in accordance with 
the test procedures specified in Sec. 205.54 of this subpart for each 
vehicle selected for testing pursuant to this subpart.
    (b) No maintenance will be performed on test vehicles except as 
provided for by Sec. 205.57-3. In the event a vehicle is unable to 
complete the emission test, the manufacturer may replace the vehicle. 
Any replacement vehicle will be a production vehicle of the same 
configuration as the replaced vehicle. It will be randomly selected from 
the batch sample and will be subject to all the provisions of these 
regulations.



Sec. 205.57-5  Reporting of the test results.

    (a) Within 5 working days after completion of testing of all 
vehicles in a batch sample the manufacturer shall submit to the 
Administrator a final report which will include the information required 
by the test request in the format stipulated in the test request in 
addition to the following:
    (1) The name, location, and description of the manufacturer's 
emission test facilities which meet the specifications of Sec. 205.54 
and were utilized to conduct testing reported pursuant to this section: 
Except, that a test facility that has been described in a previous 
submission under this subpart need not again be described but must be 
identified as such.

[[Page 124]]

    (2) A description of the random vehicle selection method used, 
referencing any tables of random numbers that were used, name of the 
person in charge of the random number selection, if the vehicle test 
request specifies a random vehicle selection.
    (3) The following information for each noise emission test 
conducted,
    (i) The completed data sheet required by Sec. 205.54 for all noise 
emission tests including: For each invalid test, the reason for 
invalidation.
    (ii) A complete description of any modification, repair, 
preparation, main tenance, and/or testing which could affect the noise 
emissions of the vehicle and which was performed on the test vehicle but 
will not be performed on all other production vehicles.
    (iii) The reason for the replacement where a replacement vehicle was 
authorized by the Administrator, and, if any, the test results for the 
replaced vehicles.
    (4) A complete description of the sound data acquisition system if 
other than those specified in Sec. Sec. 205.54-1(a) and 205.54-2(a).
    (5) The following statement and endorsement:

    This report is submitted pursuant to section 6 and section 13 of the 
Noise Control Act of 1972. To the best of ------(company name) 
knowledge, all testing for which data are reported herein was conducted 
in strict conformance with applicable regulations under 40 CFR 205.1 et 
seq., all the data reported herein are a true and accurate 
representation of such testing and all other information reported herein 
is true and accurate. I am aware of the penalties associated with 
violations of the Noise Control Act of 1972 and the regulations 
thereunder.

                                             (authorized representative)

    (b) All information required to be forwarded to the Administrator 
pursuant to this section shall be addressed to Director, Noise 
Enforcement Division (EN-387), U.S. Environmental Protection Agency, 
Washington, DC 20460.

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61459, Dec. 5, 1977; 43 
FR 12326, Mar. 24, 1978]



Sec. 205.57-6  Acceptance and rejection of batches.

    (a) The batch from which a batch sample is selected will be accepted 
or rejected based upon the number of failing vehicles in the batch 
sample. A sufficient number of test samples will be drawn from the batch 
sample until the cumulative number of failing vehicles is less than or 
equal to the acceptance number or greater than or equal to the rejection 
number appropriate for the cumulative number of vehicles tested. The 
acceptance and rejection numbers listed in Appendix I, Table II at the 
appropriate code letter obtained according to Sec. 205.57-2 will be 
used in determining whether the acceptance or rejection of a batch has 
occurred.
    (b) Acceptance or rejection of a batch takes place when the decision 
that a vehicle is a failing vehicle is made on the last vehicle required 
to make a decision under paragraph (a) of this section.



Sec. 205.57-7  Acceptance and rejection of batch sequence.

    (a) The manufacturer will continue to inspect consecutive batches 
until the batch sequence is accepted or rejected based upon the number 
of rejected batches. A sufficient number of consecutive batches will be 
inspected until the cumulative number of rejected batches is less than 
or equal to the sequence acceptance number of greater than or equal to 
the sequence rejection number appropriate for the cumulative number of 
batches inspected. The acceptance and rejection numbers listed in 
Appendix I, Table III at the appropriate code letter obtained according 
to Sec. 205.57-2 will be used in determining whether the acceptance or 
rejection of a batch sequence has occurred.
    (b) Acceptance or rejection of a batch sequence takes place when the 
decision that a vehicle is a failiing vehicle is made on the last 
vehicle required to make a decision under paragraph (a) of this section.
    (c) If the batch sequence is accepted, the manufactureer will not be 
required to perform any additional testing on vehicles from subsequent 
batches pursuant to the initiating test request.

[[Page 125]]

    (d) The Administrator may terminate testing earlier than required in 
paragraph (b) of this section based on a request by the manufacturer 
accompanied by voluntary cessation of distribution in commerce, of 
vehicles from the category, configuration or subgroup in question 
manufactured at the plant which produced the vehicles under test: 
Provided, That before reinitiating distribution in commerce of vehicles 
from such plant of such vehicle category, configuration or subgroup, the 
manufacturer must take the action described in Sec. 205.57-9(a)(1) and 
(a)(2).

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61460, Dec. 5, 1977]



Sec. 205.57-8  Continued testing.

    (a) If a batch sequence is rejected in accordance with paragraph (b) 
of Sec. 205.57-7, the Administrator may require that any or all 
vehicles of that category, configuration of subgroup thereof produced at 
that plant be tested before distribution in commerce.
    (b) The Administrator will notify the manufacturer in writing of his 
intent to require such continued testing of vehicles pursuant to 
paragraph (a) of this section.
    (c) The manufacturer may request a hearing on the issues of whether 
the selective enforcement audit was conducted properly; whether the 
criteria for batch sequence rejection in Sec. 204.57-7 have been met; 
and, the appropriateness or scope of a continued testing order. In the 
event that a hearing is requested, the hearing shall begin no later than 
15 days after the date on which the Administrator received the hearing 
request. Neither the request for a hearing nor the fact that a hearing 
is in progress shall affect the reponsibility of the manufacturer to 
commence and continue testing required by the Administrator pursuant to 
paragraph (a) of this section.
    (d) Any tested vehicle which demonstrated conformance with the 
applicable standards may be distributed into commerce.
    (e) Any knowing distribution into commerce of a vehicle which does 
not comply with the applicable standards is a prohibited act.

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61460, Dec. 5, 1977; 44 
FR 54296, Sept. 19, 1979]



Sec. 205.57-9  Prohibition on distribution in commerce; manufacturer's remedy.

    (a) The Administrator will permit the cessation of continued testing 
under Sec. 205.57-8 once the manufacturer has taken the following 
actions:
    (1) Submit a written report to the Administrator which identifies 
the reason for the noncompliance of the vehicles, describes the problem 
and describes the proposed quality control and/or quality assurance 
remedies to be taken by the manufacturer to correct the problem or 
follows the requirements for an engineering change. Such requirements 
include the following:
    (i) Any change to a configuration with respect to any of the 
parameters stated in Sec. 205.55-3 shall constitute the addition of a 
new and separate configuration or category to the manufacturer's product 
line.
    (ii) When a manufacturer introduces a new category or configuration 
to his product line, he shall proceed in accordance with Sec. 205.55-2.
    (iii) If the configuration to be added can be grouped within a 
verified category and the new configuration is estimated to have a lower 
sound pressure level than a previously verified configuration within the 
same category, the configuration shall be considered verified.
    (2) Demonstrates that the specified vehicle category, configuration 
or subgroup thereof has passed a retest conducted in accordance with 
Sec. 205.57 and the conditions specified in the initial test request.
    (3) The manufacturer may begin testing under paragraph (a)(2) of 
this section upon submitting such report, and may cease continued 
testing upon making the demonstration required by paragraph (a)(2) of 
this section, provided that the Administrator may require resumption of 
continued testing if he determines that the manufacturer has not 
satisfied the requirements of paragraphs (a)(1) and (2) of this section.

[[Page 126]]

    (b) Any vehicle failing the prescribed noise emission tests 
conducted pursuant to this Subpart B may not be distributed in commerce 
until necessary adjustments or repairs have been made and the vehicle 
passes a retest.
    (c) No vehicles of a rejected batch which are still in the hands of 
the manufacturer may be distributed in commerce unless the manufacturer 
has demonstrated to the satisfaction of the Administrator that such 
vehicles do in fact conform to the regulations: Except, that any vehicle 
that has been tested and does, in fact, conform with these regulations 
may be distributed in commerce.

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61460, Dec. 5, 1977; 47 
FR 57715, Dec. 28, 1982]



Sec. 205.58  In-use requirements.



Sec. 205.58-1  Warranty.

    (a) The vehicle manufacturer shall include the owner's manual or in 
other information supplied to the ulitmate purchaser the following 
statement:

                        Noise Emissions Warranty

    (Name of vehicle manufacturer) warrants to the first person who 
purchases this vehicle for purposes other than resale and to each 
subsequent purchaser that this vehicle as manufactured by (names of 
vehicle manufacturer), was designed, built and equipped to conform at 
the time it left (name of vehicle manufacturer)'s control with all 
applicable U.S. EPA Noise Control Regulations.
    This warranty covers this vehicle as designed, built and equipped by 
(Name of vehicle manufacturer), and is not limited to any particular 
part, component or system of the vehicle manufactured by (name of 
vehicle manufacturer). Defects in design, assembly or in any part, 
component or system of the vehicle as manufactured by (name of vehicle 
manufacturer), which, at the time it left (name of vehicle 
manufacturer)'s control, caused noise emissions to exceed Federal 
standards, are covered by this warranty for the life of the vehicle.

    (b) [Reserved]

[41 FR 15544, Apr. 13, 1976, as amended at 47 FR 57715, Dec. 28, 1982; 
48 FR 27040, June 13, 1983]



Sec. 205.58-2  Tampering.

    (a) For each configuration of vehicles covered by this part, the 
manufacturer shall develop a list of those acts which, in his judgment, 
might be done to the vehicle in use and which would constitute the 
removal or rendering inoperative of noise control devices or elements of 
design of the vehicle.
    (b) The manufacturer shall include in the owner's manual the 
following information:
    (1) The statement:

             Tampering With Noise Control System Prohibited

    Federal law prohibits the following acts or the causing thereof:
    (1) The removal or rendering inoperative by any person, other than 
for purposes of maintenance, repair, or replacement, of any device or 
element of design incorporated into any new vehicle for the purpose of 
noise control prior to its sale or delivery to the ultimate purchaser or 
while it is in use; or (2) the use of the vehicle after such device or 
element of design has been removed or rendered inoperative by any 
person.

    (2) The statement:

    Among those acts presumed to constitute tampering are the acts 
listed below.


Immediately following this statement, the manufacturer shall include the 
list developed under paragraph (a) of this section.
    (c) Any act included in the list prepared pursuant to paragraph (a) 
of this section is presumed to constitute tampering; however, in any 
case in which a proscribed act has been committed and it can be shown 
that such act resulted in no increase in the noise level of the vehicle 
or that the vehicle still meets the noise emission standard of Sec. 
205.52, such act will not constitute tampering.
    (d) The provisions of this section are not intended to preclude any 
State or local jurisdiction from adopting and enforcing its own 
prohibitions against the removal or rendering inoperative of noise 
control systems on vehicles subject to this part.

[41 FR 15544, Apr. 13, 1976, as amended at 47 FR 57715, Dec. 28, 1982; 
48 FR 27040, June 13, 1983]



Sec. 205.58-3  Instructions for maintenance, use and repair.

    (a)(1) The manufacturer shall provide to the ultimate purchaser of 
each vehicle covered by this subpart written instructions for the proper 
maintenance,

[[Page 127]]

use and repair of the vehicle in order to provide reasonable assurance 
of the elimination or minimization of noise emission degradation 
throughout the life of the vehicle.
    (2) The purpose of the instructions is to inform purchasers and 
mechanics of those acts necessary to reasonably assure that degradation 
of noise emission level is eliminated or minimized during the life of 
the vehicle. Manufacturers should prepare the instructions with this 
purpose in mind. The instructions should be clear and, to the extent 
practicable, written in nontechnical language.
    (3) The instructions must not be used to secure an unfair 
competitive advantage. They should not restrict replacement equipment to 
original equipment or service to dealer service. Manufacturers who so 
restrict replacement equipment should be prepared to make public any 
performance specifications on such equipment.
    (b) For the purpose of encouraging proper maintenance, the 
manufacturer shall provide a record or log book which shall contain a 
schedule for the performance of all required noise emission control 
maintenance. Space shall be provided in this record book so that the 
purchaser can note what maintenance was done, by whom, where and when.

[41 FR 15544, Apr. 13, 1976, as amended at 47 FR 57716, Dec. 28, 1982]



Sec. 205.59  Recall of noncomplying vehicles.

    (a) Pursuant to section 11(d)(1) of the Act, the Administrator may 
issue an order to the manufacturer to recall and repair or modify any 
vehicle distributed in commerce not in compliance with this subpart.
    (b) A recall order issued pursuant to this section shall be based 
upon a determination by the Administrator that vehicles of a specified 
category or configuration have been distributed in commerce which do not 
conform to the regulations. Such determination may be based on:
    (1) A technical analysis of the noise emission characteristics of 
the category or configuration in question; or
    (2) Any other relevant information, including test data.
    (c) For the purposes of this section, noise emissions may be 
measured by any test prescribed in Sec. 205.54 for testing prior to 
sale or any other test which has been demonstrated to correlate with the 
prescribed test procedure.
    (d) Any such order shall be issued only after notice and an 
opportunity for a hearing.
    (e) All costs, including labor and parts, associated with the recall 
and repair or modification of non-complying vehicles under this section 
shall be borne by the manufacturer.
    (f) This section shall not limit the discretion of the Administrator 
to take any other actions which are authorized by the Act.



                Sec. Appendix I to Subpart B of Part 205

                    Table I--Sample Size Code Letters
------------------------------------------------------------------------
                  Batch size                          Code letter
------------------------------------------------------------------------
4 to 8.......................................  A.
9 to 15......................................  B.
16 to 25.....................................  C.
26 and larger................................  D.
------------------------------------------------------------------------


                                 Table II--Sampling Plans for Inspecting Batches
----------------------------------------------------------------------------------------------------------------
                                                                                             Batch inspection
                                                                     Test     Cumulative         criteria
        Sample size code letter                Test sample          sample       test    -----------------------
                                                                     size       sample    Acceptance   Rejection
                                                                                 size         No.         No.
----------------------------------------------------------------------------------------------------------------
A.....................................  1st.....................           4           4           0           1
B.....................................  1st.....................           3           3           0           1
C.....................................  1st.....................           3           3           0           2
                                        2d......................           3           6           1           2
D.....................................  1st.....................           2           2       (\1\)           2
                                        2d......................           2           4       (\1\)           2
                                        3d......................           2           6           0           2
                                        4th.....................           2           8           0           3
                                        5th.....................           2          10           1           3
                                        6th.....................           2          12           1           3

[[Page 128]]

 
                                        7th.....................           2          14           2           3
----------------------------------------------------------------------------------------------------------------
\1\ Batch acceptance not permitted at this sample size.


                                         Table III--Batch Sequence Plans
----------------------------------------------------------------------------------------------------------------
                                                                                            Sequence inspection
                                                                              Cumulative         criteria
                     Sample size code letter                       Number of   number of -----------------------
                                                                    batches     batches   Acceptance   Rejection
                                                                                              No.         No.
----------------------------------------------------------------------------------------------------------------
A...............................................................           2           2           1       (\2\)
                                                                           2           4           2           4
                                                                           2           6           3           5
                                                                           2           8           4           5
B...............................................................           2           2           0       (\2\)
                                                                           2           4           1           4
                                                                           2           6           2           5
                                                                           2           8           3           5
                                                                           2          10           4           6
                                                                           2          12           5           6
C...............................................................           2           2       (\1\)           2
                                                                           2           4           0           2
                                                                           2           6           0           3
                                                                           2           8           1           3
                                                                           2          10           2           4
                                                                           2          12           3           4
D...............................................................           2           2           0           2
                                                                           2           4           1           3
                                                                           2           6           2           4
                                                                           2           8           3           4
----------------------------------------------------------------------------------------------------------------
\1\ Batch sequence acceptance not permitted for this number of batches.
\2\ Batch sequence rejection not permitted for this number of batches.


                            Table IV--Recommended Format for Vehicle Noise Data Sheet
 
Test Report Number:.......................  Manufacturer:..............
VEHICLE:
Trade Name:...............................  VIN:.......................
Model Year:...............................  Other Reference No:........
Configuration Identification:.............  Category Identification:...
Test Site Identification and Location:....
INSTRUMENTATION:
Microphone Manufacturer:..................  Model No:..................  Serial No:.................
Sound Level Manufacturer:.................  Model No:..................  Serial No:.................
Calibrator Manufacturer:..................  Model No:..................  Serial No:.................
Other and Manufacturer:...................  Model No:..................  Serial No:.................
TEST DATA:
Approach Gear:............................  Date of Test:..............
Approach RPM:.............................  Temp:......................  Wind:......................
  Acceleration Test:................................................................................
  Deceleration Test:................................................................................
----------------------------------------------------------------------------------------------------------------
 


                                                Acceleration Test
----------------------------------------------------------------------------------------------------------------
                                                                                Run No.
                                                     -----------------------------------------------------------
                                                           1           2           3           4           5
----------------------------------------------------------------------------------------------------------------
dBA            Left.................................
               Right................................
----------------------------------------------------------------------------------------------------------------
Highest RPM attained in End Zone
----------------------------------------------------------------------------------------------------------------
               Calculated Sound Pressure............  ..........         dBA
----------------------------------------------------------------------------------------------------------------
                                  Deceleration Test with Exhaust Brake Applied
----------------------------------------------------------------------------------------------------------------
dBA            Left.................................

[[Page 129]]

 
               Right................................
----------------------------------------------------------------------------------------------------------------
               Calculated Sound Pressure............  ..........         dBA
TEST Personnel:.................................................
                        (Name)
Recorded By:....................................................  Date:.....
                                                                     ....
                     (Signature)
Supervisor:.....................................................  Title:....
                                                                     .....
                     (Signature)
----------------------------------------------------------------------------------------------------------------


[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61460, Dec. 5, 1977]

Subpart C [Reserved]



                          Subpart D_Motorcycles

    Source: 45 FR 86708, Dec. 31, 1980, unless otherwise noted.



Sec. 205.150  Applicability.

    (a) Except as otherwise provided in these regulations, the 
provisions of this subpart apply to 1983 and subsequent model year 
motorcycles manufactured after December 31, 1982, which meet the 
definition of ``new product'' in the Act.
    (b) The provisions of this subpart do not apply to electric or 
battery-powered motorcycles.
    (c) Except as provided in Sec. 205.158, the provisions of this 
subpart do not apply to competition motorcycles as defined in Sec. 
205.151(a)(3).



Sec. 205.151  Definitions.

    (a) As used in this subpart and in Subpart E, all terms not defined 
herein shall have the meaning given them in the Act or in Subpart A of 
this part.
    (1) Motorcycle means any motor vehicle, other than a tractor, that:
    (i) Has two or three wheels;
    (ii) Has a curb mass less than or equal to 680 kg (1499 lb); and
    (iii) Is capable, with an 80 kg (176 lb) driver, of achieving a 
maximum speed of at least 24 km/h (15 mph) over a level paved surface.
    (2) Street motorcycle means:
    (i) Any motorcycle that:
    (A) With an 80 kg (176 lb) driver, is capable of achieving a maximum 
speed of at least 40 km/h (25 mph) over a level paved surface; and
    (B) Is equipped with features customarily associated with practical 
street or highway use, such features including but not limited to any of 
the following: stoplight, horn, rear view mirror, turn signals: or
    (ii) Any motorcycle that:
    (A) Has an engine displacement less than 50 cubic centimeters;
    (B) Produces no more than two brake horse power;
    (C) With a 80 kg (176 lb) driver, cannot exceed 48 km/h (30 mph) 
over a level paved surface.
    (3) Competition motorcycle means any motorcycle designed and 
marketed solely for use in closed course competition events.
    (4) Off-road motorcycle means any motorcycle that is not a street 
motorcycle or competition motorcycle.
    (5) Acceleration test procedure means the measurement methodologies 
specified in Appendix I.
    (6) Acceptable quality level (AQL) means the maximum allowable 
average percentage of vehicles or exhaust systems that can fail sampling 
inspection under a Selective Enforcement Audit.
    (7) Acoustical Assurance Period (AAP) means a specified period of 
time or miles driven after sale to the ultimate purchaser during which a 
newly manufactured vehicle or exhaust system, properly used and 
maintained, must continue in compliance with the Federal standard.
    (8) Advertised Engine Displacement means the rounded off volumetric 
engine capacity used for marketing purposes by the motorcycle 
manufacturer.
    (9) Category means a group of vehicle configurations which are 
identical in

[[Page 130]]

all material aspects with respect to the parameters listed in Sec. 
205.157-2 of this subpart.
    (10) Class means a group of vehicles which are identical in all 
material aspects with respect to the parameters listed in Sec. 205.155 
of this subpart.
    (11) Closed course competition event means any organized competition 
event covering an enclosed, repeated or confined route intended for easy 
viewing of the entire route by all spectators. Such events include short 
track, dirt track, drag race, speedway, hillclimb, ice race, and the 
Bonneville Speed Trials.
    (12) Closing rpm means the engine speed in Figure 2 of Appendix I.
    (13) Configuration means the basic classification unit of a 
manufacturer's product line and is comprised of all vehicle designs, 
models or series which are identical in all material aspects with 
respect to the parameters listed in Sec. 205.157-3 of this subpart.
    (14) Engine displacement means volumetric engine capacity as defined 
in Sec. 205.153.
    (15) Exhaust system means the combination of components which 
provides for the enclosed flow of exhaust gas from the engine exhaust 
port to the atmosphere. ``Exhaust system'' further means any constituent 
components of the combination which conduct exhaust gases and which are 
sold as separate products. ``Exhaust System'' does not mean any of the 
constituent components of the combination, alone, which do not conduct 
exhaust gases, such as brackets and other mounting hardware.
    (16) Failing vehicle means a vehicle whose noise level is in excess 
of the applicable standard.
    (17) Maximum rated RPM means the engine speed measured in 
revolutions per minute (RPM) at which peak net brake power (SAE J-245) 
is developed for motorcycles of a given configuration.
    (18) Model specific code means the designation used for labeling 
purposes in Sec. Sec. 205.158 and 205.169 for identifying the 
motorcycle manufacturer, class, and ``advertised engine displacement,'' 
respectively.
    (19) Model year means the manufacturer's annual production period, 
which includes January 1 of any calendar year, or if the manufacturer 
has no annual production period, the term ``model year'' shall mean the 
calendar year.
    (20) Motorcycle noise level means the A-weighted noise level of a 
motorcycle as measured by the acceleration test procedure.
    (21) Noise control system means any vehicle part, component or 
system, the purpose of which includes control or the reduction of noise 
emitted from a vehicle, including all exhaust system components.
    (22) Noise emission standard means the noise levels in Sec. 205.152 
or Sec. 205.166.
    (23) Noise emission test means a test conducted pursuant to a 
measurement methodology specified in this subpart.
    (24) [Reserved]
    (25) Serial number means the identification number assigned by the 
manufacturer to a specific production unit.
    (26) Tampering means the removal or rendering inoperative by any 
person, other than for purposes of maintenance, repair, or replacement, 
of any device or element of design incorporated into any product in 
compliance with regulations under section 6, prior to its sale or 
delivery to the ultimate purchaser or while it is in use; or the use of 
a product after such device or element of design has been removed or 
rendered inoperative by any person.
    (27) Test vehicle means a vehicle in a Selective Enforcement Audit 
test sample.
    (28) Tractor means for the purposes of this subpart, any two or 
three wheeled vehicle used exclusively for agricultural purposes, or for 
snow plowing, including self-propelled machines used exclusively in 
growing, harvesting or handling farm produce.
    (29) Vehicle means any motorcycle regulated pursuant to this 
subpart.
    (30) Warranty means the warranty required by section 6(d)(1) of the 
Act.

[45 FR 86708, Dec. 31, 1980, as amended at 47 FR 57720, Dec. 28, 1982]



Sec. 205.152  Noise emission standards.

    (a) Noise emission standards. (1) Street motorcycles of the 
following and subsequent model years must not produce noise emissions in 
excess of the levels indicated:

[[Page 131]]

    (i) Street motorcycles other than those that meet the definition of 
Sec. 205.151(a)(2)(ii):

------------------------------------------------------------------------
                                                              A-weighted
                         Model year                              noise
                                                              level (dB)
------------------------------------------------------------------------
(A) 1983....................................................          83
(B) 1986....................................................          80
------------------------------------------------------------------------

    (ii) Street motorcycles that meet the definition of Sec. 
205.151(a)(2)(ii)(moped-type street motorcycles):

------------------------------------------------------------------------
                                                              A-weighted
                         Model year                              noise
                                                              level (dB)
------------------------------------------------------------------------
(A) 1983....................................................          70
------------------------------------------------------------------------

    (2) Off-road motorcycles of the following and subsequent model years 
must not produce noise emissions in excess of the levels indicated:
    (i) Off-road motorcycles with engine displacements of 170 cc and 
lower:

------------------------------------------------------------------------
                                                              A-weighted
                         Model year                              noise
                                                              level (dB)
------------------------------------------------------------------------
(A) 1983....................................................          83
(B) 1986....................................................          80
------------------------------------------------------------------------

    (ii) Off-road motorcycles with engine displacements greater than 170 
cc:

------------------------------------------------------------------------
                                                              A-weighted
                         Model year                              noise
                                                              level (dB)
------------------------------------------------------------------------
(A) 1983....................................................          86
(B) 1986....................................................          82
------------------------------------------------------------------------

    (3) Street motorcycles must be designed, built and equipped so that, 
when properly maintained and used, they will not produce noise emissions 
in excess of the levels specified in paragraph (a)(1) of this section, 
for an Acoustical Assurance Period of one year or a distance of 6000 km 
(3730 mi) after the time of sale to the ultimate purchaser, whichever 
occurs first.
    (4) Off-road motorcycles must be designed, built and equipped so 
that, when properly maintained and used, they will not produce noise 
emissions in excess of the levels specified in paragraph (a)(2) of this 
section, for an Acoustical Assurance Period of one year or a distance of 
3000 km (1865 mi) after the time of sale to the ultimate purchaser, 
whichever occurs first.
    (5) At the time of sale to the ultimate purchaser, all products must 
comply with the standards set forth in paragraphs (a)(1) and (2) of this 
section.
    (b) Measurement procedure. (1) The standards set forth in paragraph 
(a) of this section refer to noise emissions as measured in accordance 
with the measurement methodology specified in Appendix I-1 for all 
motorcycles except those street motorcycles that meet the definition of 
Sec. 205.151(a)(2)(ii).
    (2) The standards set forth in paragraph (a) of this section for 
street motorcycles that meet the definition of Sec. 205.151(a)(2)(ii) 
(moped-type street motorcycles) refer to noise emissions measured in 
accordance with the measurement methodology specified in Appendix I-2.
    (c) Low noise emission product standard. For the purpose of Low-
Noise-Emission Product certification pursuant to 40 CFR part 203, 
motorcycles procured by the Federal government after the following dates 
must not produce noise emissions in excess of the noise levels 
indicated:
    (1) For street motorcycles with engine displacement greater than 170 
cc:

------------------------------------------------------------------------
                                                              A-weighted
                            Date                                 noise
                                                              level (dB)
------------------------------------------------------------------------
(i) January 1, 1982.........................................          73
(ii) January 1, 1989........................................          71
------------------------------------------------------------------------

    (2) For off-road motorcycles with engine displacements greater than 
170 cc:

------------------------------------------------------------------------
                                                              A-weighted
                            Date                                 noise
                                                              level (dB)
------------------------------------------------------------------------
(i) January 1, 1982.........................................          75
------------------------------------------------------------------------

    (3) For off-road motorcycles with engine displacement 170 cc and 
lower and street motorcycles with engine displacement 170 cc and lower 
that do not meet the definition of Sec. 205.151(a)(2)(ii):

------------------------------------------------------------------------
                                                              A-weighted
                            Date                                 noise
                                                              level (dB)
------------------------------------------------------------------------
(i) January 1, 1982.........................................          71
------------------------------------------------------------------------

    (4) For street motorcycles that meet the definition of Sec. 
205.151(a)(2)(ii) (moped-type street motorcycles):

------------------------------------------------------------------------
                                                              A-weighted
                            Date                                 noise
                                                              level (dB)
------------------------------------------------------------------------
(i) January 1, 1982.........................................          60
------------------------------------------------------------------------


[[Page 132]]


These levels refer to noise emissions as measured in accordance with the 
measurement methodologies specified in appendix I. LNEP's must also meet 
all requirements contained in paragraphs (a)(3), (4), and (5), of this 
section.

(Secs. 10 and 15 of the Noise Control Act, (42 U.S.C. 4909, 4914))



Sec. 205.153  Engine displacement.

    (a) Engine displacement must be calculated using nominal engine 
values and rounded to the nearest whole cubic centimeter, in accordance 
with American Society for Testing Materials (ASTM) E 29-67.
    (b) For rotary engines, displacement means the maximum volume of a 
combustion chamber between two rotor tip seals minus the minimum volume 
of that combustion chamber between those two rotor seals times three 
times the number of rotors.

cc=(Maximum chamber volume-minimum chamber volume) x 3 x number of 
          rotors.



Sec. 205.154  Consideration of alternative test procedures.

    The Administrator may approve applications from manufacturers of 
motorcycles for the approval of test procedures which differ from those 
contained in this subpart so long as the alternative procedures have 
been demonstrated to correlate with the prescribed procedure. To be 
acceptable, alternative test procedures must be such that the test 
results obtained will identify all those test motorcycles which would 
not comply with the noise emission standards prescribed in Sec. 205.152 
when tested in accordance with the measurement methodology specified in 
Appendix I. After approval by the Administrator, testing conducted by 
manufacturers using alternative test procedures will be accepted by the 
Administrator for all purposes including, but not limited to, selective 
enforcement audit testing.

[45 FR 86708, Dec. 31, 1980, as amended at 47 FR 57720, Dec. 28, 1982]



Sec. 205.155  Motorcycle class and manufacturer abbreviation.

    (a) Motorcycles must be grouped into classes determined by separate 
combinations of the following parameters:
    (1) Engine type:
    (i) Gasoline--two stroke.
    (ii) Gasoline--four stroke.
    (iii) Gasoline--rotary.
    (iv) Other.
    (2) Engine displacement.
    (3) Engine configuration:
    (i) Number of cylinders.
    (ii) Cylinder arrangement (i.e., in line, opposed, etc.).
    (4) Exhaust system:
    (i) Muffler: (A) Type, (B) Location, (C) Number.
    (ii) Expansion chambers: (A) Location, (B) Size.
    (iii) Spark arrestors.
    (iv) Other exhaust system components.



Sec. 205.156  [Reserved]



Sec. 205.157  Requirements.



Sec. 205.157-1  General requirements.

    (a) Each manufacturer of vehicles manufactured for distribution in 
commerce in the United States which are subject to the standards 
prescribed in this subpart and not exempted in accordance with Subpart 
A, Sec. 205.5:
    (1) Shall be labeled in accordance with the requirements of Sec. 
205.158 of this subpart.
    (2) Must ensure that each vehicle conforms to the applicable noise 
emission standard establishd in Sec. 205.152 of this subpart.
    (b) The requirements of paragraph (a) of this section apply to new 
products which conform to the definition of vehicles in these 
regulations and at the time such new products are assembled to that 
state of completeness in which the manufacturer sends them to a 
subsequent manufacturer or otherwise distributes them in commerce.
    (c) Subsequent manufacturers of a new product which conforms to the 
definition of vehicle in these regulations when received by them from a 
prior manufacturer, need not fulfill the requirements of paragraph 
(a)(1) of this section where such requirements have already been 
complied with by a prior manufacturer.
    (d) The manufacturer who is required to conduct product verification 
testing to demonstrate compliance with a particular standard, must 
satisfy all other provisions of this subpart applicable to

[[Page 133]]

that standard, including but not limited to, record keeping, reporting 
and in-use requirements.

[45 FR 86708, Dec. 31, 1980, as amended at 47 FR 57720, Dec. 28, 1982]



Sec. 205.157-2  Compliance with standards.

    (a)(1) Prior to distribution in commerce of vehicles of a specific 
configuration, the first manufacturer of such vehicle must verify such 
configurations in accordance with the requirements of this subpart.
    (2) [Reserved]
    (3) At any time following receipt of notice under paragraph 
(a)(2)(iii) of this section with respect to a configuration, the 
Administrator may require that the manufacturer ship test vehicles to an 
EPA test facility for the required production verification testing.
    (b) The requirements for purposes of testing by the Administrator 
and selective enforcement auditing with regard to each vehicle 
configuration consist of:
    (1) Testing in accordance with Sec. 205.160-4 of a vehicle selected 
in accordance with Sec. 205.160-2.
    (2) Compliance of the test vehicle with the applicable standard when 
tested in accordance with Sec. 205.160-4.
    (c)(1) In lieu of testing vehicles of every configuration as 
described in paragraph (b) of this section, the manufacturer may elect 
to verify the configuration based on representative testing. The 
requirements of representative testing are:
    (i) Grouping configurations into categories where each category is 
determined by a separate combination of at least the following 
parameters (a manufacturer may use more parameters):
    (A) Engine type: (1) Gasoline-two stroke; (2) gasoline-four stroke; 
(3) gasoline-rotary; and (4) other.
    (B) Engine displacement.
    (C) Engine configuration: (1) Number of cylinders; and (2) cylinder 
arrangement (i.e., in line, opposed, etc.)
    (ii) Identifying the configuration within each category which emits 
the highest A-weighted sound level (in dB).
    (iii) Testing in accordance with Sec. 205.160-4 of a vehicle 
selected in accordance with Sec. 205.160-2 which much be a vehicle of 
the configuration which is identified pursuant to paragraph (c)(1)(ii) 
of this section as having the highest sound pressure level (estimated or 
actual) within the category.
    (iv) Demonstrating compliance of that vehicle with the applicable 
standard when tested in accordance with the test procedure specified in 
Appendix I.
    (2) Where the requirements of paragraph (c)(1) of this section are 
complied with, all those configurations contained within a category are 
considered represented by the tested vehicle.
    (3) Where the manufacturer tests a vehicle configuration which has 
not been determined as having the highest sound pressure level of a 
category, but all other requirements of paragraph (c)(1) of this section 
are complied with, all those configurations contained within that 
category which are determined to have sound pressure levels not greater 
than the tested vehicle are considered to be represented by the tested 
vehicle; however, a manufacturer must for purposes of Testing by the 
Administrator and Selective Enforcement Auditing verify according to the 
requirements of (b)(1) and/or (c)(1) of this section any configurations 
in the subject category which have a higher sound pressure level than 
the vehicle configuration tested.
    (d) A manufacturer may elect for purposes of Testing by the 
Administrator and Selective Enforcement Auditing to use representative 
testing pursuant to paragraph (c) of this section for all or part of his 
product line.
    (e) The manufacturer has the following alternatives if any test 
vehicle is determined to not be in compliance with applicable standards:
    (1) In the case of representative testing, a new test vehicle from 
another configuration must be selected according to the requirements of 
paragraph (c) of this section, in order to verify the configurations 
represented by the non-compliant vehicle.
    (2) Modify the test vehicle and demonstrate by testing that it meets 
applicable standards. The manufacturer must modify all production 
vehicles of the same configuration in the same manner as the test 
vehicle before distribution into commerce.

[45 FR 86708, Dec. 31, 1980, as amended at 47 FR 57720, Dec. 28, 1982]

[[Page 134]]



Sec. 205.157-3  Configuration identification.

    (a) A separate vehicle configuration shall be determined by each 
combination of the following parameters:
    (1) Exhaust system (engine): (i) Mufflers; (ii) expansion chambers; 
(iii) spark arrestors; and (iv) other exhaust system components.
    (2) Air induction system (engine): (i) Intake muffler; (ii) intake 
ducting; and (iii) air cleaner element.
    (3) Vehicle drive train: (i) Chain; and (ii) shaft.
    (4) Transmission gear ratio: (i) Standard transmission; and (ii) 
automatic transmission.
    (5) Cooling system configuration: (i) Natural air cooled; (ii) 
liquid cooled; and (iii) forced air cooled.
    (6) Category parameters listed in Sec. 205.157-2.
    (b) [Reserved]



Sec. 205.158  Labeling requirements.

    (a)(1) The manufacturer of any vehicle subject to this subpart must, 
at the time of manufacture, affix a label, of the type specified in 
paragraphs (a)(2), (3), and (4) of this section, to all such vehicles to 
be distributed in commerce.
    (2) The label must be plastic or metal and be welded, riveted, or 
otherwise permanently attached in a readily visible position.
    (3) The label must be affixed by the vehicle manufacturer to the 
vehicle in such a manner that the label cannot be removed without 
destroying or defacing it, and must not be affixed to any piece of 
equipment that is easily detached from such vehicle.
    (4) The label must be lettered in the English language in legible 
block letters and numerals, which must be of a color that contrasts with 
the background of the label.
    (5) The label must contain the following information:
    (i) The label heading: Motorcycle Noise Emission Control 
Information;
    (ii) The statement:

    This ------ (model year) ------ (model specific code) motorcycle, --
---- (serial number), meets EPA noise emission requirements of ------ 
(noise emission standard) dBA at ------ (closing rpm) rpm by the Federal 
test procedure. Modifications which cause this motorcycle to exceed 
Federal noise standards are prohibited by Federal law. See owner's 
manual.

    (6) The model specific code is limited to ten spaces which includes 
three spaces for the manufacturer's abbreviation (see paragraph (a)(7) 
of this section), three spaces for the class identification, and four 
spaces for the advertised engine displacement respectively.
    (7) All motorcycle manufacturers shall use the following 
abbreviations in their model specific code.

BMW..........................................  BMW
Bultaco......................................  BUL
Can-Am Bombardier............................  CAB
Chaparral....................................  CHA
Cheeta.......................................  CHE
Ducati.......................................  DUC
Fox..........................................  FOX
Harley Davidson..............................  HAR
Heald........................................  HEA
Hercules.....................................  HER
Hodaka.......................................  HOD
Honda........................................  HON
Husqvarna....................................  HUS
JAWA/CZ......................................  JAW
Kawasaki.....................................  KAW
KTM..........................................  KTM
Laverda......................................  LAV
Moto Benilli.................................  BEN
Moto Guzzi...................................  GUZ
Moto Morini..................................  MOR
MV Agusta....................................  MVA
Norton Triumph...............................  TRI
Rokon........................................  ROK
Suzuki.......................................  SUZ
Yamaha.......................................  YAM
 

    (8) Moped manufacturers only shall use the following abbreviations 
in their model specific code.

AMF..........................................  AMF
Benelli......................................  BEL
Califfo......................................  CAL
Carabela.....................................  CAR
Cimatti......................................  CIM
Columbia.....................................  COL
E-Z Rider....................................  EZR
Flying Dutchman..............................  FLY
Foxi.........................................  FOI
Gadabout.....................................  GAD
Garelli......................................  GAR
Gitane.......................................  GIT
Honda........................................  HON
Indian.......................................  IND
Intramotor...................................  INT
Italvelo.....................................  ITA
Kreidler.....................................  KRE
Lazer........................................  LAZ
Malagati.....................................  MAL
Morini.......................................  MOI
Motobecane/Solex.............................  MBE
Moto Guzzi...................................  GUZ
Negrini......................................  NEG
Odyssey......................................  ODY
Pacer........................................  PAC
Pack-A-Way...................................  PAK
Peugeot......................................  PEU
Puch.........................................  PUC
Riviera......................................  RIV
Sachs........................................  SAC
Safari.......................................  SAF

[[Page 135]]

 
Scorpion.....................................  SCO
Smily........................................  SMI
Snark........................................  SNA
Sori II......................................  SON
Speed Bird...................................  SPE
Sprinter.....................................  SPR
SuVega.......................................  SUV
Tomas........................................  TOM
Vaespa.......................................  VES
Yankee Peddler...............................  YAN
 

    (9) If a new motorcycle manufacturer begins production of vehicles 
subject to this regulation, the Administrator will assign him a 3-letter 
manufacturer abbreviation as soon as reasonably practical after his 
existence is known to the Agency.
    (b) Any vehicle manufactured in the United States solely for use 
outside the United States must be clearly labeled in accordance with the 
provisions of paragraphs (a) (2), (3), and (4) of this section with the 
statement; ``For Export Only''.
    (c) Any competition motorcycle as defined in Sec. 205.151(a)(3), 
shall be labeled in accordance with the provisions of paragraphs (a)(1), 
(2), (3) and (4) of this section with the statement:

    This motorcycle is designed for closed course competition use only. 
It does not conform to U.S. EPA motorcycle noise standards.

    (d) It will be permissible for manufacturers to meet the 
requirements of this section by consolidating these labeling 
requirements with other government labeling requirements in one or more 
labels, provided the provisions of paragraphs (a) (2), (3) and (4) of 
this section are met.

[45 FR 86708, Dec. 31, 1980, as amended at 47 FR 57721, Dec. 28, 1982]



Sec. 205.159  Testing by the Administrator.

    (a)(1) In order for the Administrator to determine whether such 
vehicles or a manufacturer's test facility conform to applicable 
regulations, the Administrator may require that vehicles to be tested 
pursuant to the Act be submitted to him, at such place and time as he 
reasonably designates. He may designate the quantity of vehicles and the 
duration of time he reasonably requires for the purpose of conducting 
tests in accordance with test procedures described in appendix I. The 
manner in which the Administrator conducts such tests, the EPA test 
facility, and the test procedures employed will be based upon good 
engineering practice and meet or exceed the requirements of appendix I 
of the regulations.
    (2) If the Administrator specifies that he will conduct such testing 
at the manufacturer's facility, the manufacturer shall make available 
instrumentation and equipment of the type required for test operations 
by these regulations. The Administrator may conduct such tests with his 
own equipment, having specifications equal to or exceeding the 
performance specifications of the instrumentation and equipment required 
in these regulations.
    (3) The manufacturer may observe tests conducted by the 
Administrator pursuant to this section on vehicles produced by the 
manufacturer and may copy the data accumulated from such tests. The 
manufacturer may inspect any of the vehicles before and after testing by 
the Administrator.
    (b)(1) If, based on tests conducted by the Administrator, or on 
other relevant information, the Administrator determines that the test 
facility does not meet the requirements of appendix I (or the 
requirements for an alternative test procedure approved under Sec. 
205.154), the Administrator will give notice to the manufacturer in 
writing of his determination and the reasons underlying it.
    (2) The manufacturer may, at any time within 15 days after receipt 
of a notice issued under paragraph (b)(1) of this section, request a 
hearing conducted in accordance with 5 U.S.C. 554 on the issue of 
whether his test facility met the requirements as specified in appendix 
I (or the alternative procedure). Such notice will not take effect until 
15 days after its receipt by the manufacturer or, if a hearing is 
requested under this paragraph, until adjudication by the Administrative 
law judge.
    (3) After any notice issued under paragraph (b)(1) of this section 
has taken effect, no data thereafter derived from that test facility 
will be acceptable for purposes of this subpart.
    (4) The manufacturer may request in writing that the Administrator 
reconsider his determination under paragraph (b)(1) of this section 
based on data or information which indicates

[[Page 136]]

that changes have been made to the test facility and that those changes 
have resolved the reasons for disqualification.
    (5) Within 10 working days after receipt of the manufacturer's 
request for reconsideration pursuant to paragraph (b)(4) of this 
section, the Administrator will notify the manufacturer of his 
determination and of the reasons underlyng it with regard to the 
requalification of the test facility.
    (c) The Administrator will assume all reasonable costs associated 
with shipment of vehicles to the place designated pursuant to paragraph 
(a) of this section except with respect to:
    (1) Any production verification testing performed at a place other 
than the manufacturer's facility as provided in Sec. 205.157-2(a), or 
as a result of the manufacturer's not owning or having access to a test 
facility;
    (2) Testing of a reasonable number of vehicles (i) for purposes of 
selective enforcement auditing under Sec. 205.160, (ii) or if the 
manufacturer has failed to establish that there is a correlation between 
its test facility and the EPA test facility, (iii) or the Administrator 
has reason to believe, and provides the manufacturer with a statement of 
such reason, that the vehicles to be tested would fail to meet the 
standard prescribed in this subpart if tested at the EPA test facility 
even though they would meet such standard if tested at the 
manufacturer's test facility;
    (3) Any testing performed during a period when a notice issued 
pursuant to paragraph (b) of this section is in effect;
    (4) Any testing performed at a place other than the manufacturer's 
facility as a result of the manufacturer's failure to permit the 
Administrator to conduct or monitor testing as required by this subpart; 
and
    (5) Testing of up to 10 percent of the manufacturer's test vehicles 
for a model year if the Administrator determines testing these vehicles 
at the EPA test site is necessary to assure that a manufacturer has 
acted or is acting in compliance with the Act.

[45 FR 86708, Dec. 31, 1980, as amended at 47 FR 57721, Dec. 28, 1982]



Sec. 205.160  Selective enforcement auditing (SEA) requirements.



Sec. 205.160-1  Test request.

    (a) The Administrator will request all testing under Sec. 205.160 
by means of a test request addressed to the manufacturer.
    (b) The test request will be signed by the Assistant Administrator 
for Enforcement or his designee. The test request will be delivered to 
the plant manager or other responsible official as designated by the 
manufacturer.
    (c) The test request will specify the vehicle category, 
configuration or configuration subgroup selected for testing, the 
manufacturer's plant or storage facility from which the vehicles must be 
selected, and the time at which the vehicles must be selected. The test 
request will also provide for situations in which the selected category, 
configuration, or configuration subgroup is unavailable for testing. The 
test request may include an alternative category, configuration, or 
configuration subgroup designated for testing in the event that vehicles 
of the first specified category, configuration, or configuration 
subgroup are not available for testing because the vehicles are not 
being manufactured at the specified plant, are not being manufactured 
during the specified time, or are not being stored at the specified 
plant or storage facility.
    (d)(1) If the manufacturer projects a yearly production of fewer 
than 50 vehicles of the specified category, configuration or 
configuration subgroup to be tested, then within five (5) days of 
receipt of the request, the manufacturer must notify the Administrator 
of such low volume production. The Administrator will then provide a 
revised test request specifying a testing plan which imposes no greater 
risk of failure (5%) at the acceptable quality level (10%) than the plan 
in Appendix II. Upon receipt of the revised test request, the 
manufacturer must select and test a sample of vehicles from the 
category, configuration or configuration subgroup specified in the test 
request in accordance with this subpart and the conditions specified in 
the test request.

[[Page 137]]

    (2) If the manufacturer produces 50 or more vehicles of the 
specified category, configuration or configuration subgroup per year, 
then upon receipt of the test request, the manufacturer must select and 
test a sample of vehicles from the category, configuration or 
configuration subgroup specified in the test request in accordance with 
this subpart and the conditions specified in the test request.
    (e)(1) Any testing conducted by the manufacturer under a test 
request must be initiated within the time period specified in the test 
request; except that initiation may be delayed for increments of 24 
hours or one business day where ambient test site weather conditions, or 
other conditions beyond the control of the manufacturer, in that 24-hour 
period, do not permit testing. The manufacturer must record the 
conditions for this period.
    (2) The manufacturer must complete noise emission testing on a 
minimum of ten vehicles per day unless otherwise provided by the 
Administrator or unless ambient test site conditions permit only the 
testing of a lesser number in which case the ambient test site weather 
conditions for that period must be recorded.
    (3) The manufacturer is allowed 24 hours to ship vehicles from a 
sample from the assembly plant to the testing facility if the facility 
is not located at the plant or in close proximity to the plant. The 
Administrator may approve more time based upon a request by the 
manufacturer accompanied by a satisfactory justification.
    (f) The Administrator may issue an order to the manufacturer to 
cease distribution in commerce of vehicles of a specified category, 
configuration, or configuration subgroup being manufactured at a 
particular facility, if:
    (1) The manufacturer refuses to comply with the provisions of a test 
request issued by the Administrator under this section; or
    (2) The manufacturer refuses to comply with any of the requirements 
of this section.
    (g) A cease distribution order will not be issued under paragraph 
(f) of this section if the manufacturer's refusal is caused by 
conditions and circumstances outside his control which render compliance 
with the provisions of a test request or with any other requirements of 
this section impossible. Conditions and circumstances outside the 
control of the manufacturer include, but are not limited to, the 
temporary unavailability of equipment and personnel needed to conduct 
the required tests caused by uncontrollable factors, such as equipment 
breakdown or failure or illness of personnel. Failure of the 
manufacturer to adequately plan for and provide the equipment and 
personnel needed to conduct the tests do not constitute uncontrollable 
factors. The manufacturer must bear the burden of establishing the 
presence of the conditions and circumstances required by this paragraph.
    (h) Any order to cease distribution will be issued only after a 
notice and opportunity for a hearing in accordance with 5 U.S.C. 554.



Sec. 205.160-2  Test sample selection and preparation.

    (a) Vehicles comprising the sample which are required to be tested 
under a test request in accordance with this subpart must be selected 
consecutively as they are produced. Before the official test, the test 
vehicle must not be prepared, tested, modified, adjusted, or maintained 
in any manner unless such preparation, tests, modifications, adjustments 
or maintenance are part of the manufacturer's prescribed manufacturing 
and inspection procedures, and are documented in the manufacturer's 
internal vehicle assembly and inspection procedures, are required or 
permitted under this subpart, or are approved in advance by the 
Administrator. For purposes of this section, prescribed manufacturing 
and inspection procedures include quality control testing and assembly 
procedures normally performed by the manufacturer on like products 
during early production if the resulting testing is not biased by this 
procedure. In the case of imported products, the manufacturer may 
perform adjustments, preparations, modification or tests normally 
performed at the port of entry by the manufacturer to prepare the 
vehicle for delivery to a dealer or customer.
    (1) Equipment or fixtures necessary to conduct the test may be 
installed on

[[Page 138]]

the vehicle if such equipment or fixtures have no effect on the noise 
emissions of the vehicle, as determined by the measurement methodology.
    (2) In the event of a vehicle malfunction (i.e., failure to start, 
etc.) the manufacturer may perform the maintenance that is necessary to 
enable the vehicle to operate in a normal manner. This maintenance must 
be documented and reported in the SEA report.
    (3) No quality control, quality assurance testing, assembly or 
selection procedures may be used on the test vehicle or any portion of 
the test vehicle including parts and subassemblies, unless such quality 
control, quality assurance testing, assembly or selection procedures are 
used normally during the production and assembly of all other vehicles 
of this configuration which will be distributed in commerce, are 
required or permitted under this subpart or are approved in advance by 
the Administrator.
    (4) If a vehicle is unable to complete the noise tests, the 
manufacturer may replace the vehicle. Any replacement vehicle must be a 
production vehicle of the same configuration as the replaced vehicle or 
a noisier configuration and will be subject to all the provisions of 
these regulations. Any replacement must be reported in the SEA report.
    (b) The Acceptable Quality Level (AQL) is 10 percent. The 
appropriate sampling plans associated with the designated AQL are 
contained in Appendix II or the test request.
    (c) The vehicles of the category, configuration or configuration 
subgroup selected for testing must be assembled by the manufacturer for 
distribution in commerce using the manufacturer's normal production 
process.
    (d) Unless otherwise indicated in the test request, the manufacturer 
must initiate testing with the vehicles of the category, configuration 
or configuration subgroup specified in the test request which are next 
scheduled for production after receipt of the test request.
    (e) The manufacturer must keep on hand all products in the test 
sample until the sample is accepted or rejected in accordance with Sec. 
205.160-6; except that vehicles actually tested and found to be in 
conformance with this regulation need not be kept.

[45 FR 86708, Dec. 31, 1980, as amended at 47 FR 57721, Dec. 28, 1982]



Sec. 205.160-3  [Reserved]



Sec. 205.160-4  Testing procedures.

    (a) The manufacturer must conduct one valid test in accordance with 
the appropriate test procedures specified in Appendix I, on each vehicle 
selected for testing under this subpart.
    (b) In the event a vehicle is unable to complete the noise emission 
test, the manufacturer may replace the vehicle. Any replacement vehicle 
must be a production vehicle of the same category, configuration or 
subgroup as the vehicle which it replaced, and it is subject to all the 
provisions of this subpart.

[45 FR 86708, Dec. 31, 1980, as amended at 47 FR 57721, Dec. 28, 1982]



Sec. 205.160-5  Reporting of the test results.

    (a)(1) The manufacturer must submit a copy of the test report for 
all testing conducted pursuant to Sec. 205.160 at the conclusion of 
each 24-hour period during which testing is done.
    (2) For each test conducted the manufacturer must provide the 
following information:
    (i) Category, configuration or configuration subgroup identification 
where applicable;
    (ii) Year, make, assembly date, and model of vehicle;
    (iii) Vehicle serial number; and
    (iv) Test results by serial numbers.
    (b) In the case where an EPA Enforcement Officer is present during 
testing required by this subpart, the written reports requested in 
paragraph (a) of this section may be given directly to the Enforcement 
Officer.
    (c) Within 5 days after completion of testing of an SEA, the 
manufacturer must submit to the Administrator a final report which will 
include the following:
    (1) The name, location, and description of the manufacturer's noise 
emission test facilities which meet the specifications of Appendix I, 
and were utilized to conduct testing reported under this section, 
except, that a test

[[Page 139]]

facility that has been described in a previous submission under this 
subpart need not again be described, but must be identified as that 
facility.
    (2) The following information for each noise emission test 
conducted:
    (i) The individual records for the test vehicles required by Sec. 
205.161(a)(2) for all noise emission tests including for each invalid 
test, the reason for invalidation.
    (ii) A complete description of any modification, repair, 
preparation, maintenance, or testing which could affect the noise 
emissions of the product and which was performed on the test vehicle but 
not performed on all other production vehicles; and,
    (iii) The test results for any replaced vehicle and the reason for 
its replacement.
    (3) A complete description of the sound data acquisition system if 
other than those specified in Appendix I.
    (4) The following statement and endorsement:

    This report is submitted pursuant to section 6 and section 13 of the 
Noise Control Act of 1972. To the best of ------ (company name) 
knowledge, all testing for which data are reported here was conducted in 
strict conformance with applicable regulations under 40 CFR part 205 et 
seq., all the data reported here are a true and accurate representation 
of such testing, and all other information reported here is true and 
accurate. I am aware of the penalties associated with vio la tions of 
the Noise Control Act of 1972 and the regulations thereunder. ------ 
(authorized representative).

    (5) Additional information required by the test request.
    (d) Information required to be submitted to the Administrator under 
this section must be sent to the following address: Director, Noise and 
Radiation Enforcement Division, (EN-387), U.S. Environmental Protection 
Agency, Washington, DC 20460.



Sec. 205.160-6  Passing or failing under SEA.

    (a) A failing vehicle is one whose measured noise level is in excess 
of the applicable noise emission standard in Sec. 205.152.
    (b) The number of failing vehicles in a sample determines whether 
the sample passes or fails (See applicable tables in Appendix II). If 
the number of failing vehicles is greater than or equal to the number of 
Column B, the sample fails. If the number of failing vehicles is less 
than or equal to the number in Column A, the sample passes.
    (c) Pass or failure of an SEA takes place when a decision that a 
vehicle is a passing or failing unit is made on the last vehicle 
required to make a decision under paragraph (b) of this section.
    (d) If the manufacturer passes the SEA, he will not be required to 
perform any additional testing on subsequent vehicles to satisfy the 
test request.
    (e) The Administrator may terminate testing earlier than required in 
paragraph (b) of this section, based on a request by the manufacturer, 
accompanied by voluntarily ceasing distribution in commerce of vehicles 
from the category, configuration or configuration subgroup in question, 
manufactured at the plant which produced the products being tested. 
Before reinitiating distribution in commerce of that vehicle category, 
configuration or configuration subgroup from that plant, the 
manufacturer must take the action described in Sec. 205.160-8(a)(1) and 
(2).



Sec. 205.160-7  Continued testing.

    (a) If an SEA failure occurs according to paragraph (b) of Sec. 
205.160-6, the Administrator may require that any or all vehicles of 
that category, configuration or configuration subgroup produced at that 
plant be tested before distribution in commerce.
    (b) The Administrator will notify the manufacturer in writing of his 
intent to require continued testing of vehicles under paragraph (a) of 
this section.
    (c) The manufacturer may request a hearing on the issues of whether 
the SEA was conducted properly; whether the criteria for SEA failure 
have been met; and the appropriateness or scope of a continued testing 
order. If a hearing is requested, the hearing will begin no later than 
15 days after the date on which the Administrator received the hearing 
request. Neither the request for a hearing nor the fact that a hearing 
is in progress will affect the responsibility of the manufacturer to 
commence and continue testing required by the Administrator pursuant to 
paragraph (a) of this section.

[[Page 140]]

    (d) Any tested vehicle which demonstrates conformance with the 
applicable standard may be distributed into commerce.
    (e) Any distribution into commerce of a vehicle which does not 
comply with the applicable standard is a prohibited act.



Sec. 205.160-8  Prohibition of distribution in commerce; manufacturer's 

remedy.

    (a) The Administrator will permit the manufacturer to cease testing 
under Sec. 205.160-7 after the manufacturer has taken the following 
actions:
    (1) Submission of a written report to the Administrator which 
identifies the reason for the noncompliance of the vehicles, describes 
the problem and/or quality control or quality assurance remedies to be 
taken by the manufacturer to correct the problem.
    (2) Demonstration that the specified vehicle category, configuration 
or configuration subgroup has passed a retest conducted in accordance 
with Sec. 205.160, and the conditions specified in the test request.
    (b) The manufacturer may begin testing under paragraph (a)(2) of 
this section upon submitting the report required by paragraph (a)(1) of 
this section, and may cease continued testing upon making the 
demonstration required by paragraph (a)(2) of this section. The 
Administrator may require resumption of continued testing if he 
determines that the manufacturer has not satisfied the requirements of 
paragraphs (a)(1) and (2) of this section.
    (c) Any vehicle failing the prescribed noise emission tests 
conducted pursuant to appendix I may not be distributed in commerce 
until necessary adjustments or repairs have been made and the vehicle 
passes a retest.

[45 FR 86708, Dec. 31, 1980, as amended at 47 FR 57721, Dec. 28, 1982]



Sec. 205.162  In-use requirements.



Sec. 205.162-1  Warranty.

    (a) The vehicle manufacturer who is required to production verify 
under this subpart must include in the owner's manual or in other 
information supplied to the ultimate purchaser the following statement:

    NOISE EMISSIONS WARRANTY [RESERVED]

    (b) [Reserved]

[45 FR 86708, Dec. 31, 1980, as amended at 48 FR 27040, June 13, 1983]



Sec. 205.162-2  Tampering.

    (a) For each configuration of vehicles covered by this part, the 
manufacturer shall develop a list of acts which, in his judgment, 
constitute the removal or rendering totally or partially inoperative, 
other than for purposes of maintenance, repair, or replacement of noise 
control devices or elements of design of the vehicle.
    (b) The manufacturer shall include in the owner's manual the 
following information:
    (1) The statement:

             Tampering With Noise Control System Prohibited

    Federal law prohibits the following acts or causing thereof:
    (1) The removal or rendering inoperative by any person other than 
for purposes of maintenance, repair, or replacement, of any device or 
element of design incorporated into any new vehicle for the purpose of 
noise control prior to its sale or delivery to the ultimate purchaser or 
while it is in use, or (2) the use of the vehicle after such device or 
element of design has been removed or rendered inoperative by any 
person.

    (2) The statement:

    Among those acts presumed to constitute tampering are the acts 
listed below.


Immediately following this statement, the manufacturer must include the 
list developed under paragraph (a) of this section.
    (c) Any act included in the list prepared pursuant to paragraph (a) 
of this section is presumed to constitute tampering; however, in any 
case in which a presumed act of tampering has been committed and it can 
be shown that such act resulted in no increase in the noise level of the 
vehicle or that the vehicle still meets the noise emission standard of 
Sec. 205.152, the act will not constitute tampering.
    (d) The provisions of this section are not intended to preclude any 
State or local jurisdiction from adopting and enforcing its own 
prohibitions against the removal or rendering inoperative of

[[Page 141]]

noise control systems on vehicles subject to this part.

[45 FR 86708, Dec. 31, 1980, as amended at 47 FR 57721, Dec. 28, 1982]



Sec. 205.162-3  Instructions for maintenance, use, and repair.

    (a)(1) The manufacturer must provide to the purchaser of each 
vehicle covered by this subpart written instructions for the proper 
maintenance, use, and repair of the vehicle in order to provide 
reasonable assurance of the elimination or minimization of noise 
emission degradation throughout the life of the vehicle.
    (2) The purpose of the instructions is to inform purchasers and 
mechanics of the acts necessary to reasonably assure that degradation of 
noise emission level is eliminated or minimized during the life of the 
vehicle. Manufacturers shall prepare the instructions with this purpose 
in mind. The instructions shall be clear and, to the extent practicable, 
written in non-technical language.
    (3) The instructions must not be used to secure an unfair 
competitive advantage. They shall not restrict replacement equipment to 
original equipment or restrict service to dealer service unless such 
manufacturer makes public the performance specifications on such 
equipment.
    (b) For the purpose of encouraging proper maintenance, the 
manufacturer must provide a record or log book which shall contain a 
schedule for the performance of all required noise emission control 
maintenance. Space must be provided in this record book so that the 
purchaser can note what maintenance was done, by whom, where, and when.

[45 FR 86708, Dec. 31, 1980, as amended at 47 FR 57722, Dec. 28, 1982]



Sec. 205.163  Recall of noncomplying motorcycles; relabeling of mislabeled 

motorcycles.

    (a) Pursuant to section 11(d)(1) of the Act, the Administrator may 
issue an order to the manufacturer to recall, repair, modify, or relabel 
any vehicles distributed in commerce which are not in compliance with 
this subpart.
    (b) A recall order issued under this section shall be based upon a 
determination by the Administrator that vehicles of a specified 
category, configuration, or class which do not conform to the 
regulations or are improperly labeled have been distributed in commerce. 
This determination may be based on: (1) A technical analysis of the 
noise emission characteristics of the category, configuration, or class 
in question; or (2) any other relevant information, including test data.
    (c) For the purpose of this section, noise emissions are to be 
measured by the appropriate test procedure prescribed in appendix I 
prior to sale or any other test which has been demonstrated to correlate 
with the prescribed test procedure in accordance with Sec. 205.154.
    (d) Any order to recall shall be issued only after notice and an 
opportunity for a hearing.
    (e) All cost, including labor and parts, associated with the recall 
and repair or modification of noncomplying vehicles and relabeling of 
mislabeled vehicles under this section shall be borne by the 
manufacturer.
    (f) This section shall not limit the discretion of the Administrator 
to take any other actions which are authorized by the Act.



  Sec. Appendix I to Subparts D and E--Motorcycle Noise Emission Test 
                            Procedures [Note]

    Editorial Note: The text of appendix I follows subpart E.



                  Subpart E_Motorcycle Exhaust Systems

    Authority: Sec. 6 of the Noise Control Act (42 U.S.C. 4905).

    Source: 45 FR 86718, Dec. 31, 1980, unless otherwise noted.



Sec. 205.164  Applicability.

    (a) Except as otherwise provided in these regulations, the 
provisions of this subpart apply to any motorcycle replacement exhaust 
system or motorcycle replacement exhaust system component which:
    (1) Meets the definition of the term ``new product'' in the Act; and
    (2) Is designed and marketed for use on any motorcycle subject to 
the provisions of subpart D of this part.

[[Page 142]]

    (b) The provisions of Sec. 205.169 additionally apply to the 
motorcycle exhaust systems originally installed on vehicles subject to 
the requirements of subpart D of this part.
    (c) The provisions of Sec. 205.169(d)(3) additionally apply to 
motorcycle replacement exhaust systems manufactured after January 1, 
1983 that are designed and marketed for use on motorcycles manufactured 
before January 1, 1983.
    (d) Except as provided for in Sec. 205.169, the provisions of this 
subpart do not apply to exhaust systems which are designed and marketed 
solely for use on competition motorcycles as defined in Sec. 
205.151(a)(3).
    (e) The provisions of the subpart do not apply to exhaust header 
pipes sold as separate products.



Sec. 205.165  Definitions.

    (a) As used in this subpart, all terms not defined herein have the 
meaning given them in subpart D of this part or in the Act.
    (1) Category means a group of exhaust systems which are identical in 
all material aspects with respect to the parameters listed in Sec. 
205.168 of this subpart.
    (2) Exhaust header pipe means any tube of constant diameter which 
conducts exhaust gas from an engine exhaust port to other exhaust system 
components which provide noise attenuation. Tubes with cross connections 
or internal baffling are not considered to be ``exhaust header pipes.''
    (3) Failing exhaust system means that, when installed on any 
Federally regulated motorcycle for which it is designed and marketed, 
that motorcycle and exhaust system exceed the applicable standards.
    (4) Federally regulated motorcycle means, for the purpose of this 
subpart, any motorcyle subject to the noise standards of subpart D of 
this part.
    (5) Federal standards means, for the purpose of this subpart, the 
standards specified in Sec. 205.152(a)(1), (2) and (3).
    (6) [Reserved]
    (7) Stock configuration means that no modifications have been made 
to the orginal equipment motorcycle that would affect the noise 
emissions of the vehicle when measured according to the acceleration 
test procedure.
    (8) Test exhaust system means an exhaust system in Selective 
Enforcement Audit test sample.
    (b) [Reserved]

[45 FR 86718, Dec. 31, 1980, as amended at 47 FR 57722, Dec. 28, 1982]



Sec. 205.166  Noise emission standards.

    (a) Noise emission standards. (1) Exhaust systems and exhaust system 
components that are designed and marketed for use on any Federally 
regulated street motorcycle of the following and subsequent model years 
must be designed and built so that when installed on any such motorcycle 
which is in compliance with the requirements of subpart D of this part, 
they will not cause that motorcycle to produce noise emissions in excess 
of the levels indicated:
    (i) Systems designed and marketed for use on street motorcycles 
other than those that meet the definition of Sec. 205.151(a)(2)(ii):

------------------------------------------------------------------------
                                                              A-weighted
                    Motorcycle model year                        noise
                                                              level (dB)
------------------------------------------------------------------------
(A) 1983....................................................          83
(B) 1986....................................................          80
------------------------------------------------------------------------

    (ii) Systems designed and marketed for street motorcycles that meet 
the definition of Sec. 205.151(a)(2)(ii) (moped-type street 
motorcycles):

------------------------------------------------------------------------
                                                              A-weighted
                    Motorcycle model year                        noise
                                                              level (dB)
------------------------------------------------------------------------
(A) 1983....................................................          70
------------------------------------------------------------------------

    (2) Exhaust systems and exhaust system components that are designed 
and marketed for use on any Federally regulated off-road motorcycle of 
the following and subsequent model years must be designed and built so 
that, at the time of sale, when installed on any such motorcycle which 
is in compliance with the requirements of subpart D of this part, they 
will not cause that motorcycle to produce noise emissions in excess of 
the levels indicated:
    (i) Systems designed and marketed for use on off-road motorcycles 
with engine displacements of 170 cc and lower:

[[Page 143]]



------------------------------------------------------------------------
                                                              A-weighted
                    Motorcycle model year                        noise
                                                              level (dB)
------------------------------------------------------------------------
(A) 1983....................................................          83
(B) 1986....................................................          80
------------------------------------------------------------------------

    (ii) Systems designed and marketed for use on off-road motorcycles 
with engine displacements greater than 170 cc:

------------------------------------------------------------------------
                                                              A-weighted
                    Motorcycle model year                        noise
                                                              level (dB)
------------------------------------------------------------------------
(A) 1983....................................................          86
(B) 1986....................................................          82
------------------------------------------------------------------------

    (3) Exhaust systems and exhaust system components that are designed 
and marketed for use on any Federally regulated street motorcycle shall 
be designed and built so that, when installed on any such motorcycle 
which is in compliance with the requirements of subpart D of this part, 
and when both the motorcycle and the exhaust system are properly 
maintained and used, they will not cause that motorcycle to produce 
noise emissions in excess of the levels specified in paragraph (a)(1) of 
this section, for an Acoustical Assurance Period of one year or a 
distance of 6000 km (3729 mi) after the time of sale to the ultimate 
purchaser, whichever occurs first.
    (4) Exhaust systems and exhaust system components that are designed 
and marketed for use on any Federally regulated off-road motorcycle must 
be designed and built so that, when installed on any such motorcycle 
which is in compliance with the requirements of subpart D of this part, 
and when both the motorcycle and the exhaust system are properly 
maintained and used, they will not cause that motorcycle to produce 
noise emissions in excess of the levels specified in paragraph (a)(2) of 
this section, for an Acoustical Assurance Period of one year or a 
distance of 3000 km (1865 mi) after the time of sale to the ultimate 
purchaser, whichever occurs first.
    (5) At the time of sale to the ultimate purchaser all products must 
comply with the standards set forth in paragraphs (a) (1) and (2) of 
this section.
    (b) Measurement procedure. (1)(i) The standards set forth in 
paragraph (a) of this section refer to the noise emissions as measured 
in accordance with the measurement methodology specified in appendix I-1 
for all motorcycles except those street motorcycles meeting the 
definition of Sec. 205.151(a)(2)(ii). Exhaust systems which alter a 
motorcycle's maximum rated RPM shall be tested using the unmodified 
motorcycle's maximum rated RPM to determine closing RPM or test RPM.
    (ii) The standards set forth in paragraph (a) of this section for 
street motorcycles meeting the definition of Sec. 205.151(a)(2)(ii) 
(moped-type street motorcycles) refer to noise emissions measured in 
accordance with the measurement methodology specified in appendix I-2.
    (2) Exhaust system components sold as separate products shall be 
tested as part of a system made up of that part and original equipment 
components to complete the system.
    (3) Exhaust system components sold as separate products which are 
incompatible with original equipment components necessary to make a 
complete exhaust system, or which would not meet standards as prescribed 
in this subpart in such configuration, may be tested with non-original 
equipment components provided that the provisions of Sec. 
205.169(e)(1)(ii)(B) are carried out.



Sec. 205.167  Consideration of alternative test procedures.

    The Administrator may approve applications from manufacturers of 
original equipment and replacement exhaust systems for the approval of 
test procedures which differ from those contained in this subpart so 
long as the alternative procedures have been demonstrated to correlate 
with the prescribed procedure. To be acceptable, alternative test 
procedures must be such that the test results obtained will identify all 
those test exhaust systems which would not comply with the noise 
emission standards prescribed in Sec. 205.166 when tested in accordance 
with the measurement methodology specified in appendix I. After approval 
by the Administrator, testing conducted by manufacturers using 
alternative test procedures may be accepted by the Administrator for all 
purposes including, but not limited to, production

[[Page 144]]

verification testing and selective enforcement audit testing.



Sec. 205.168  Requirements.



Sec. 205.168-1  General requirements.

    (a) Each manufacturer of motorcycle exhaust systems manufactured for 
Federally regulated motorcycles and distributed in commerce in the 
United States which are subject to the noise emission standards 
prescribed in this subpart and not exempted in accordance with subpart 
A, Sec. 205.5:
    (1) Must label each exhaust system in accordance with the 
requirements of Sec. 205.169 of this subpart; and
    (2) Must only manufacture exhaust systems which conform to the 
applicable noise emission standard established in Sec. 205.166 of this 
regulation when installed on any Federally regulated motorcycle for 
which it has been designed and marketed.
    (b) The manufacturer who is required to conduct testing to 
demonstrate compliance with a particular standard must satisfy all other 
provisions of this subpart applicable to that standard.
    (c) Prior to distribution into commerce of exhaust systems of a 
specific category, the manufacturer of the exhaust system shall verify 
the category in accordance with this subpart.
    (1) Not withstanding paragraph (a)(1) of this section, the 
manufacturer may distribute in commerce exhaust systems of that category 
for up to 90 days if weather or other conditions beyond the control of 
the manufacturer make testing of a category impossible and if the 
following conditions are met:
    (i) The manufacturer performs the tests required under paragraph (d) 
or (e) of this section on such category as soon as conditions permit;
    (ii) [Reserved]
    (d) The requirements for each exhaust system category consist of:
    (1) Testing in accordance with Sec. 205.171-1 of an exhaust system 
selected in accordance with Sec. 205.171-2.
    (2) Compliance of the test exhaust system on a motorcycle for which 
it is marketed with the applicable standard when tested in accordance 
with appendix I; and
    (e) A manufacturer is required to verify all categories of exhaust 
systems within his product line for each class of Federally regulated 
motorcycle for which it is designed and marketed. A category of a 
replacement exhaust system is defined by a separate combination of at 
least the following parameters:
    (1) Muffler/Silencer: (i) Volume; (ii) type of absorption material; 
(iii) amount of absorption material; (iv) length; (v) diameter; (vi) 
directional flow of exhaust gas; (vii) interior construction; (viii) 
shell and inner construction material; (ix) number of header pipes 
entering muffler; and (x) specific motorcycle application.
    (2) Expansion Chamber: (i) Volume; (ii) diameter; (iii) construction 
material; (iv) directional flow of exhaust gas; (v) length; and (vi) 
specific motorcycle application.
    (3) Spark Arrestors: (i) Volume; (ii) construction material; (iii) 
directional flow of exhaust gas; (iv) length; (v) diameter, and (vi) 
specific motorcycle application.
    (4) Other Exhaust System Components: (i) Volume; (ii) shape; (iii) 
length; (iv) diameter; (v) material; (vi) directional flow of exhaust 
gas; and (vii) specific motorcycle application.
    (f) Exhaust system components sold as separate products shall be 
tested pursuant to Sec. 205.166(b).
    (g) Original equipment exhaust systems that are also sold as 
replacement systems for the same motorcycle configuration need not be 
tested under this subpart if they have been tested or represented in a 
test report under subpart D of this part.
    (h) A manufacturer has the following alternatives if any test 
exhaust system is determined not to be in compliance with applicable 
standards:
    (i) Modify the test exhaust system and demonstrate by testing that 
it meets applicable standards. The manufacturer must modify all 
production exhaust systems of the same category in the same manner as 
the test exhaust system before distribution in commerce.

[47 FR 57722, Dec. 28, 1982; 48 FR 27040, June 13, 1983]

[[Page 145]]



Sec. 205.168-11  Order to cease distribution.

    (a) If a category of exhaust systems is found not to comply with 
this subpart because it has not been verified or labeled as required by 
Sec. 205.169, the Administrator may issue an order to the manufacturer 
to cease distribution in commerce exhaust systems of that category. This 
order will not be issued if the manufacturer has made a good faith 
attempt to properly production verify the category and can establish 
such good faith.
    (b) Any such order shall be issued after notice and opportunity for 
a hearing which will be held in accordance with title 5 U.S.C. 554.

[45 FR 86718, Dec. 31, 1980, as amended at 48 FR 27040, June 13, 1983]



Sec. 205.169  Labeling requirements.

    (a) The manufacturer of any product (including the manufacturer of 
newly produced motorcycles) subject to this subpart must, at the time of 
manufacture, affix a permanent, legible label, or mark of the type and 
in the manner described below, containing the information provided 
below, to all such exhaust systems or exhaust system components to be 
distributed in commerce.
    (b) The labels or marks shall be affixed in such a manner that they 
cannot be removed without destroying or defacing them, and must not be 
applied to any part which is easily detached from such product.
    (c) The label or mark shall be in a readily visible position when 
the exhaust system or exhaust system component is installed on all 
motorcycles for which it is designed and marketed.
    (d) All required language shall be lettered in the English language 
in block letters and numerals in a color that contrasts with its 
background.
    (e) The label or mark must contain the following information:
    (1) For exhaust systems subject to the noise emission standards of 
Sec. 205.166:
    (i) The label heading: Motorcycle Exhaust System Noise Emission 
Control Information;
    (ii)(A) For original equipment and replacement exhaust system, the 
following statement:

    This (manufacturer's name) exhaust system (serial number) meets EPA 
noise emission requirements of (noise emission standard) dBA for the 
following motorcycles: (list of model specific codes). Installation of 
this exhaust system on motorcycle models not specified may violate 
Federal law.

    (B) For exhaust system components designed and marketed for 
motorcycles, and tested in accordance with Sec. 205.168 as a 
constituent of a complete exhaust system comprising non-original 
equipment components (other than itself), as provided for in Sec. 
205.166(b)(3), the following statement:

    This (manufacturer's name) (type of component) (serial number), when 
installed with a legal (type of component), meets EPA noise emission 
requirements of (noise emission standard) dBA for the following 
motorcycles: (list of model specific codes). Installation of this 
exhaust system components on motorcycle models not specified may violate 
Federal law.

    (iii) The model specific code must be the same as used by the motor 
cycle manufacturer and described in Sec. 205.158(a)(6).
    (2) For exhaust systems designed solely for use on competition 
motorcycles (as defined by Sec. 205.151(a)(3) and so designated and 
labeled by the manufacturer), the statement:

    This product is designed for use on closed course competition 
motorcycles only and does not conform to U.S. EPA noise emission 
standards. Used on motorcycles subject to EPA noise regulations 
constitutes tampering and is a violation of Federal law unless it can be 
shown that such use does not cause the motorcycle to exceed applicable 
Federal standards.

    (3) For exhaust systems designed solely for use on motorcyles 
manufactured before January 1, 1982, the statement:

    This product is designed for use on pre-1982 model year motorcycles 
only and does not conform to U.S. EPA noise emission standards. Use on 
motorcycles subject to EPA noise regulations constitutes tampering and 
is a violation of Federal law unless it can be shown that such use does 
not cause the motorcycle to exceed applicable Federal standards.

    (4) For replacement exhaust systems manufactured in the United 
States solely for use outside the U.S. and not conforming to the noise 
emissions

[[Page 146]]

standards of this regulation, the statement: ``For Export Only.''

[45 FR 86718, Dec. 31, 1980, as amended at 47 FR 57722, Dec. 28, 1982]



Sec. 205.170  Testing by the Administrator.

    (a)(1) In order for the Administrator to determine whether such 
exhaust systems or a manufacturer's test facility conform to applicable 
regulations, the Administrator may require that exhaust systems to be 
tested pursuant to the Act be submitted to him, at such place and time 
as he reasonably designates. He may designate the quantity of exhaust 
systems and the duration of time he reasonably requires for the purpose 
of conducting tests in accordance with test procedures described in 
appendix I. The manner in which the Administrator conducts such tests, 
the EPA test facility, and the test procedures employed will be based 
upon good engineering practice and meet or exceed the requirements of 
appendix I.
    (2) If the Administrator specifies that he will conduct such testing 
at the manufacturer's facility, the manufacturer shall make available 
instrumentation and equipment of the type required for test operators by 
these regulations. The Administrator may conduct such tests with his own 
equipment, having specifications equal to or exceeding the performance 
specifications of the instrumentation and equipment required in these 
regulations.
    (3) The manufacturer may observe tests conducted by the 
Administrator pursuant to this section on exhaust systems produced by 
the manufacturer and may copy the data accumulated from such tests. The 
manufacturer may inspect any of the exhaust systems before and after 
testing by the Administrator.
    (b)(1) If, based on tests conducted by the Administrator or on other 
relevant information, the Administrator determines that the test 
facility does not meet the requirements of appendix I or the 
requirements for an alternative test procedure approved under Sec. 
205.154, the Administrator will give notice to the manufacturer in 
writing of his determination and the reasons underlying it.
    (2) The manufacturer may, at any time within 15 days after receipt 
of a notice issued under paragraph (b)(1) of this section, request a 
hearing conducted in accordance with 5 U.S.C. 554 on the issue of 
whether his test facility met the requirements. Such notice will not 
take effect until 15 days after its receipt by the manufacturer, or, if 
a hearing is requested under this paragraph, until adjudication by the 
administrative law judge.
    (3) After any notice issued under paragraph (b)(1) of this section 
has taken effect, no data thereafter derived from that test facility 
will be acceptable for purposes of this subpart.
    (4) The manufacturer may request in writing that the Administrator 
reconsider his determination under paragraph (b)(1) of this section 
based on data or information which indicates that changes have been made 
to the test facility and that such changes have resolved the reasons for 
disqualification.
    (5) Within 10 working days after receipt of the manufacturer's 
request for reconsideration pursuant to paragraph (b)(4) of this 
section, the Administrator will notify the manufacturer of his 
determination and the reasons underlying it with regard to the re quali 
fi ca tion of the test facility.
    (c) The Administrator will assume all reasonable costs associated 
with shipment of exhaust systems to the place designated pursuant to 
paragraph (a) of this section except with respect to:
    (1) [Reserved]
    (2) Testing of a reasonable number of exhaust systems (i) for 
purposes of selective enforcement auditing under Sec. 205.171, or (ii) 
if the manufacturer has failed to establish that there is a correlation 
between its test facility and the EPA test facility, or (iii) the 
Administrator has reason to believe, and provides the manufacturer with 
a statement of such reason, that the exhaust systems to be tested would 
fail to meet the standard prescribed in this subpart if tested at the 
EPA test facility, even though they would meet such standard if tested 
at the manufacturer's test facility;
    (3) Any testing performed during a period when a notice of non- 
conformance of the manufacturer's test facility issued pursuant to 
paragraph (b) of this section is in effect;

[[Page 147]]

    (4) Any testing performed at a place other than the manufacturer's 
facility as a result of the manufacturer's failure to permit the 
Administrator to conduct or monitor testing as required by this subpart; 
and
    (5) In addition to any exhaust systems included in paragraphs (c) 
(2), (3), or (4) of this section, testing of up to 10 percent of the 
manufacturer's exhaust systems for a model year if the Administrator 
determines testing these exhaust systems at the EPA test site is 
necessary to assure that a manufacturer has acted or is acting in 
compliance with the Act.

(Secs. 11 and 13 of the Noise Control Act (42 U.S.C. 4910, 4912); 42 
U.S.C. 4905; 86 Stat. 1237 and secs. 6, 10, 11, 13, Pub. L. 92-574, 86 
Stat. 1234 (42 U.S.C. 4905, 4909, 4910, 4912))

[45 FR 86718, Dec. 31, 1980; 46 FR 4918, Jan. 19, 1981, as amended at 47 
FR 57722, Dec. 28, 1982; 49 FR 26738, June 29, 1984]



Sec. 205.171  Selective enforcement auditing (SEA) requirements.



Sec. 205.171-1  Test request.

    (a) The Administrator will request all testing under Sec. 205.171 
by means of a test request addressed to the manufacturer.
    (b) The test request will be signed by the Assistant Administrator 
for Enforcement or his designee. The test request will be delivered to 
the plant manager or other responsible official as designated by the 
manufacturer.
    (c) The test request will specify the exhaust system category, model 
and model year of motorcycle selected for testing, the manufacturer's 
plant or storage facility from which the exhaust systems must be 
selected, the method of selection and the time at which the exhaust 
systems must be selected. The test request will also provide for 
situations in which the selected exhaust system is unavailable for 
testing. The test request may include an alternative exhaust system 
category designated for testing in the event that exhaust systems of the 
first specified category are not available for testing because the 
exhaust systems are not being manufactured at the specified plant or are 
not being manufactured during the specified time or are not being stored 
at the specified plant or storage facility.
    (d)(1) If the manufacturer projects a yearly production of fewer 
than 50 exhaust systems of the specified category to be tested, then, 
within five (5) days of receipt of the request, the manufacturer must 
notify the Administrator of such low volume production. The 
Administrator will then provide a revised test request specifying a 
testing plan which imposes no greater risk of failure (5%) at the 
acceptable quality level (10%) than the plan in appendix II. Upon 
receipt of the revised test request, the manufacturer must select and 
test a sample of exhaust systems from the category specified in the test 
request in accordance with this subpart and the conditions specified in 
the test request.
    (2) If the manufacturer produces 50 or more of the specified 
category, then, upon receipt of the test request, the manufacturer must 
select and test a sample of exhaust systems for the category specified 
in the test request in accordance with this subpart and the conditions 
specified in the test request.
    (e)(1) Any testing conducted by the manufacturer under a test 
request must be initiated within the time period specified in the test 
request; except that initiation may be delayed for increments of 24 
hours or one business day where ambient test site weather conditions, or 
other conditions beyond the control of the manufacturer, in that 24-hour 
period do not permit testing. The manufacturer must record the 
conditions for this period.
    (2) The manufacturer must complete noise emission testing on a 
minimum of ten exhaust systems per day unless otherwise provided by the 
Administrator or unless ambient test site conditions permit only the 
testing of a lesser number, in which event the ambient test site weather 
conditions for that period must be recorded.
    (3) The manufacturer is allowed 24 hours to ship exhaust systems 
from a sample from the assembly plant to the testing facility if the 
facility is not located at the plant or in close proximity to the plant. 
The Administrator may approve more time based upon a request by the 
manufacturer accompanied by a satisfactory justification.

[[Page 148]]

    (f) The Administrator may issue an order to the manufacturer to 
cease distribution in commerce of exhaust systems of a specified 
category being manufactured at a particular facility if:
    (1) The manufacturer refuses to comply with the provisions of a test 
request issued by the Administrator under this section; or
    (2) The manufacturer refuses to comply with any of the requirements 
of this section.
    (g) A cease distribution order will not be issued under paragraph 
(f) of this section if the manufacturer's refusal is caused by 
conditions and circumstances outside his control which render compliance 
with the provisions of a test request or with any other requirements of 
this section impossible. Conditions and circumstances outside the 
control of the manufacturer include, but are not limited to, the 
temporary unavailability of equipment and personnel needed to conduct 
the required tests, caused by uncontrollable factors such as equipment 
breakdown or failure or illness of personnel. Failure of the 
manufacturer to adequately plan for and provide the equipment and 
personnel needed to conduct the tests does not constitute uncontrollable 
factors. The manufacturer must bear the burden of establishing the 
presence of the conditions and circumstances required by this paragraph.
    (h) Any order to cease distribution will be issued only after notice 
and opportunity for a hearing in accordance with 5 U.S.C. 554.



Sec. 205.171-2  Test exhaust system sample selection and preparation.

    (a)(1) Exhaust systems comprising the sample which are required to 
be tested under a test request in accordance with this subpart must be 
selected consecutively as they are produced.
    (2) Test motorcycles and test exhaust systems to be used for testing 
of exhaust systems must be of the subject class which has been assembled 
using the manufacturer's normal production processes, in stock 
configuration including exhaust system, as sold or offered for sale in 
commerce.
    (3) Before the official test, the test motorcycle and test exhaust 
system must not be prepared, tested, modified, adjusted, or maintained 
in any manner unless such preparation, tests, modifications, adjustments 
or maintenance are part of the original equipment manufacturer's 
prescribed manufacturing and inspection procedures, and are documented 
in the manufacturer's internal motorcycle assembly and inspection 
procedures, or are required or permitted under this subpart, or are 
approved in advance by the Administrator.
    (4) Equipment or fixtures necessary to conduct the test may be 
installed on the motorcycle, if such equipment or fixtures shall have no 
effect on the noise emissions of the motorcycle as determined by the 
measurement methodology.
    (5) In the event of a motorcycle malfunction (i.e., failure to 
start, etc.) maintenance that is necessary may be performed to enable 
the vehicle to operate in a normal manner. This maintenance must be 
documented and reported in the final report pre pared and submitted in 
accordance with this subpart.
    (6) No quality control, quality assurance testing, assembly or 
selection procedures may be used on the test vehicle or any portion 
thereof, including parts and subassemblies, that will not normally be 
used during the production and assembly of all other motorcycles of that 
class which will be distributed in commerce, unless such procedures are 
required or permitted under this subpart or are approved in advance by 
the Administrator.
    (b) The Acceptable Quality Level (AQL) is 10 percent. The 
appropriate sampling plans associated with the designated AQL are 
contained in appendix II or the test request.
    (c) The exhaust systems of the category selected for testing must be 
assembled by the manufacturer for distribution in commerce using the 
manufacturer's normal production process.
    (d) Unless otherwise indicated in the test request, the manufacturer 
must initiate testing with the exhaust systems of the category specified 
in the test request which are next scheduled for production after 
receipt of the test request.
    (e) The manufacturer must keep on hand all products in the test 
sample

[[Page 149]]

until the sample is accepted or rejected in accordance with Sec. 
205.171-8; except that exhaust systems actually tested and found to be 
in conformance with this regulation need not be kept.

[45 FR 86718, Dec. 31, 1980, as amended at 47 FR 57723, Dec. 28, 1982]



Sec. 205.171-3  Test motorcycle sample selection.

    A test motorcycle to be used for selective enforcement audit testing 
of exhaust systems must be a motorcycle of the subject class which has 
been assembled using the manufacturer's normal production process, in 
stock configuration including exhaust system, and sold or offered for 
sale in commerce.



Sec. 205.171-6  Testing procedures.

    (a) The manufacturer of the exhaust system must conduct one valid 
test in accordance with the appropriate test procedure specified in 
appendix I for each exhaust system selected for testing under this 
subpart.
    (b) No maintenance may be performed on the test exhaust system 
except as provided by Sec. 205.171-2. In the event an exhaust system is 
unable to complete the noise emission test, the manufacturer may replace 
the exhaust system. Any replacement exhaust system must be a production 
exhaust system of the same category as the exhaust system which it 
replaced, and it is subject to all the provisions of this subpart.

[45 FR 86718, Dec. 31, 1980, as amended at 47 FR 57723, Dec. 28, 1982]



Sec. 205.171-7  Reporting of the test results.

    (a)(1) The manufacturer must submit a copy of the test report for 
all testing conducted pursuant to Sec. 205.171 at the conclusion of 
each 24-hour period during which testing is done.
    (2) For each test conducted, the manufacturer must provide the 
following information:
    (i) Category identification where applicable;
    (ii) Year, manufacturing date, serial number and model of exhaust 
system;
    (iii) Year, make serial number, and model of test motorcycle; and
    (iv) Test results by serial numbers.
    (b) In the case where an EPA Enforcement Officer is present during 
testing required by this subpart, the written reports requested in 
paragraph (a) of this section may be given directly to the Enforcement 
Officer.
    (c) Within 5 days after completion of an SEA, the manufacturer must 
submit to the Administrator a final report which will include the 
following:
    (1) The name, location, and description of the manufacturer's noise 
emission test facilities which meet the specifications of appendix I and 
where utilized to conduct testing reported under this section, except, 
that a test facility that has been described in a previous submission 
under this subpart need not again be described, but must be identified 
as that facility.
    (2) The following information for each noise emission test 
conducted:
    (i) The individual records required by Sec. 205.172 (a)(2) for all 
noise emission tests including for each invalid test, the reason for 
invalidation;
    (ii) A complete description of any modification, repair, 
preparation, maintenance, or testing, which could affect the noise 
emissions of the product and which was performed on the test exhaust 
system but not performed on all other production exhaust systems;
    (iii) The test results for any replacement exhaust system and the 
reason for its replacement.
    (3) A complete description of the sound data acquisition system if 
other than that specified in appendix I.
    (4) The following statement and endorsement:

    This report is submitted pursuant to section 6 and section 13 of the 
Noise Control Act of 1972. To the best of (company name) knowledge, all 
testing for which data is reported here was conducted in strict 
conformance with applicable regulations under 40 CFR Part 205 et seq., 
all the data reported here are a true and accurate representation of 
such testing, and all other information reported here is true and 
accurate. I am aware of the penalties associated with vio la tions of 
the Noise Control Act of 1972 and the regulations thereunder. 
(authorized rep re senta tive).

    (5) Additional information required by the test request.
    (d) Information required to be submitted to the Administrator under 
this

[[Page 150]]

section must be sent to the following address: Director, Noise and 
Radiation Enforcement Division, (EN-387), U.S. Environmental Protection 
Agency, Washington, DC 20460.



Sec. 205.171-8  Passing or failing under SEA.

    (a) A failing exhaust system is one which, when installed on any 
motorcycle which is in compliance with the requirements of subpart D and 
for which it is designed and marketed, together with such motorcycle 
produces a measured noise level in excess of the applicable noise 
emission standard in Sec. 205.166.
    (b) The number of failing vehicles in a sample determines whether 
the sample passes or fails (See applicable tables in appendix II). If 
the number of failing vehicles is greater than or equal to the number in 
Column B, the sample fails. If the number of failing vehicles is less 
than or equal to the number in Column A, the sample passes.
    (c) Pass or failure of a SEA takes place when a decision that an 
exhaust system is a passing or failing unit is made on the last exhaust 
system required to make a decision under paragraph (b) of this section.
    (d) If the manufacturer passes the SEA, he will not be required to 
perform any additional testing on subsequent exhaust systems to satisfy 
the test request.
    (e) The Administrator may terminate testing earlier than required in 
paragraph (b) of this section, based on a request by the manufacturer, 
accompanied by voluntarily ceasing distribution in commerce of exhaust 
systems from the category in question, manufactured at the plant which 
produced the exhaust systems being tested. Before reinitiating 
distribution in commerce of that exhaust system category from that 
plant, the manufacturer must take the action described in Sec. 205.171-
10(a)(1) and (2).



Sec. 205.171-9  Continued testing.

    (a) If an SEA failure occurs according to paragraph (b) of Sec. 
205.171-8, the Administrator may require that any or all exhaust systems 
of that category produced at that plant be tested before distribution in 
commerce.
    (b) The Administrator will notify the manufacturer in writing of his 
intent to require continued testing of exhaust systems under paragraph 
(a) of this section.
    (c) The manufacturer may request a hearing on the issues of whether 
the SEA was conducted properly; whether the criteria for SEA failure 
have been met; and the appropriateness or scope of a continued testing 
order. If a hearing is requested, the hearing will begin no later than 
15 days after the date on which the Administrator received the hearing 
request. Neither the request for a hearing nor the fact that a hearing 
is in progress will affect the responsibility of the manufacturer to 
commence and continue testing required by the Administrator pursuant to 
paragraph (a) of this section.
    (d) Any tested exhaust system which demonstrates conformance with 
the applicable standard may be distributed into commerce.
    (e) Any distribution into commerce of an exhaust system which does 
not comply with the applicable standard is a prohibited act.



Sec. 205.171-10  Prohibition on distribution in commerce; manufacturer's 

remedy.

    (a) The Administrator will permit the manufacturer to cease testing 
under Sec. 205.171-9 after the manufacturer has taken the following 
actions:
    (1) Submission of a written report to the Administrator which 
identifies the reason for the noncompliance of the exhaust systems, 
describes the problem and describes the proposed quality control or 
quality assurance remedies to be taken by the manufacturer to correct 
the problem.
    (2) Demonstration that the specified exhaust system category has 
passed a retest conducted in accordance with Sec. 205.171 and the 
conditions specified in the test request.
    (b) The manufacturer may begin testing under paragraph (a)(2) of 
this section upon submitting the report, required by paragraph (a)(1) of 
this section any may cease continued testing upon making the 
demonstration required by paragraph (a)(2) of this section. The 
Administrator may require resumption of continued testing if he

[[Page 151]]

determines that the manufacturer has not satisfied the requirements of 
paragraphs (a)(1) and (2) of this section.
    (c) Any exhaust system failing the noise emission tests conducted 
pursuant to Appendix I may not be distributed into commerce until 
necessary adjustment or repairs have been made and the exhaust system 
passes a retest.

[45 FR 86718, Dec. 31, 1980, as amended at 47 FR 57723, Dec. 28, 1982]



Sec. 205.172  Maintenance of records; submittal of information.

    (a) Except as otherwise provided in regulation, the manufacturer of 
any new exhaust system subject to any of the standards or procedures 
prescribed in this subpart must establish, maintain and retain the 
following adequately organized and indexed records:
    (1) General records:
    (i) Identification and description by category parameters of all 
exhaust systems in the manufacturer's product line;
    (ii) A description of any procedures other than those contained in 
this subpart used to perform noise emission tests on any test exhaust 
system;
    (iii) A record of the calibration of the acoustical instrumentation 
as is described in appendix I;
    (iv) A record of the date of manufacture of each exhaust system 
subject to this subpart, keyed to the serial number.
    (2) Individual records for test exhaust systems:
    (i) A complete record of all noise emission tests performed for 
Production Verification and Selective Enforcement Audit (except tests 
performed by EPA directly), including all individual worksheets and 
other documentation or exact copies relating to each test;
    (ii) A record of the information recorded as described in Appendix 
I; and
    (iii) A record and description of all repairs, maintenance and other 
servicing which were performed before successful testing of the exhaust 
system pursuant to these regulations and which could affect the noise 
emission of the exhaust system, giving the date and time of the 
maintenance or service, the reason for it, the person authorizing it, 
and the names of supervisory personnel responsible for the conduct of 
the maintenance or service.
    (3) A properly filed production verification report following the 
format prescribed by the Administrator in Sec. 205.168-3 fulfills the 
requirements of paragraphs (a)(1)(i) and (ii) of this section.
    (4) All records required to be maintained under this subpart must be 
retained by the manufacturer for a period of three (3) years from the 
production verification date. Records may be retained as hard copy or 
alternatively reduced to microfilm, punch cards, etc., depending on the 
record retention procedures of the manufacturer; however, when an 
alternative method is used, all information contained in the hard copy 
must be contained in the copy made by the alternative method.
    (b) The manufacturer must, upon request, submit to the Administrator 
the following information with regard to new exhaust system production:
    (1) Number of exhaust systems, by category, scheduled for production 
for the time period designated in the request.
    (2) Number of exhaust systems, by category, produced during the time 
period designated in the request.
    (c) The reporting requirements of this regulation will no longer be 
effective after five (5) years from the last effective date of this 
regulation. However, the requirements will remain in effect if the 
Administrator is taking appropriate steps to repromulgate or modify the 
reporting requirements at that time.



Sec. 205.173  In-use requirements.



Sec. 205.173-1  Warranty.

    (a) The exhaust system manufacturer must include in the information 
supplied to the ultimate purchaser pursuant to Sec. 205.173-4, the 
following statement:

                         Noise Emission Warranty

    [The manufacturer] warrants that this exhaust system, at time of 
sale, meets all applicable U.S. E.P.A. Federal noise standards. This 
warranty extends to the first person who buys this exhaust system for 
purposes other than resale, and to all subsequent buyers. Warranty 
claims should be direct to ------. (Manufacturer shall fill in this 
blank

[[Page 152]]

with his name, address and telephone number.)

    (b) [Reserved]
    (c) All information must be sent to:

Director, Noise and Radiation Enforcement Division (EN-387), 
Environmental Protection Agency, Washington, DC 20460.

[45 FR 86718, Dec. 31, 1980, as amended at 47 FR 57723, Dec. 28, 1982]



Sec. 205.173-2  Tampering.

    The manufacturer must include the following statement pursuant to 
Sec. 205.173-4 with each product of that category the manufacturer 
distributes into commerce:

                          Tampering Prohibition

    Federal law prohibits any modification to this exhaust system which 
causes the motorcycle to exceed the Federal noise standard. Use of the 
motorcycle with such a modified exhaust system is also prohibited.
    Acts likely to constitute tampering include removal or puncturing 
the muffler, baffles, header pipes, or any other component which 
conducts exhaust gases.

[45 FR 86718, Dec. 31, 1980, as amended at 47 FR 57723, Dec. 28, 1982]



Sec. 205.173-3  Warning statement.

    The manufacturer must include the following statement pursuant to 
Sec. 205.173-4 with each product of that category the manufacturer 
distributes into commerce:

    Warning: This product should be checked for repair or replacement if 
the motorcycle noise has increased significantly through use. Otherwise, 
the owner may become subject to penalties under state and local 
ordinances.

[45 FR 86718, Dec. 31, 1980, as amended at 47 FR 57723, Dec. 28, 1982]



Sec. 205.173-4  Information sheet.

    The manufacturer must include the Noise Emissions Warranty 
statement, Tampering Prohibition statement and the Warning statement 
with each product. All three statements must be printed on a white sheet 
or card at least 8\1/2\x11. Each statement must 
cover no more than \1/3\ of the sheet or card. No other printing must be 
on the sheet. The statements must be printed in black ink; the statement 
headings must be in capital letters in a minimum size type of 12 point 
(pica type) or its equal; and the text of the statement must be a 
minimum size type of 10 point (elite type) or its equal. The sheet or 
card must be placed with the exhaust system inside any packaging. If 
there is no packaging, the sheet or card must be affixed to the exhaust 
system so that it will not be accidentally detached in shipping.



Sec. 205.174  Remedial orders.

    The Administrator may issue appropriate remedial orders to a 
manufacturer if products are distributed into commerce not in compliance 
with the regulations of this subpart. Potential orders are stop sale 
orders, orders to cease distribution, relabel, replace or recall, or any 
other orders appropriate in the specific circumstances. A remedial order 
will be issued only after notice and opportunity for a hearing in 
accordance with 5 U.S.C. 554.



   Sec. Appendix I to Subparts D and E of Part 205--Motorcycle Noise 
                        Emission Test Procedures

Appendix I-1 to Subparts D and E--Test Procedure for Street and off-road 
                               Motorcycles

    (a) Instrumentation. Proper usage of all test instrumentation is 
essential to obtain valid measurements. Operating manuals or other 
literature furnished by the instrument manufacturer must be referred to 
for both recommended operation of the instrument and precautions to be 
observed. The following instrumentation must be used, where applicable:
    (1) A sound level measurement system which meets the type S1A 
requirements of American National Standard Specification for Sound Level 
Meters, ANSI S1.4-1971. As an alternative to making direct measurements 
using a sound level meter, a microphone or sound level meter may be used 
with a magnetic tape recorder and/or a graphic level recorder or 
indicating instrument provided that the system meets the performance 
requirements of ANSI S1.4-1971. The sound level measurement system must 
be calibrated at least annually to insure that the system meets the 
performance requirements of ANSI S1.4-1971.
    (2) An acoustic calibrator with an accuracy of within 0.5 dB. The calibrator must be checked annually to 
verify that its output is within the specified accuracy.
    (3)(i) An engine speed measurement system having the following 
characteristics:

[[Page 153]]

    (A) Steady-state accuracy of within 3% of 
actual engine speed in the range of 45% to 100% of the engine speed 
(RPM) where peak net brake power (maximum rated RPM) is developed; and
    (B) Response characteristics such that, when closing RPM is 
indicated under an acceleration as described below, actual engine speed 
is no more than 3 percent (of closing RPM) greater than the specified 
closing RPM.
    (ii) The vehicle tachometer may be used to ascertain:
    (A) The approach RPM provided it meets the specifications in 
paragraph (a)(3)(i)(A).
    (B) The closing RPM provided it meets the specifications in 
paragraphs (a)(3)(i)(A) and (B).
    (iii) Indirect engine speed measurement systems, such as systems 
which determine engine speed from vehicle speed measurement, may be used 
provided the specifications of paragraph (a)(1)(i) are met.
    (4) An anemometer with steady-state accuracy of within 10% at 20 km/h (12.4 mph).
    (5) A microphone wind screen which does not affect microphone 
response more than 0.5 dB for frequencies of 20-
4000 Hz or 1.0 dB for frequencies of 4000-10,000 
Hz, taking into account the orientation of the microphone.
    (b) Test site. (1) The measurement area within the test site must 
meet the following requirements and be laid out as described:
    (i) The following points must be established:
    (A) Microphone target point--a reference point on the vehicle path;
    (B) End point--a point on the vehicle path 7.5 0.3m (24.6 1.0 ft) beyond the 
microphone target point, and
    (C) Microphone location point--a point 15 0.3m 
(49.2 1.0 ft) from the microphone target point on 
a normal to the vehicle path through the microphone target point.
    (ii) The microphone must be:
    (A) Positioned at the microphone location point 1.2 0.1 m (3.9 0.3 ft) above the 
ground plane; and
    (B) Oriented in a plane perpendicular to the vehicle path, and at an 
angle for which the microphone was calibrated to have the flatest 
response characteristics over the frequency range of 100 Hz to 10,000 Hz 
when measured with respect to the motorcycle source.
    (iii) The surface of the ground within at least the triangular area 
formed by the microphone location and the points 15 0.3m (49.2 1.0 ft.) prior to and 
15 0.3 m (49.2 1.0 ft.) 
beyond the microphone target point must be flat (+ 5 cm (2.0 in)) and 
level (grade not more than 0.5% along vehicle path), have a concrete or 
sealed asphalt surface, and be free from snow, soil or other extraneous 
material.
    (iv) The vehicle path must be relatively smooth and of sufficient 
length for safe acceleration, deceleration and stopping of the 
motorcycle.
    (2) The test site must be flat, open space free of large sound-
reflecting surfaces (other than the ground), such as parked vehicles, 
sign-boards, buildings or hillsides located within a 30 0.3 m (98.4 1.0 ft) radius of the 
microphone location and the following points on the vehicle path (see 
Figure 1):
    (i) The microphone location point;
    (ii) A point 15 0.3 m (49.2 1.0 ft.) before the microphone target point; and
    (iii) A point 15 0.3 m (49.2 1.0 ft) beyond the microphone target point.
    (c) Measurement procedure. (1) To establish the acceleration point, 
the end point must be approached in second gear from the reverse of the 
intended test direction at a constant engine speed of 50% of maximum 
rated RPM or closing RPM less ten percent (of maximum rated RPM), 
whichever is lower, (2.5% of observed reading). 
When the front of the motorcycle reaches the end point (approached from 
the reverse direction), the throttle must be smoothly and fully opened 
to accelerate the motorcycle past the microphone target point under wide 
open throttle. When the motorcycle reaches closing RPM the throttle must 
be smoothly and fully closed. An ignition disable device may be used to 
turn off the engine at closing RPM in lieu of closing the throttle 
manually. The location of the front of the motorcycle at the time of 
throttle closure is the acceleration point for the test runs. The test 
runs must be made in the opposite direction. A sufficient number of 
trial runs must be made to assure accurate establishment of the 
acceleration point.
    (2) Closing RPM must be determined according to the motorcycle 
engine displacement, as follows (see Figure 2):

------------------------------------------------------------------------
                                             Closing RPM (Fraction of
           Displacement (cc)               maximum rated RPM--percent)
------------------------------------------------------------------------
0 to 175...............................  95
176 to 675.............................  109 to 0.08x(engine
                                          displacement in cc)
676 and above..........................  55
------------------------------------------------------------------------

    (3) The distance from the acceleration point to the end point must 
be at least 10 m (32.8 ft). If this distance is less than 10 m (32.8 ft) 
by the procedure specified in paragraph (c)(1), above, third gear, if 
the motorcycle is so equipped, must be used. If the distance is still 
less than 10 m (32.8 ft), fourth gear, if the motorcycle is so equipped, 
must be used, and so on. If closing RPM is reached before the vehicle 
travels 10 m (32.8 ft), with the vehicle in its highest gear, the 
throttle must be opened less rapidly, but in such a manner that full 
throttle and closing RPM are attained at the end point.

[[Page 154]]

    (4) If the motorcycle is equipped with an automatic transmission, 
the procedure specified in paragraph (c)(1), must be followed except 
that the lowest selectable range must be employed, and the procedure 
specified in paragraph (c)(3) must be followed using the next selectable 
higher range, if necessary, and if the vehicle is so equipped. If 
closing RPM is reached before the vehicle travels 10 m (32.8 ft.), the 
throttle must be opened less rapidly, but in such a manner that full 
throttle and closing RPM are attained at the end point.
    (5) Throttle opening must be controlled to avoid excessive wheel 
slip or lift-off.
    (6) To conduct a sound measurement, the motorcycle must proceed 
along the vehicle path in the forward direction in second gear (or 
higher gear as applicable under paragraph (c)(3)) at a constant engine 
speed of 50% of maximum rated RPM or at closing RPM less ten percent (of 
maximum rated RPM), whichever is lower (2.5 
percent of observed reading). When the front of the vehicle reaches the 
acceleration point, the throttle must be smoothly and fully opened. Full 
acceleration must continue until closing RPM is reached, which must 
occur within 1.0 m (3.3 ft.) of the end point, and 
at which time the throttle must be smoothly and fully closed. An 
ignition disable de vice may be used to turn off the engine at clos ing 
RPM in lieu of closing the throttle manually.
    (7) A sufficient number of preliminary runs must be conducted before 
the testing to familiarize the rider with the test procedure and 
operating conditions of the vehicle. The engine temperature must be 
within the normal operating range prior to each run.
    (d) Measurements. (1) The sound level meter must be set for fast 
response and for the A-weighting network. The microphone wind screen 
must be used. The sound level meter must be calibrated with the acoustic 
calibrator as often as is necessary throughout testing to maintain the 
accuracy of the measurement system.
    (2) The sound level meter must be observed throughout the 
acceleration period. The highest sound level obtained for the run must 
be recorded.
    (3) Measurements must be made until at least four readings from each 
side are within 2 dB of each other. The noise level for each side is the 
average of the four which are within 2 dB of each other. The noise level 
reported must be for that side of the motorcycle having the highest 
noise level.
    (4) While making sound level measurements, not more than one person 
other than the rider and the observer reading the meter may be within 15 
m (49.2 ft) of the vehicle or microphone, and that person must be 
directly behind the observer reading the meter, on a line through the 
microphone and the observer.
    (5) The ambient noise level (including wind effects) at the test 
site due to sources other than the motorcycle being measured must be at 
least 10 dB lower than the noise level at the microphone location 
produced by the motorcycle under test.
    (6) Wind speed at the test site during tests must be less than 20 
km/h (12.4 mph).
    (e) Required data. For each valid test, the following data must be 
recorded:
    (1) Motorcycle type, serial number, model year, and date of 
manufacture.
    (2) Names of persons conducting test.
    (3) Test location.
    (4) Wind speed and ambient noise level measured on the same day as 
the test and representative of conditions during the test.
    (5) Motorcycle engine displacement, maximum rated RPM, and closing 
RPM.
    (6) The gear used for testing if other than second gear; or type of 
transmission and description of testing if motorcycle is equipped with 
automatic transmission.
    (7) Description of the sound level meter including type, serial 
number, and calibration date.
    (8) Description of the external acoustic calibrator including type, 
serial number, and calibration date.
    (9) Description of the tachometer or engine speed measurement system 
used for conducting the test.
    (10) Maximum noise level for each pass on each side of the 
motorcycle including invalid readings and reasons for invalidation.
    (11) Reported noise level.
    (12) Other information as appropriate to completely describe testing 
conditions and procedure.

Appendix I-2 to Subparts D and E--Test Procedure for Street Motorcycles 
 That Meet the Definition of Sec. 205.151(a)(2)(ii) (moped-type street 
                              motorcycles)

    (a) Instrumentation. Proper usage of all test instrumentation is 
essential to obtain valid measurements. Operating manuals or other 
literature furnished by the instrument manufacturer must be referred to 
for both recommended operation of the instrument and precautions to be 
observed. The following instrumentation must be used, where applicable:
    (1) A sound level measurement system which meets the type SIA 
requirements of American National Standard Specification for Sound Level 
Meters, ANSI S1.4-1971. As an alternative to making direct measurements 
using a sound level meter, a microphone or sound level meter may be used 
with a magnetic tape recorder and/or a graphic level recorder or 
indicating instrument provided that the system meets the performance 
requirements of ANSI S1.4-1971. The sound level measurement system must 
be calibrated at least annually to insure that the

[[Page 155]]

system meets the performance requirements of ANSI S1.4-1971.
    (2) An acoustic calibrator with an accuracy of within 0.5 dB. The calibrator must be checked annually to 
verify that its output is within the specified accuracy.
    (3) An anemometer with steady-state accuracy of within 10% at 20 km/h (12.4 mph).
    (4) A microphone wind screen which does not affect microphone 
response more than 0.5 dB for frequencies of 20-
4000 Hz or 1.0 dB for frequencies of 4000-10,000 
Hz, taking into account the orientation of the microphone.
    (b) Test site. (1) The measurement area within the test site must 
meet the following requirements and be laid out as described:
    (i) The following points must be established:
    (A) Microphone target point--a reference point on the vehicle path;
    (B) End point--a point on the vehicle path 7.5 0.3 m (24.6 1.0 ft) beyond the 
microphone target point; and
    (C) Microphone location point--a point 15 0.3 
m (49.2 1.0 ft) from the microphone target point 
on a normal to the vehicle path through the microphone target point. 
Alternately, the microphone location point may be a point 7.5 0.3 m (24.6 1.0 ft) from the 
microphone target point provided that the sound level reported is 
adjusted as provided in this appendix under paragraph (d)(3).
    (ii) The microphone must be:
    (A) Positioned at the microphone location point 1.2 0.1 m (3.9 0.3 ft) above the 
ground plane; and
    (B) Oriented in a plane perpendicular to the vehicle path, and at an 
angle for which the microphone was calibrated to have the flattest 
response characteristics over the frequency range of 100 Hz to 10,000 Hz 
when measured with respect to the motorcycle source.
    (iii) The surface of the ground within at least the triangular area 
formed by the microphone location and the points 15 0.3 m (49.2 1 ft) prior to and 15 
0.3 m beyond the microphone target point must be 
flat (5 cm (2.0 in)) and level (grade not more 
than 0.5% along vehicle path), have a concrete or sealed asphalt 
surface, and be free from snow, soil or other extraneous material.
    (iv) The vehicle path must be relatively smooth and of sufficient 
length for safe acceleration, deceleration and stopping of the 
motorcycle.
    (2) The test site must be a flat, open space free of large sound-
reflecting surfaces (other than the ground), such as parked vehicles, 
signboards, buildings or hillsides located within a 30 0.3 m (98.4 1.0 ft) radius of the 
microphone location and the following points on the vehicle path (see 
Figure 1):
    (i) The microphone location point;
    (ii) A point 15 0.3 m (49.2 1 ft) before the microphone target point; and
    (iii) A point 15 0.3 m (49.2 1 ft) beyond the microphone target point.
    (c) Measurement procedure. (1) The combined weight of the test rider 
and test equipment used on the motorcycle must not be more than 80 kg 
(176 lb) nor less than 75 kg (165 lb). Weights shall be placed on the 
motorcycle saddle behind the rider to compensate for any difference 
between the actual driver/equipment load and the required 75 kg (165 lb) 
minimum.
    (2) The motorcycle must approach the microphone target point with 
the throttle fully open and in the highest gear. The motorcycle must 
start such that maximum speed is reached before the vehicle is within 
7.5 m of the microphone target point. The motorcycle must continue along 
the vehicle path with fully open throttle and at maximum speed past the 
end point, at which time the throttle must be closed.
    (3) If the motorcycle is equipped with an automatic transmission, 
the procedure of paragraph (1), above, must be followed except that the 
highest selectable range shall be employed.
    (d) Measurements. (1) The sound level meter must be set for fast 
response and for the A-weighting network. The microphone wind screen 
must be used. The sound level meter must be calibrated with the acoustic 
calibrator as often as is necessary throughout testing to maintain the 
accuracy of the measurement system.
    (2) The sound level meter must be observed throughout the passby 
period. The highest noise level obtained for the run must be recorded.
    (3) At least three measurements shall be made for each side of the 
motorcycle. Measurements must be made until at least three readings from 
each side are within 2 dB of each other. The noise level for each side 
must be the average of the three. The noise level reported must be for 
that side of the motorcycle having the highest noise level. If the 
microphone location point is 7.5 m from the vehicle path as allowed in 
this appendix under paragraph (b)(1)(i)(c), the noise level must be 
adjusted by subtracting 6 dB prior to being reported.
    (4) While making noise level measurements, not more than one person 
other than the rider and the observer reading the meter may be within 15 
m (49.2 ft) of the vehicle or microphone, and that person must be 
directly behind the observer reading the meter, on a line through the 
microphone and the observer.
    (5) The ambient sound level (including wind effects) at the test 
site due to sources other than the motorcycle being measured must be no 
greater than 60 dB if the microphone is located 15 m from the vehicle 
path or 66 dB if the microphone is located 7.5 m from the vehicle path 
as allowed in this appendix under paragraph (b)(1)(i)(c).

[[Page 156]]

    (6) Wind speed at the test site during tests must be less than 20 
km/h (12.4 mph).
    (e) Required data. For each valid test, the following data must be 
recorded:
    (1) Motorcycle type, serial number, model year, and date of 
manufacture.
    (2) Names of persons conducting test.
    (3) Test location.
    (4) Wind speed and ambient noise level measured on the same day as 
the test and representative of conditions during the test.
    (5) Description of the sound level meter including type, serial 
number, and calibration date.
    (6) Description of the external acoustic calibrator including type, 
serial number, and calibration date.
    (7) Maximum noise level for each pass on each side of the motorcycle 
including invalid readings and reasons for invalidation.
    (8) Reported noise level.
    (9) Other information as appropriate to completely describe testing 
conditions and procedure.

[[Page 157]]

[GRAPHIC] [TIFF OMITTED] TC01FE92.054


[[Page 158]]





             Sec. Appendix II to Subpart E--Sampling Tables

         Table 1--Model Year Production Volume of 50-99 Vehicles
------------------------------------------------------------------------
                                                    Number of failing
                                                        vehicles
          Cumulative number of tests           -------------------------
                                                  Column A     Column B
------------------------------------------------------------------------
1.............................................  ...........  ...........
2.............................................  ...........  ...........
3.............................................  ...........            3
4.............................................  ...........            3
5.............................................  ...........            3
6.............................................  ...........            3
7.............................................            0            3
8.............................................            0            4
9.............................................            0            4
10............................................            0            4
11............................................            1            4
12............................................            1            4
13............................................            1            5
14............................................            1            5
15............................................            2            5
16............................................            2            5
17............................................            2            5
18............................................            2            5
19............................................            2            5
20............................................            4            5
------------------------------------------------------------------------


        Table 2--Model Year Production Volume of 100-199 Vehicles
------------------------------------------------------------------------
                                                    Number of failing
                                                        vehicles
          Cumulative number of tests           -------------------------
                                                  Column A     Column B
------------------------------------------------------------------------
1.............................................  ...........  ...........
2.............................................  ...........  ...........
3.............................................  ...........            3
4.............................................  ...........            3
5.............................................  ...........            3
6.............................................  ...........            3
7.............................................            0            4
8.............................................            0            4
9.............................................            0            4
10............................................            0            4
11............................................            1            4
12............................................            1            5
13............................................            1            5
14............................................            1            5
15............................................            1            5
16............................................            2            5
17............................................            2            5
18............................................            2            5
19............................................            2            5
20............................................            4            5
------------------------------------------------------------------------


        Table 3--Model Year Production Volume of 200-399 Vehicles
------------------------------------------------------------------------
                                                    Number of failing
                                                        vehicles
          Cumulative number of tests           -------------------------
                                                  Column A     Column B
------------------------------------------------------------------------
1.............................................  ...........  ...........
2.............................................  ...........  ...........
3.............................................  ...........            3
4.............................................  ...........            3
5.............................................  ...........            3
6.............................................  ...........            3
7.............................................            0            4
8.............................................            0            4
9.............................................            0            4
10............................................            0            4
11............................................            0            5
12............................................            1            5
13............................................            1            5
14............................................            1            5
15............................................            1            5
16............................................            2            5
17............................................            2            5
18............................................            2            5
19............................................            2            5
20............................................            4            5
------------------------------------------------------------------------


      Table 4--Model Year Production Volume of 400 or More Vehicles
------------------------------------------------------------------------
                                                    Number of failing
                                                        vehicles
          Cumulative number of tests           -------------------------
                                                  Column A     Column B
------------------------------------------------------------------------
1.............................................  ...........  ...........
2.............................................  ...........  ...........
3.............................................  ...........            3
4.............................................  ...........            3
5.............................................  ...........            3
6.............................................  ...........            4
7.............................................            0            4
8.............................................            0            4
9.............................................            0            4
10............................................            0            4
11............................................            0            5
12............................................            1            5
13............................................            1            5
14............................................            1            5
15............................................            1            5
16............................................            2            5
17............................................            2            5
18............................................            2            5
19............................................            2            5
20............................................            4            5
------------------------------------------------------------------------



PART 209_RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT 

OF 1972--Table of Contents




 Subpart A_Rules of Practice Governing Hearings for Orders Issued Under 
                 Section 11(d) of the Noise Control Act

Sec.
209.1 Scope.
209.2 Use of number and gender.
209.3 Definitions.
209.4 Issuance of complaint.
209.5 Complaint.
209.6 Answer.
209.7 Effective date of order in complaint.
209.8 Submission of a remedial plan.
209.9 Contents of a remedial plan.
209.10 Approval of plan, implementation.
209.11 Filing and service.
209.12 Time.

[[Page 159]]

209.13 Consolidation.
209.14 Motions.
209.15 Intervention.
209.16 Late intervention.
209.17 Amicus curiae.
209.18 Administrative law judge.
209.19 Informal settlement and consent agreement.
209.20 Conferences.
209.21 Primary discovery (exchange of witness lists and documents).
209.22 Other discovery.
209.23 Trade secrets and privileged information.
209.24 Default order.
209.25 Accelerated decision; dismissal.
209.26 Evidence.
209.27 Interlocutory appeal.
209.28 Record.
209.29 Proposed findings, conclusions.
209.30 Decision of the administrative law judge.
209.31 Appeal from the decision of the administrative law judge.
209.32 Review of the administrative law judge's decision in absence of 
          appeal.
209.33 Decision on appeal or review.
209.34 Reconsideration.
209.35 Conclusion of hearing.
209.36 Judicial review.

    Authority: Sec. 11, Noise Control Act of 1972 (42 U.S.C. 4910) and 
additional authority as specified.

    Source: 43 FR 34132, Aug. 3, 1978, unless otherwise noted.



 Subpart A_Rules of Practice Governing Hearings for Orders Issued Under 
                 Section 11(d) of the Noise Control Act



Sec. 209.1  Scope.

    These rules of practice govern all proceedings conducted in the 
issuance of an order under section 11(d) of the Noise Control Act of 
1972, 42 U.S.C. 4910.



Sec. 209.2  Use of number and gender.

    In these rules of practice, words in the singular number apply to 
the plural and words in the masculine gender apply to the feminine and 
vice versa.



Sec. 209.3  Definitions.

    All terms not defined in this section shall have the meaning given 
them in the Act.
    (a) Act means the Noise Control Act of 1972 (42 U.S.C. 4901 et 
seq.).
    (b) Administrative law judge means an administrative law judge 
appointed under 5 U.S.C. 3105 (see also 5 CFR part 930, as amended by 37 
FR 16787). ``Administrative law judge'' is synonymous with ``hearing 
examiner'' as used in Title 5 of the United States Code.
    (c) Administrator means the Administrator of the Environmental 
Protection Agency or his or her delegate.
    (d) Agency means the U.S. Environmental Protection Agency.
    (e) Complainant means the Agency acting through any person 
authorized by the Administrator to issue a complaint to alleged 
violators of the Act. The complainant shall not be the judicial officer 
or the Administrator.
    (f) Hearing clerk means the hearing clerk of the Environmental 
Protection Agency.
    (g) Intervener means a person who files a motion to be made a party 
under Sec. 209.15 or Sec. 209.16, and whose motion is approved.
    (h) Party means the Environmental Protection Agency, the 
respondent(s) and any interveners.
    (i) Person means any individual, corporation, partnership, or 
association, and includes any officer, employee, department, agency or 
instrumentality of the United States, a State, or any political 
subdivision of a State.
    (j) Respondent means any person against whom a complaint has been 
issued under this subpart.
    (k) Environmental Appeals Board means 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 
appeals filed under this part. An appeal 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 part 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

[[Page 160]]

be interpreted as referring to the Administrator.

[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5344, Feb. 13, 1992]



Sec. 209.4  Issuance of complaint.

    If the complainant has reason to believe that a person has violated 
any provision of the Act or the regulations, he or she may institute a 
proceeding for the issuance of a remedial order by issuing a complaint.



Sec. 209.5  Complaint.

    (a) Contents. The complaint shall include (1) specific reference to 
each provision of the Act or regulations which respondent is alleged to 
have violated; (2) a brief statement of the factual basis for alleging 
each violation; (3) the proposed order issued under section 11(d) of the 
Act to remedy the violation, signed by the Assistant Administrator for 
Enforcement, with notice that the order shall be effective 20 days after 
service of the complaint unless respondent requests a hearing under 
Sec. 209.6; (4) notice of respondent's right to request a hearing on 
any material fact or issue of law contained in the complaint, or on the 
appropriateness of the proposed order; and (5) a statement of whether 
the respondent must submit a remedial plan pursuant to Sec. 209.8.
    (b) Amendment of the complaint. At any time prior to the filing of 
an answer, the complainant may amend the complaint as a matter of right. 
Respondent shall have twenty (20) additional days from the date of 
service of the amended complaint to file an answer. At any time after 
the filing of an answer, the complaint may be amended upon motion 
granted by the administrative law judge.
    (c) Withdrawal of the complaint. Where, on the basis of new 
information or evidence, the complainant concludes that no violation of 
the Act or the regulations has been committed by the respondent or that 
the issuance of the complaint was otherwise inappropriate, the 
complainant may withdraw the complaint without prejudice at any stage in 
the proceeding.
    (d) Service of complaint. (1) Service of the complaint shall be made 
on the respondent personally (or on his or her representative), or by 
certified mail, return receipt requested.
    (2) Service upon a domestic or foreign corporation or upon a 
partnership or another unincorporated association which is subject to 
suit under a common name shall be made by personal service or certified 
mail, return receipt requested, directed to an officer or partner, a 
managing or general agent, or any other agent authorized by appointment 
or by Federal or State law to receive service of process.
    (3) Proof of service of the complaint shall be made by affidavit of 
the person making personal service, or by properly executed return 
receipt.



Sec. 209.6  Answer.

    (a) General. Where respondent (1) contests any material fact alleged 
in the complaint to constitute a violation of the Act or regulations; or 
(2) contends that the remedial order proposed in the complaint is 
inappropriate to the violation; or (3) contends that he or she is 
entitled to judgment as a matter of law, he or she shall file a written 
answer with the complainant. Any answer must be filed with the 
complainant within twenty (20) days after service of the complaint. 
Initiation of informal conferences with the Agency under Sec. 209.19 
does not add to the twenty (20) day period. The time per iod in which to 
file an answer may be extended by the Administrator upon motion.
    (b) Contents of the answer. The answer shall clearly and directly 
admit, deny or explain each of the factual allegations contained in the 
complaint with regard to which respondent has any knowledge. Whenever an 
allegation is denied, the answer shall state briefly the facts upon 
which the denial is based. The answer shall also state (1) whether a 
hearing is requested, (2) the facts respondent intends to place at 
issue, and (3) the circumstances or arguments which are alleged to 
constitute the grounds of defense.
    (c) Hearing upon the issues. A hearing upon the issues raised by the 
complaint and answer shall be held upon written demand of respondent.
    (d) Failure to plead specifically. A respondent's failure to plead 
specifically

[[Page 161]]

to any material factual allegation contained in the complaint shall 
constitute an admission of such allegation.
    (e) Amendment of the answer. The respondent may amend the answer 
upon motion granted by the administrative law judge.



Sec. 209.7  Effective date of order in complaint.

    (a) The order in the complaint is effective and binding on 
respondent 20 days after service of the complaint, unless respondent 
requests a hearing pursuant to Sec. 209.6. If the respondent does not 
request a hearing, the order is then a final order of the Agency.
    (b) Respondent may file a motion with the complainant to vacate the 
final order, reopen the proceedings and request a hearing after the 
order is effective. This motion must be filed within twenty (20) days 
after the effective date of the order. The motion shall state the 
reasons respondent failed to file a timely answer, and provide the 
information required by Sec. 209.6(b). The Administrator may, in his or 
her discretion and for good cause shown, grant the motion.



Sec. 209.8  Submission of a remedial plan.

    (a) The Administrator may require the respondent to submit a 
remedial plan. Notice of this requirement and the due date will be given 
in the complaint. If the respondent requests a hearing, the remedial 
plan required by the complaint need not be submitted. The final order 
may include a requirement that the respondent submit a remedial plan.
    (b) A respondent may always submit a remedial plan voluntarily in 
pursuit of informal settlement.

(Sec. 13, Noise Control Act (42 U.S.C. 4912))



Sec. 209.9  Contents of a remedial plan.

    (a) The Administrator will specify the requirements of the remedial 
plan. This may include, but is not limited to, the following 
information:
    (1) A detailed description of the products covered by the remedial 
order, including the category and/or configuration if applicable, and 
the make, model year and model number, if applicable.
    (2) A detailed description of the present location of the products, 
including a list of those in possession of the products and, if 
necessary, how the respondent intends to contact the persons in 
possession and retrieve the products.
    (3) Any appropriate remedies the respondent would propose as an 
alternative to the specific remedies proposed by the Administrator.
    (4) A detailed plan for implementing the remedies, both those 
proposed by the Administrator and those proposed by the respondent.
    (5) A detailed account of the costs of implementing each of the 
proposed plans.
    (b) Remedial plans shall be submitted to Director, Noise Enforcement 
Division (EN-387), Environmental Protection Agency, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460.

(Sec. 13, Noise Control Act (42 U.S.C. 4912))



Sec. 209.10  Approval of plan, implementation.

    (a) If the Administrator finds that the remedial plan is designed to 
remedy the noncompliance effectively, he or she will so notify the 
respondent in writing. If the remedial plan is not approved, the 
Administrator will provide the respondent with written notice of the 
disapproval and the reasons for the disapproval. The Administrator may 
give the respondent an opportunity to revise the plan, or the 
Administrator may revise the plan.
    (b) The respondent shall commence implementation of the approved 
plan upon receipt of notice from the Administrator that the remedial 
plan has been approved, or revised by the Administrator and then 
approved.

(Sec. 13, Noise Control Act (42 U.S.C. 4912))



Sec. 209.11  Filing and service.

    (a) After an answer containing a written demand for a hearing has 
been filed, an original and two copies of all documents or papers 
required or permitted to be filed under these rules of practice shall be 
filed with the hearing clerk.
    (b) When a party files with the hearing clerk any pleadings, any 
additional issues for consideration at the hearing, or any written 
testimony, documents, papers, exhibits, or materials, proposed

[[Page 162]]

to be introduced into evidence or papers filed in connection with any 
appeal, it shall serve copies upon all other parties. 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 
Noise Enforcement Division shall be mailed to: Director, Noise 
Enforcement Division, U.S. Environmental Protection Agency (EN-387), 
1200 Pennsylvania Ave., NW., Washington, DC 20460.
    (c) Service by mail is complete upon mailing. Filing is completed 
when the document reaches the hearing clerk. It shall be timely if 
mailed within the time allowed for filing as determined by the postmark.



Sec. 209.12  Time.

    (a) In computing any period of time prescribed or allowed by these 
rules of practice, the day of the act or event from which the designated 
period of time begins to run shall not be included, except as otherwise 
provided. Saturdays, Sundays, and Federal legal holidays shall be 
included in computing any period allowed for the filing of any document 
or paper, except that when a period expires on a Saturday, Sunday, or 
Federal legal holiday, the period shall be extended to include the next 
following business day.
    (b) 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, 3 days shall be added.



Sec. 209.13  Consolidation.

    The Administrator or the administrative law judge may consolidate 
two or more proceedings to be held under this section for 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 any issues that could otherwise have 
been raised.



Sec. 209.14  Motions.

    (a) All motions, except those made orally during the course of the 
hearing, shall be in writing, shall state the grounds with 
particularity, and shall set forth the relief or order sought.
    (b) Within 10 days after service of any motion filed under this 
section or within such other time as may be fixed by the Environmental 
Appeals Board or the administrative law judge, as appropriate, any party 
may serve and file an answer to the motion. The movant shall, by leave 
of the Environmental Appeals Board or the administrative law judge, as 
appropriate, serve and file reply papers within the time set by the 
request.
    (c) The administrative law judge shall rule upon all motions filed 
or made subsequent to his or her appointment and prior to the filing of 
his or her decision or accelerated decision, as appropriate. The 
Environmental Appeals Board shall rule upon all motions filed before the 
appointment of the administrative law judge and all motions filed after 
the filing of the decision of the administrative law judge or 
accelerated decision. Oral argument of motions will be permitted only if 
the administrative law judge or the Environmental Appeals Board, as 
appropriate, deems it necessary.

[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5344, Feb. 13, 1992]



Sec. 209.15  Intervention.

    (a) Persons desiring to intervene in a hearing to be held under 
section 11(d) of the act shall file a motion setting forth the facts and 
reasons why they should be permitted to intervene.
    (b) In passing on a motion to intervene, the following factors, 
among other things, shall be considered by the administrative law judge:
    (1) The nature of the movant's interest including the nature and the 
extent of the property, financial, environmental protection, or other 
interest of the movant;
    (2) The effect the order which may be entered in the proceeding may 
have on the movant's interest;
    (3) The extent to which the movant's interest will be represented by 
existing parties or may be protected by other means;
    (4) The extent to which the movant's participation may reasonably be 
expected to assist materially in the development of a complete record;

[[Page 163]]

    (5) The extent to which one movant's participation may reasonably be 
expected to delay the proceedings.
    (c) A motion to intervene should be filed before the first 
prehearing conference, the initiation of correspondence under Sec. 
209.20, or the setting of the time and place for the hearing, whichever 
occurs earliest. Motions shall be served on all parties. Any opposition 
to such motion must be filed within 10 days of service.
    (d) All motions to be made an intervener shall be reviewed by the 
administrative law judge using the criteria set forth in paragraph (b) 
of this section and considering any opposition to such motion. The 
administrative law judge may, in granting such motion, limit a movant's 
participation to certain issues only.
    (e) If the administrative law judge grants the motion with respect 
to any or all issues, he or she shall notify, or direct the hearing 
clerk to notify, the petitioner and all parties. If the administrative 
law judge denies the motion he or she shall notify, or direct the 
hearing clerk to notify, the petitioner and all parties and shall 
briefly state the reasons why the motion was denied.
    (f) All motions to be made an intervener shall include the movant's 
agreement that the movant and any person he or she represents will be 
subject to examination and cross-examination, and will also include an 
agreement to make any supporting and relevant records available at the 
movant's own expense upon the request of the administrative law judge, 
on his or her own motion or the motion of any party or other intervener. 
If the intervener fails to comply with any of these requests, the 
administrative law judge may, in his or her discretion, terminate his or 
her status as an intervener.



Sec. 209.16  Late intervention.

    Following the expiration of the time prescribed in Sec. 209.15 for 
the submission of motions to intervene in a hearing, any person may file 
a motion with the administrative law judge to intervene in a hearing. 
Such a motion must contain the information and commitments required by 
paragraph (b) and (f) of Sec. 209.15, and, in addition, must show that 
there is good cause for granting the motion and must contain a statement 
that the movant shall be bound by agreements, arrangements, and other 
determinations which may have been made in the proceeding.



Sec. 209.17  Amicus curiae.

    Persons not parties to the proceedings who wish to file briefs may 
do so by leave of the Environmental Appeals Board or the administrative 
law judge, as appropriate, granted on motion. This motion shall identify 
the interest of the applicant and shall state the reasons why the 
proposed amicus brief is desirable. An amicus curiae shall be eligible 
to participate in any briefing following the granting of his or her 
motion, and shall be served with all briefs, reply briefs, motions and 
orders relating to issues to be briefed.

[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5344, Feb. 13, 1992]



Sec. 209.18  Administrative law judge.

    (a) General. The administrative law judge shall conduct a fair and 
impartial hearing in accordance with 5 U.S.C. 554, and shall take all 
necessary action to avoid delay and maintain order. He or 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;
    (4) To hold conferences for simplification of the issues or any 
other proper purpose;
    (5) To consider and rule upon all appropriate procedural and other 
motions, and to issue all necessary orders;
    (6) To require the submission of testimony in written form whenever 
in the opinion of the administrative law judge oral testimony is not 
necessary for full and true disclosure of the facts.
    (7) To require the filing of briefs on any matter on which he or she 
is required to rule;
    (8) To require any party or any witness, during the course of the 
hearing,

[[Page 164]]

to state his or her position on any relevant issue;
    (9) To take depositions or cause depositions to be taken in 
accordance with Sec. 209.22.
    (10) To render judgments upon issues of law during the course of the 
hearing.
    (11) To issue subpenas authorized by law.
    (b) Assignment of administrative law judge. When an answer which 
contains a written demand for a hearing is filed, the administrator 
shall refer the proceeding to the chief administrative law judge, who 
shall conduct the proceeding, or assign another administrative law judge 
to conduct the proceeding.

(Sec. 16, Noise Control Act (42 U.S.C. 4915))



Sec. 209.19  Informal settlement and consent agreement.

    (a) Settlement policy. The Agency encourages settlement of the 
proceeding at any time after the issuance of a complaint if settlement 
is consistent with the provisions and the objectives of the act and the 
regulations. Whether or not respondent requests a hearing, he or she may 
confer with complainant concerning the facts stated in the complaint or 
concerning the appropriateness of the proposed remedial order. The terms 
of any settlement agreement shall be expressed in a written consent 
agreement. Conferences with complainant concerning possible settlement 
shall not affect the 20 day time limit for filing an answer under Sec. 
209.6.
    (b) Consent agreement. A written consent agreement signed by the 
complainant and respondent shall be prepared by the complainant and 
forwarded to the Environmental Appeals Board whenever settlement or 
compromise is proposed. A copy shall be served on all other parties to 
the proceeding, no later than the date the consent agreement is 
forwarded to the Environmental Appeals Board. The consent agreement 
shall state that, for the purpose of this proceeding, respondent (1) 
admits the jurisdictional allegations of the complaint; (2) admits the 
facts as stipulated in the consent agreement or neither admits nor 
denies specific factual allegations contained in the complaint; and (3) 
consents to the issuance of a given remedial order. The consent 
agreement shall include (i) the terms of the agreement; (ii) any 
appropriate conclusions regarding material issues of law, fact and/or 
discretion as well as reasons therefor; and (iii) the Environmental 
Appeals Board's proposed final order. The administrative law judge does 
not have jurisdiction over a consent agreement.
    (c) Final order. No settlement or consent agreement shall be 
dispositive of any action pending under section 11(d) of the act without 
a final order of the Environmental Appeals Board. In preparing a final 
order, the Environmental Appeals Board may require that any or all of 
the parties to the settlement or other parties appear before it to 
answer inquiries relating to the proposed consent agreement. The hearing 
is terminated without further proceedings upon the filing of the final 
order with the hearing clerk.

[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5344, Feb. 13, 1992]



Sec. 209.20  Conferences.

    (a) At the discretion of the administrative law judge, conferences 
may be held prior to or during any hearing. The administrative law judge 
shall direct the hearing clerk to notify all parties of the time and 
location of any such conferences. At the discretion of the 
administrative law judge, persons other than parties may attend. At a 
conference the administrative law judge may:
    (1) 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.
    (2) Set a hearing schedule for as many of the following as are 
deemed necessary by the administrative law judge:
    (i) Oral and written statements;
    (ii) Submission of written testimony as required or authorized by 
the administrative law judge;
    (iii) Oral direct and cross-examination of a witness;
    (iv) Oral argument, if appropriate;
    (3) Identify matters of which official notice may be taken;
    (4) Consider limitation of the number of expert and other witnesses;

[[Page 165]]

    (5) Consider the procedure to be followed at the hearing; and
    (6) Consider any other matter that may expedite the hearing or aid 
in the disposition of the issue.
    (b) The results of any conference including all stipulations shall, 
if not transcribed, be summarized in writing by the administrative law 
judge and made part of the record.
    (c) The administrative law judge, on motion or sua sponte, may 
request correspondence from the parties for any of the objectives set 
forth in this section. Copies of the administrative law judge's request 
and the parties' correspondence shall be served upon all parties. The 
administrative law judge shall include such correspondence in the record 
and a written summary of any stipulation or agreement reached by means 
of such correspondence as provided in paragraph (b) of this section.



Sec. 209.21  Primary discovery (exchange of witness lists and documents).

    (a) At a prehearing conference or within some reasonable time set by 
the administrative law judge 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 copies 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.
    (b) The administrative law judge, may, upon motion by a party or 
other person, and for good cause shown, by order (1) 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 (2) prescribe other appropriate 
measures to protect a witness. Any party affected by any such action 
shall have an adequate opportunity, once he or she learns the name of a 
witness and obtains the narrative summary of the witness' expected 
testimony, to prepare for the presentation of his or her case.



Sec. 209.22  Other discovery.

    (a) Further discovery under this section shall be undertaken only 
upon order of the administrative law judge or upon agreement of the 
parties, except as provided in Sec. 209.21. The administrative law 
judge shall order further discovery only after determining:
    (1) That such discovery will not delay the proceeding unreasonably;
    (2) That the information to be obtained is not obtainable 
voluntarily; and
    (3) That such information is relevant to the subject matter of the 
hearing.
    (b) The administrative law judge shall order depositions upon oral 
questions only upon a showing of good cause and a finding that:
    (1) The information sought cannot be obtained by alternative 
methods; or
    (2) 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.
    (c) Any party to the proceeding may make a motion or motions for an 
order of discovery. The motion shall set forth:
    (1) The circumstances which require the discovery;
    (2) The nature of the information expected to be discovered; and
    (3) The proposed time and place where it will be taken. If the 
administrative law judge determines the motion should be granted, he or 
she shall issue an order for the taking of such discovery together with 
the conditions and terms thereof.
    (d) A person's or party's failure to comply with a discovery order 
may lead to the inference that the infor mation to be discovered is 
adverse to the person or party who failed to provide it.



Sec. 209.23  Trade secrets and privileged information.

    In the presentation, admission, disposition, and use of evidence, 
the administrative law judge shall preserve the confidentiality of trade 
secrets and other privileged commercial and financial information. The 
confidential or trade secret status of any information shall not, 
however, preclude its being

[[Page 166]]

introduced into evidence. The administrative law judge may make such 
orders as may be necessary to consider such evidence in camera. This may 
include a supplemental initial decision to consider questions of fact 
and conclusions regarding material issues of law, fact or discretion 
which arise out of that portion of the evidence which is confidential or 
which includes trade secrets.



Sec. 209.24  Default order.

    (a) Default. Respondent may be found to be in default upon failure 
to comply with a prehearing or hearing ruling of the Administrator or 
the administrative law judge. A respondent's default shall constitute an 
admission of all facts alleged in the complaint and a waiver of 
respondent's right to a hearing on such factual allegations. The 
remedial order proposed is binding on respondent without further 
proceedings upon the issuance by the Environmental Appeals Board of a 
final order issued upon default.
    (b) Proposed default order. Where the administrative law judge finds 
a default has occurred after a request for a hearing has been filed, the 
administrative law judge may render a proposed default order to be 
issued against the defaulting party. For the purpose of appeal pursuant 
to Sec. 209.31 this order shall be deemed to be the initial decision of 
the administrative law judge.
    (c) Contents of a final order issued upon default. A final order 
issued upon default shall include findings of fact, conclusions 
regarding all material issues of law, fact, or discretion, and the 
remedial order which is issued. An order issued by the Environmental 
Appeals Board upon default of respondent shall constitute a final order 
in accordance with the terms of Sec. 209.33.

[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5345, Feb. 13, 1992]



Sec. 209.25  Accelerated decision; dismissal.

    (a) The administrative law judge, upon motion of any party or sua 
sponte, may at any time render an accelerated decision in favor of the 
Agency or the respondent as to all or any part of the proceeding, 
without further hearing or upon such limited additional evidence such as 
affidavits as he or she may require, or dismiss any party with 
prejudice, under any of the following conditions:
    (1) Failure to state a claim upon which relief can be granted, or 
direct or collateral estoppel;
    (2) No genuine issue of material fact exists and a party is entitled 
to judgment as a matter of law, as to all or any part of a proceeding; 
or
    (3) Such other reasons as are just, including failure to obey a 
procedural order of the administrative law judge.
    (b) If under this section an accelerated decision is issued as to 
all the issues and claims joined in the proceedings, the decision shall 
be treated as the decision of the administrative law judge as provided 
in Sec. 209.30.
    (c) If under this section, judgment is rendered on less than all 
issues or claims in the proceeding, the administrative law judge shall 
determine what material facts exist without substantial controversy and 
what material facts are actually and in good faith controverted. The 
administrative law judge shall thereupon issue an order specifying the 
facts which appear without substantial controversy, and the issues and 
claims upon which the hearing will proceed.



Sec. 209.26  Evidence.

    (a) The official transcripts and exhibits, together with all papers 
and requests filed in the proceeding, shall constitute the record. 
Evidence may be received at the hearing even though inadmissible under 
the rules of evidence applicable to judicial proceedings, provided it is 
relevant, competent and material and not unduly repetitious. Immaterial 
or irrelevant parts of an admissible document shall be segregated and 
excluded so far as practicable. The weight to be given evidence shall be 
determined by its reliability and probative value.
    (b) Witnesses shall be examined orally, under oath or affirmation, 
except as otherwise provided in these rules of practice or by the 
administrative law judge. Parties shall have the right to cross-examine 
a witness who appears at the hearing provided that such cross-
examination is not unduly repetitious.

[[Page 167]]

    (c) Rulings of the administrative law judge on the admissibility of 
evidence, the propriety of examination and cross-examination and other 
procedural matters shall appear in the record.
    (d) Parties shall automatically be presumed to have taken exception 
to an adverse ruling.



Sec. 209.27  Interlocutory appeal.

    (a) An interlocutory appeal may be taken to the Environmental 
Appeals Board either (1) with the consent of the administrative law 
judge where he or she 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 (2) absent the consent of the 
administrative law judge, by permission of the Environmental Appeals 
Board.
    (b) Applications for interlocutory appeal of any ruling or order of 
the administrative law judge may be filed with the administrative law 
judge within 5 days of the issuance of the ruling or order being 
appealed. Answers by other parties may be filed within 5 days of the 
service of such applications.
    (c) Applications to file such appeals absent consent of the 
administrative law judge shall be filed with the Environmental Appeals 
Board within 5 days of the denial of any appeal by the administrative 
law judge.
    (d) The Environmental Appeals Board will consider the merits of the 
appeal on the application and answers. No oral argument will be heard 
nor other briefs filed unless the Environmental Appeals Board directs 
otherwise.
    (e) Except under extraordinary circumstances as determined by the 
administrative law judge, the taking of an interlocutory appeal will not 
stay the hearing.

[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5345, Feb. 13, 1992]



Sec. 209.28  Record.

    (a) Hearings shall be reported and transcribed verbatim, 
stenographically or otherwise, 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 who desires a copy of 
the record of the hearing or any part of it shall be entitled to it upon 
payment of the cost.
    (b) The official transcripts and exhibits, together with all papers 
and requests filed in the proceeding, shall constitute the record.



Sec. 209.29  Proposed findings, conclusions.

    (a) Within 20 days of the filing of the record with the hearing 
clerk as provided in Sec. 209.28, or within such longer time as may be 
fixed by the administrative law judge, any party may submit for the 
consideration of the administrative law judge proposed findings of fact, 
conclusions of law, and a proposed rule or order, together with briefs 
in support of it. Such proposals shall be in writing, shall be served 
upon all parties, and shall contain adequate references to the record 
and authorities relied on.
    (b) The record shall show the administrative law judge's ruling on 
the proposed findings and conclusions except when the administrative law 
judge's order disposing of the proceedings otherwise informs the parties 
of the action taken by him or her thereon.



Sec. 209.30  Decision of the administrative law judge.

    (a) The administrative law judge shall issue and file with the 
hearing clerk his or her decision as soon as practicable after the 
period for filing proposed findings as provided for in Sec. 209.29 has 
expired.
    (b) The administrative law judge's decision shall become the 
decision of the Environmental Appeals Board (1) when no notice of 
intention to appeal as described in Sec. 209.31 is filed, 30 days after 
its issuance, unless in the interim the Environmental Appeals Board 
shall have taken action to review or stay the effective date of the 
decision; or (2) when a notice of intention to appeal is filed but the 
appeal is not perfected as required by Sec. 209.31, 5 days after the 
period allowed for perfection of an appeal has expired unless within 
that 5 day period, the Environmental Appeals Board

[[Page 168]]

has taken action to review or stay the effective date of the decision.
    (c) The administrative law judge's decision shall include a 
statement of findings and conclusions, as well as the reasons or basis 
therefore, upon all the material issues of fact or law presented on the 
record and an appropriate rule or order. The decision shall be supported 
by a preponderance of the evidence and based upon a consideration of the 
whole record.
    (d) At any time prior to issuing his or her decision, the 
administrative law judge may reopen the proceeding for the reception of 
further evidence.

[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5345, Feb. 13, 1992]



Sec. 209.31  Appeal from the decision of the administrative law judge.

    (a) Any party to a proceeding may appeal the administrative law 
judge's decision to the Environmental Appeals Board: Provided, That 
within 10 days after the administrative law judge's decision is issued, 
the party files a notice of intention to appeal, and within 30 days of 
the decision the party files an appeal brief.
    (b) When an appeal is taken from the decision of the administrative 
law judge, 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.
    (c) Any brief filed under this section shall contain, in the order 
indicated:
    (1) 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;
    (2) A specification of the issues which will be argued;
    (3) 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
    (4) A proposed form of rule or order for the Environmental Appeals 
Board's consideration if different from the rule or order contained in 
the administrative law judge's decision.
    (d) Briefs shall not exceed 40 pages without leave of the 
Environmental Appeals Board.
    (e) The Environmental Appeals Board may allow oral argument in its 
discretion.

[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5345, Feb. 13, 1992]



Sec. 209.32  Review of the administrative law judge's decision in absence of 

appeal.

    (a) If, after the expiration of the period for taking an appeal 
under Sec. 209.31, no notice of intention to appeal the decision of the 
administrative law judge has been filed, or if filed, not perfected, the 
hearing clerk shall so notify the Environmental Appeals Board.
    (b) 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 Sec. 209.31, may, on its own 
motion, within the time limits specified in Sec. 209.30(b), review the 
decision of the administrative law judge. Notice of the Environmental 
Appeals Board's intention to review the decision of the administrative 
law judge shall be given to all parties and shall set forth the scope of 
such review and the issues which shall be considered and shall make 
provision for filing of briefs.

[57 FR 5345, Feb. 13, 1992]



Sec. 209.33  Decision on appeal or review.

    (a) Upon appeal from or review of the administrative law judge'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 the Environmental Appeals Board could have 
exercised if it had presided at the hearing.
    (b) The Environmental Appeals Board shall render a decision as 
expeditiously as possible. The Environmental Appeals Board shall adopt, 
modify, or set aside the findings, conclusions, and rule or order 
contained in the decision of the administrative law judge and

[[Page 169]]

shall set forth in its decision a statement of the reasons or bases for 
its action. The Environmental Appeals Board's decision shall be the 
final order in the proceeding.
    (c) 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 administrative law judge.

[57 FR 5345, Feb. 13, 1992]



Sec. 209.34  Reconsideration.

    Within five (5) days after service of the Environmental Appeals 
Board's decision, any party may file a petition for reconsideration of 
such decision, setting forth the relief desired and the grounds in 
support thereof. Petitions for reconsideration under this provision 
shall be directed to, and decided by, the Environmental Appeals Board. 
Petitions 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's pursuant to Sec. 209.3(k) and in which the 
Administrator has issued the final order. Any petition filed under this 
subsection must be confined to new questions raised by the decision or 
final order and upon which the petitioner had no opportunity to argue 
before the administrative law judge or the Environmental Appeals Board. 
Any party desiring to oppose a petition shall file an answer thereto 
within five (5) days after service of the petition. The filing of a 
petition for reconsideration shall not operate to stay the effective 
date of the decision or order.

[57 FR 5345, Feb. 13, 1992]



Sec. 209.35  Conclusion of hearing.

    (a) If no appeal has been taken from the administrative law judge's 
decision before the period for taking an appeal under Sec. 209.31 has 
expired, and the period for review by the Environmental Appeals Board on 
its own motion under Sec. 209.30 has expired, and 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.
    (b) If an appeal of the administrative law judge's decision is taken 
under Sec. 209.31, or if, in the absence of such appeal, the 
Environmental Appeals Board moves to review the decision of the 
administrative law judge under Sec. 209.32, the hearing will be deemed 
to have ended upon the rendering of a final decision by the 
Environmental Appeals Board.

[57 FR 5346, Feb. 13, 1992]



Sec. 209.36  Judicial review.

    (a) The Administrator hereby designates the general counsel, 
Environmental Protection Agency as the officer upon whom copy of any 
petition for judicial review shall be served. That officer shall be 
responsible for filing in the court the record on which the order of the 
Environmental Appeals Board is based.
    (b) Before forwarding the record to the court, the Agency shall 
advise the petitioner of the costs of preparing it and as soon as 
payment to cover fees is made shall forward the record to the court.

[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5346, Feb. 13, 1992]



PART 210_PRIOR NOTICE OF CITIZEN SUITS--Table of Contents




Sec.
210.1 Purpose.
210.2 Service of notice.
210.3 Contents of notice.

    Authority: Sec. 12, Noise Control Act, (Pub. L. 92-574, 86 Stat. 
1234).

    Source: 39 FR 36011, Oct. 7, 1974, unless otherwise noted.



Sec. 210.1  Purpose.

    Section 12 of the Noise Control Act authorizes any person to 
commence a civil action on his own behalf to enforce the Act or to 
enforce certain requirements promulgated pursuant to the Act. The 
purpose of this part is to prescribe procedures governing the manner of 
giving notices as required by

[[Page 170]]

subsection 12(b) of the Act (Pub. L. 92-574, 86 Stat. 1234) as a 
prerequisite to the commencement of such actions.



Sec. 210.2  Service of notice.

    (a) Notice of intent to file suit pursuant to section 12(a)(1) of 
the Act shall be served upon an alleged violator of a noise control 
requirement issued under the Act in the following manner:
    (1) If the alleged violator is a private individual or a 
corporation, service of notice shall be accomplished by registered mail, 
return receipt requested, addressed to, or by personal service upon, the 
owner or managing agent of the equipment, plant, facility, vehicle, 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 in the 
case of a violation of a noise control requirement under section 611 of 
the Federal Aviation Act, to the Administrator of the Federal Aviation 
Administration, and the Regional Administrator of the Federal Aviation 
Administration for the region in which such 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 government entity, 
service of notice shall be accomplished by registered mail, return 
receipt requested, addressed to, or by personal service upon, the head 
of such agency. A copy of such notice shall be mailed to the 
Administrator of the Environmental Protection Agency, the Regional 
Administrator of the Environmental Protection Agency for the region in 
which such violation is alleged to have occurred; and in the case of a 
violation of a noise control requirement under section 611 of the 
Federal Aviation Act, to the Administrator of the Federal Aviation 
Administration, and the Regional Administrator of the Federal Aviation 
Administration 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 registered mail, return receipt requested, 
addressed to, or by personal service upon, the head of such agency. A 
copy of such notice shall be mailed to the Administrator of the 
Environmental Protection Agency, the Regional Administrator of the 
Environmental Protection Agency for the region in which such violation 
is alleged to have occurred, the Attorney General of the United States; 
and in the case of a violation of a noise control requirement under 
section 611 of the Federal Aviation Act, to the Administrator of the 
Federal Aviation Administration, and the Regional Administrator of the 
Federal Aviation Administration for the region in which such violation 
is alleged to have occurred.
    (b) Service of notice of intent to file suit pursuant to section 
12(a)(2)(A) of the Act shall be accomplished by registered mail, return 
receipt requested, 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) Service of notice of intent to file suit pursuant to section 
12(a)(2)(B) of the Act shall be accomplished by registered mail, return 
receipt requested, addressed to, or by personal service upon, the 
Administrator, Federal Aviation Administration, Washington, DC. A copy 
of such notice shall be mailed to the Attorney General of the United 
States, and to the Administrator of the Environmental Protection Agency.
    (d) Notice given in accordance with the provisions of this part 
shall be deemed to have been served on the date of receipt. If service 
was accomplished by mail, the date of receipt will be deemed to be the 
date noted on the return receipt card.



Sec. 210.3  Contents of notice.

    (a) Violation of noise control requirement. Notice regarding an 
alleged violation of a noise control requirement shall include 
sufficient information to permit the recipient to identify the specific 
standard or regulation alleged

[[Page 171]]

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 of the Environmental Protection Agency to perform any act 
or duty under the Noise Control Act which is not discretionary with such 
Administrator or notice regarding an alleged failure of the 
Administrator of the Federal Aviation Administration to perform any act 
or duty under section 611 of the Federal Aviation Act which is not 
discretionary with such Administrator shall identify the statutory 
provision which requires such act or creates such duty, shall describe 
with reasonable specificity the action taken or not taken by such 
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.



PART 211_PRODUCT NOISE LABELING--Table of Contents




                      Subpart A_General Provisions

Sec.
211.101 Applicability.
211.102 Definitions.
211.103 Number and gender.
211.104 Label content.
211.105 Label format.
211.106 Graphical requirements.
211.107 Label type and location.
211.108 Sample label.
211.109 Inspection and monitoring.
211.110 Exemptions.
211.110-1 Testing exemption.
211.110-2 National security exemptions.
211.110-3 Export exemptions.
211.111 Testing by the Administrator.

                  Subpart B_Hearing Protective Devices

211.201 Applicability.
211.202 Effective date.
211.203 Definitions.
211.204 Hearing protector labeling requirements.
211.204-1 Information content of primary label.
211.204-2 Primary label size, print and color.
211.204-3 Label location and type.
211.204-4 Supporting information.
211.205 Special claims.
211.206 Methods for measurement of sound attenuation.
211.206-1 Real ear method.
211.206-2 Alternative test data.
211.206-3--211.206-10 Alternative test methods. [Reserved]
211.207 Computation of the noise reduction rating (NRR).
211.208 Export provisions.
211.210 Requirements.
211.210-1 General requirements.
211.210-2 Labeling requirements.
211.211 Compliance with labeling requirement.
211.212 Compliance audit testing.
211.212-1 Test request.
211.212-2 Test hearing protector selection.
211.212-3 Test hearing protector preparation.
211.212-4 Testing procedures.
211.212-5 Reporting of test results.
211.212-6 Determination of compliance.
211.212-7 Continued compliance testing.
211.212-8 Relabeling requirements.
211.213 Remedial orders for violations of these regulations.
211.214 Removal of label.

Appendix A to Part 211--Compliance Audit Testing Report

    Source: 44 FR 56127, Sept. 28, 1979, unless otherwise noted.



                      Subpart A_General Provisions

    Authority: Sec. 8, Noise Control Act of 1972, (42 U.S.C. 4907), and 
other authority as specified.



Sec. 211.101  Applicability.

    The provisions of subpart A apply to all products for which 
regulations are published under part 211 and manufactured after the 
effective date of this regulation, unless they are made inapplicable by 
product-specific regulations.



Sec. 211.102  Definitions.

    (a) All terms that are not defined in this subpart will have the 
meaning given them in the Act.
    (b) Act means the Noise Control Act of 1972 (Pub. L. 92-574, 86 
Stat. 1234).
    (c) Administrator means the Administrator of the Environmental 
Protection

[[Page 172]]

Agency or his authorized representative.
    (d) Agency means the United States Environmental Protection Agency.
    (e) Acoustic descriptor means the numeric, symbolic, or narrative 
information describing a product's acoustic properties as they are 
determined according to the test methodology that the Agency prescribes.
    (f) Export exemption means an exemption from the prohibitions of 
section 10(a) (3) and (4) of the Act; this type of exemption is granted 
by statute under section 10(b)(2) of the Act for the purpose of 
exporting regulated products.
    (g) National security exemption means an exemption from the 
prohibitions of section 10(a) (3) and (5) of the Act, which may be 
granted under section 10(b)(1) of the Act in cases involving national 
security.
    (h) Product means any noise-producing or noise-reducing product for 
which regulations have been promulgated under part 211; the term 
includes ``test product''.
    (i) Regulations published under this part means all subparts to part 
211.
    (j) Testing exemption means an exemption from the prohibitions of 
section 10(a) (1), (2), (3), and (5) of the Act, which may be granted 
under section 10(b)(1) of the Act for research, investigations, studies, 
demonstrations, or training, but not for national security.
    (k) Test product means any product that must be tested according to 
regulations published under part 211.



Sec. 211.103  Number and gender.

    In this part, words in the singular will be understood to include 
the plural, and words in the masculine gender will be understood to 
include the feminine, and vice versa, as the case may require.



Sec. 211.104  Label content.

    The following data and information must be on the label of all 
products for which regulations have been published under this part:
    (a) The term ``Noise Rating'' if the product produces noise, or the 
term ``Noise Reduction Rating'' if the product reduces noise;
    (b) The acoustic rating descriptor that is determined according to 
procedures specified in the regulations that will be published under 
this part;
    (c) Comparative acoustic rating information, which EPA will specify 
in the regulations published under this part;
    (d) A product manufacturer identification consisting of: (1) The 
Company name, and (2) The City and State of the principal office;
    (e) A product model number or type identification;
    (f) The phrase ``Federal law prohibits removal of this label prior 
to purchase'';
    (g) The U.S. Environmental Protection Agency logo, as shown in 
Figure 1;
    (h) The phrase ``Label Required by U.S. EPA regulation 40 CFR part 
211, subpart ------.''
[GRAPHIC] [TIFF OMITTED] TC01FE92.055



Sec. 211.105  Label format.

    (a) Unless specified otherwise in other regulations published under 
this part, the format of the label must be as shown in Figure 2. The 
label must include all data and information required under Sec. 
211.104.

[[Page 173]]

[GRAPHIC] [TIFF OMITTED] TC01FE92.056

    (b) Unless EPA specifies otherwise in regulations published under 
this part, the required data and information specified in Sec. 211.104 
(a) through (h) must be located in the following areas of the prescribed 
label (see Figure 2 of this section):
    (1) Section 211.104 (a)--Area A.
    (2) Section 211.104 (b)--Area B.
    (3) Section 211.104 (c)--Area C.
    (4) Section 211.104 (d)--Area D.
    (5) Section 211.104 (e)--Area E.
    (6) Section 211.104 (f)--Area F.
    (7) Section 211.104 (g)--Area G.
    (8) Section 211.104 (h)--Area H.



Sec. 211.106  Graphical requirements.

    (a) Color. Unless EPA requires otherwise, the product manufacturer 
or supplier must determine the colors used for the label background, 
borders, and all included letters, numerals, and figures. However, the 
colors on the label must contrast sufficiently with each other and with 
any information or material surrounding the label so that the label and 
the information within it are clearly visible and legible.
    (b) Label Size. The prescribed label must be sized as specified in 
regulations published under this part.
    (c) Character Style. Except when specified otherwise in this part, 
all letters and numerals that appear on the prescribed label must be 
Helvetica Medium.
    (d) Character Size. All letters and numerals that appear on the 
prescribed label must be sized as specified in regulations published 
under this part.



Sec. 211.107  Label type and location.

    The prescribed label must be of the type and in the location 
specified in regulations published under this part.



Sec. 211.108  Sample label.

    Examples of labels conforming to the requirements of Sec. Sec. 
211.104, 211.105, and 211.106 are presented in Figure 3.

[[Page 174]]

[GRAPHIC] [TIFF OMITTED] TC01FE92.057



Sec. 211.109  Inspection and monitoring.

    (a) Any inspecting or monitoring activities that EPA conducts under 
this part with respect to the requirements set out in regulations 
published under this part, will be for the purpose of determining:
    (1) Whether test products are being selected and prepared for 
testing in accordance with the provisions of the regulations;
    (2) Whether test product testing is being conducted according to the 
provisions of those regulations; and
    (3) Whether products that are being produced and distributed into 
commerce comply with the provisions of those regulations.
    (b) The Director of the Noise Enforcement Division may request that 
a manufacturer who is subject to this part admit an EPA Enforcement 
Officer during operating hours to any of the following:
    (1) Any facility or site where any product to be distributed into 
commerce is manufactured, assembled, or stored;
    (2) Any facility or site where the manufacturer performed or 
performs any tests conducted under this part or any procedures or 
activities connected with those tests;
    (3) Any facility or site where any test product is located.
    (c)(1) Once an EPA Enforcement Officer has been admitted to a 
facility or site, that officer will not be authorized to do more than 
the following:
    (i) Inspect and monitor the manufacture and assembly, selection, 
storage, preconditioning, noise testing, and maintenance of test 
products, and to verify the correlation or calibration of test 
equipment;
    (ii) Inspect products before they are distributed in commerce;
    (iii) Inspect and make copies of any records, reports, documents, or 
information that the manufacturer must maintain or provide to the 
Administrator under the Act or under any provision of this part;
    (iv) Inspect and photograph any part or aspect of any product and 
any components used in manufacturing the product that is reasonably 
related to the purpose of this entry; and
    (v) Obtain from those in charge of the facility or site any 
reasonable assistance that he may request to enable him to carry out any 
function listed in this section.
    (2) The provisions of this section apply whether the facility or 
site is owned or controlled by the manufacturer, or by someone who acts 
for the manufacturer.
    (d) For the purposes of this section:
    (1) An ``EPA Enforcement Officer'' is an employee of the EPA Office 
of Enforcement. When he arrives at a facility or site, he must display 
the credentials that identify him as an employee of the EPA and a letter 
signed by the Director of the Noise Enforcement Division designating him 
to make the inspection.

[[Page 175]]

    (2) Where test product storage areas or facilities are concerned, 
``operating hours'' means 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.
    (3) Where other facilities or areas are concerned, ``operating 
hours'' means all times during which products are being manufactured or 
assembled; or all times during which products are being tested or 
maintained; or records are being compiled; or when any other procedure 
or activity related to labeling, selective enforcement auditing, or 
product manufacture or assembly being carried out.
    (4) ``Reasonable assistance'' means providing timely and 
unobstructed access to test products or to products and records that are 
required by this part, and the means for copying those records or the 
opportunity to test the test products.
    (e) The manufacturer must admit an EPA Enforcement Officer who 
presents a warrant authorizing entry to a facility or site. If the EPA 
officer does not have the warrant, he may enter a facility or site only 
if the manufacturer consents.
    (1) It is not a violation of this regulation or the Act if anyone 
refuses to allow an officer without a warrant to enter the site.
    (2) The Administrator or his designee may proceed ex parte (without 
the other party's knowledge) to obtain a warrant whether or not the 
manufacturer has refused entry to an EPA Enforcement Officer.

(Secs. 11 and 13, Pub. L. 92-574, 86 Stat. 1242, 1244 (42 U.S.C. 4910, 
4912))

[44 FR 56127, Sept. 28, 1979, as amended at 47 FR 57716, Dec. 28, 1982]



Sec. 211.110  Exemptions.



Sec. 211.110-1  Testing exemption.

    (a) A new product intended to be used solely for research, 
investigations, studies, demonstrations or training, and so labeled or 
marked on the outside of the container and on the produce itself, shall 
be exempt from the prohibitions of sections 10(a), (1), (2), (3), and 
(5) of the Act.
    (b) No request for a testing exemption is required.
    (c) For purposes of section 11(d) of the Act, any testing exemption 
shall be void ab initio with respect to each new product, originally 
intended for research, investigations, studies, demonstrations, or 
training, but distributed in commerce for other uses.

[47 FR 57716, Dec. 28, 1982]



Sec. 211.110-2  National security exemptions.

    (a) A new product which is produced to conform with specifications 
developed by national security agency, and so labeled or marked on the 
outside of the container and on the product itself, shall be exempt from 
the prohibitions of sections 10(a), (1), (2), (3), and (5) of the Act.
    (b) No request for a national security exemption is required.
    (c) For purposes of section 11(d) of the Act, any national security 
exemption shall be void ab initio with respect to each new product, 
originally intended for a national security agency, but distributed in 
commerce for other uses.

[47 FR 57716, Dec. 28, 1982]



Sec. 211.110-3  Export exemptions.

    (a) A new product intended solely for export, and which has 
satisfied the requirements of other applicable regulations of this part, 
will be exempt from the prohibitions of section 10(a) (3) and (4) of the 
Act.
    (b) Requests for an export exemption are not required.
    (c) For purposes of section 11(d) of the Noise Control Act, the 
Administrator may consider any export exemption under section 10(b)(2) 
void from the beginning if a new product, intended only for export, is 
distributed in commerce in the United States.

(Sec. 10(b)(2), Pub. L. 92-574, 86 Stat. 1242 (42 U.S.C. 4909(b)(2)))

[44 FR 56127, Sept. 28, 1979, as amended at 47 FR 57716, Dec. 28, 1982]



Sec. 211.111  Testing by the Administrator.

    (a)(1) To determine whether products conform to applicable 
regulations under this part, the Administrator may require that any 
product that is to be

[[Page 176]]

tested under applicable regulations in this part, or any other products 
that are regulated under this part, be submitted to him, at a place and 
time that he designates, to conduct tests on them in accordance with the 
test procedures described in the regulations.
    (2) The Administrator may specify that he will conduct the testing 
at the facility where the manufacturer conducted required testing. The 
Administrator will conduct the tests with his own equipment.
    (b)(1) If, from the tests conducted by the Administrator, or other 
relevant information, the Administrator determines that the test 
facility used by the manufacturer(s) does not meet the requirements of 
this part for conducting the test required by this part, he will notify 
the manufacturer(s) in writing of his determination and the reasons for 
it.
    (2) After the Administrator has notified the manufacturer, EPA will 
not accept any data from the subject test facility for the purposes of 
this part, and the Administrator may issue an order to the 
manufacturer(s) to cease to distribute in commerce products that come 
from the product categories in question. However, any such order shall 
be issued only after an opportunity for a hearing. Notification of this 
opportunity may be included in a notification under paragraph (b)(1) of 
this section. A manufacturer may request that the Administrator grant a 
hearing. He must make this request no later than fifteen (15) days (or 
any other period the Administrator allows) after the Administrator has 
notified the manufacturer that he intends to issue an order to cease to 
distribute.
    (3) A manufacturer may request in writing that the Administrator 
reconsider his determination in paragraph (b)(1) of this section, if he 
can provide data or information which indicates that changes have been 
made to the test facility, and that those changes have remedied the 
reason for disqualification.
    (4) The Administrator will notify a manufacturer of his decision 
concerning requalifying the test facility within 10 days of the time the 
manufacturer requested reconsideration under paragraph (b)(3) of this 
section.
    (c)(1) The Administrator will assume all reasonable costs associated 
with shipment of products to the place designated pursuant to paragraph 
(a) of this section, except with respect to:
    (i) [Reserved]
    (ii) Testing of a reasonable number of products for purposes of 
compliance audit testing under the Section titled Compliance Audit 
Testing of the product-specific Subpart, or if the manufacturer has 
failed to establish that there is a correlation between his test 
facility and the EPA test facility or the Administrator has reason to 
believe, and provides the manufacturer with a statement or reasons, that 
the products to be tested would fail to meet their verification level if 
tested at the EPA test facility, but would meet the level if tested at 
the manufacturer's test facility;
    (iii) Any testing performed during a period when a notice issued 
under paragraph (b) of this section, is in effect; and
    (iv) Any testing performed at place other than the manufacturer's 
facility as a result of the manufacturer's failure to permit the 
Administrator to conduct or monitor testing as required by this part.

(Secs. 11 and 13, Pub. L. 92-574, 86 Stat. 1243 (42 U.S.C. 4910, 4912))

[44 FR 56127, Sept. 28, 1979, as amended at 47 FR 57716, Dec. 28, 1982]



                  Subpart B_Hearing Protective Devices

    Authority: Sec. 8, Pub. L. 92-574, 86 Stat. 1241 (42 U.S.C. 4907), 
and additional authority as specified.

    Source: 44 FR 56139, Sept. 28, 1979, unless otherwise noted.



Sec. 211.201  Applicability.

    Unless this regulation states otherwise, the provisions of this 
subpart apply to all hearing protective de vices manufactured after the 
effective date of this regulation. (See Sec. 211.203(m) for definition 
of ``hearing pro tec tive device.'')



Sec. 211.202  Effective date.

    Manufacturers of hearing protectors must comply with the 
requirements set

[[Page 177]]

forth in this part for all hearing protective devices manufactured on or 
after September 27, 1980.



Sec. 211.203  Definitions.

    (a) As used in subpart B, all terms not defined here have the 
meaning given them in the Act or in subpart A of Part 211.
    (b) ANSI Z24.22-1957. A measurement procedure published by the 
American National Standards Institute (ANSI) for obtaining hearing 
protector attenuation values at nine of the one-third octave band center 
frequencies by using pure tone stimuli presented to ten different test 
subjects under anechoic conditions.
    (c) ANSI S3.19-1974. A revision of the ANSI Z24.22-1957 measurement 
procedure using one-third octave band stimuli presented under diffuse 
(reverberant) acoustic field conditions.
    (d) Carrying Case. The container used to store reusable hearing 
protectors.
    (e) Category. A group of hearing protectors which are identical in 
all aspects to the parameters listed in Sec. 211.210-2(c).
    (f) Claim. An assertion made by a manufacturer regarding the 
effectiveness of his product.
    (g) Custom-molded device. A hearing protective device that is made 
to conform to a specific ear canal. This is usually accomplished by 
using a moldable compound to obtain an impression of the ear and ear 
canal. The compound is subsequently permanently hardened to retain this 
shape.
    (h) Dispenser. The permanent (intended to be refilled) or disposable 
(discarded when empty) container designed to hold more than one complete 
set of hearing protector(s) for the express purpose of display to 
promote sale or display to promote use or both.
    (i) Disposable Device. A hearing protective device that is intended 
to be discarded after one period of use.
    (j) Ear Insert Device. A hearing protective device that is designed 
to be inserted into the ear canal, and to be held in place principally 
by virtue of its fit inside the ear canal.
    (k) Ear Muff Device. A hearing protective device that consists of 
two acoustic enclosures which fit over the ears and which are held in 
place by a spring-like headband to which the enclosures are attached.
    (l) Headband. The component of hearing protective device which 
applies force to, and holds in place on the head, the component which is 
intended to acoustically seal the ear canal.
    (m) Hearing Protective Device. Any device or material, capable of 
being worn on the head or in the ear canal, that is sold wholly or in 
part on the basis of its ability to reduce the level of sound entering 
the ear. This includes devices of which hearing protection may not be 
the primary function, but which are nonetheless sold partially as 
providing hearing protection to the user. This term is used 
interchangeably with the terms, ``hearing protector'' and ``device.''
    (n) Impulsive Noise. An acoustic event characterized by very short 
rise time and duration.
    (o) Label. That item, as described in this regulation, which is 
inscribed on, affixed to or appended to a product, its packaging, or 
both for the purpose of giving noise reduction effectiveness information 
appropriate to the product.
    (p) Manufacturer. As stated in the Act ``means any person engaged in 
the manufacturing or assembling of new products, or the importing of new 
products for resale, or who acts for, and is controlled by, any such 
person in connection with the distribution of such products.''
    (q) Noise Reduction Rating (NRR). A single number noise reduction 
factor in decibels, determined by an empirically derived technique which 
takes into account performance variation of protectors in noise reducing 
effectiveness due to differing noise spectra, fit variability and the 
mean attenuation of test stimuli at the one-third octave band test 
frequencies.
    (r) Octave Band Attenuation. The amount of sound reduction 
determined according to the measurement procedure of Sec. 211.206 for 
one-third octave bands of noise.
    (s) Over-the-Head Position. The mode of use of a device with a 
headband, in which the headband is worn such that it passes over the 
user's head. This is contrast to the behind-the-head and under-the-chin 
positions.

[[Page 178]]

    (t) Package. The container in which a hearing protective device is 
presented for purchase or use. The package in some cases may be the same 
as the carrying case.
    (u) Primary Panel. The surface that is considered to be the front 
surface or that surface which is intended for initial viewing at the 
point of ultimate sale or the point of distribution for use.
    (v) Spectral uncertainty. Possible variation in exposure to the 
noise spectra in the workplace. (To avoid the underprotection that would 
result from these variations relative to the assumed ``Pink Noise'' used 
to determine the NRR, an extra three decibel re duction is included when 
computing the NRR.)
    (w) Tag. Stiff paper, metal or other hard material that is tied or 
otherwise affixed to the packaging of a protector.
    (x) Test Facility. For this subpart, a laboratory that has been set 
up and calibrated to conduct ANSI Std S3.19-1974 tests on hearing 
protective devices. It must meet the applicable requirements of these 
regulations.
    (y) Test Hearing Protector. A hearing protector that has been 
selected for testing to verify the value to be put on the label, or 
which has been designated for testing to determine compliance of the 
protector with the labeled value.
    (z) Test Request. A request submitted to the manufacturer by the 
Administrator that will specify the hearing protector category, and test 
sample size to be tested according to Sec. 211.212-1, and other 
information regarding the audit.
    (aa) Random Incident Field. A sound field in which the angle of 
arrival of sound at a given point in space is random in time.
    (bb) Real-Ear Protection at Threshold. The mean value in decibels of 
the occluded threshold of audibility (hearing protector in place) minus 
the open threshold of audibility (ears open and uncovered) for all 
listeners on all trials under otherwise identical test conditions.
    (cc) Reverberation Time. The time that would be required for the 
mean-square sound pressure level, originally in a steady state, to fall 
60 dB after the source is stopped.



Sec. 211.204  Hearing protector labeling requirements.

    All provisions of subpart A apply to this subpart except as 
otherwise noted.



Sec. 211.204-1  Information content of primary label.

    The information to appear on the primary label must be according to 
Sec. 211.104 of subpart A except as stated here and shown in Figure 1 
of Sec. 211.204-2:
    (a) Area A must state ``Noise Reduction Rating.''
    (b)(1) Area B must state the value of the Noise Reduction Rating 
(NRR) in decibels for that model hearing protector. The value stated on 
the label must be no greater than the NRR value determined by using the 
computation method of Sec. 211.207 of this subpart.
    (2) For devices with headbands that are intended for use with the 
headband in different positions, the worst case NRR must be specified. 
The top of Area B must state the position(s) associated with that NRR. 
The other positions and the respective NRRs must be included with the 
supporting information specified in Sec. 211.204-4.
    (c) Area C must contain the statement ``The range of Noise Reduction 
Ratings for existing hearing protectors is approximately 0 to 30 (higher 
numbers denote greater effectiveness).''
    (d) At the bottom of Area A-B, there must be the phrase ``(When used 
as directed).''

[44 FR 56127, Sept. 28, 1979, as amended at 45 FR 8275, Feb. 6, 1980]



Sec. 211.204-2  Primary label size, print and color.

    The primary label characteristics are the same as those specified in 
Sec. Sec. 211.105 and 211.106 of subpart A except as stated here.
    (a) The label must be no smaller than 3.8 centimeters by 5.0 
centimeters (cm) (approximately 1.5 inches by 2.0 inches).
    (b) The minimum type face size for each area shall be as follows, 
based upon a scale of 72 points=1 inch:
    (1) Area A--2.8 millimeters (mm) or 8 point.
    (2) Area B--7.6 mm or 22 point for the Rating;--1.7 mm or 5 point 
for ``Decibels''.

[[Page 179]]

    (3) Area A-B--1.5 mm or 4 point.
    (4) Area C--1.5 mm or 4 point.
    (5) Area D--0.7 mm or 2 point.
    (6) Area E--0.7 mm or 2 point.
    (7) Area F--0.7 mm or 2 point.
    (8) Area H--0.7 mm or 2 point.

These type face sizes apply to the 3.8 cm x 5.0 cm label; type face 
sizes for larger labels must be in the same approximate proportion to 
the label as those specified for the 3.8 cm x 5.0 cm label.
    (c) The use of upper and lower case letters and the general 
appearance of the label must be similar to the example in Figure (1).
[GRAPHIC] [TIFF OMITTED] TC01FE92.058

    (d) The color of the label must be as specified in subpart A.

[44 FR 56127, Sept. 28, 1979, as amended at 45 FR 8275, Feb. 6, 1980]



Sec. 211.204-3  Label location and type.

    (a) The manufacturer labeling the product for ultimate sale or use 
selects the type of label and must locate it as follows:
    (1) Affixed to the device or its carrying case; and
    (2) Affixed to primary panel of the product packaging if the label 
complying with Sec. 211.204-3(a)(1) is not visible at the point of 
ultimate purchase or the point of distribution to users.
    (b) Labeling with a minimum sized label will occur as follows:
    (1) If the protector is individually packaged and so displayed at 
the point of ultimate purchase or distribution to the prospective user, 
the package must be labeled as follows:
    (i) If the primary panel of the package has dimensions greater than 
3.8 x 5.0 cm (approximately 1\1/2\ x 2 in) the label must be presented 
on the primary panel.
    (ii) If the primary panel of the package is equal to or smaller than 
3.8 x 5.0 centimeters, a label at least 3.8 x 5.0 centimeters must be 
affixed to the package by means of a tag.
    (2) If the protector is displayed at the point of ultimate purchase 
or distribution to prospective users in a permanent or disposable bulk 
container or dispenser, even if the protector is individually packaged 
within the dispenser and labeled as above, the container or dispenser 
itself must be labeled. The label must be readily visible to the 
ultimate purchaser or prospective user.



Sec. 211.204-4  Supporting information.

    The following minimum supporting information must accompany the 
device in a manner that insures its availability to the prospective 
user. In the case of bulk packaging and dispensing, such supporting 
information must be affixed to the bulk container or dispenser in the 
same manner as the label, and in a readily visible location.
    (a) The mean attenuation and standard deviation values obtained for 
each test frequency according to Sec. 211.206, and the NRR calculated 
from those values. For ``muff'' type protectors with various use 
positions, the positions providing higher NRR values shall be 
identified, and their associated NRR values listed in bold type.
    (b) The following statement, example and cautionary note: ``The 
level of noise entering a person's ear, when hearing protector is worn 
as directed, is closely approximated by the difference between the A-
weighted environmental noise level and the NRR.

                                 Example

    1. The environmental noise level as measured at the ear is 92 dBA.
    2. The NRR is (value on label) decibels (dB).
    3. The level of noise entering the ear is approximately equal to [92 
dB(A)--NRR] dB(A).

    Caution: For noise environments dominated by frequencies below 500 
Hz the C-weighted environmental noise level should be used.''


[[Page 180]]


    (c) The month and year of production, which may be in the form of a 
serial number or a code in those instances where the records specified 
in Sec. 211.209(a)(1)(iv) are maintained;
    (d) The following statement: ``Improper fit of this device will 
reduce its effectiveness in attenuating noise. Consult the enclosed 
instructions for proper fit'';
    (e) Instructions as to the proper insertion or placement of the 
device; and
    (f) The following statement: ``Although hearing protectors can be 
recommended for protection against the harmful effects of impulsive 
noise, the Noise Reduction Rating (NRR) is based on the attenuation of 
continuous noise and may not be an accurate indicator of the protection 
attainable against impulsive noise such as gunfire.''

[44 FR 56127, Sept. 28, 1979, as amended at 45 FR 8275, Feb. 6, 1980]



Sec. 211.205  Special claims.

    (a) Any manufacturer wishing to make claims regarding the acoustic 
effectiveness of a device, other than the Noise Reduction Rating, must 
be prepared to demonstrate the validity of such claims.
    (b) [Reserved]

[44 FR 56139, Sept. 28, 1979, as amended at 47 FR 57716, Dec. 28, 1982]



Sec. 211.206  Methods for measurement of sound attenuation.



Sec. 211.206-1  Real ear method.

    (a) The value of sound attenuation to be used in the calculation of 
the Noise Reduction Rating must be determined according to the ``Method 
for the Measurement of Real-Ear Protection of Hearing Protectors and 
Physical Attenuation of Earmuffs.'' This standard is approved as the 
American National Standards Institute Standard (ANSI STD) S3.19-1974. 
The provisions of this standard, with the modifications indicated below, 
are included by reference in this section. Copies of this standard may 
be obtained from: American National Standards Institute, Sales 
Department, 1430 Broadway, New York, New York 10018.
    (b) For the purpose of this subpart only, sections 1, 2, 3 and 
appendix A of the standard, as modified below, shall be applicable. 
These sections describe the ``Real Ear Method.'' Other portions of the 
standard are not applicable in this section.
    (1) The sound field characteristics described in paragraph 3.1.1.3 
are ``required.''
    (2) Sections 3.3.2 and 3.3.3 shall be accomplished in this order 
during the same testing session. Any breaks in testing should not allow 
the subject to engage in any activity that may cause a Temporary 
Threshold Shift.
    (3) Section 3.3.3.1(1) shall not apply. Only ``Experimenter fit'' 
described in Section 3.3.3.1(2) is permitted.
    (4) Section 3.3.3.3 applies to all devices except custom-molded 
devices. When testing custom-molded devices, each test subject must 
receive his own device molded to fit his ear canal.

[44 FR 56139, Sept. 28, 1979, as amended at 45 FR 8275, Feb. 6, 1980]



Sec. 211.206-2  Alternative test data.

    (a) In lieu of testing according to Sec. 211.206-1, manufacturers 
may use the latest available test data obtained according to ANSI STD 
Z24.22-1957 or ANSI STD S3.19-1974 to determine the mean attenuation and 
standard deviation for each test frequency and the NRR calculated from 
those values. Manufacturers whose data is based on the ANSI STD Z24.22-
1957 measurement procedure must state in the supporting information 
required by Sec. 211.204-4 that the mean attenuation and standard 
deviation values used to calculate the NRR are based on ANSI STD Z24.22-
1957.
    (b) Manufacturers who initially use available data based on ANSI STD 
Z24.22-1957 must retest within one year of the effective date of this 
regulation (by September 27, 1981) the affected categories of hearing 
protectors in accordance with Sec. 211.206-1 of the regulation, and 
must relabel those categories as necessary.
    (c) Manufacturers who use available data based on ANSI STD S3.19-
1974 are not required to retest the affected categories of hearing 
protectors.
    (d) If a manufacturer has both ANSI STD S3.19-1974 test data and 
ANSI STD Z24.22-1957 test data on a hearing protector category, that 
manufacturer

[[Page 181]]

must use the data obtained according to ANSI STD S3.19-1974.

[45 FR 8275, Feb. 6, 1980]



Sec. Sec. 211.206-3--211.206-10  Alternative test methods. [Reserved]



Sec. 211.207  Computation of the noise reduction rating (NRR).

    Calculate the NRR for hearing protective devices by substituting the 
average attenuation values and standard deviations for the pertinent 
protector category for the sample data used in steps 6 and 
7 in Figure 2. The values of -.2, 0, 0, 0, -.2, -.8, -3.0 in 
Step 2 and -16.1, -8.6, -3.2, 0, +1.2, +1.0, -1.1 in Step 4 of Figure 2 
represent the standard ``C''- and ``A''-weighting relative response 
corrections applied to any sound levels at the indicated octave band 
center frequencies. (NOTE: The manufacturer may label the protector at 
values lower than indicated by the test results and this computation 
procedure, e.g. lower NRR from lower attenuation values. (Ref. Sec. 
211.211(b).)

                                                   Figure 2--Computation of the Noise Reduction Rating
 
Octave band center frequency (Hz)..................................      125     250     500   1000    2000   3000          4000   6000             8000
1 Assumed Pink noise (dB)..........................................      100     100     100    100     100  .....           100  .....              100
2 ``C'' weighting corrections (dB).................................      -.2       0       0      0     -.2  .....           -.8  .....             -3.0
3 Unprotected ear ``C''-weighted level (dB)........................     99.8     100     100    100    99.8  .....          99.2  .....             97.0
(The seven logarithmically added ``C''-weighted sound pressure
 levels of Step 3 =107.9 dS)
4 ``A''-weighting corrections (dB).................................    -16.1    -8.6    -3.2      0    +1.2  .....          +1.0  .....             -1.1
5 Unprotected ear ``A''-weighted level (step 1-step 4) (dB).........................................................
6 Average attenuation in dB at frequency...........................       21      22      23     29      41  .....  (43+47)/2=45  .....   (41+36)/2=38.5
7 Standard deviation in dB at frequency............................      3.7     3.3     3.8    4.7     3.3  .....  (3.3+3.4)=6.  .....   (6.1+6.5)=12.6
                                                                                                                               7
                                                                          x2      x2      x2     x2      x2  .....  ............  .....  ...............
                                                                    -----------------------------------------
                                                                         7.4     6.6     7.6    9.4     6.6  .....  ............  .....  ...............
8 Step 5-(step 6-step 7) develops the        70.3    76.0    81.4   80.4    66.8  .....          62.7  .....             73.0
 protected ear ``A'' weighted levels (dB)..........................
(The seven logarithmically added ``A''-weighted sound pressure
 levels of Step 8 using this sample data=85.1 dB)
9 NRR=Step 3--Step 8--3 dB*; =107.9 dB--85.1 dB--3 dB*; =19.8 dB (or 20) (Round values ending in .5 to next lower whole number).
 
*Spectral uncertainty (as defined in Sec.  211.203).


The value for 3 is constant. Use Logarithmic mathematics to 
determine the combined value of protected ear levels (Step 8) 
which is used in Step 9 to exactly derive the NRR; or use the 
following table as a substitute for logarithmic mathematics to determine 
the value of Step 8 and thus very closely approximate the NRR.

------------------------------------------------------------------------
                                                               Add this
                                                               level to
   Difference between any two sound pressure levels being     the higher
                       combined (dB)                          of the two
                                                             levels (dB)
------------------------------------------------------------------------
0 to less than 1.5.........................................            3
1.5 to less than 4.5.......................................            2
4.5 to 9...................................................            1
Greater than 9.............................................            0
------------------------------------------------------------------------



Sec. 211.208  Export provisions.

    (a) The outside of each package or container containing a hearing 
protective device intended solely for export must be so labeled or 
marked. This will include all packages or containers that are used for 
shipping, transporting, or dispersing the hearing protective device 
along with any individual packaging.
    (b) In addition, the manufacturer of a hearing protective device 
intended solely for export is subject to the export exemption 
requirements of Sec. 211.110-3 of subpart A.

(Sec. 10(b)(2), Pub. L. 92-574, 86 Stat. 1242 (42 U.S.C. 4909(b)(2)))

[[Page 182]]



Sec. 211.210  Requirements.



Sec. 211.210-1  General requirements.

    (a) Every hearing protector manufactured for distribution in 
commerce in the United States, and which is subject to this regulation:
    (1) Must be labeled at the point of ultimate purchase or 
distribution to the prospective user according to the requirements of 
Sec. 211.204 of this subpart; and
    (2) Must meet or exceed the mean attenuation values determined by 
the procedure in Sec. 211.206 and explained in Sec. 211.211(b).
    (b) Manufacturers who distribute protectors in commerce to another 
manufacturer for packaging for ultimate purchase or use must provide to 
that manufacturer the mean attenuation values and standard deviations at 
each of the one-third octave band center frequencies as determined by 
the test procedure in Sec. 211.206. He must also provide the Noise 
Reduction Rating calculated according to Sec. 211.207.

(Sec. 13, Pub. L. 92-574, 86 Stat. 1244 (42 U.S.C. 4912))

[44 FR 56139, Sept. 28, 1979, as amended at 45 FR 8275, Feb. 6, 1980; 47 
FR 57716, Dec. 28, 1982]



Sec. 211.210-2  Labeling requirements.

    (a)(1) A manufacturer responsible for labeling must satisfy the 
requirements of this subpart for a category of hearing protectors before 
distributing that category of hearing protectors in commerce.
    (2) A manufacturer may apply to the Administrator for an extension 
of time to comply with the labeling requirements for a category of 
protectors before he distributes any protectors in commerce. The 
Administrator may grant the manufacturer an extension of up to 20 days 
from the date of distribution. The manufacturer must provide reasonable 
assurance that the protectors equal or exceed their mean attenuation 
values, and that labeling requirements will be satisfied before the 
extension expires. Requests for extension should go to the 
Administrator, U.S. Environment Protection Agency, Washington, DC 20460. 
The Administrator must respond to a request within 2 business days. 
Responses may be either written or oral.
    (3) A manufacturer, receiving hearing protectors through the chain 
of distribution that were labeled by a previous manufacturer, may use 
that previous manufacturer's data when labeling the protectors for 
ultimate sale or use, but is responsible for the accuracy of the 
information on the label. The manufacturer may elect to retest the 
protectors.
    (b) Labeling requirements regarding each hearing protector category 
in a manufacturer's product line consist of:
    (1) Testing hearing protectors according to Sec. 211.206 and the 
hearing protectors must have been assembled by the manufacturer's normal 
production process; and it must have been intended for distribution in 
commerce.
    (c) Each category of hearing protectors is determined by the 
combination of at least the following parameters. Manufacturers may use 
additional parameters as needed to create and identify additional 
categories of protectors.
    (1) Ear muffs. (i) Head band tension (spring constant);
    (ii) Ear cup volume or shape;
    (iii) Mounting of ear cup on head band;
    (iv) Ear cushion;
    (v) Material composition.
    (2) Ear inserts. (i) Shape;
    (ii) Material composition.
    (3) Ear caps. (i) Head band tension (spring constant);
    (ii) Mounting of plug on head band;
    (iii) Shape of plug;
    (iv) Material composition.

If an ear insert or ear cap is manufactured in more than one size 
(small, medium, large, etc.) each size does not constitute a separate 
category and is not required to be separately label verified. However, 
each size must be used when conducting the required test to determine 
the labeled values for the specified category.

[44 FR 56139, Sept. 28, 1979, as amended at 47 FR 57717, Dec. 28, 1982]



Sec. 211.211  Compliance with labeling requirement.

    (a) All hearing protective devices manufactured after the effective 
date of this regulation, and meeting the applicability requirements of 
Sec. 211.201,

[[Page 183]]

must be labeled according to this subpart, and must comply with the 
Labeled Values of mean attenuation.
    (b) A manufacturer must take into account both product variability 
and test-to-test variability when labeling his devices in order to meet 
the requirements of paragraph (a) of this section. A specific category 
is considered when the attenuation value at the tested one-third octave 
band is equal to or greater than the Labeled Value, or mean attenuation 
value, stated in the supporting information required by Sec. 211.204-4, 
for that tested frequency. The attenuation value must be determined 
according to the test procedures of Sec. 211.206. The Noise Reduction 
Rating for the label must be calculated using the Labeled Values of mean 
attenuation that will be included in the supporting information required 
by Sec. 211.204-4.

[47 FR 57717, Dec. 28, 1982]



Sec. 211.212  Compliance audit testing.



Sec. 211.212-1  Test request.

    (a) The Administrator will request all testing under this section by 
means of a test request addressed to the manufacturer.
    (b) The test request will be signed by the Assistant Administrator 
for Enforcement or his designee. The test request will be delivered by 
an EPA Enforcement Officer or sent by certified mail to the plant 
manager or other responsible official as designated by the manufacturer.
    (c) In the test request, the Administrator must specify the 
following:
    (1) The hearing protector category selected for testing;
    (2) The manufacturer's plant or storage facility from which the 
protectors must be selected;
    (3) The selection procedure the manufacturer will use to select test 
protectors;
    (4) The test facility where the manufacturer is required to have the 
protectors tested;
    (5) The number of protectors to be forwarded to the designated test 
facility and the number of those protectors which must be tested by the 
facility.
    (6) The time period allowed for the manufacturer to initiate 
testing; and
    (7) Any other information that will be necessary to conduct testing 
under this section.
    (d) The test request may provide for situations in which the 
selected category is unavailable for testing. It may include an 
alternative category to be selected for testing in the event that 
protectors of the first specified category are not available because the 
protectors are not being manufactured at the specified plant, at the 
specified time, and are not being stored at the specified plant or 
storage facility.
    (e)(1) Any testing conducted by the manufacturer under a test 
request must commence within the period specified within the test 
request. The Administrator may extend the time period on request by the 
manufacturer, if a test facility is not available to conduct the 
testing.
    (2) The manufacturer must complete the required testing within one 
week following commencement of the testing.
    (3) The manufacturer will be allowed 1 calendar week to send test 
hearing protectors from the assembly plant to the testing facility. The 
Administrator may approve more time based upon a request by the 
manufacturer. The request must be accompanied by a satisfactory 
justification.
    (f) Failure to comply with any of the requirements of this section 
will not be considered a violation of these regulations if conditions 
and circumstances outside the control of the manufacturer render it 
impossible for him to comply. These conditions and circumstances 
include, but are not limited to, the temporary unavailability of 
equipment and personnel needed to conduct the required tests. The 
manufacturer bears the burden of establishing the presence of the 
conditions and circumstances.

(Sec. 13. Pub. L. 92-574, 86 Stat. 1244 (42 U.S.C. 4912))

[44 FR 56139, Sept. 28, 1979, as amended at 45 FR 8275, Feb. 6, 1980; 47 
FR 57717, Dec. 28, 1982]



Sec. 211.212-2  Test hearing protector selection.

    (a) The test request will specify the number of test protectors 
which will be selected for testing from the number of

[[Page 184]]

protectors delivered to the test facility in accordance with Sec. 
211.212-1(c)(5). The remainder may be used as replacement protectors if 
replacement is necessary. The test request will also specify that the 
protectors be selected from the next batch scheduled for production 
after receipt of the test request.
    (b) If random selection is specified, it must be achieved by 
sequentially numbering all the protectors in the group and then using a 
table of random numbers to select the test hearing protectors. The 
manufacturer may use an alternative random selection plan when it is 
approved by the Administrator.
    (c) Each test protector of the category selected for testing must 
have been assembled, by the manufacturer, for distribution in commerce 
using the manufacturer's normal production process.
    (d) At their discretion, EPA Enforcement Officers, rather than the 
manufacturer, may select the protectors designated in the test request.
    (e) The manufacturer must keep on hand the test protectors 
designated for testing until such time as the category is determined to 
be in compliance. Hearing protectors actually tested and found to be in 
compliance with these regulations may be distributed in commerce.

(Sec. 13, Pub. L. 92-574, 86 Stat. 1244 (42 U.S.C. 4912))

[44 FR 56139, Sept. 28, 1979, as amended at 45 FR 8275, Feb. 6, 1980]



Sec. 211.212-3  Test hearing protector preparation.

    The manufacturer must select the test hearing protector according to 
Sec. 211.212-2 before the official test, and must comply with the test 
protector preparation requirements described in this subpart:
    (a) A test hearing protector selected according to Sec. 211.212-2 
must not be tested, modified, or adjusted in any manner before the 
official test unless the adjustments, modifications and/or tests are 
part of the manufacturer's prescribed manufacturing and inspection 
procedures.
    (b) Quality controls, testing, assembly or selection procedures must 
not be, used on the completed protector or any portion of the protector, 
including parts, that will not normally be used during the production 
and assembly of all other protectors of that category to be distributed 
in commerce.

[47 FR 57717, Dec. 28, 1982]



Sec. 211.212-4  Testing procedures.

    (a) The manufacturer must conduct one valid test according to the 
test procedures specified in Sec. 211.206 for each hearing protector 
selected for testing under Sec. 211.212-2.
    (b) The manufacturer must not repair or adjust the test hearing 
protectors once compliance testing has been initiated. In the event a 
hearing protector is unable to complete the test, the manufacturer may 
replace the protector. Any replacement protector will be of the same 
category as the protector being replaced. It will be selected from the 
remaining designated test protectors and will be subject to all the 
provisions of these regulations. Any replacement and the reason for 
replacement must be reported in the compliance audit test report.

(Sec. 13, Pub. L. 92-574, 86 Stat. 1244 (42 U.S.C. 4912))



Sec. 211.212-5  Reporting of test results.

    (a)(1) The manufacturer must submit to the Administrator a copy of 
the Compliance Audit Test report for all testing conducted under Sec. 
211.212. It must be submitted within 5 days after completion of testing. 
A suggested compliance audit test report form is included as appendix B.
    (2) The manufacturer must provide the following test information:
    (i) Category identification;
    (ii) Production date, and model of hearing protector;
    (iii) The name and location of the test facility used;
    (iv) The completed data sheet in the form specified for all tests 
including, for each invalid test, the reason for invalidation; and
    (v) The reason for the replacement where a replacement protector was 
necessary.
    (3) The manufacturer must provide the following statement and en 
dorsement:

    This report is submitted under section 8 and section 13 of the Noise 
Control Act of

[[Page 185]]

1972. All testing, for which data are reported here, was conducted in 
strict conformance with applicable regulations under 40 CFR Part 211 et 
seq. All the data reported are true and accurate representations of this 
testing. All other information reported here is, to the best of (company 
name) and (test laboratory name) knowledge, true and accurate. I am 
aware of the penalties associated with violation of the Noise Control 
Act of 1972 and the regulations published under it. (authorized 
representative)


If the testing is conducted by an outside laboratory the manufacturer 
must require an authorized representative of the laboratory to cosign 
both the statement and the endorsement.
    (b) In the case where an EPA Enforcement Officer is present during 
testing required by this subpart, the written reports required in 
paragraph (a) of this section may be given directly to the Enforcement 
Officer.
    (c) The reporting requirements of this regulation will no longer be 
effective after five (5) years from the date of publication; however, 
the requirements will remain in effect if the Administrator is taking 
appropriate steps to repromulgate or modify the reporting requirements 
at that time.

(Sec. 13, Pub. L. 92-574, 86 Stat. 1244 (42 U.S.C. 4912))



Sec. 211.212-6  Determination of compliance.

    (a) A category will be in compliance with these requirements if the 
results of the test conducted under the test request show that:
    (1) The mean attenuation value, at each one-third octave band center 
frequency as determined from the Compliance Audit Test values plus 3 
dB(A), is equal to or greater than the mean attenuation value at the 
same one-third octave band as stated in the Supporting Information 
required by Sec. 211.204-4; and
    (2) The Noise Reduction Rating, when calculated from the mean 
attenuation values determined by Compliance Audit Testing, equals or 
exceeds the Noise Reduction Rating as stated on the label required by 
Sec. 211.204.
    (b) If a category is not in compliance, as determined in paragraph 
(a) of this section, the manufacturer must satisfy the continued testing 
requirements of Sec. 211.212-7, and the relabeling requirements of 
Sec. 211.212-8 before further distributing hearing protectors of that 
category in commerce.

(Sec. 13, Pub. L. 92-574, 86 Stat. 1244 (42 U.S.C. 4912))

[44 FR 56139, Sept. 28, 1979, as amended at 47 FR 57717, Dec. 28, 1982]



Sec. 211.212-7  Continued compliance testing.

    If a category is not in compliance as determined under Sec. 
211.212-6, the manufacturer must satisfy the requirements of paragraph 
(a) or (b) of this section.
    (a) The manufacturer must continue to conduct additional tests until 
the mean attenuation values from the last test at each octave band equal 
or exceed the lowest attenuation values obtained from all previous 
compliance tests.
    (b) Upon approval by the Administrator, the manufacturer may relabel 
at a lower level in compliance with Sec. 211.212-8 in lieu of testing 
under paragraph (a) of this section. The manufacturer must obtain 
approval by showing that the relabeled values adequately take into 
account results achieved from the Compliance Audit Testing and product 
variability. The Administrator is to exercise his discretion in light of 
factors including the prior compliance record of the manufacturer, the 
adequacy of the proposed new labeling value, the amount of deviation of 
test results from the labeled values, and any other relevant 
information.
    (c) When the manufacturer can show that the non-compliance under 
Sec. 211.212-6 was caused by a quality control failure and that the 
failure has been remedied, he may, with the Administrator's approval, 
conduct an additional test and relabel using the mean attenuation values 
no higher than those obtained in that test.
    (d) The manufacturer may request a hearing on the issue of whether 
the compliance audit testing was conducted properly and whether the 
criteria for non-compliance in Sec. 211.212-6 have been met; and the 
appropriateness or scope of a continued testing order. In the event that 
a hearing is requested, the hearing shall begin no later than 15 days 
after the date on which the Administrator received the hearing request. 
Neither the request

[[Page 186]]

for a hearing, nor the fact that a hearing is in progress, shall affect 
the responsibility of the manufacturer to commence and continue testing 
required by the Administrator pursuant to paragraph (a) of this section.

(Sec. 13, Pub. L. 92-574, 86 Stat. 1244 (42 U.S.C. 4912))

[44 FR 56139, Sept. 28, 1979, as amended at 45 FR 8275, Feb. 6, 1980]



Sec. 211.212-8  Relabeling requirements.

    (a) Any manufacturer who is found to not conform with Sec. 211.212-
6, and who has met the requirement of Sec. 211.212-7, must relabel all 
protectors of the specified category already in his possession according 
to Sec. 211.211 before distributing them in commerce. The manufacturer 
shall relabel at values no greater than any mean attenuation values 
received from Compliance Audit Testing. Any manufacturer who proceeds 
with Sec. 211.212-7(a) or (b) must relabel his product line with the 
lowest mean attenuation value at each octave band received from testing; 
or he may take into account product variability under Sec. 211.211(b) 
and label with a lower mean attenuation value than the worst case values 
obtained from Compliance Audit Testing.
    (b) [Reserved]

(Sec. 10(a)(3), Pub. L. 92-574, 86 Stat. 1242 (42 U.S.C. 4909(a)(3)))



Sec. 211.213  Remedial orders for violations of these regulations.

    (a) The Administrator may issue an order under section 11(d)(1) of 
the Act when any person is in violation of these regulations.
    (b) A remedial order will be issued only after the violator has been 
notified of the violation and given an opportunity for a hearing 
according to section 554 of title 5 of the United States Code.
    (c) All costs associated with a remedial order shall be borne by the 
violator.

(Sec. 11(d) Pub. L. 92-574, 86 Stat. 1243 (42 U.S.C. 4910(d)))



Sec. 211.214  Removal of label.

    Section 10(a)(4) of the Act prohibits any person from removing, 
prior to sale, any label required by this subpart, by either physical 
removal or defacing or any other physical act making the label and its 
contents not accessible to the ultimate purchaser prior to sale.

(Sec. 10(a)(4), Pub. L. 92-574, 86 Stat. 1242 (42 U.S.C. 4909(a)(4)))



      Sec. Appendix A to Part 211--Compliance Audit Testing Report

                               Data Sheet

 Company name:__________________________________________________________
 Address:_______________________________________________________________
 Test laboratory:_______________________________________________________
 Address:_______________________________________________________________
 Model number of hearing protector:_____________________________________
 Category designation:__________________________________________________
 Production date:_______________________________________________________

    Test Results--Frequency, Mean Attenuation, and Standard Deviation

 125____________________________________________________________________
 250____________________________________________________________________
 500____________________________________________________________________
 1000___________________________________________________________________
 2000___________________________________________________________________
 3150___________________________________________________________________
 4000___________________________________________________________________
 6300___________________________________________________________________
 8000___________________________________________________________________
 Noise Reduction Rating:________________________________________________

    If replacement hearing protector was necessary to conduct test, 
reason for replacement:
    This report is submitted under sections 8 and 13 of the Noise 
Control Act of 1972. All testing, for which data are reported here, was 
conducted in strict conformance with applicable regulations under 40 CFR 
Part 211, et seq. All the data reported here are true and accurate 
representations of this testing. All other information reported here is, 
to the best of (company name) and (test laboratory name) knowledge, true 
and accurate. I am aware of the penalties associated with violation of 
the Noise Control Act of 1972 and the regulations published under it.
________________________________________________________________________

                 (Authorized representative of company)

________________________________________________________________________

             (Authorized representative of test laboratory)

[44 FR 56139, Sept. 28, 1979. Redesignated at 47 FR 57717, Dec. 28, 
1982]

[[Page 187]]



                       SUBCHAPTER H_OCEAN DUMPING



PART 220_GENERAL--Table of Contents




Sec.
220.1 Purpose and scope.
220.2 Definitions.
220.3 Categories of permits.
220.4 Authorities to issue permits.

    Authority: 33 U.S.C. 1412 and 1418.

    Source: 42 FR 2468, Jan. 11, 1977, unless otherwise noted.



Sec. 220.1  Purpose and scope.

    (a) General. This subchapter H establishes procedures and criteria 
for the issuance of permits by EPA pursuant to section 102 of the Act. 
This subchapter H also establishes the criteria to be applied by the 
Corps of Engineers in its review of activities involving the 
transportation of dredged material for the purpose of dumping it in 
ocean waters pursuant to section 103 of the Act. Except as may be 
authorized by a permit issued pursuant to this subchapter H, or pursuant 
to section 103 of the Act, and subject to other applicable regulations 
promulgated pursuant to section 108 of the Act:
    (1) No person shall transport from the United States any material 
for the purpose of dumping it into ocean waters;
    (2) In the case of a vessel or aircraft registered in the United 
States or flying the United States flag or in the case of a United 
States department, agency, or instrumentality, no person shall transport 
from any location any material for the purpose of dumping it into ocean 
waters; and
    (3) No person shall dump any material transported from a location 
outside the United States:
    (i) Into the territorial sea of the United States; or
    (ii) Into a zone contiguous to the territorial sea of the United 
States, extending to a line twelve nautical miles seaward from the base 
line from which the breadth of the territorial sea is measured, to the 
extent that it may affect the territorial sea or the territory of the 
United States.
    (b) Relationship to international agreements. In accordance with 
section 102(a) of the Act, the regulations and criteria included in this 
subchapter H apply the standards and criteria binding upon the United 
States under the Convention on the Prevention of Marine Pollution by 
Dumping of Wastes and Other Matter to the extent that application of 
such standards and criteria do not relax the requirements of the Act.
    (c) Exclusions--(1) Fish wastes. This subchapter H does not apply 
to, and no permit hereunder shall be required for, the transportation 
for the purpose of dumping or the dumping in ocean waters of fish wastes 
unless such dumping occurs in:
    (i) Harbors or other protected or enclosed coastal waters; or
    (ii) Any other location where the Administrator finds that such 
dumping may reasonably be anticipated to endanger health, the 
environment or ecological systems.
    (2) Fisheries resources. This subchapter H does not apply to, and no 
permit hereunder shall be required for, the placement or deposit of 
oyster shells or other materials for the purpose of developing, 
maintaining or harvesting fisheries resources; provided, such placement 
or deposit is regulated under or is a part of an authorized State or 
Federal program certified to EPA by the agency authorized to enforce the 
regulation, or to administer the program, as the case may be; and 
provided further, that the National Oceanic and Atmospheric 
Administration, the U.S. Coast Guard, and the U.S. Army Corps of 
Engineers concur in such placement or deposit as it may affect their 
responsibilities and such concurrence is evidenced by letters of 
concurrence from these agencies.
    (3) Vessel propulsion and fixed structures. This subchapter H does 
not apply to, and no permit hereunder shall be required for:
    (i) Routine discharges of effluent incidental to the propulsion of 
vessels or the operation of motor-driven equipment on vessels; or
    (ii) Construction of any fixed structure or artificial island, or 
the intentional placement of any device in ocean waters or on or in the 
submerged

[[Page 188]]

land beneath such waters, for a purpose other than disposal when such 
construction or such placement is otherwise regulated by Federal or 
State law or made pursuant to an authorized Federal or State program 
certified to EPA by the agency authorized to enforce the regulations or 
to administer the program, as the case may be.
    (4) Emergency to safeguard life at sea. This subchapter H does not 
apply to, and no permit hereunder shall be required for, the dumping of 
material into ocean waters from a vessel or aircraft in an emergency to 
safeguard life at sea to the extent that the person owning or operating 
such vessel or aircraft files timely reports required by Sec. 224.2(b).



Sec. 220.2  Definitions.

    As used in this subchapter H:
    (a) Act means the Marine Protection, Research, and Sanctuaries Act 
of 1972, as amended (33 U.S.C. 1401);
    (b) FWPCA means the Federal Water Pollution Control Act, as amended 
(33 U.S.C. 1251);
    (c) Ocean or ocean waters means those waters of the open seas lying 
seaward of the baseline from which the territorial sea is measured, as 
provided for in the Convention on the Territorial Sea and the Contiguous 
Zone (15 UST 1606; TIAS 5639); this definition includes the waters of 
the territorial sea, the contiguous zone and the oceans as defined in 
section 502 of the FWPCA.
    (d) Material means matter of any kind or description, including, but 
not limited to, dredged material, solid waste, incinerator residue, 
garbage, sewage, sewage sludge, munitions, radiological, chemical, and 
biological warfare agents, radioactive materials, chemicals, biological 
and laboratory waste, wreck or discarded equipment, rock, sand, 
excavation debris, industrial, municipal, agricultural, and other waste, 
but such term does not mean sewage from vessels within the meaning of 
section 312 of the FWPCA. Oil within the meaning of section 311 of the 
FWPCA shall constitute ``material'' for purposes of this subchapter H 
only to the extent that it is taken on board a vessel or aircraft for 
the primary purpose of dumping.
    (e) Dumping means a disposition of material: Provided, That it does 
not mean a disposition of any effluent from any outfall structure to the 
extent that such disposition is regulated under the provisions of the 
FWPCA, under the provisions of section 13 of the River and Harbor Act of 
1899, as amended (33 U.S.C. 407), or under the provisions of the Atomic 
Energy Act of 1954, as amended (42 U.S.C. 2011), nor does it mean a 
routine discharge of effluent incidental to the propulsion of, or 
operation of motor-driven equipment on, vessels: Provided further, That 
it does not mean the construction of any fixed structure or artificial 
island nor the intentional placement of any device in ocean waters or on 
or in the submerged land beneath such waters, for a purpose other than 
disposal, when such construction or such placement is otherwise 
regulated by Federal or State law or occurs pursuant to an authorized 
Federal or State program; And provided further, That it does not include 
the deposit of oyster shells, or other materials when such deposit is 
made for the purpose of developing, maintaining, or harvesting fisheries 
resources and is otherwise regulated by Federal or State law or occurs 
pursuant to an authorized Federal or State program.
    (f) Sewage Treatment Works means municipal or domestic waste 
treatment facilities of any type which are publicly owned or regulated 
to the extent that feasible compliance schedules are determined by the 
availability of funding provided by Federal, State, or local 
governments.
    (g) Criteria means the criteria set forth in part 227 of this 
subchapter H.
    (h) Dredged Material Permit means a permit issued by the Corps of 
Engineers under section 103 of the Act (see 33 CFR 209.120) and any 
Federal projects reviewed under section 103(e) of the Act (see 33 CFR 
209.145).
    (i) Unless the context otherwise requires, all other terms shall 
have the meanings assigned to them by the Act.



Sec. 220.3  Categories of permits.

    This Sec. 220.3 provides for the issuance of general, special, 
emergency, interim and research permits for ocean dumping under section 
102 of the Act.

[[Page 189]]

    (a) General permits. General permits may be issued for the dumping 
of certain materials which will have a minimal adverse environmental 
impact and are generally disposed of in small quantities, or for 
specific classes of materials that must be disposed of in emergency 
situations. General permits may be issued on application of an 
interested person in accordance with the procedures of part 221 or may 
be issued without such application whenever the Administrator determines 
that issuance of a general permit is necessary or appropriate.
    (b) Special permits. Special permits may be issued for the dumping 
of materials which satisfy the Criteria and shall specify an expiration 
date no later than three years from the date of issue.
    (c) Emergency permits. For any of the materials listed in Sec. 
227.6, except as trace contaminants, after consultation with the 
Department of State with respect to the need to consult with parties to 
the Convention on the Prevention of Marine Pollution by Dumping of 
Wastes and Other Matter that are likely to be affected by the dumping, 
emergency permits may be issued to dump such materials where there is 
demonstrated to exist an emergency requiring the dumping of such 
materials, which poses an unacceptable risk relating to human health and 
admits of no other feasible solution. As used herein, ``emergency'' 
refers to situations requiring action with a marked degree of urgency, 
but is not limited in its application to circumstances requiring 
immediate action. Emergency permits may be issued for other materials, 
except those prohibited by Sec. 227.5, without consultation with the 
Department of State when the Administrator determines that there exists 
an emergency requiring the dumping of such materials which poses an 
unacceptable risk to human health and admits of no other feasible 
solution.
    (d) Interim permits. Prior to April 23, 1978, interim permits may be 
issued in accordance with subpart A of part 227 to dump materials which 
are not in compliance with the environmental impact criteria of subpart 
B of part 227, or which would cause substantial adverse effects as 
determined in accordance with the criteria of subpart D or E of part 227 
or for which an ocean disposal site has not been designated on other 
than an interim basis pursuant to part 228 of this subchapter H; 
provided, however, no permit may be issued for the ocean dumping of any 
materials listed in Sec. 227.5, or for any of the materials listed in 
Sec. 227.6, except as trace contaminants; provided further that the 
compliance date of April 23, 1978, does not apply to the dumping of 
wastes by existing dumpers when the Regional Administrator determines 
that the permittee has exercised his best efforts to comply with all 
requirements of a special permit by April 23, 1978, and has an 
implementation schedule adequate to allow phasing out of ocean dumping 
or compliance with all requirements necessary to receive a special 
permit by December 31, 1981, at the latest. No interim permit will be 
granted for the dumping of waste from a facility which has not 
previously dumped wastes in the ocean from a new facility, or for the 
dumping of an increased amount of waste from the expansion or 
modification of an existing facility, after the effective date of these 
regulations (except when the facility is operated by a municipality now 
dumping such wastes). No interim permit will be issued for the dumping 
of any material in the ocean for which an interim permit had previously 
been issued unless the applicant demonstrates that he has exercised his 
best efforts to comply with all provisions of the previously issued 
permits. Interim permits shall specify an expiration date no later than 
one year from the date of issue.
    (e) Research permits. Research permits may be issued for the dumping 
of any materials, other than materials specified in Sec. 227.5 or for 
any of the materials listed in Sec. 227.6 except as trace contaminants, 
unless subject to the exclusion of Sec. 227.6(g), into the ocean as 
part of a research project when it is determined that the scientific 
merit of the proposed project outweighs the potential environmental or 
other damage that may result from the dumping. Research permits shall 
specify an expiration date no later than 18 months from the date of 
issue.

[[Page 190]]

    (f) Permits for incineration at sea. Permits for incineration of 
wastes at sea will be issued only as research permits or as interim 
permits until specific criteria to regulate this type of disposal are 
promulgated, except in those cases where studies on the waste, the 
incineration method and vessel, and the site have been conducted and the 
site has been designated for incineration at sea in accordance with the 
procedures of Sec. 228.4(b). In all other respects the requirements of 
parts 220 through 228 apply.

[42 FR 2468, Jan. 11, 1977; 43 FR 1071, Jan. 6, 1978]



Sec. 220.4  Authorities to issue permits.

    (a) Determination by Administrator. The Administrator, or such other 
EPA employee as he may from time to time designate in writing, shall 
issue, deny, modify, revoke, suspend, impose conditions on, initiate and 
carry out enforcement activities and take any and all other actions 
necessary or proper and permitted by law with respect to general, 
special, emergency, interim, or research permits.
    (b) Authority delegated to Regional Administrators. Regional 
Administrators, or such other EPA employees as they may from time to 
time designate in writing, are delegated the authority to issue, deny, 
modify, revoke, suspend, impose conditions on, initiate and carry out 
enforcement activities, and take any and all other actions necessary or 
proper and permitted by law with respect to special and interim permits 
for:
    (1) The dumping of material in those portions of the territorial sea 
which are subject to the jurisdiction of any State within their 
respective Regions, and in those portions of the contiguous zone 
immediately adjacent to such parts of the territorial sea; and in the 
oceans with respect to approved waste disposal sites designated pursuant 
to part 228 of this subchapter H, and
    (2) Where transportation for dumping is to originate in one Region 
and dumping is to occur at a location within another Region's 
jurisdiction conferred by order of the Administrator, the Region in 
which transportation is to originate shall be responsible for review of 
the application and shall prepare the technical evaluation of the need 
for dumping and alternatives to ocean dumping. The Region having 
jurisdiction over the proposed dump site shall take all other actions 
required by this subchapter H with respect to the permit application, 
including without limitation, determining to issue or deny the permit, 
specifying the conditions to be imposed, and giving public notice. If 
both Regions do not concur in the disposition of the permit application, 
the Administrator will make the final decision on all issues with 
respect to the permit application, including without limitation, 
issuance or denial of the permit and the conditions to be imposed.
    (c) Review of Corps of Engineers Dredged Material Permits. Regional 
Administrators have the authority to review, to approve or to disapprove 
or to propose conditions upon Dredged Material Permits for ocean dumping 
of dredged material at locations within the respective Regional 
jurisdictions. Regional jurisdiction to act under this paragraph (c) of 
Sec. 220.4 is determined by the Administrator in accordance with Sec. 
228.4(e).



PART 221_APPLICATIONS FOR OCEAN DUMPING PERMITS UNDER SECTION 102 OF THE ACT--

Table of Contents




Sec.
221.1 Applications for permits.
221.2 Other information.
221.3 Applicant.
221.4 Adequacy of information in application.
221.5 Processing fees.

    Authority: 33 U.S.C. 1412 and 1418.

    Source: 42 FR 2470, Jan. 11, 1977, unless otherwise noted.



Sec. 221.1  Applications for permits.

    Applications for general, special, emergency, interim and research 
permits under section 102 of the Act may be filed with the Administrator 
or the appropriate Regional Administrator, as the case may be, 
authorized by Sec. 220.4 to act on the application. Applications shall 
be made in writing and shall contain, in addition to any other material 
which may be required, the following:
    (a) Name and address of applicant;

[[Page 191]]

    (b) Name of the person or firm transporting the material for 
dumping, the name of the person(s) or firm(s) producing or processing 
all materials to be transported for dumping, and the name or other 
identification, and usual location, of the conveyance to be used in the 
transportation and dumping of the material to be dumped, including 
information on the transporting vessel's communications and navigation 
equipment;
    (c) Adequate physical and chemical description of material to be 
dumped, including results of tests necessary to apply the Criteria, and 
the number, size, and physical configuration of any containers to be 
dumped;
    (d) Quantity of material to be dumped;
    (e) Proposed dates and times of disposal;
    (f) Proposed dump site, and in the event such proposed dump site is 
not a dump site designated in this subchapter H, detailed physical, 
chemical and biological information relating to the proposed dump site 
and sufficient to support its designation as a site according to the 
procedures of part 228 of this subchapter H;
    (g) Proposed method of releasing the material at the dump site and 
means by which the disposal rate can be controlled and modified as 
required;
    (h) Identification of the specific process or activity giving rise 
to the production of the material;
    (i) Description of the manner in which the type of material proposed 
to be dumped has been previously disposed of by or on behalf of the 
person(s) or firm(s) producing such material;
    (j) A statement of the need for the proposed dumping and an 
evaluation of short and long term alternative means of disposal, 
treatment or recycle of the material. Means of disposal shall include 
without limitation, landfill, well injection, incineration, spread of 
material over open ground; biological, chemical or physical treatment; 
recovery and recycle of material within the plant or at other plants 
which may use the material, and storage. The statement shall also 
include an analysis of the availability and environmental impact of such 
alternatives; and
    (k) An assessment of the anticipated environmental impact of the 
proposed dumping, including without limitation, the relative duration of 
the effect of the proposed dumping on the marine environment, 
navigation, living and non-living marine resource exploitation, 
scientific study, recreation and other uses of the ocean.



Sec. 221.2  Other information.

    In the event the Administrator, Regional Administrator, or a person 
designated by either to review permit applications, determines that 
additional information is needed in order to apply the Criteria, he 
shall so advise the applicant in writing. All additional information 
requested pursuant to this Sec. 221.2 shall be deemed part of the 
application and for purposes of applying the time limitation of Sec. 
222.1, the application will not be considered complete until such 
information has been filed.



Sec. 221.3  Applicant.

    Any person may apply for a permit under this subchapter H even 
though the proposed dumping may be carried on by a permittee who is not 
the applicant; provided however, that the Administrator or the Regional 
Administrator, as the case may be, may, in his discretion, require that 
an application be filed by the person or firm producing or processing 
the material proposed to be dumped. Issuance of a permit will not excuse 
the permittee from any civil or criminal liability which may attach by 
virtue of his having transported or dumped materials in violation of the 
terms or conditions of a permit, notwithstanding that the permittee may 
not have been the applicant.



Sec. 221.4  Adequacy of information in application.

    No permit issued under this subchapter H will be valid for the 
transportation or dumping of any material which is not accurately and 
adequately described in the application. No permittee shall be relieved 
of any liability which may arise as a result of the transportation or 
dumping of material which does not conform to information provided in 
the application solely by

[[Page 192]]

virtue of the fact that such information was furnished by an applicant 
other than the permittee.



Sec. 221.5  Processing fees.

    (a) A processing fee of $1,000 will be charged in connection with 
each application for a permit for dumping in an existing dump site 
designated in this subchapter H.
    (b) A processing fee of an additional $3,000 will be charged in 
connection with each application for a permit for dumping in a dump site 
other than a dump site designated in this subchapter H.
    (c) Notwithstanding any other provision of this Sec. 221.5, no 
agency or instrumentality of the United States or of a State or local 
government will be required to pay the processing fees specified in 
paragraphs (a) and (b) of this section.



PART 222_ACTION ON OCEAN DUMPING PERMIT APPLICATIONS UNDER SECTION 102 OF THE 

ACT--Table of Contents




Sec.
222.1 General.
222.2 Tentative determinations.
222.3 Notice of applications.
222.4 Initiation of hearings.
222.5 Time and place of hearings.
222.6 Presiding Officer.
222.7 Conduct of public hearing.
222.8 Recommendations of Presiding Officer.
222.9 Issuance of permits.
222.10 Appeal to adjudicatory hearing.
222.11 Conduct of adjudicatory hearings.
222.12 Appeal to Administrator.
222.13 Computation of time.

    Authority: 33 U.S.C. 1412 and 1418.

    Source: 42 FR 2471, Jan. 11, 1977, unless otherwise noted.



Sec. 222.1  General.

    Decisions as to the issuance, denial, or imposition of conditions on 
general, special, emergency, interim and research permits under section 
102 of the Act will be made by application of the criteria of parts 227 
and 228. Final action on any application for a permit will, to the 
extent practicable, be taken within 180 days from the date a complete 
application is filed.



Sec. 222.2  Tentative determinations.

    (a) Within 30 days of the receipt of his initial application, an 
applicant shall be issued notification of whether his application is 
complete and what, if any, additional information is required. No such 
notification shall be deemed to foreclose the Administrator or the 
Regional Administrator, as the case may be, from requiring additional 
information at any time pursuant to Sec. 221.2.
    (b) Within 30 days after receipt of a completed permit application, 
the Administrator or the Regional Administrator, as the case may be, 
shall publish notice of such application including a tentative 
determination with respect to issuance or denial of the permit. If such 
tentative determination is to issue the permit, the following additional 
tentative determinations will be made:
    (1) Proposed time limitations, if any;
    (2) Proposed rate of discharge from the barge or vessel transporting 
the waste;
    (3) Proposed dumping site; and
    (4) A brief description of any other proposed conditions determined 
to be appropriate for inclusion in the permit in question.



Sec. 222.3  Notice of applications.

    (a) Contents. Notice of every complete application for a general, 
special, interim, emergency and research permit shall, in addition to 
any other material, include the following:
    (1) A summary of the information included in the permit application;
    (2) Any tentative determinations made pursuant to paragraph (b) of 
Sec. 222.2;
    (3) A brief description of the procedures set forth in Sec. 222.5 
for requesting a public hearing on the application including 
specification of the date by which requests for a public hearing must be 
filed;
    (4) A brief statement of the factors considered in reaching the 
tentative determination with respect to the permit and, in the case of a 
tentative determination to issue the permit, the reasons for the choice 
of the particular permit conditions selected; and

[[Page 193]]

    (5) The location at which interested persons may obtain further 
information on the proposed dumping, including copies of any relevant 
documents.
    (b) Publication--(1) Special, interim and research permits. Notice 
of every complete application for special, interim and research permits 
shall be given by:
    (i) Publication in a daily newspaper of general circulation in the 
State in closest proximity to the proposed dump site; and
    (ii) Publication in a daily newspaper of general circulation in the 
city in which is located the office of the Administrator or the Regional 
Administrator, as the case may be, giving notice of the permit 
application.
    (2) General permits. Notice of every complete application for a 
general permit or notice of action proposed to be taken by the 
Administrator to issue a general permit, without an application, shall 
be given by publication in the Federal Register.
    (3) Emergency permits. Notice of every complete application for an 
emergency permit shall be given by publication in accordance with 
paragraphs (b)(1)(i) and (ii) of this section; Provided, however, That 
no such notice and no tentative determination in accordance with Sec. 
222.2 shall be required in any case in which the Administrator 
determines:
    (i) That an emergency, as defined in paragraph (c) of Sec. 220.3 
exists;
    (ii) That the emergency poses an unacceptable risk relating to human 
health;
    (iii) That the emergency admits of no other feasible solution; and
    (iv) That the public interest requires the issuance of an emergency 
permit as soon as possible.

Notice of any determination made by the Administrator pursuant to this 
paragraph (b)(3) shall be given as soon as practicable after the 
issuance of the emergency permit by publication in accordance with 
paragraphs (b)(1)(i) and (ii) and with paragraphs (a), (c) through (i) 
of this section.
    (c) Copies of notice sent to specific persons. In addition to the 
publication of notice required by paragraph (b) of this section, copies 
of such notice will be mailed by the Administrator or the Regional 
Administrator, as the case may be, to any person, group or Federal, 
State or local agency upon request. Any such request may be a standing 
request for copies of such notices and shall be submitted in writing to 
the Administrator or to any Regional Administrator and shall relate to 
all or any class of permit applications which may be acted upon by the 
Administrator or such Regional Administrator, as the case may be.
    (d) Copies of notice sent to States. In addition to the publication 
of notice required by paragraph (b) of this section, copies of such 
notice will be mailed to the State water pollution control agency and to 
the State agency responsible for carrying out the Coastal Zone 
Management Act, if such agency exists, for each coastal State within 500 
miles of the proposed dumping site.
    (e) Copies of notice sent to Corps of Engineers. In addition to the 
publication of notice required by paragraph (b) of this section, copies 
of such notice will be mailed to the office of the appropriate District 
Engineer of the U.S. Army Corps of Engineers for purposes of section 
106(c) of the Act, (pertaining to navigation, harbor approaches, and 
artificial islands on the outer continental shelf).
    (f) Copies of notice sent to Coast Guard. In addition to the 
publication of notice required by paragraph (b) of this section, copies 
of such notice will be sent to the appropriate district office of the 
U.S. Coast Guard for review and possible suggestion of additional 
conditions to be included in the permit to facilitate surveillance and 
enforcement.
    (g) Fish and Wildlife Coordination Act. The Fish and Wildlife 
Coordination Act, Reorganization Plan No. 4 of 1970, and the Act require 
that the Administrator or the Regional Administrator, as the case may 
be, consult with appropriate regional officials of the Departments of 
Commerce and Interior, the Regional Director of the NMFS-NOAA, and the 
agency exercising administrative jurisdiction over the fish and wildlife 
resources of the States subject to any dumping prior to the issuance of 
a permit under this subchapter H. Copies of the notice shall be sent to 
the persons noted in paragraph (g) of this section.

[[Page 194]]

    (h) Copies of notice sent to Food and Drug Administration. In 
addition to the publication of notice required by paragraph (b) of this 
section, copies of such notice will be mailed to Food and Drug 
Administration, Shellfish Sanitation Branch (HF-417), 200 C Street SW., 
Washington, DC 20204.
    (i) Failure to give certain notices. Failure to send copies of any 
public notice in accordance with paragraphs (c) through (h) of this 
section shall not invalidate any notice given pursuant to this section 
nor shall such failure invalidate any subsequent administrative 
proceeding.
    (j) Failure of consulted agency to respond. Unless advice to the 
contrary is received from the appropriate Federal or State agency within 
30 days of the date copies of any public notice were dispatched to such 
agency, such agency will be deemed to have no objection to the issuance 
of the permit identified in the public notice.



Sec. 222.4  Initiation of hearings.

    (a) In the case of any permit application for which public notice in 
advance of permit issuance is required in accordance with paragraph (b) 
of Sec. 222.3, any person may, within 30 days of the date on which all 
provisions of paragraph (b) of Sec. 222.3 have been complied with, 
request a public hearing to consider the issuance or denial of, or the 
conditions to be imposed upon, such permit. Any such request for a 
public hearing shall be in writing, shall identify the person requesting 
the hearing, shall state with particularity any objections to the 
issuance or denial of, or to the conditions to be imposed upon, the 
proposed permit, and shall state the issues which are proposed to be 
raised by such person for consideration at a hearing.
    (b) Whenever (1) a written request satisfying the requirements of 
paragraph (a) of this section has been received and the Administrator or 
Regional Administrator, as the case may be, determines that such request 
presents genuine issues, or (2) the Administrator or Regional 
Administrator, as the case may be, determines in his discretion that a 
public hearing is necessary or appropriate, the Administrator or the 
Regional Administrator, as the case may be, will set a time and place 
for a public hearing in accordance with Sec. 222.5, and will give 
notice of such hearing by publication in accordance with Sec. 222.3.
    (c) In the event the Administrator or the Regional Administrator, as 
the case may be, determines that a request filed pursuant to paragraph 
(a) of this section does not comply with the requirements of such 
paragraph (a) of this section or that such request does not present 
substantial issues of public interest, he shall advise, in writing, the 
person requesting the hearing of his determination.



Sec. 222.5  Time and place of hearings.

    Hearings shall be held in the State in closest proximity to the 
proposed dump site, whenever practicable, and shall be set for the 
earliest practicable date no less than 30 days after the receipt of an 
appropriate request for a hearing or a determination by the 
Administrator or the Regional Administrator, as the case may be, to hold 
such a hearing without such a request.



Sec. 222.6  Presiding Officer.

    A hearing convened pursuant to this subchapter H shall be conducted 
by a Presiding Officer. The Administrator or Regional Administrator, as 
the case may be, may designate a Presiding Officer. For adjudicatory 
hearings held pursuant to Sec. 222.11, the Presiding Officer shall be 
an EPA employee who has had no prior connection with the permit 
application in question, including without limitation, the performance 
of investigative or prosecuting functions or any other functions, and 
who is not employed in the Enforcement Division or any Regional 
enforcement office.

[42 FR 2471, Jan. 11, 1977; 42 FR 6583, Feb. 3, 1977]



Sec. 222.7  Conduct of public hearing.

    The Presiding Officer shall be responsible for the expeditious 
conduct of the hearing. The hearing shall be an informal public hearing, 
not an adversary proceeding, and shall be conducted so as to allow the 
presentation of public comments. When the Presiding Officer determines 
that it is necessary or appropriate, he shall cause a suitable record, 
which may include a verbatim

[[Page 195]]

transcript, of the proceedings to be made. Any person may appear at a 
public hearing convened pursuant to Sec. 222.5 whether or not he 
requested the hearing, and may be represented by counsel or any other 
authorized representative. The Presiding Officer is authorized to set 
forth reasonable restrictions on the nature or amount of documentary 
material or testimony presented at a public hearing, giving due regard 
to the relevancy of any such information, and to the avoidance of undue 
repetitiveness of information presented.



Sec. 222.8  Recommendations of Presiding Officer.

    Within 30 days following the adjournment of a public hearing 
convened pursuant to Sec. 222.5, or within such additional period as 
the Administrator or the Regional Administrator, as the case may be, may 
grant to the Presiding Officer for good cause shown, and after full 
consideration of the comments received at the hearing, the Presiding 
Officer will prepare and forward to the Administrator or to the Regional 
Administrator, as the case may be, written recommendations relating to 
the issuance or denial of, or conditions to be imposed upon, the 
proposed permit and the record of the hearing, if any. Such 
recommendations shall contain a brief statement of the basis for the 
recommendations including a description of evidence relied upon. Copies 
of the Presiding Officer's recommendations shall be provided to any 
interested person on request, without charge. Copies of the record will 
be provided in accordance with 40 CFR Part 2.

[42 FR 2471, Jan. 11, 1977; 42 FR 6583, Feb. 3, 1977]



Sec. 222.9  Issuance of permits.

    (a) Within 30 days following receipt of the Presiding Officer's 
recommendations or, where no hearing has been held, following the close 
of the 30-day period for requesting a hearing as provided in Sec. 
222.4, the Administrator or the Regional Administrator, as the case may 
be, shall make a determination with respect to the issuance, denial, or 
imposition of conditions on, any permit applied for under this 
Subchapter H and shall give notice to the applicant and to all persons 
who registered their attendance at the hearing by providing their name 
and mailing address, if any, by mailing a letter stating the 
determination and stating the basis therefor in terms of the Criteria.
    (b) Any determination to issue or deny any permit after a hearing 
held pursuant to Sec. 222.7 shall take effect no sooner than:
    (1) 10 days after notice of such determination is given if no 
request for an adjudicatory hearing is filed in accordance with Sec. 
222.10(a); or
    (2) 20 days after notice of such determination is given if a request 
for an adjudicatory hearing is filed in accordance with paragraph (a) of 
Sec. 222.10 and the Administrator or the Regional Administrator, as the 
case may be, denies such request in accordance with paragraph (c) of 
Sec. 222.10; or
    (3) The date on which a final determination has been made following 
an adjudicatory hearing held pursuant to Sec. 222.11.
    (c) The Administrator or Regional Administrator, as the case may be, 
may extend the term of a previously issued permit pending the conclusion 
of the proceedings held pursuant to Sec. Sec. 222.7 through 222.9.
    (d) A copy of each permit issued shall be sent to the appropriate 
District Office of the U.S. Coast Guard.



Sec. 222.10  Appeal to adjudicatory hearing.

    (a) Within 10 days following the receipt of notice of the issuance 
or denial of any permit pursuant to Sec. 222.9 after a hearing held 
pursuant to Sec. 222.7, any interested person who participated in such 
hearing may request that an adjudicatory hearing be held pursuant to 
Sec. 222.11 for the purpose of reviewing such determination, or any 
part thereof. Any such request for an adjudicatory hearing shall be 
filed with the Administrator or the Regional Administrator, as the case 
may be, and shall be in writing, shall identify the person requesting 
the adjudicatory hearing and shall state with particularity the 
objections to the determination, the basis therefor and the modification 
requested.

[[Page 196]]

    (b) Whenever a written request satisfying the requirements of 
paragraph (a) of this section has been received and the Administrator or 
Regional Administrator, as the case may be, determines that an 
adjudicatory hearing is warranted, the Administrator or the Regional 
Administrator, as the case may be, will set a time and place for an 
adjudicatory hearing in accordance with Sec. 222.5, and will give 
notice of such hearing by publication in accordance with Sec. 222.3.
    (c) Prior to the conclusion of the adjudicatory hearing and appeal 
process, the Administrator or the Regional Administrator, as the case 
may be, in his discretion may extend the duration of a previously issued 
permit until a final determination has been made pursuant to Sec. 
222.11 or Sec. 222.12.
    (d) In the event the Administrator or the Regional Administrator, as 
the case may be, determines that a request filed pursuant to paragraph 
(a) of this section does not comply with the requirements of such 
paragraph (a) of this section or that such request does not present 
substantial issues of public interest, he shall advise, in writing, the 
person requesting the adjudicatory hearing of his determination.
    (e) Any person requesting an adjudicatory hearing or requesting 
admission as a party to an adjudicatory hearing shall state in his 
written request, and shall by filing such request consent, that he and 
his employees and agents shall submit themselves to direct and cross-
examination at any such hearing and to the taking of an oath 
administered by the Presiding Officer.



Sec. 222.11  Conduct of adjudicatory hearings.

    (a) Parties. Any interested person may at a reasonable time prior to 
the commencement of the hearing submit to the Presiding Officer a 
request to be admitted as a party. Such request shall be in writing and 
shall set forth the information which would be required to be submitted 
by such person if he were requesting an adjudicatory hearing. Any such 
request to be admitted as a party which satisfies the requirements of 
this paragraph (a) shall be granted and all parties shall be informed at 
the commencement of the adjudicatory hearing of the parties involved. 
Any party may be represented by counsel or other authorized 
representative. EPA staff representing the Administrator or Regional 
Administrator who took action with respect to the permit application 
shall be deemed a party.
    (b) Filing and service. (1) An original and two (2) copies of all 
documents or papers required or permitted to be filed shall be filed 
with the Presiding Officer.
    (2) Copies of all documents and papers filed with the Presiding 
Officer shall be served upon all other parties to the adjudicatory 
hearing.
    (c) Consolidation. The Administrator, or the Regional Administrator 
in the case of a hearing arising within his Region and for which he has 
been delegated authority hereunder, may, in his discretion, order 
consolidation of any adjudicatory hearings held pursuant to this section 
whenever he determines that consolidation will expedite or simplify the 
consideration of the issues presented. The Administrator may, in his 
discretion, order consolidation and designate one Region to be 
responsible for the conduct of any hearings held pursuant to this 
section which arise in different Regions whenever he determines that 
consolidation will expedite or simplify the consideration of the issues 
presented.
    (d) Pre-hearing conference. The Presiding Officer may hold one or 
more prehearing conferences and may issue a prehearing order which may 
include without limitation, requirements with respect to any or all of 
the following:
    (1) Stipulations and admissions;
    (2) Disputed issues of fact;
    (3) Disputed issues of law;
    (4) Admissibility of any evidence;
    (5) Hearing procedures including submission of oral or written 
direct testimony, conduct of cross-examination, and the opportunity for 
oral arguments;
    (6) Any other matter which may expedite the hearing or aid in 
disposition of any issues raised therein.
    (e) Adjudicatory hearing procedures. (1) The burden of going forward 
with the evidence shall:
    (i) In the case of any adjudicatory hearing held pursuant to Sec. 
222.10(b)(1), be on the person filing a request under

[[Page 197]]

Sec. 222.10(a) as to each issue raised by the request; and
    (ii) In the case of any adjudicatory hearing held pursuant to Sec. 
223.2 or pursuant to part 226, be on the Environmental Protection 
Agency.
    (2) The Presiding Officer shall have the duty to conduct a fair and 
impartial hearing, to take action to avoid unnecessary delay in the 
disposition of proceedings, and to maintain order. He shall have all 
powers necessary or appropriate to that end, including without 
limitation, the following:
    (i) To administer oaths and affirmations;
    (ii) To rule upon offers of proof and receive relevant evidence;
    (iii) To regulate the course of the hearing and the conduct of the 
parties and their counsel;
    (iv) To consider and rule upon all procedural and other motions 
appropriate to the proceedings; and
    (v) To take any action authorized by these regulations and in 
conformance with law.
    (3) Parties shall have the right to cross-examine a witness who 
appears at an adjudicatory hearing to the extent that such cross-
examination is necessary or appropriate for a full disclosure of the 
facts. In multi-party proceedings the Presiding Officer may limit cross-
examination to one party on each side if he is satisfied that the cross-
examination by one party will adequately protect the interests of other 
parties.
    (4) When a party will not be unfairly prejudiced thereby, the 
Presiding Officer may order all or part of the evidence to be submitted 
in written form.
    (5) Rulings of the Presiding Officer on the admissibility of 
evidence, the propriety of cross-examination, and other procedural 
matters, shall be final and shall appear in the record.
    (6) Interlocutory appeals may not be taken.
    (7) Parties shall be presumed to have taken exception to an adverse 
ruling.
    (8) The proceedings of all hearings shall be recorded by such means 
as the Presiding Officer may determine. The original transcript of the 
hearing shall be a part of the record and the sole official transcript. 
Copies of the transcript shall be available from the Environmental 
Protection Agency in accordance with 40 CFR part 2.
    (9) The rules of evidence shall not apply.
    (f) Decision after adjudicatory hearing. (1) Within 30 days after 
the conclusion of the adjudicatory hearing, or within such additional 
period as the Administrator or the Regional Administrator, as the case 
may be, may grant to the Presiding Officer for good cause shown, the 
Presiding Officer shall submit to the Administrator or the Regional 
Administrator, as the case may be, proposed findings of fact and 
conclusions of law, his recommendation with respect to any and all 
issues raised at the hearing, and the record of the hearing. Such 
findings, conclusions and recommendations shall contain a brief 
statement of the basis for the recommendations. Copies of the Presiding 
Officer's proposed findings of fact, conclusions of law and 
recommendations shall be provided to all parties to the adjudicatory 
hearing on request, without charge.
    (2) Within 20 days following submission of the Presiding Officer's 
proposed findings of fact, conclusions of law and recommendations, any 
party may submit written exceptions, no more than 30 pages in length, to 
such proposed findings, conclusions and recommendations and within 30 
days following the submission of the Presiding Officer's proposed 
findings, conclusions and recommendations any party may file written 
comments, no more than 30 pages in length, on another party's 
exceptions. Within 45 days following the submission of the Presiding 
Officer's proposed findings, conclusions and recommendations, the 
Administrator or the Regional Administrator, as the case may be, shall 
make a determination with respect to all issues raised at such hearing 
and shall affirm, reverse or modify the previous or proposed 
determination, as the case may be. Notice of such determination shall 
set forth the determination for each such issue, shall briefly state the 
basis therefor and shall be given by mail to all parties to the 
adjudicatory hearing.

[[Page 198]]



Sec. 222.12  Appeal to Administrator.

    (a)(1) The Administrator delegates to the Environmental Appeals 
Board authority to issue final decisions in appeals filed under this 
part. An appeal 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 part to the Administrator for decision when the Environmental 
Appeals Board, in its discretion, deems it appropriate to do so. When an 
appeal or motion to referred to the Administrator, all parties shall be 
so notified and the rules in this section referring to the Environmental 
Appeals Board shall be interpreted as referring to the Administrator.
    (2) Within 10 days following receipt of the determination of the 
Regional Administrator pursuant to paragraph (f)(2) of Sec. 222.11, any 
party to an adjudicatory hearing held in accordance with Sec. 222.11 
may appeal such determination to the Environmental Appeals Board by 
filing a written notice of appeal, or the Environmental Appeals Board 
may, on its own initiative, review any prior determination.
    (b) The notice of appeal shall be no more than 40 pages in length 
and shall contain:
    (1) The name and address of the person filing the notice of appeal;
    (2) A concise statement of the facts on which the person relies and 
appropriate citations to the record of the adjudicatory hearing;
    (3) A concise statement of the legal basis on which the person 
relies;
    (4) A concise statement setting forth the action which the person 
proposes that the Environmental Appeals Board take; and
    (5) A certificate of service of the notice of appeal on all other 
parties to the adjudicatory hearing.
    (c) The effective date of any determination made pursuant to 
paragraph (f)(2) of Sec. 222.11 may be stayed by the Environmental 
Appeals Board pending final determination by it pursuant to this section 
upon the filing of a notice of appeal which satisfies the requirements 
of paragraph (b) of this section or upon initiation by the Environmental 
Appeals Board of review of any determination in the absence of such 
notice of appeal.
    (d) Within 20 days following the filing of a notice of appeal in 
accordance with this section, any party to the adjudicatory hearing may 
file a written memorandum, no more than 40 pages in length, in response 
thereto.
    (e) Within 45 days following the filing of a notice of appeal in 
accordance with this section, the Environmental Appeals Board shall 
render its final determination with respect to all issues raised in the 
appeal to the Environmental Appeals Board and shall affirm, reverse, or 
modify the previous determination and briefly state the basis for its 
determination.
    (f) In accordance with 5 U.S.C. section 704, the filing of an appeal 
to the Environmental Appeals Board pursuant to this section shall be a 
prerequisite to judicial review of any determination to issue or impose 
conditions upon any permit, or to modify, revoke or suspend any permit, 
or to take any other enforcement action, under this subchapter H.

[42 FR 2471, Jan. 11, 1977, as amended at 57 FR 5346, Feb. 13, 1992]



Sec. 222.13  Computation of time.

    In computing any period of time prescribed or allowed in this part, 
except unless otherwise provided, the day on which the designated period 
of time begins to run shall not be included. The last day of the period 
so computed is to be included unless it is a Saturday, Sunday, or a 
legal holiday in which the Environmental Protection Agency is not open 
for business, in which event the period runs until the end of the next 
day which is not a Saturday, Sunday, or legal holiday. Intermediate 
Saturdays, Sundays and legal holidays shall be excluded from the 
computation when the period of time prescribed or allowed is seven days 
or less.

[[Page 199]]



PART 223_CONTENTS OF PERMITS; REVISION, REVOCATION OR LIMITATION OF OCEAN 

DUMPING PERMITS UNDER SECTION 104(d) OF THE ACT--Table of Contents




Subpart A_Contents of Ocean Dumping Permits Issued Under Section 102 of 
                                 the Act

Sec.
223.1 Contents of special, interim, emergency, general and research 
          permits; posting requirements.

  Subpart B_Procedures for Revision, Revocation or Limitation of Ocean 
             Dumping Permits Under Section 104(d) of the Act

223.2 Scope of these rules.
223.3 Preliminary determination; notice.
223.4 Request for, scheduling and conduct of public hearing; 
          determination.
223.5 Request for, scheduling and conduct of adjudicatory hearing; 
          determination.

    Authority: Secs. 102, 104, 107, 108, Marine Protection Research, and 
Sanctuaries Act of 1972, as amended (33 U.S.C. 1412, 1414, 1417, 1418)

    Source: 42 FR 60702, Nov. 28, 1977, unless otherwise noted.



Subpart A_Contents of Ocean Dumping Permits Issued Under Section 102 of 
                                 the Act



Sec. 223.1  Contents of special, interim, emergency, general and research 

permits; posting requirements.

    (a) All special, interim, emergency and research permits shall be 
displayed on the vessel engaged in dumping and shall include the 
following:
    (1) Name of permittee;
    (2) Means of conveyance and methods and procedures for release of 
the materials to be dumped;
    (3) The port through or from which such material will be transported 
for dumping;
    (4) A description of relevant physical and chemical properties of 
the materials to be dumped;
    (5) The quantity of the material to be dumped expressed in tons;
    (6) The disposal site;
    (7) The times at which the permitted dumping may occur and the 
effective date and expiration date of the permit;
    (8) Special provisions which, after consultation with the Coast 
Guard, are deemed necessary for monitoring or surveillance of the 
transportation or dumping;
    (9) Such monitoring relevant to the assessment of the impact of 
permitted dumping activities on the marine environment at the disposal 
site as the Administrator or Regional Administrator, as the case may be, 
determine to be necessary or appropriate; and
    (10) Any other terms and conditions determined by the Administrator, 
or Regional Administrator, as the case may be, to be necessary or 
appropriate, including, without limitation, release procedures and 
requirements for the continued investigation or development of 
alternatives to ocean dumping.
    (b) General permits shall contain such terms and conditions as the 
Administrator deems necessary or appropriate.
    (c) Interim permits shall, in addition to the information required 
or permitted to be included in the permit pursuant to paragraph (a) of 
this section, include terms and conditions which satisfy the 
requirements of Sec. Sec. 220.3(d) and 227.8.



  Subpart B_Procedures for Revision, Revocation or Limitation of Ocean 
             Dumping Permits Under Section 104(d) of the Act



Sec. 223.2  Scope of these rules.

    (a) These rules of practice shall govern all proceedings under 
section 104(d) of the Marine Protection, Research, and Sanctuaries Act 
of 1972, as amended (33 U.S.C. 1414(d)), to revise, revoke or limit the 
terms and conditions of any permit issued pursuant to section 102 of the 
Act. Section 104(d) provides that ``the Administrator * * * may limit or 
deny the issuance of permits, or he may alter or revoke partially or 
entirely the terms of permits issued by him under this title, for the 
transportation for dumping, or for the dumping, or both of specified 
materials or classes of materials, where he finds that such

[[Page 200]]

materials cannot be dumped consistently with the criteria and other 
factors required to be applied in evaluating the permit application.''
    (b) In the absence of specific provisions in these rules, and where 
appropriate, questions arising at any stage of the proceedings shall be 
resolved at the discretion of the Presiding Officer, the Regional 
Administrator, or the Administrator, as appropriate.



Sec. 223.3  Preliminary determination; notice.

    (a) General. Any general, special, emergency, interim or research 
permit issued pursuant to section 102 of the Act shall be subject to 
revision, revocation or limitation, in whole or in part, as the result 
of a determination by the Administrator or Regional Administrator that:
    (1) The cumulative impact of the permittee's dumping activities or 
the aggregate impact of all dumping activities at the dump site 
designated in the permit should be categorized as Impact Category I, as 
defined in Sec. 228.10(c)(1) of this subchapter; or
    (2) There has been a change in circumstances relating to the 
management of the disposal site designated in the permit; or
    (3) The dumping authorized by the permit would violate applicable 
water quality standards; or
    (4) The dumping authorized by the permit can no longer be carried 
out consistent with the criteria set forth in parts 227 and 228.
    (b) Preliminary determination. Whenever any person authorized by the 
Administrator or Regional Administrator to (1) periodically review 
permits pursuant to section 104(d) of the Act or (2) otherwise assess 
the need for revision, revocation or limitation of a permit makes any of 
the determinations listed in paragraph (a) of this section with respect 
to a permit issued pursuant to section 102 of the Act, and additionally 
determines that revision, revocation or limitation of such permit is 
warranted, the Administrator or Regional Administrator, as the case may 
be, shall provide notification of such proposed revision, revocation or 
limitation to the permittee named in the permit, if any, the public, and 
any cognizant Federal/State agencies pursuant to paragraph (c) of this 
section.
    (c) Form of notification. Notice of any proposed revision, 
revocation or limitation of a permit shall be sent to the permittee by 
certified mail, re turn receipt requested, and shall be pub lished and 
otherwise disseminated in the manner described in Sec. 222.3 (b) 
through (h).
    (d) Contents of notice. The notice of any proposed revision, 
revocation or limitation of a permit issued pursuant to paragraph (b) of 
this section shall include, in addition to any other materials, the 
following:
    (1) A brief description of the contents of the permit, as set forth 
in Sec. 223.1;
    (2) A description of the proposed revision, revocation, or 
limitation;
    (3) A statement of the reason for such proposed revision, 
revocation, or limitation; and
    (4) A statement that within thirty (30) days of the date of 
dissemination of the notice, any person may request a public hearing on 
the proposed revision, revocation or limitation.



Sec. 223.4  Request for, scheduling and conduct of public hearing; 

determination.

    (a) Request for hearing. Within thirty (30) days of the date of the 
dissemination of any notice required by Sec. 223.2(b), any person may 
request the Administrator or Regional Administrator, as appropriate, to 
hold a public hearing on the proposed revision, revocation or limitation 
by submitting a written request containing the following:
    (1) Identification of the person requesting the hearing and his 
interest in the proceeding;
    (2) A statement of any objections to the proposed revision, 
revocation or limitation or to any facts or reasons identified as 
supporting such revision, revocation or limitation; and
    (3) A statement of the issues which such person proposes to raise 
for consideration at such hearing.
    (b) Grant or denial of hearing; notification. Whenever (1) a written 
request satisfying the requirements of paragraph (a) of this section has 
been received, and the Administrator or Regional Administrator, as 
appropriate, determines that such request presents

[[Page 201]]

genuine issues, or (2) the Administrator or Regional Administrator, as 
the case may be, determines in his discretion that a public hearing is 
necessary or appropriate, the Administrator or Regional Administrator, 
as the case may be, will set a time and place for a public hearing in 
accordance with paragraph (c) of this section and will give notice of 
such hearing by publication in accordance with Sec. 223.3(c). In the 
event the Administrator or the Regional Administrator, as the case may 
be, determines that a request filed pursuant to paragraph (a) of this 
section does not comply with the requirements of paragraph (a) or that 
such request does not present genuine issues, he shall advise, in 
writing, the person requesting the hearing of his determination.
    (c) Time and place of hearing. Any hearing authorized pursuant to 
this Section by the Administrator or Regional Administrator, as the case 
may be, shall be held in the city in which the Environmental Protection 
Agency Regional Office which issued the permit is located, whenever 
practicable, and shall be set for the earliest practicable date, but in 
no event less than thirty (30) days after the receipt of an appropriate 
request for a hearing or a determination by the Administrator or the 
Regional Administrator, as the case may be, to hold such a hearing 
without such a request.
    (d) Presiding Officer. Any hearing convened pursuant to this part 
shall be conducted by a Presiding Officer, who shall be either a 
Regional Judicial Officer or a person having the qualifications of the 
members of the Environmental Appeals Board (described in 40 CFR 1.25(e)) 
if assigned by the Administrator or the qualifications of a Regional 
Judicial Officer if assigned by the Regional Administrator, as 
appropriate. Such person shall be an attorney who is a permanent or 
temporary employee of the Agency, who is not employed by the Region's or 
Headquarter's Water Programs Division, Surveillance and Analysis 
Division, or Enforcement Division, and who has had no connection with 
the preparation or presentation of evidence for any hearing in which he 
participates as Judicial Officer.
    (e) Conduct of the public hearing. The Presiding Officer shall be 
responsible for the expeditious conduct of the hearing. The hearing 
shall be an informal public hearing, not an adversary proceeding, and 
shall be conducted so as to allow the presentation of public comments. 
When the Presiding Officer determines that it is necessary or 
appropriate, he shall cause a suitable record, which may include a 
verbatim transcript, of the proceedings to be made. Any person may 
appear at a public hearing convened pursuant to this section whether or 
not he requested the hearing, and may be represented by counsel or any 
other authorized representative. The Presiding Officer is authorized to 
set forth reasonable restrictions on the nature or amount of documentary 
material or testimony presented at a public hearing, giving due regard 
to the relevancy of any such information, and to the avoidance of undue 
repetitiveness of information presented.
    (f) Recommendations of Presiding Officer. Within 30 days following 
the adjournment of a public hearing convened pursuant to this section or 
within such additional period as the Administrator or the Regional 
Administrator, as the case may be, may grant to the Presiding Officer 
for good cause shown, and after full consideration of the comments 
received at the hearing, the Presiding Officer will prepare and forward 
to the Administrator or to the Regional Administrator, as the case may 
be, written recommendations relating to the revision, revocation or 
limitation of the permit and the record of the hearing, if any. Such 
recommendations shall contain a brief statement of the basis therefor, 
including a description of evidence relied upon (1) to support any 
finding made pursuant to Sec. 223.3(a); (2) to justify any proposed 
revision, revocation or limitation of the permit; and (3) to justify any 
proposed revision, revocation or limitation which differs from that set 
forth in the notice issued pursuant to Sec. 223.3(b). Copies of the 
Presiding Officer's recommendations shall be provided to any interested 
person on request, without charge. Copies of the record will be provided 
in accordance with 40 CFR part 2.

[[Page 202]]

    (g) Determination of the Administrator or Regional Administrator. 
Upon receipt of the Presiding Officer's recommendations or, where no 
hearing has been held, upon termination of the thirty (30)-day period 
for requesting a hearing provided in paragraph (a) of this section, the 
Administrator or the Regional Administrator, as the case may be, shall 
make a determination with respect to the modification, revocation or 
suspension of the permit. Such determination shall include a description 
of the permit revision, revocation or limitation, the basis therefor, 
and the effective date. A copy of such determination shall be mailed to 
the permittee and each person who registered his attendance at the 
hearing by providing his name and mailing address.

[42 FR 60702, Nov. 28, 1977, as amended at 57 FR 5346, Feb. 13, 1992]




Sec. 223.5  Request for, scheduling and conduct of adjudicatory hearing; 

determination.

    Within ten (10) days following the receipt of the Administrator's or 
Regional Administrator's determination issued pursuant to Sec. 
223.4(g), any person who participated in the public hearing held 
pursuant to Sec. 223.4 may request that an adjudicatory hearing be held 
for the purpose of reviewing such determination or any part thereof. 
Such request shall be submitted and disposed of, and any adjudicatory 
hearing convened shall be conducted in accordance with the procedures 
set forth in Sec. Sec. 222.10 (a), (b), (d), and (e) and 222.11.



PART 224_RECORDS AND REPORTS REQUIRED OF OCEAN DUMPING PERMITTEES UNDER 

SECTION 102 OF THE ACT--Table of Contents




Sec.
224.1 Records of permittees.
224.2 Reports.

    Authority: 33 U.S.C. 1412 and 1418.



Sec. 224.1  Records of permittees.

    Each permittee named in a special, interim, emergency or research 
permit under section 102 of the Act and each person availing himself of 
the privilege conferred by a general permit, shall maintain complete 
records of the following information, which will be available for 
inspection by the Administrator, Regional Administrator, the Commandant 
of the U.S. Coast Guard, or their respective designees:
    (a) The physical and chemical characteristics of the material dumped 
pursuant to the permit;
    (b) The precise times and locations of dumping;
    (c) Any other information required as a condition of a permit by the 
Administrator or the Regional Administrator, as the case may be.

[42 FR 2474, Jan. 11, 1977]



Sec. 224.2  Reports.

    (a) Periodic reports. Information required to be recorded pursuant 
to Sec. 224.1 shall be reported to the Administrator or the Regional 
Administrator, as the case may be, for the periods indicated within 30 
days of the expiration of such periods:
    (1) For each six-month period, if any, following the effective date 
of the permit;
    (2) For any other period of less than six months ending on the 
expiration date of the permit; and
    (3) As otherwise required in the conditions of the permit.
    (b) Reports of emergency dumping. If material is dumped without a 
permit pursuant to paragraph (c)(4) of Sec. 220.1, the owner or 
operator of the vessel or aircraft from which such dumping occurs shall 
as soon as feasible inform the Administrator, Regional Administrator, or 
the nearest Coast Guard district of the incident by radio, telephone, or 
telegraph and shall within 10 days file a written report with the 
Administrator or Regional Administrator containing the information 
required under Sec. 224.1 and a complete description of the 
circumstances under which the dumping occurred. Such description shall 
explain how human life at sea was in danger and how the emergency 
dumping reduced that danger. If the material dumped included containers, 
the vessel owner or operator shall immediately request the U.S. Coast 
Guard to publish in the local Notice to Mariners the dumping location, 
the type of containers, and whether the contents are toxic or explosive. 
Notification shall also be given to the Food

[[Page 203]]

and Drug Administration, Shellfish Sanitation Branch, Washington, DC 
20204, as soon as possible.

[42 FR 2474, Jan. 11, 1977]



PART 225_CORPS OF ENGINEERS DREDGED MATERIAL PERMITS--Table of Contents




Sec.
225.1 General.
225.2 Review of Dredged Material Permits.
225.3 Procedure for invoking economic impact.
225.4 Waiver by Administrator.

    Authority: 33 U.S.C. 1412 and 1418.

    Source: 42 FR 2475, Jan. 11, 1977, unless otherwise noted.



Sec. 225.1  General.

    Applications and authorizations for Dredged Material Permits under 
section 103 of the Act for the transportation of dredged material for 
the purpose of dumping it in ocean waters will be evaluated by the U.S. 
Army Corps of Engineers in accordance with the criteria set forth in 
part 227 and processed in accordance with 33 CFR 209.120 with special 
attention to Sec. 209.120(g)(17) and 33 CFR 209.145.



Sec. 225.2  Review of Dredged Material Permits.

    (a) The District Engineer shall send a copy of the public notice to 
the appropriate Regional Administrator, and set forth in writing all of 
the following information:
    (1) The location of the proposed disposal site and its physical 
boundaries;
    (2) A statement as to whether the site has been designated for use 
by the Administrator pursuant to section 102(c) of the Act;
    (3) If the proposed disposal site has not been designated by the 
Administrator, a statement of the basis for the proposed determination 
why no previously designated site is feasible and a description of the 
characteristics of the proposed disposal site necessary for its 
designation pursuant to part 228 of this subchapter H;
    (4) The known historical uses of the proposed disposal site;
    (5) Existence and documented effects of other authorized dumpings 
that have been made in the dumping area (e.g., heavy metal background 
reading and organic carbon content);
    (6) An estimate of the length of time during which disposal will 
continue at the proposed site;
    (7) Characteristics and composition of the dredged material; and
    (8) A statement concerning a preliminary determination of the need 
for and/or availability of an environmental impact statement.
    (b) The Regional Administrator will within 15 days of the date the 
public notice and other information required to be submitted by 
paragraph (a) of Sec. 225.2 are received by him, review the information 
submitted and request from the District Engineer any additional 
information he deems necessary or appropriate to evaluate the proposed 
dumping.
    (c) Using the information submitted by the District Engineer, and 
any other information available to him, the Regional Administrator will 
within 15 days after receipt of all requested information, make an 
independent evaluation of the proposed dumping in accordance with the 
criteria and respond to the District Engineer pursuant to paragraph (d) 
or (e) of this section. The Regional Administrator may request an 
extension of this 15 day period to 30 days from the District Engineer.
    (d) When the Regional Administrator determines that the proposed 
dumping will comply with the criteria, he will so inform the District 
Engineer in writing.
    (e) When the Regional Administrator determines that the proposed 
dumping will not comply with the criteria he shall so inform the 
District Engineer in writing. In such cases, no Dredged Material Permit 
for such dumping shall be issued unless and until the provisions of 
Sec. 225.3 are followed and the Administrator grants a waiver of the 
criteria pursuant to Sec. 225.4.



Sec. 225.3  Procedure for invoking economic impact.

    (a) When a District Engineer's determination to issue a Dredged 
Material Permit for the dumping of dredged material into ocean waters 
has been rejected by a Regional Administrator upon application of the 
Criteria, the District Engineer may determine

[[Page 204]]

whether, under section 103(d) of the Act, there is an economically 
feasible alternative method or site available other than the proposed 
dumping in ocean waters. If the District Engineer makes any such 
preliminary determination that there is no economically feasible 
alternative method or site available, he shall so advise the Regional 
Administrator setting forth his reasons for such determination and shall 
submit a report of such determination to the Chief of Engineers in 
accordance with 33 CFR 209.120 and 209.145.
    (b) If the decision of the Chief of Engineers is that ocean dumping 
at the designated site is required because of the unavailability of 
feasible alternatives, he shall so certify and request that the 
Secretary of the Army seek a waiver from the Administrator of the 
Criteria or of the critical site designation in accordance with Sec. 
225.4.



Sec. 225.4  Waiver by Administrator.

    The Administrator shall grant the requested waiver unless within 30 
days of his receipt of the notice, certificate and request in accordance 
with paragraph (b) of Sec. 225.3 he determines in accordance with this 
section that the proposed dumping will have an unacceptable adverse 
effect on municipal water supplies, shellfish beds and fishery areas 
(including spawning and breeding areas), wildlife, or recreational 
areas. Notice of the Administrator's final determination under this 
section shall be given to the Secretary of the Army.



PART 227_CRITERIA FOR THE EVALUATION OF PERMIT APPLICATIONS FOR OCEAN DUMPING 

OF MATERIALS--Table of Contents




                            Subpart A_General

Sec.
227.1 Applicability.
227.2 Materials which satisfy the environmental impact criteria of 
          subpart B.
227.3 Materials which do not satisfy the environmental impact criteria 
          set forth in subpart B.

                     Subpart B_Environmental Impact

227.4 Criteria for evaluating environmental impact.
227.5 Prohibited materials.
227.6 Constituents prohibited as other than trace contaminants.
227.7 Limits established for specific wastes or waste constituents.
227.8 Limitations on the disposal rates of toxic wastes.
227.9 Limitations on quantities of waste materials.
227.10 Hazards to fishing, navigation, shorelines or beaches.
227.11 Containerized wastes.
227.12 Insoluble wastes.
227.13 Dredged materials.

                    Subpart C_Need for Ocean Dumping

227.14 Criteria for evaluating the need for ocean dumping and 
          alternatives to ocean dumping.
227.15 Factors considered.
227.16 Basis for determination of need for ocean dumping.

 Subpart D_Impact of the Proposed Dumping on Esthetic, Recreational and 
                             Economic Values

227.17 Basis for determination.
227.18 Factors considered.
227.19 Assessment of impact.

   Subpart E_Impact of the Proposed Dumping on Other Uses of the Ocean

227.20 Basis for determination.
227.21 Uses considered.
227.22 Assessment of impact.

Subpart F_Special Requirements for Interim Permits Under Section 102 of 
                                 the Act

227.23 General requirement.
227.24 Contents of environmental assessment.
227.25 Contents of plans.
227.26 Implementation of plans.

                          Subpart G_Definitions

227.27 Limiting permissible concentration (LPC).
227.28 Release zone.
227.29 Initial mixing.
227.30 High-level radioactive waste.
227.31 Applicable marine water quality criteria.
227.32 Liquid, suspended particulate, and solid phases of a material.

    Authority: 33 U.S.C. 1412 and 1418.

    Source: 42 FR 2476, Jan. 11, 1977, unless otherwise noted.

[[Page 205]]



                            Subpart A_General



Sec. 227.1  Applicability.

    (a) Section 102 of the Act requires that criteria for the issuance 
of ocean disposal permits be promulgated after consideration of the 
environmental effect of the proposed dumping operation, the need for 
ocean dumping, alternatives to ocean dumping, and the effect of the 
proposed action on esthetic, recreational and economic values and on 
other uses of the ocean. These parts 227 and 228 of this subchapter H 
together constitute the criteria established pursuant to section 102 of 
the Act. The decision of the Administrator, Regional Administrator or 
the District Engineer, as the case may be, to issue or deny a permit and 
to impose specific conditions on any permit issued will be based on an 
evaluation of the permit application pursuant to the criteria set forth 
in this part 227 and upon the requirements for disposal site management 
pursuant to the cri teria set forth in part 228 of this sub chapter H.
    (b) With respect to the criteria to be used in evaluating disposal 
of dredged materials, this section and subparts C, D, E, and G apply in 
their entirety. To determine whether the proposed dumping of dredged 
material complies with subpart B, only Sec. Sec. 227.4, 227.5, 227.6, 
227.9, 227.10 and 227.13 apply. An applicant for a permit to dump 
dredged material must comply with all of subparts C, D, E, G and 
applicable sections of B, to be deemed to have met the EPA criteria for 
dredged material dumping promulgated pursuant to section 102(a) of the 
Act. If, in any case, the Chief of Engineers finds that, in the 
disposition of dredged material, there is no economically feasible 
method or site available other than a dumping site, the utilization of 
which would result in noncompliance with the criteria established 
pursuant to subpart B relating to the effects of dumping or with the 
restrictions established pursuant to section 102(c) of the Act relating 
to critical areas, he shall so certify and request that the Secretary of 
the Army seek a waiver from the Administrator pursuant to part 225.
    (c) The Criteria of this part 227 are established pursuant to 
section 102 of the Act and apply to the evaluation of proposed dumping 
of materials under title I of the Act. The Criteria of this part 227 
deal with the evaluation of proposed dumping of materials on a case-by-
case basis from information supplied by the applicant or otherwise 
available to EPA or the Corps of Engineers concerning the 
characteristics of the waste and other considerations relating to the 
proposed dumping.
    (d) After consideration of the provisions of Sec. Sec. 227.28 and 
227.29, no permit will be issued when the dumping would result in a 
violation of applicable water quality standards.



Sec. 227.2  Materials which satisfy the environmental impact criteria of 

subpart B.

    (a) If the applicant satisfactorily demonstrates that the material 
proposed for ocean dumping satisfies the environmental impact criteria 
set forth in subpart B, a permit for ocean dumping will be issued 
unless:
    (1) There is no need for the dumping, and alternative means of 
disposal are available, as determined in accordance with the criteria 
set forth in subpart C; or
    (2) There are unacceptable adverse effects on esthetic, recreational 
or economic values as determined in accordance with the criteria set 
forth in subpart D; or
    (3) There are unacceptable adverse effects on other uses of the 
ocean as determined in accordance with the criteria set forth in subpart 
E.
    (b) If the material proposed for ocean dumping satisfies the 
environmental impact criteria set forth in subpart B, but the 
Administrator or the Regional Administrator, as the case may be, 
determines that any one of the considerations set forth in paragraph 
(a)(1), (2) or (3) of this section applies, he will deny the permit 
application; provided however, that he may issue an interim permit for 
ocean dumping pursuant to paragraph (d) of Sec. 220.3 and subpart F of 
this part 227 when he determines that:
    (1) The material proposed for ocean dumping does not contain any of 
the materials listed in Sec. 227.5 or listed in Sec. 227.6, except as 
trace contaminants; and

[[Page 206]]

    (2) In accordance with subpart C there is a need to ocean dump the 
material and no alternatives are available to such dumping; and
    (3) The need for the dumping and the unavailability of alternatives, 
as determined in accordance with subpart C, are of greater significance 
to the public interest than the potential for adverse effect on 
esthetic, recreational or economic values, or on other uses of the 
ocean, as determined in accordance with subparts D and E, respectively.



Sec. 227.3  Materials which do not satisfy the environmental impact criteria 

set forth in subpart B.

    If the material proposed for ocean dumping does not satisfy the 
environmental impact criteria of subpart B, the Administrator or the 
Regional Administrator, as the case may be, will deny the permit 
application; provided however, that he may issue an interim permit 
pursuant to paragraph (d) of Sec. 220.3 and subpart F of this part 227 
when he determines that:
    (a) The material proposed for dumping does not contain any of the 
materials listed in Sec. 227.6 except as trace contaminants, or any of 
the materials listed in Sec. 227.5;
    (b) In accordance with subpart C there is a need to ocean dump the 
material; and
    (c) Any one of the following factors is of greater significance to 
the public interest than the potential for adverse impact on the marine 
environment, as determined in accordance with Subpart B:
    (1) The need for the dumping, as determined in accordance with 
subpart C; or
    (2) The adverse effects of denial of the permit on recreational or 
economic values as determined in accordance with subpart D; or
    (3) The adverse effects of denial of the permit on other uses of the 
ocean, as determined in accordance with subpart E.



                     Subpart B_Environmental Impact



Sec. 227.4  Criteria for evaluating environmental impact.

    This subpart B sets specific environmental impact prohibitions, 
limits, and conditions for the dumping of materials into ocean waters. 
If the applicable prohibitions, limits, and conditions are satisfied, it 
is the determination of EPA that the proposed disposal will not unduly 
degrade or endanger the marine environment and that the disposal will 
present:
    (a) No unacceptable adverse effects on human health and no 
significant damage to the resources of the marine environment;
    (b) No unacceptable adverse effect on the marine ecosystem;
    (c) No unacceptable adverse persistent or permanent effects due to 
the dumping of the particular volumes or concentrations of these 
materials; and
    (d) No unacceptable adverse effect on the ocean for other uses as a 
result of direct environmental impact.



Sec. 227.5  Prohibited materials.

    The ocean dumping of the following materials will not be approved by 
EPA or the Corps of Engineers under any circumstances:
    (a) High-level radioactive wastes as defined in Sec. 227.30;
    (b) Materials in whatever form (including without limitation, 
solids, liquids, semi-liquids, gases or organisms) produced or used for 
radiological, chemical or biological warfare;
    (c) Materials insufficiently described by the applicant in terms of 
their compositions and properties to permit application of the 
environmental impact criteria of this subpart B;
    (d) Persistent inert synthetic or natural materials which may float 
or remain in suspension in the ocean in such a manner that they may 
interfere materially with fishing, navigation, or other legitimate uses 
of the ocean.



Sec. 227.6  Constituents prohibited as other than trace contaminants.

    (a) Subject to the exclusions of paragraphs (f), (g) and (h) of this 
section, the ocean dumping, or transportation for dumping, of materials 
containing the following constituents as other than trace contaminants 
will not be approved on other than an emergency basis:
    (1) Organohalogen compounds;
    (2) Mercury and mercury compounds;

[[Page 207]]

    (3) Cadmium and cadmium compounds;
    (4) Oil of any kind or in any form, including but not limited to 
petroleum, oil sludge, oil refuse, crude oil, fuel oil, heavy diesel 
oil, lubricating oils, hydraulic fluids, and any mixtures containing 
these, transported for the purpose of dumping insofar as these are not 
regulated under the FWPCA;
    (5) Known carcinogens, mutagens, or teratogens or materials 
suspected to be carcinogens, mutagens, or teratogens by responsible 
scientific opinion.
    (b) These constituents will be considered to be present as trace 
contaminants only when they are present in materials otherwise 
acceptable for ocean dumping in such forms and amounts in liquid, 
suspended particulate, and solid phases that the dumping of the 
materials will not cause sig nificant undesirable effects, including the 
possibility of danger associated with their bioaccumulation in marine 
organisms.
    (c) The potential for significant undesirable effects due to the 
presence of these constituents shall be determined by application of 
results of bioassays on liquid, suspended particulate, and solid phases 
of wastes according to procedures acceptable to EPA, and for dredged 
material, acceptable to EPA and the Corps of Engineers. Materials shall 
be deemed environmentally acceptable for ocean dumping only when the 
following conditions are met:
    (1) The liquid phase does not contain any of these constituents in 
concentrations which will exceed applicable marine water quality 
criteria after allowance for initial mixing; provided that mercury 
concentrations in the disposal site, after allowance for initial mixing, 
may exceed the average normal ambient concentrations of mercury in ocean 
waters at or near the dumping site which would be present in the absence 
of dumping, by not more than 50 percent; and
    (2) Bioassay results on the suspended particulate phase of the waste 
do not indicate occurrence of significant mortality or significant 
adverse sublethal effects due to the dumping of wastes containing the 
constituents listed in paragraph (a) of this section. These bioassays 
shall be conducted with appropriate sensitive marine organisms as 
defined in Sec. 227.27(c) using procedures for suspended particulate 
phase bioassays approved by EPA, or, for dredged material, approved by 
EPA and the Corps of Engineers. Procedures approved for bioassays under 
this section will require exposure of organisms for a sufficient period 
of time and under appropriate conditions to provide reasonable 
assurance, based on consideration of the statistical significance of 
effects at the 95 percent confidence level, that, when the materials are 
dumped, no significant undesirable effects will occur due to chronic 
toxicity of the constituents listed in paragraph (a) of this section; 
and
    (3) Bioassay results on the solid phase of the wastes do not 
indicate occurrence of significant mortality or significant adverse 
sublethal effects due to the dumping of wastes containing the 
constituents listed in paragraph (a) of this section. These bioassays 
shall be conducted with appropriate sensitive benthic marine organisms 
using benthic bioassay procedures approved by EPA, or, for dredged 
material, approved by EPA and the Corps of Engineers. Procedures 
approved for bioassays under this section will require exposure of 
organisms for a sufficient period of time to provide reasonable 
assurance, based on considerations of statistical significance of 
effects at the 95 percent confidence level, that, when the materials are 
dumped, no significant undesirable effects will occur due either to 
chronic toxicity or to bioaccumulation of the constituents listed in 
paragraph (a) of this section; and
    (4) For persistent organohalogens not included in the applicable 
marine water quality criteria, bioassay results on the liquid phase of 
the waste show that such compounds are not present in concentrations 
large enough to cause significant undesirable effects due either to 
chronic toxicity or to bio ac cumu la tion in marine organisms after 
allowance for initial mixing.
    (d) When the Administrator, Regional Administrator or District 
Engineer, as the case may be, has reasonable cause to believe that a 
material proposed for ocean dumping contains compounds identified as 
carcinogens,

[[Page 208]]

mutagens, or teratogens for which criteria have not been included in the 
applicable marine water quality criteria, he may require special studies 
to be done prior to issuance of a permit to determine the impact of 
disposal on human health and/or marine ecosystems. Such studies must 
provide information comparable to that required under paragraph (c)(3) 
of this section.
    (e) The criteria stated in paragraphs (c)(2) and (3) of this section 
will become mandatory as soon as announcement of the availability of 
acceptable procedures is made in the Federal Register. At that time the 
interim criteria contained in paragraph (e) of this section shall no 
longer be applicable. As interim measures the criteria of paragraphs 
(c)(2) and (3) of this section may be applied on a case-by-case basis 
where interim guidance on acceptable bioassay procedures is provided by 
the Regional Administrator or, in the case of dredged material, by the 
District Engineer; or, in the absence of such guidance, permits may be 
issued for the dumping of any material only when the following 
conditions are met, except under an emergency permit:
    (1) Mercury and its compounds are present in any solid phase of a 
material in concentrations less than 0.75 mg/kg, or less than 50 percent 
greater than the average total mercury content of natural sediments of 
similar lithologic characteristics as those at the disposal site; and
    (2) Cadmium and its compounds are present in any solid phase of a 
material in concentrations less than 0.6 mg/kg, or less than 50 percent 
greater than the average total cadmium content of natural sediments of 
similar lithologic characteristics as those at the disposal site; and
    (3) The total concentration of organohalogen constituents in the 
waste as transported for dumping is less than a concentration of such 
constituents known to be toxic to marine organisms. In calculating the 
concentration of organohalogens, the applicant shall consider that these 
constituents are all biologically available. The determination of the 
toxicity value will be based on existing scientific data or developed by 
the use of bioassays conducted in accordance with approved EPA 
procedures; and
    (4) The total amounts of oils and greases as identified in paragraph 
(a)(4) of this section do not produce a visible surface sheen in an 
undisturbed water sample when added at a ratio of one part waste 
material to 100 parts of water.
    (f) The prohibitions and limitations of this section do not apply to 
the constituents identified in paragraph (a) of this section when the 
applicant can demonstrate that such constituents are (1) present in the 
material only as chemical compounds or forms (e.g., inert insoluble 
solid materials) non-toxic to marine life and non-bioaccumulative in the 
marine environment upon disposal and thereafter, or (2) present in the 
material only as chemical compounds or forms which, at the time of 
dumping and thereafter, will be rapidly rendered non-toxic to marine 
life and non-bioaccumulative in the marine environment by chemical or 
biological degradation in the sea; provided they will not make edible 
marine organisms unpalatable; or will not endanger human health or that 
of domestic animals, fish, shellfish, or wildlife.
    (g) The prohibitions and limitations of this section do not apply to 
the constituents identified in paragraph (a) of this section for the 
granting of research permits if the substances are rapidly rendered 
harmless by physical, chemical or biological processes in the sea; 
provided they will not make edible marine organisms unpalatable and will 
not endanger human health or that of domestic animals.
    (h) The prohibitions and limitations of this section do not apply to 
the constituents identified in paragraph (a) of this section for the 
granting of permits for the transport of these substances for the 
purpose of incineration at sea if the applicant can demonstrate that the 
stack emissions consist of substances which are rapidly rendered 
harmless by physical, chemical or biological processes in the sea. 
Incinerator operations shall comply with requirements which

[[Page 209]]

will be established on a case-by-case basis.

[42 FR 2476, Jan. 11, 1977; 43 FR 1071, Jan. 6, 1978, as amended at 59 
FR 26572, May 20, 1994; 59 FR 52652, Oct. 18, 1994]



Sec. 227.7  Limits established for specific wastes or waste constituents.

    Materials containing the following constituents must meet the 
additional limitations specified in this section to be deemed acceptable 
for ocean dumping:
    (a) Liquid waste constituents immiscible with or slightly soluble in 
seawater, such as benzene, xylene, carbon disulfide and toluene, may be 
dumped only when they are present in the waste in concentrations below 
their solubility limits in seawater. This provision does not apply to 
materials which may interact with ocean water to form insoluble 
materials;
    (b) Radioactive materials, other than those prohibited by Sec. 
227.5, must be contained in accordance with the provisions of Sec. 
227.11 to prevent their direct dispersion or dilution in ocean waters;
    (c) Wastes containing living organisms may not be dumped if the 
organisms present would endanger human health or that of domestic 
animals, fish, shellfish and wildlife by:
    (1) Extending the range of biological pests, viruses, pathogenic 
microorganisms or other agents capable of infesting, infecting or 
extensively and permanently altering the normal populations of 
organisms;
    (2) Degrading uninfected areas; or
    (3) Introducing viable species not indigenous to an area.
    (d) In the dumping of wastes of highly acidic or alkaline nature 
into the ocean, consideration shall be given to:
    (1) The effects of any change in acidity or alkalinity of the water 
at the disposal site; and
    (2) The potential for synergistic effects or for the formation of 
toxic compounds at or near the disposal site. Allowance may be made in 
the permit conditions for the capability of ocean waters to neutralize 
acid or alkaline wastes; provided, however, that dumping conditions must 
be such that the average total alkalinity or total acidity of the ocean 
water after allowance for initial mixing, as defined in Sec. 227.29, 
may be changed, based on stoichiometric calculations, by no more than 10 
percent during all dumping operations at a site to neutralize acid or 
alkaline wastes.
    (e) Wastes containing biodegradable constituents, or constituents 
which consume oxygen in any fashion, may be dumped in the ocean only 
under conditions in which the dissolved oxygen after allowance for 
initial mixing, as defined in Sec. 227.29, will not be depressed by 
more than 25 percent below the normally anticipated ambient conditions 
in the disposal area at the time of dumping.



Sec. 227.8  Limitations on the disposal rates of toxic wastes.

    No wastes will be deemed acceptable for ocean dumping unless such 
wastes can be dumped so as not to exceed the limiting permissible 
concentration as defined in Sec. 227.27; Provided, That this Sec. 
227.8 does not apply to those wastes for which specific criteria are 
established in Sec. 227.11 or Sec. 227.12. Total quantities of wastes 
dumped at a site may be limited as described in Sec. 228.8.



Sec. 227.9  Limitations on quantities of waste materials.

    Substances which may damage the ocean environment due to the 
quantities in which they are dumped, or which may seriously reduce 
amenities, may be dumped only when the quantities to be dumped at a 
single time and place are controlled to prevent long-term damage to the 
environment or to amenities.



Sec. 227.10  Hazards to fishing, navigation, shorelines or beaches.

    (a) Wastes which may present a serious obstacle to fishing or 
navigation may be dumped only at disposal sites and under conditions 
which will insure no unacceptable interference with fishing or 
navigation.
    (b) Wastes which may present a hazard to shorelines or beaches may 
be dumped only at sites and under conditions which will insure no 
unacceptable danger to shorelines or beaches.

[[Page 210]]



Sec. 227.11  Containerized wastes.

    (a) Wastes containerized solely for transport to the dumping site 
and expected to rupture or leak on impact or shortly thereafter must 
meet the appropriate requirements of Sec. Sec. 227.6, 227.7, 227.8, 
227.9, and 227.10.
    (b) Other containerized wastes will be approved for dumping only 
under the following conditions:
    (1) The materials to be disposed of decay, decompose or radiodecay 
to environmentally innocuous materials within the life expectancy of the 
containers and/or their inert matrix; and
    (2) Materials to be dumped are present in such quantities and are of 
such nature that only short-term localized adverse effects will occur 
should the containers rupture at any time; and
    (3) Containers are dumped at depths and locations where they will 
cause no threat to navigation, fishing, shorelines, or beaches.



Sec. 227.12  Insoluble wastes.

    (a) Solid wastes consisting of inert natural minerals or materials 
compatible with the ocean environment may be generally approved for 
ocean dumping provided they are insoluble above the applicable trace or 
limiting permissible concentrations and are rapidly and completely 
settleable, and they are of a particle size and density that they would 
be deposited or rapidly dispersed without damage to benthic, demersal, 
or pelagic biota.
    (b) Persistent inert synthetic or natural materials which may float 
or remain in suspension in the ocean as prohibited in paragraph (d) of 
Sec. 227.5 may be dumped in the ocean only when they have been 
processed in such a fashion that they will sink to the bottom and remain 
in place.



Sec. 227.13  Dredged materials.

    (a) Dredged materials are bottom sediments or materials that have 
been dredged or excavated from the navigable waters of the United 
States, and their disposal into ocean waters is regulated by the U.S. 
Army Corps of Engineers using the criteria of applicable sections of 
parts 227 and 228. Dredged material consists primarily of natural 
sediments or materials which may be contaminated by municipal or 
industrial wastes or by runoff from terrestrial sources such as 
agricultural lands.
    (b) Dredged material which meets the criteria set forth in the 
following paragraphs (b)(1), (2), or (3) of this section is 
environmentally acceptable for ocean dumping without further testing 
under this section:
    (1) Dredged material is composed predominantly of sand, gravel, 
rock, or any other naturally occurring bottom material with particle 
sizes larger than silt, and the material is found in areas of high 
current or wave energy such as streams with large bed loads or coastal 
areas with shifting bars and channels; or
    (2) Dredged material is for beach nourishment or restoration and is 
composed predominantly of sand, gravel or shell with particle sizes 
compatible with material on the receiving beaches; or
    (3) When: (i) The material proposed for dumping is substantially the 
same as the substrate at the proposed disposal site; and
    (ii) The site from which the material proposed for dumping is to be 
taken is far removed from known existing and historical sources of 
pollution so as to provide reasonable assurance that such material has 
not been contaminated by such pollution.
    (c) When dredged material proposed for ocean dumping does not meet 
the criteria of paragraph (b) of this section, further testing of the 
liquid, suspended particulate, and solid phases, as defined in Sec. 
227.32, is required. Based on the results of such testing, dredged 
material can be considered to be environmentally acceptable for ocean 
dumping only under the following conditions:
    (1) The material is in compliance with the requirements of Sec. 
227.6; and
    (2)(i) All major constituents of the liquid phase are in compliance 
with the applicable marine water quality criteria after allowance for 
initial mixing; or
    (ii) When the liquid phase contains major constituents not included 
in the applicable marine water quality criteria, or there is reason to 
suspect synergistic effects of certain contaminants, bioassays on the 
liquid phase of

[[Page 211]]

the dredged material show that it can be discharged so as not to exceed 
the limiting permissible concentration as defined in paragraph (a) of 
Sec. 227.27; and
    (3) Bioassays on the suspended particulate and solid phases show 
that it can be discharged so as not to exceed the limiting permissible 
concentration as defined in paragraph (b) of Sec. 227.27.
    (d) For the purposes of paragraph (c)(2) of this section, major 
constituents to be analyzed in the liquid phase are those deemed 
critical by the District Engineer, after evaluating and considering any 
comments received from the Regional Administrator, and considering known 
sources of discharges in the area.



                    Subpart C_Need for Ocean Dumping



Sec. 227.14  Criteria for evaluating the need for ocean dumping and 

alternatives to ocean dumping.

    This subpart C states the basis on which an evaluation will be made 
of the need for ocean dumping, and alternatives to ocean dumping. The 
nature of these factors does not permit the promulgation of specific 
quantitative criteria of each permit application. These factors will 
therefore be evaluated if applicable for each proposed dumping on an 
individual basis using the guidelines specified in this subpart C.



Sec. 227.15  Factors considered.

    The need for dumping will be determined by evaluation of the 
following factors:
    (a) Degree of treatment useful and feasible for the waste to be 
dumped, and whether or not the waste material has been or will be 
treated to this degree before dumping;
    (b) Raw materials and manufacturing or other processes resulting in 
the waste, and whether or not these materials or processes are essential 
to the provision of the applicant's goods or services, or if other less 
polluting materials or processes could be used;
    (c) The relative environmental risks, impact and cost for ocean 
dumping as opposed to other feasible alternatives including but not 
limited to:
    (1) Land fill;
    (2) Well injection;
    (3) Incineration;
    (4) Spread of material over open ground;
    (5) Recycling of material for reuse;
    (6) Additional biological, chemical, or physical treatment of 
intermediate or final waste streams;
    (7) Storage.
    (d) Irreversible or irretrievable consequences of the use of 
alternatives to ocean dumping.



Sec. 227.16  Basis for determination of need for ocean dumping.

    (a) A need for ocean dumping will be considered to have been 
demonstrated when a thorough evaluation of the factors listed in Sec. 
227.15 has been made, and the Administrator, Regional Administrator or 
District Engineer, as the case may be, has determined that the following 
conditions exist where applicable:
    (1) There are no practicable improvements which can be made in 
process technology or in overall waste treatment to reduce the adverse 
impacts of the waste on the total environment;
    (2) There are no practicable alternative locations and methods of 
disposal or recycling available, including without limitation, storage 
until treatment facilities are completed, which have less adverse 
environmental impact or potential risk to other parts of the environment 
than ocean dumping.
    (b) For purposes of paragraph (a) of this section, waste treatment 
or improvements in processes and alternative methods of disposal are 
practicable when they are available at reasonable incremental cost and 
energy expenditures, which need not be competitive with the costs of 
ocean dumping, taking into account the environmental benefits derived 
from such activity, including the relative adverse environmental impacts 
associated with the use of alternatives to ocean dumping.
    (c) The duration of permits issued under subchapter H and other 
terms and conditions imposed in those permits shall be determined after 
taking into account the factors set forth in this section. 
Notwithstanding compliance with subparts B, D, and E of this part 227 
permittees may, on the basis

[[Page 212]]

of the need for and alternatives to ocean dumping, be required to 
terminate all ocean dumping by a specified date, to phase out all ocean 
dumping over a specified period or periods, to continue research and 
development of alternative methods of disposal and make periodic reports 
of such research and development in order to provide additional 
information for periodic review of the need for and alternatives to 
ocean dumping, or to take such other action as the Administrator, the 
Regional Administrator, or District Engineer, as the case may be, 
determines to be necessary or appropriate.



 Subpart D_Impact of the Proposed Dumping on Esthetic, Recreational and 
                             Economic Values



Sec. 227.17  Basis for determination.

    (a) The impact of dumping on esthetic, recreational and economic 
values will be evaluated on an individual basis using the following 
considerations:
    (1) Potential for affecting recreational use and values of ocean 
waters, inshore waters, beaches, or shorelines;
    (2) Potential for affecting the recreational and commercial values 
of living marine resources.
    (b) For all proposed dumping, full consideration will be given to 
such nonquantifiable aspects of esthetic, recreational and economic 
impact as:
    (1) Responsible public concern for the consequences of the proposed 
dumping;
    (2) Consequences of not authorizing the dumping including without 
limitation, the impact on esthetic, recreational and economic values 
with respect to the municipalities and industries involved.



Sec. 227.18  Factors considered.

    The assessment of the potential for impacts on esthetic, 
recreational and economic values will be based on an evaluation of the 
appropriate characteristics of the material to be dumped, allowing for 
conservative rates of dilution, dispersion, and biochemical degradation 
during movement of the materials from a disposal site to an area of 
significant recreational or commercial value. The following specific 
factors will be considered in making such an assessment:
    (a) Nature and extent of present and potential recreational and 
commercial use of areas which might be affected by the proposed dumping;
    (b) Existing water quality, and nature and extent of disposal 
activities, in the areas which might be affected by the proposed 
dumping;
    (c) Applicable water quality standards;
    (d) Visible characteristics of the materials (e.g., color, suspended 
particulates) which result in an unacceptable estetic nuisance in 
recreational areas;
    (e) Presence in the material of pathogenic organisms which may cause 
a public health hazard either directly or through contamination of 
fisheries or shellfisheries;
    (f) Presence in the material of toxic chemical constituents released 
in volumes which may affect humans directly;
    (g) Presence in the material of chemical constituents which may be 
bioaccumulated or persistent and may have an adverse effect on humans 
directly or through food chain interactions;
    (h) Presence in the material of any constituents which might 
significantly affect living marine resources of recreational or 
commercial value.



Sec. 227.19  Assessment of impact.

    An overall assessment of the proposed dumping and possible 
alternative methods of disposal or recycling will be made based on the 
effect on esthetic, recreational and economic values based on the 
factors set forth in this subpart D, including where applicable, 
enhancement of these values, and the results of the assessment will be 
expressed, where possible, on a quantitative basis, such as percentage 
of a resource lost, reduction in use days of recreational areas, or 
dollars lost in commercial fishery profits or the profitability of other 
commercial enterprises.

[[Page 213]]



   Subpart E_Impact of the Proposed Dumping on Other Uses of the Ocean



Sec. 227.20  Basis for determination.

    (a) Based on current state of the art, consideration must be given 
to any possible long-range effects of even the most innocuous substances 
when dumped in the ocean on a continuing basis. Such a consideration is 
made in evaluating the relationship of each proposed disposal activity 
in relationship to its potential for long-range impact on other uses of 
the ocean.
    (b) An evaluation will be made on an individual basis for each 
proposed dumping of material of the potential for effects on uses of the 
ocean for purposes other than material disposal. The factors to be 
considered in this evaluation include those stated in subpart D, but the 
evaluation of this subpart E will be based on the impact of the proposed 
dumping on specific uses of the ocean rather than on overall esthetic, 
recreational and economic values.



Sec. 227.21  Uses considered.

    An appraisal will be made of the nature and extent of existing and 
potential uses of the disposal site itself and of any areas which might 
reasonably be expected to be affected by the proposed dumping, and a 
quantitative and qualitative evaluation made, where feasible, of the 
impact of the proposed dumping on each use. The uses considered shall 
include, but not be limited to:
    (a) Commercial fishing in open ocean areas;
    (b) Commercial fishing in coastal areas;
    (c) Commercial fishing in estuarine areas;
    (d) Recreational fishing in open ocean areas;
    (e) Recreational fishing in coastal areas;
    (f) Recreational fishing in estuarine areas;
    (g) Recreational use of shorelines and beaches;
    (h) Commercial navigation;
    (i) Recreational navigation;
    (j) Actual or anticipated exploitation of living marine resources;
    (k) Actual or anticipated exploitation of non-living resources, 
including without limitation, sand and gravel places and other mineral 
deposits, oil and gas exploration and development and offshore marine 
terminal or other structure development; and
    (l) Scientific research and study.



Sec. 227.22  Assessment of impact.

    The assessment of impact on other uses of the ocean will consider 
both temporary and long-range effects within the state of the art, but 
particular emphasis will be placed on any irreversible or irretrievable 
commitment of resources that would result from the proposed dumping.



Subpart F_Special Requirements for Interim Permits Under Section 102 of 
                                 the Act



Sec. 227.23  General requirement.

    Each interim permit issued under section 102 of the Act will include 
a requirement for the development and implementation, as soon as 
practicable, of a plan which requires, at the discretion of the 
Administrator or Regional Administrator, as the case may be, either:
    (a) Elimination of ocean disposal of the waste, or
    (b) Bringing the waste into compliance with all the criteria for 
acceptable ocean disposal.



Sec. 227.24  Contents of environmental assessment.

    A plan developed pursuant to this subpart F must include an 
environmental assessment of the proposed action, including without 
limitation:
    (a) Description of the proposed action;
    (b) A thorough review of the actual need for dumping;
    (c) Environmental impact of the proposed action;
    (d) Adverse impacts which cannot be avoided should the proposal be 
implemented;
    (e) Alternatives to the proposed action;
    (f) Relationship between short-term uses of man's environment and 
the maintenance and enhancement of long-term productivity;
    (g) Irreversible and irretrievable commitments of resources which 
would

[[Page 214]]

be involved in the proposed action should it be implemented; and
    (h) A discussion of problems and objections raised by other Federal, 
State and local agencies and by interested persons in the review 
process.



Sec. 227.25  Contents of plans.

    In addition to the environmental assessment required by Sec. 
227.24, a plan developed pursuant to this subpart F must include a 
schedule for eliminating ocean dumping or bringing the wastes into 
compliance with the environmental impact criteria of subpart B, 
including without limitation, the following:
    (a) If the waste is treated to the degree necessary to bring it into 
compliance with the ocean dumping criteria, the applicant should provide 
a description of the treatment and a scheduled program for treatment and 
a subsequent analysis of treated material to prove the effectiveness of 
the process.
    (b) If treatment cannot be effected by post-process techniques the 
applicant should, determining the offending constituents, examine his 
raw materials and his total process to determine the origin of the 
pollutant. If the offending constituents are found in the raw material 
the applicant should consider a new supplier and provide an analysis of 
the new material to prove compliance. Raw materials are to include all 
water used in the process. Water from municipal sources complying with 
drinking water standards is acceptable. Water from other sources such as 
private wells should be analyzed for contaminants. Water that has been 
used in the process should be considered for treatment and recycling as 
an additional source of process water.
    (c) If offending constituents are a result of the process, the 
applicant should investigate and describe the source of the 
constituents. A report of this information will be submitted to EPA and 
the applicant will then submit a proposal describing possible 
alternatives to the existing process or processes and level of cost and 
effectiveness.
    (d) If an acceptable alternative to ocean dumping or additional 
control technology is required, a schedule and documentation for 
implementation of the alternative or approved control process shall be 
submitted and shall include, without limitation:
    (1) Engineering plan;
    (2) Financing approval;
    (3) Starting date for change;
    (4) Completion date;
    (5) Operation starting date.
    (e) If an acceptable alternative does not exist at the time the 
application is submitted, the applicant will submit an acceptable in-
house research program or employ a competent research institution to 
study the problem. The program of research must be approved by the 
Administrator or Regional Administrator, as the case may be, before the 
initiation of the research. The schedule and documentation for 
implementation of a research program will include, without limitation:
    (1) Approaches;
    (2) Experimental design;
    (3) Starting date;
    (4) Reporting intervals;
    (5) Proposed completion date;
    (6) Date for submission of final report.



Sec. 227.26  Implementation of plans.

    Implementation of each phase of a plan shall be initiated as soon as 
it is approved by the Administrator or Regional Administrator, as the 
case may be.



                          Subpart G_Definitions



Sec. 227.27  Limiting permissible con cen tra tion (LPC).

    (a) The limiting permissible concentration of the liquid phase of a 
material is:
    (1) That concentration of a constituent which, after allowance for 
initial mixing as provided in Sec. 227.29, does not exceed applicable 
marine water quality criteria; or, when there are no applicable marine 
water quality criteria,
    (2) That concentration of waste or dredged material in the receiving 
water which, after allowance for initial mixing, as specified in Sec. 
227.29, will not exceed a toxicity threshold defined as 0.01 of a 
concentration shown to be acutely toxic to appropriate sensitive marine 
organisms in a bioassay carried

[[Page 215]]

out in accordance with approved EPA procedures.
    (3) When there is reasonable scientific evidence on a specific waste 
material to justify the use of an application factor other than 0.01 as 
specified in paragraph (a)(2) of this section, such alternative 
application factor shall be used in calculating the LPC.
    (b) The limiting permissible concentration of the suspended 
particulate and solid phases of a material means that concentration 
which will not cause unreasonable acute or chronic toxicity or other 
sublethal adverse effects based on bioassay results using appropriate 
sensitive marine organisms in the case of the suspended particulate 
phase, or appropriate sensitive benthic marine organisms in the case of 
the solid phase; and which will not cause accumulation of toxic 
materials in the human food chain. Suspended particulate phase 
bioaccumulation testing is not required. These bioassays are to be 
conducted in accordance with procedures approved by EPA, or, in the case 
of dredged material, approved by EPA and the Corps of Engineers. \1\
---------------------------------------------------------------------------

    \1\An implementation manual is being developed jointly by EPA and 
the Corps of Engineers, and announcement of the availability of the 
manual will be published in the Federal Register. Until this manual is 
available, interim guidance on the appropriate procedures can be 
obtained from the Marine Protection Branch, WH-548, Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460, or 
the Corps of Engineers, as the case may be.
---------------------------------------------------------------------------

    (c) Appropriate sensitive marine organisms means at least one 
species each representative of phytoplankton or zooplankton, crustacean 
or mollusk, and fish species chosen from among the most sensitive 
species documented in the scientific literature or accepted by EPA as 
being reliable test organisms to determine the anticipated impact of the 
wastes on the ecosystem at the disposal site. Bioassays, except on 
phytoplankton or zooplankton, shall be run for a minimum of 96 hours 
under temperature, salinity, and dissolved oxygen conditions 
representing the extremes of environmental stress at the disposal site. 
Bioassays on phytoplankton or zooplankton may be run for shorter periods 
of time as appropriate for the organisms tested at the discretion of 
EPA, or EPA and the Corps of Engineers, as the case may be.
    (d) Appropriate sensitive benthic marine organisms means two or more 
species that together represent filter-feeding, deposit-feeding, and 
burrowing characteristics. These organisms shall be chosen from among 
the species that are most sensitive for each type they represent, and 
that are documented in the scientific literature and accepted by EPA as 
being reliable test organisms to determine the anticipated impact on the 
site; provided, however, that until sufficient species are adequately 
tested and documented, interim guidance on appropriate organisms 
available for use will be provided by the Administrator, Regional 
Administrator, or the District Engineer, as the case may be.

[42 FR 2476, Jan. 11, 1977; 43 FR 1071, Jan. 6, 1978, as amended at 59 
FR 26572, May 20, 1994; 59 FR 52652, Oct. 18, 1994; 61 FR 51203, Sept. 
30, 1996; 65 FR 47325, Aug. 2, 2000]



Sec. 227.28  Release zone.

    The release zone is the area swept out by the locus of points 
constantly 100 meters from the perimeter of the conveyance engaged in 
dumping activities, beginning at the first moment in which dumping is 
scheduled to occur and ending at the last moment in which dumping is 
scheduled to occur. No release zone shall exceed the total surface area 
of the dumpsite.



Sec. 227.29  Initial mixing.

    (a) Initial mixing is defined to be that dispersion or diffusion of 
liquid, suspended particulate, and solid phases of a waste which occurs 
within four hours after dumping. The limiting permissible concentration 
shall not be exceeded beyond the boundaries of the disposal site during 
initial mixing, and shall not be exceeded at any point in the marine 
environment after initial mixing. The maximum concentration of the 
liquid, suspended particulate, and solid phases of a dumped material 
after initial mixing shall be estimated by one of these methods, in 
order of preference:
    (1) When field data on the proposed dumping are adequate to predict 
initial dispersion and diffusion of the waste, these shall be used, if 
necessary, in

[[Page 216]]

conjunction with an appropriate mathematical model acceptable to EPA or 
the District Engineer, as appropriate.
    (2) When field data on the dispersion and diffusion of a waste of 
characteristics similar to that proposed for discharge are available, 
these shall be used in conjunction with an appropriate mathematical 
model acceptable to EPA or the District Engineer, as appropriate.
    (3) When no field data are available, theoretical oceanic turbulent 
diffusion relationships may be applied to known characteristics of the 
waste and the disposal site.
    (b) When no other means of estimation are feasible.
    (1) The liquid and suspended particulate phases of the dumped waste 
may be assumed to be evenly distributed after four hours over a column 
of water bounded on the surface by the release zone and extending to the 
ocean floor, thermocline, or halocline if one exists, or to a depth of 
20 meters, whichever is shallower, and
    (2) The solid phase of a dumped waste may be assumed to settle 
rapidly to the ocean bottom and to be distributed evenly over the ocean 
bottom in an area equal to that of the release zone as defined in Sec. 
227.28.
    (c) When there is reasonable scientific evidence to demonstrate that 
other methods of estimating a reasonable allowance for initial mixing 
are appropriate for a specific material, such methods may be used with 
the concurrence of EPA after appropriate scientific review.



Sec. 227.30  High-level radioactive waste.

    High-level radioactive waste means the aqueous waste resulting from 
the operation of the first cycle solvent extraction system, or 
equivalent, and the concentrated waste from subsequent extraction 
cycles, or equivalent, in a facility for reprocessing irradiated reactor 
fuels or irradiated fuel from nuclear power reactors.



Sec. 227.31  Applicable marine water quality criteria.

    Applicable marine water quality criteria means the criteria given 
for marine waters in the EPA publication ``Quality Criteria for Water'' 
as published in 1976 and amended by subsequent supplements or additions.



Sec. 227.32  Liquid, suspended particulate, and solid phases of a material.

    (a) For the purposes of these regulations, the liquid phase of a 
material, subject to the exclusions of paragraph (b) of this section, is 
the supernatant remaining after one hour undisturbed settling, after 
centrifugation and filtration through a 0.45 micron filter. The 
suspended particulate phase is the supernatant as obtained above prior 
to centrifugation and filtration. The solid phase includes all material 
settling to the bottom in one hour. Settling shall be conducted 
according to procedures approved by EPA.
    (b) For dredged material, other material containing large 
proportions of insoluble matter, materials which may interact with ocean 
water to form insoluble matter or new toxic compounds, or materials 
which may release toxic compounds upon deposition, the Administrator, 
Regional Administrator, or the District Engineer, as the case may be, 
may require that the separation of liquid, suspended particulate, and 
solid phases of the material be performed upon a mixture of the waste 
with ocean water rather than on the material itself. In such cases the 
following procedures shall be used:
    (1) For dredged material, the liquid phase is considered to be the 
centrifuged and 0.45 micron filtered supernatant remaining after one 
hour undisturbed settling of the mixture resulting from a vigorous 30-
minute agitation of one part bottom sediment from the dredging site with 
four parts water (vol/vol) collected from the dredging site or from the 
disposal site, as appropriate for the type of dredging operation. The 
suspended particulate phase is the supernatant as obtained above prior 
to centrifugation and filtration. The solid phase is considered to be 
all material settling to the bottom within one hour. Settling shall be 
conducted by procedures approved by EPA and the Corps of Engineers.
    (2) For other materials, the proportion of ocean water used shall be 
the minimum amount necessary to produce the anticipated effect (e.g., 
complete neutralization of an acid or alkaline

[[Page 217]]

waste) based on guidance provided by EPA on particular cases, or in 
accordance with approved EPA procedures. For such materials the liquid 
phase is the filtered and centrifuged supernatant resulting from the 
mixture after 30 minutes of vigorous shaking followed by undisturbed 
settling for one hour. The suspended particulate phase is the 
supernatant as obtained above prior to centrifugation and filtration. 
The solid phase is the insoluble material settling to the bottom in that 
period.



PART 228_CRITERIA FOR THE MANAGEMENT OF DISPOSAL SITES FOR OCEAN DUMPING--

Table of Contents




Sec.
228.1 Applicability.
228.2 Definitions.
228.3 Disposal site management responsibilities.
228.4 Procedures for designation of sites.
228.5 General criteria for the selection of sites.
228.6 Specific criteria for site selection.
228.7 Regulation of disposal site use.
228.8 Limitations on times and rates of disposal.
228.9 Disposal site monitoring.
228.10 Evaluating disposal impact.
228.11 Modification in disposal site use.
228.12 [Reserved]
228.13 Guidelines for ocean disposal site baseline or trend assessment 
          surveys under section 102 of the Act.
228.14 Dumping sites designated on an interim basis.
228.15 Dumping sites designated on a final basis.

    Authority: 33 U.S.C. 1412 and 1418.

    Source: 42 FR 2482, Jan. 11, 1977, unless otherwise noted.



Sec. 228.1  Applicability.

    The criteria of this part 228 are established pursuant to section 
102 of the Act and apply to the evaluation of proposed ocean dumping 
under title I of the Act. The criteria of this part 228 deal with the 
evaluation of the proposed dumping of material in ocean waters in 
relation to continuing requirements for effective management of ocean 
disposal sites to prevent unreasonable degradation of the marine 
environment from all wastes being dumped in the ocean. This part 228 is 
applicable to dredged material disposal sites only as specified in 
Sec. Sec. 228.4(e), 228.9, and 228.12.



Sec. 228.2  Definitions.

    (a) The term disposal site means an interim or finally approved and 
precise geographical area within which ocean dumping of wastes is 
permitted under conditions specified in permits issued under sections 
102 and 103 of the Act. Such sites are identified by boundaries 
established by (1) coordinates of latitude and longitude for each 
corner, or by (2) coordinates of latitude and longitude for the center 
point and a radius in nautical miles from that point. Boundary 
coordinates shall be identified as precisely as is warranted by the 
accuracy with which the site can be located with existing navigational 
aids or by the implantation of transponders, buoys or other means of 
marking the site.
    (b) The term baseline or trend assessment survey means the planned 
sampling or measurement of parameters at set stations or in set areas in 
and near disposal sites for a period of time sufficient to provide 
synoptic data for determining water quality, benthic, or biological 
conditions as a result of ocean disposal operations. The minimum 
requirements for such surveys are given in Sec. 228.13.
    (c) The term disposal site evaluation study means the collection, 
analysis, and interpretation of all pertinent information available 
concerning an existing disposal site, including but not limited to, data 
and information from trend assessment surveys, monitoring surveys, 
special purpose surveys of other Federal agencies, public data archives, 
and social and economic studies and records of affected areas.
    (d) The term disposal site designation study means the collection, 
analysis and interpretation of all available pertinent data and 
information on a proposed disposal site prior to use, including but not 
limited to, that from baseline surveys, special purpose surveys of other 
Federal agencies, public data archives, and social and economic studies 
and records of areas which would be affected by use of the proposed 
site.
    (e) The term management authority means the EPA organizational 
entity

[[Page 218]]

assigned responsibility for implementing the management functions 
identified in Sec. 228.3.
    (f) Statistical significance shall mean the statistical significance 
determined by using appropriate standard techniques of multivariate 
analysis with results interpreted at the 95 percent confidence level and 
based on data relating species which are present in sufficient numbers 
at control areas to permit a valid statistical comparison with the areas 
being tested.
    (g) Valuable commercial and recreational species shall mean those 
species for which catch statistics are compiled on a routine basis by 
the Federal or State agency responsible for compiling such statistics 
for the general geographical area impacted, or which are under current 
study by such Federal or State agencies for potential development for 
commercial or recreational use.
    (h) Normal ambient value means that concentration of a chemical 
species reasonably anticipated to be present in the water column, 
sediments, or biota in the absence of disposal activities at the 
disposal site in question.



Sec. 228.3  Disposal site management responsibilities.

    (a) Management of a site consists of regulating times, rates, and 
methods of disposal and quantities and types of materials disposed of; 
developing and maintaining effective ambient monitoring programs for the 
site; conducting disposal site evaluation and designation studies; and 
recommending modifications in site use and/or designation (e.g., 
termination of use of the site for general use or for disposal of 
specific wastes).
    (b) Each site, upon interim or final designation, will be assigned 
to either an EPA Regional office or to EPA Headquarters for management. 
These designations will be consistent with the delegation of authority 
in Sec. 220.4. The designated management authority is fully responsible 
for all aspects of the management of sites within the general 
requirements specified in Sec. 220.4 and this section. Specific 
requirements for meeting the management responsibilities assigned to the 
designated management authority for each site are outlined in Sec. Sec. 
228.5 and 228.6.

[42 FR 2482, Jan. 11, 1977, as amended at 59 FR 61129, Nov. 29, 1994]



Sec. 228.4  Procedures for designation of sites.

    (a) General Permits. Geographical areas or regions within which 
materials may be dumped under a general permit will be published as part 
of the promulgation of each general permit.
    (b) Special and Interim Permits. Areas where ocean dumping is 
permitted subject to the specific conditions of individual special or 
interim permits, will be designated by promulgation in this part 228, 
and such designation will be made based on environmental studies of each 
site, regions adjacent to the site, and on historical knowledge of the 
impact of waste disposal on areas similar to such sites in physical, 
chemical, and biological characteristics. All studies for the evaluation 
and potential selection of dumping sites will be conducted in accordance 
with the requirements of Sec. Sec. 228.5 and 228.6.

The Administrator may, from time to time, designate specific locations 
for temporary use for disposal of small amounts of materials under a 
special permit only without disposal site designation studies when such 
materials satisfy the Criteria and the Administrator determines that the 
quantities to be disposed of at such sites will not result in 
significant impact on the environment. Such designations will be done by 
promulgation in this part 228, and will be for a specified period of 
time and for specified quantities of materials.
    (c) Emergency Permits. Dumping sites for materials disposed of under 
an emergency permit will be specified by the Administrator as a permit 
condition and will be based on an individual appraisal of the 
characteristics of the waste and the safest means for its disposal.
    (d) Research Permits. Dumping sites for research permits will be 
determined by the nature of the proposed study. Dumping sites will be 
specified by the Administrator as a permit condition.
    (e) Dredged Material Permits. (1) Areas where ocean dumping of 
dredged material is permitted subject to the specific

[[Page 219]]

conditions of Dredged Material permits issued by the U.S. Army Corps of 
Engineers will be designated by EPA promulgation in this part 228, and 
such designation will be made based on environmental studies of each 
site, regions adjacent to the site, and on historical knowledge of the 
impact of dredged material disposal on areas similar to such sites in 
physical, chemical, and biological characteristics. All studies for the 
evaluation and potential selection of dredged material disposal sites 
will be conducted in accordance with the appropriate requirements of 
Sec. Sec. 228.5 and 228.6, except that:
    (i) Baseline or trend assessment requirements may be developed on a 
case-by-case basis from the results of research, including that now in 
progress by the Corps of Engineers.
    (ii) An environmental impact assessment for all sites within a 
particular geographic area may be prepared based on complete disposal 
site designation or evaluation studies on a typical site or sites in 
that area. In such cases, sufficient studies to demonstrate the generic 
similarity of all sites within such a geographic area will be conducted.
    (2) In those cases where a recommended disposal site has not been 
designated by the Administrator, or where it is not feasible to utilize 
a recommended disposal site that has been designated by the 
Administrator, the District Engineer shall, in consultation with EPA, 
select a site in accordance with the requirements of Sec. Sec. 228.5 
and 228.6(a). Concurrence by EPA in permits issued for the use of such 
site for the dumping of dredged material at the site will constitute EPA 
approval of the use of the site for dredged material disposal only.
    (3) Sites designated for the ocean dumping of dredged material in 
accordance with the procedures of paragraph (e) (1) or (2) of this 
section shall be used only for the ocean dumping of dredged material 
under permits issued by the U.S. Army Corps of Engineers.



Sec. 228.5  General criteria for the selection of sites.

    (a) The dumping of materials into the ocean will be permitted only 
at sites or in areas selected to minimize the interference of disposal 
activities with other activities in the marine environment, particularly 
avoiding areas of existing fisheries or shellfisheries, and regions of 
heavy commercial or recreational navigation.
    (b) Locations and boundaries of disposal sites will be so chosen 
that temporary perturbations in water quality or other environmental 
conditions during initial mixing caused by disposal operations anywhere 
within the site can be expected to be reduced to normal ambient seawater 
levels or to undetectable contaminant concentrations or effects before 
reaching any beach, shoreline, marine sanctuary, or known geographically 
limited fishery or shellfishery.
    (c) If at any time during or after disposal site evaluation studies, 
it is determined that existing disposal sites presently approved on an 
interim basis for ocean dumping do not meet the criteria for site 
selection set forth in Sec. Sec. 228.5 through 228.6, the use of such 
sites will be terminated as soon as suitable alternate disposal sites 
can be designated.
    (d) The sizes of ocean disposal sites will be limited in order to 
localize for identification and control any immediate adverse impacts 
and permit the implementation of effective monitoring and surveilance 
programs to prevent adverse long-range impacts. The size, configuration, 
and location of any disposal site will be determined as a part of the 
disposal site evaluation or designation study.
    (e) EPA will, wherever feasible, designate ocean dumping sites 
beyond the edge of the continental shelf and other such sites that have 
been historically used.



Sec. 228.6  Specific criteria for site selection.

    (a) In the selection of disposal sites, in addition to other 
necessary or appropriate factors determined by the Administrator, the 
following factors will be considered:
    (1) Geographical position, depth of water, bottom topography and 
distance from coast;
    (2) Location in relation to breeding, spawning, nursery, feeding, or 
passage areas of living resources in adult or juvenile phases;

[[Page 220]]

    (3) Location in relation to beaches and other amenity areas;
    (4) Types and quantities of wastes proposed to be disposed of, and 
proposed methods of release, including methods of packing the waste, if 
any;
    (5) Feasibility of surveillance and monitoring;
    (6) Dispersal, horizontal transport and vertical mixing 
characteristics of the area, including prevailing current direction and 
velocity, if any;
    (7) Existence and effects of current and previous discharges and 
dump ing in the area (including cumulative effects);
    (8) Interference with shipping, fishing, recreation, mineral 
extraction, desalination, fish and shellfish culture, areas of special 
scientific importance and other legitimate uses of the ocean;
    (9) The existing water quality and ecology of the site as determined 
by available data or by trend assessment or baseline surveys;
    (10) Potentiality for the development or recruitment of nuisance 
species in the disposal site;
    (11) Existence at or in close proximity to the site of any 
significant natural or cultural features of historical importance.
    (b) The results of a disposal site evaluation and/or designation 
study based on the criteria stated in paragraphs (b)(1) through (11) of 
this section will be presented in support of the site designation 
promulgation as an environmental assessment of the impact of the use of 
the site for disposal, and will be used in the preparation of an 
environmental impact statement for each site where such a statement is 
required by EPA policy. By publication of a notice in accordance with 
this part 228, an environmental impact statement, in draft form, will be 
made available for public comment not later than the time of publication 
of the site designation as proposed rulemaking, and a final EIS will be 
made available at the time of final rulemaking.



Sec. 228.7  Regulation of disposal site use.

    Where necessary, disposal site use will be regulated by setting 
limitations on times of dumping and rates of discharge, and establishing 
a disposal site monitoring program.



Sec. 228.8  Limitations on times and rates of disposal.

    Limitations as to time for and rates of dumping may be stated as 
part of the promulgation of site designation. The times and the 
quantities of permitted material disposal will be regulated by the EPA 
management authority so that the limits for the site as specified in the 
site designation are not exceeded. This will be accomplished by the 
denial of permits for the disposal of some materials, by the imposition 
of appropriate conditions on other permits and, if necessary, the 
designation of new disposal sites under the procedures of Sec. 228.4. 
In no case may the total volume of material disposed of at any site 
under special or interim permits cause the concentration of the total 
materials or any constituent of any of the materials being disposed of 
at the site to exceed limits specified in the site designation.



Sec. 228.9  Disposal site monitoring.

    (a) The monitoring program, if deemed necessary by the Regional 
Administrator or the District Engineer, as appropriate, may include 
baseline or trend assessment surveys by EPA, NOAA, other Federal 
agencies, or contractors, special studies by permittees, and the 
analysis and interpretation of data from remote or automatic sampling 
and/or sensing devices. The primary purpose of the monitoring program is 
to evaluate the impact of disposal on the marine environment by 
referencing the monitoring results to a set of baseline conditions. When 
disposal sites are being used on a continuing basis, such programs may 
consist of the following components:
    (1) Trend assessment surveys conducted at intervals frequent enough 
to assess the extent and trends of environmental impact. Until survey 
data or other information are adequate to show that changes in frequency 
or scope are necessary or desirable, trend assessment and baseline 
surveys should generally conform to the applicable requirements of Sec. 
228.13. These sur veys shall be the responsibility of the Federal 
government.
    (2) Special studies conducted by the permittee to identify immediate 
and

[[Page 221]]

short-term impacts of disposal operations.
    (b) These surveys may be supplemented, where feasible and useful, by 
data collected from the use of automatic sampling buoys, satellites or 
in situ platforms, and from experimental programs.
    (c) EPA will require the full participation of permittees, and 
encourage the full participation of other Federal and State and local 
agencies in the development and implementation of disposal site 
monitoring programs. The monitoring and research programs presently 
supported by permittees may be incorporated into the overall monitoring 
program insofar as feasible.



Sec. 228.10  Evaluating disposal impact.

    (a) Impact of the disposal at each site designated under section 102 
of the Act will be evaluated periodically and a report will be submitted 
as appropriate as part of the Annual Report to Congress. Such reports 
will be prepared by or under the direction of the EPA management 
authority for a specific site and will be based on an evaluation of all 
data available from baseline and trend assessment surveys, monitoring 
surveys, and other data pertinent to conditions at and near a site.
    (b) The following types of effects, in addition to other necessary 
or appropriate considerations, will be considered in determining to what 
extent the marine environment has been impacted by materials disposed of 
at an ocean disposal site:
    (1) Movement of materials into estuaries or marine sanctuaries, or 
onto oceanfront beaches, or shorelines;
    (2) Movement of materials toward productive fishery or shellfishery 
areas;
    (3) Absence from the disposal site of pollution-sensitive biota 
characteristic of the general area;
    (4) Progressive, non-seasonal, changes in water quality or sediment 
composition at the disposal site, when these changes are attributable to 
materials disposed of at the site;
    (5) Progressive, non-seasonal, changes in composition or numbers of 
pelagic, demersal, or benthic biota at or near the disposal site, when 
these changes can be attributed to the effects of materials disposed of 
at the site;
    (6) Accumulation of material constituents (including without 
limitation, human pathogens) in marine biota at or near the site.
    (c) The determination of the overall severity of disposal at the 
site on the marine environment, including without limitation, the 
disposal site and adjacent areas, will be based on the evaluation of the 
entire body of pertinent data using appropriate methods of data analysis 
for the quantity and type of data available. Impacts will be categorized 
according to the overall condition of the environment of the disposal 
site and adjacent areas based on the determination by the EPA management 
authority assessing the nature and extent of the effects identified in 
paragraph (b) of this section in addition to other necessary or 
appropriate considerations. The following categories shall be used:
    (1) Impact Category I: The effects of activities at the disposal 
site shall be categorized in Impact Category I when one or more of the 
following conditions is present and can reasonably be attributed to 
ocean dumping activities;
    (i) There is identifiable progressive movement or accumulation, in 
detectable concentrations above normal ambient values, of any waste or 
waste constituent from the disposal site within 12 nautical miles of any 
shoreline, marine sanctuary designated under title III of the Act, or 
critical area designated under section 102(c) of the Act; or
    (ii) The biota, sediments, or water column of the disposal site, or 
of any area outside the disposal site where any waste or waste 
constituent from the disposal site is present in detectable 
concentrations above normal ambient values, are adversely affected by 
the toxicity of such waste or waste constituent to the extent that there 
are statistically significant decreases in the populations of valuable 
commercial or recreational species, or of specific species of biota 
essential to the propagation of such species, within the disposal site 
and such other area as compared to populations of the same organisms in 
comparable locations outside such site and area; or

[[Page 222]]

    (iii) Solid waste material disposed of at the site has accumulated 
at the site or in areas adjacent to it, to such an extent that major 
uses of the site or of adjacent areas are significantly impaired and the 
Federal or State agency responsible for regulating such uses certifies 
that such significant impairment has occurred and states in its 
certificate the basis for its determination of such impairment; or
    (iv) There are adverse effects on the taste or odor of valuable 
commercial or recreational species as a result of disposal activities; 
or
    (v) When any toxic waste, toxic waste constituent, or toxic 
byproduct of waste interaction, is consistently identified in toxic 
concentrations above normal ambient values outside the disposal site 
more than 4 hours after disposal.
    (2) Impact Category II: The effects of activities at the disposal 
site which are not categorized in Impact Category I shall be categorized 
in Impact Category II.



Sec. 228.11  Modification in disposal site use.

    (a) Modifications in disposal site use which involve the withdrawal 
of designated disposal sites from use or permanent changes in the total 
specified quantities or types of wastes permitted to be discharged to a 
specific disposal site will be made through promulgation of an amendment 
to the disposal site designation set forth in this part 228 and will be 
based on the results of the analyses of impact described in Sec. 228.10 
or upon changed circumstances concerning use of the site.
    (b) Modifications in disposal site use promulgated pursuant to 
paragraph (a) of this section shall not automatically modify conditions 
of any outstanding permit issued pursuant to this subchapter H, and 
provided further that unless the EPA management authority for such site 
modifies, revokes or suspends such permit or any of the terms or 
conditions of such permit in accordance with the provisions of Sec. 
232.2 based on the results of impact analyses as described in Sec. 
228.10 or upon changed circumstances concerning use of the site, such 
permit will remain in force until its expiration date.
    (c) When the EPA management authority determines that activities at 
a disposal site have placed the site in Impact Category I, the 
Administrator or the Regional Administrator, as the case may be, shall 
place such limitations on the use of the site as are necessary to reduce 
the impacts to acceptable levels.
    (d) The determination of the Administrator as to whether to 
terminate or limit use of a disposal site will be based on the impact of 
disposal at the site itself and on the Criteria.

[42 FR 2482, Jan. 11, 1977; 43 FR 1071, Jan. 6, 1978]



Sec. 228.12  [Reserved]



Sec. 228.13  Guidelines for ocean disposal site baseline or trend assessment 

surveys under section 102 of the Act.

    The purpose of a baseline or trend assessment survey is to determine 
the physical, chemical, geological, and biological structure of a 
proposed or existing disposal site at the time of the survey. A baseline 
or trend assessment survey is to be regarded as a comprehensive synoptic 
and representative picture of existing conditions; each such survey is 
to be planned as part of a continual monitoring program through which 
changes in conditions at a disposal site can be documented and assessed. 
Surveys will be planned in coordination with the ongoing programs of 
NOAA and other Federal, State, local, or private agencies with missions 
in the marine environment. The field survey data collection phase of a 
disposal site evaluation or designation study shall be planned and 
conducted to obtain a body of information both representative of the 
site at the time of study and obtained by techniques reproducible in 
precision and accuracy in future studies. A full plan of study which 
will provide a record of sampling, analytical, and data reduction 
procedures must be developed, documented and approved by the EPA 
management authority. Plans for all surveys which will produce 
information to be used in the preparation of environmental impact 
statements will be approved by the Administrator or his designee. This 
plan of study also shall be

[[Page 223]]

incorporated as an appendix into a technical report on the study, 
together with notations describing deviations from the plan required in 
actual operations. Relative emphasis on individual aspects of the 
environment at each site will depend on the type of wastes disposed of 
at the site and the manner in which such wastes are likely to affect the 
local environment, but no major feature of the disposal site may be 
neglected. The observations made and the data obtained are to be based 
on the information necessary to evaluate the site for ocean dumping. The 
parameters measured will be those indicative, either directly or 
indirectly, of the immediate and long-term impact of pollutants on the 
environment at the disposal site and adjacent land or water areas. An 
initial disposal site evaluation or designation study should provide an 
immediate baseline appraisal of a particular site, but it should also be 
regarded as the first of a series of studies to be continued as long as 
the site is used for waste disposal.
    (a) Timing. Baseline or trend assessment surveys will be conducted 
with due regard for climatic and seasonal impact on stratification and 
other conditions in the upper layers of the water column. Where a choice 
of season is feasible, trend assessment surveys should be made during 
those months when pollutant accumulation within disposal sites is likely 
to be most severe, or when pollutant impact within disposal sites is 
likely to be most noticeable.
    (1) Where disposal sites are near large riverine inflows to the 
ocean, surveys will be done with due regard for the seasonal variation 
in river flow. In some cases several surveys at various river flows may 
be necessary before a site can be approved.
    (2) When initial surveys show that seasonal variation is not 
significant and surveys at greater than seasonable intervals are 
adequate for characterizing a site, resurveys shall be carried out in 
climatic conditions as similar to those of the original surveys as 
possible, particularly in depths less than 200 meters.
    (b) Duration. The actual duration of a field survey will depend upon 
the size and depth of the site, weather conditions during the survey, 
and the types of data to be collected. For example, for a survey of an 
area of 100 square miles on the continental shelf, including an average 
dump site and the region contiguous to it, an on-site operation would be 
scheduled for completion within one week of weather suitable for on-site 
operations. More on-site operating time may be scheduled for larger or 
highly complex sites.
    (c) Numbers and locations of sampling stations. The numbers and 
locations of sampling stations will depend in part on the local 
bathymetry with minimum numbers of stations per site fixed as specified 
in the following sections. Where the bottom is smooth or evenly sloping, 
stations for water column measurements and benthic sampling and 
collections, other than trawls, shall be spaced throughout the survey 
area in a manner planned to provide maximum coverage of both the 
disposal site and contiguous control areas, considering known water 
movement characteristics. Where there are major irregularities in the 
bottom topography, such as canyons or gullies, or in the nature of the 
bottom, sampling stations for sediments and benthic communities shall be 
spaced to provide representative sampling of the major different 
features.

Sampling shall be done within the dump site itself and in the contiguous 
area. Sufficient control stations outside a disposal site shall be 
occupied to characterize the control area environment at least as well 
as the disposal site itself. Where there are known persistent currents, 
sampling in contiguous areas shall include at least two stations 
downcurrent of the dump site, and at least two stations upcurrent of the 
site.
    (d) Measurements in the water column at and near the dump site--(1) 
Water quality parameters measured. These shall include the major 
indicators of water quality, particularly those likely to be affected by 
the waste proposed to be dumped. Specifically included at all stations 
are measurements of temperature, dissolved oxygen, salinity, suspended 
solids, turbidity, total organic carbon, pH, inorganic nutrients, and 
chlorophyll a.

[[Page 224]]

    (i) At one station near the center of the disposal site, samples of 
the water column shall be taken for the analysis of the following 
parameters: Mercury, cadmium, copper, chromium, zinc, lead, arsenic, 
selenium, vanadium, beryllium, nickel, pesticides, petroleum 
hydrocarbons, and persistent organoha- logens. These samples shall be 
preserved for subsequent analysis by or under the direct supervision of 
EPA laboratories in accordance with the approved plan of study.
    (ii) These parameters are the basic requirements for all sites. For 
the evaluation of any specific disposal site additional measurements may 
be required, depending on the present or intended use of the site. 
Additional parameters may be selected based on the materials likely to 
be in wastes dumped at the site, and on parameters likely to be affected 
by constituents of such wastes. Analysis for other constituents 
characteristic of wastes discharged to a particular disposal site, or of 
the impact of such wastes on water quality, will be included in 
accordance with the approved plan of study.
    (2) Water quality sampling requirements. The number of samples 
collected from the water column should be suf ficient to identify 
representative changes throughout the water column such as to avoid 
short-term impact due to disposal activities. The following key 
locations should be considered in selecting water column depths for 
sampling:
    (i) Surface, below interference from surface waves;
    (ii) Middle of the surface layer;
    (iii) Bottom of the surface layer;
    (iv) Middle of the thermocline or halocline, or both if present;
    (v) Near the top of the stable layer beneath a thermocline or 
halocline;
    (vi) Near the middle of a stable layer;
    (vii) As near the bottom as feasible;
    (viii) Near the center of any zone showing pronounced biological 
activity or lack thereof.

In very shallow waters where only a few of these would be pertinent, as 
a minimum, surface, mid-depth and bottom samples shall be taken, with 
samples at additional depths being added as indicated by local 
conditions. At disposal sites far enough away from the influence of 
major river inflows, ocean or coastal currents, or other features which 
might cause local perturbations in water chemistry, a minimum of 5 water 
chemistry stations should be occupied within the boundaries of a site. 
Additional stations should be added when the area to be covered in the 
survey is more than 20 square miles or when local perturbations in water 
chemistry may be expected because of the presence of one of the features 
mentioned above. In zones where such impacts are likely, stations shall 
be distributed so that at least 3 stations are occupied in the 
transition from one stable regime to another. Each water column 
chemistry station shall be replicated a minimum of 2 times during a 
survey except in waters over 200 meters deep.
    (3) Water column biota. Sampling stations for the biota in the water 
column shall be as near as feasible to stations used for water quality; 
in addition at least two night-time stations in the disposal site and 
contiguous area are required. At each station vertical or oblique tows 
with appropriately-meshed nets shall be used to assess the 
microzooplankton, the nekton, and the macrozooplankton, Towing times and 
distances shall be sufficient to obtain representative samples of 
organisms near water quality stations. Organisms shall be sorted and 
identified to taxonomic levels necessary to identify dominant organisms, 
sensitive or indicator organisms, and organism diversity. Tissue samples 
of representative species shall be analyzed for pesticides, persistent 
organohalogens, and heavy metals. Discrete water samples shall also be 
used to quantitatively assess the phytoplankton at each station.

These requirements are the minimum necessary in all cases. Where there 
are discontinuities present, such as thermoclines, haloclines, 
convergences, or upwelling, additional tows shall be made in each water 
mass as appropriate.
    (e) Measurements of the benthic region--(1) Bottom sampling. Samples 
of the bottom shall be taken for both sediment composition and 
structure, and to determine the nature and numbers of benthic biota.

[[Page 225]]

    (i) At each station sampling may consist of core samples, grab 
samples, dredge samples, trawls, and bottom photography or television, 
where available and feasible, depending on the nature of the bottom and 
the type of disposal site. Each type of sampling shall be replicated 
sufficiently to obtain a representative set of samples. The minimum 
numbers of replicates of successful samples at each continental shelf 
station for each type of device mentioned above are as follows:

Cores.....................................  3.
Grabs.....................................  5.
Dredge....................................  3.
Trawl.....................................  20-min. tow.
 


Lesser numbers of replicates may be allowed in water deeper than 200 
meters, at those sites where pollution impacts on the bottom are 
unlikely in the judgment of the EPA management authority.
    (ii) Selection of bottom stations will be based to a large extent on 
the bottom topography and hydrography as determined by the bathymetric 
survey. On the continental shelf, where the bottom has no significant 
discontinuities, a bottom station density of at least three times the 
water column stations is recommended, depending on the type of site 
being evaluated. Where there are significant differences in bottom 
topography, additional stations shall be occupied near the discontinuity 
and on each side of it. Beyond the continental shelf, lesser densities 
may be used.
    (2) Bathymetric survey. Sufficient tracklines shall be run to 
develop complete bottom coverage of bathymetry with reasonable assurance 
of accurate coverage of bottom topography, with trackline direction and 
spacing as close as available control allows. The site itself is to be 
developed at the greatest density possible, with data to be collected to 
a suitable distance about the site as is required to identify major 
changes in bathymetry which might affect the site. Specifications for 
each bathymetric survey will vary, depending on control, bottom 
complexity, depths, equipment, and map scale required. In most cases, a 
bathymetric map at a scale of 1:25,000 to 1:10,000 will be required, 
with a minimum of 1-5 meter contour interval except in very flat areas. 
When the foregoing bathymetric detail is available from recent surveys 
of the disposal site, bathymetry during a baseline or trend assessment 
survey may be limited to sonar profiles of bathymetry on transects 
between sampling stations.
    (3) Nature of bottom. The size distribution of sediments, mineral 
character and chemical quality of the bottom will be determined to a 
depth appropriate for the type of bottom. The following parameters will 
be measured at all stations: Particle size distribution, major mineral 
constituents, texture, settling rate, and organic carbon.
    (i) At several stations near the center of the disposal site, 
samples of sediments shall be taken for the analysis of the following 
parameters: Mercury, cadmium, copper, chromium, zinc, lead, arsenic, 
selenium, vanadium, beryllium, nickel, pesticides, persistent 
organohalogens, and petroleum hydrocarbons. These samples shall be 
preserved for subsequent analysis by or under the direct supervision of 
EPA laboratories in accordance with the approved plan of study.
    (ii) These parameters are the basic requirements for all sites. For 
the evaluation of any specific disposal site additional measurements may 
be required, depending on the present or intended use of the site. 
Additional parameters may be selected based on the materials likely to 
be in wastes dumped at the site, and on parameters likely to be affected 
by constituents of such wastes. Such additional parameters will be 
selected by the EPA management authority.
    (4) Benthic biota. This shall consist of a quantitative and 
qualitative evaluation of benthic communities including macroinfauna and 
macroepifauna, meiobenthos, and microbenthos, and should include an 
appraisal, based on existing information, of the sensitivity of 
indigenous species to the waste proposed to be discharged. Organisms, 
shall be sorted, and identified to taxonomic levels necessary to 
identify dominant organisms, sensitive or indicator organisms, and 
organism diversity. Tissue samples of the following types of organisms 
shall be analyzed for persistent organohalogens, pesticides, and heavy 
metals:

[[Page 226]]

    (i) A predominant species of demersal fish;
    (ii) The most abundant macro in faunal species; and
    (iii) A dominant epifaunal species, with particular preference for a 
species of economic importance.
    (f) Other measurements--(1) Hydrodynamic features. The direction and 
speed of water movement shall be characterized at levels appropriate for 
the site and type of waste to be dumped. Where depths and climatic 
conditions are great enough for a thermocline or halocline to exist, the 
relationship of water movement to such a feature shall be characterized.
    (i) Current measurements. When current meters are used as the 
primary source of hydrodynamic data, at least 4 current meter stations 
with at least 3 meters at depths appropriate for the observed or 
expected discontinuities in the water column should be operated for as 
long as possible during the survey. Where feasible, current meters 
should be deployed at the initiation of the survey and recovered after 
its completion. Stations should be at least a mile apart, and should be 
placed along the long axis of the dumping site. For dumping sites more 
than 10 miles along the long axis, one current meter station every 5 
miles should be operated. Where there are discontinuities in surface 
layers, e.g., due to land runoff, stations should be operated in each 
water mass.
    (ii) Water mass movement. Acceptable methods include: dye, drogues, 
surface drifters, side scan sonar, bottom drifters, and bottom 
photography or television. When such techniques are the primary source 
of hydrodynamic data, coverage should be such that all significant 
hydrodynamic features likely to affect waste movement are measured.
    (2) Sea state. Observations of sea state and of standard 
meteorological parameters shall be made at 8-hour intervals.
    (3) Surface phenomena. Observations shall be made of oil slicks, 
floating materials, and other visible evidence of pollution; and, where 
possible, collections of floating materials shall be made.
    (g) Survey procedures and techniques. Techniques and procedures used 
for sampling and analysis shall represent the state-of-the-art in 
oceanographic survey and analytical practice. Survey plans shall specify 
the methods to be used and will be subject to approval by EPA.
    (h) Quality assurance. The EPA management authority may require that 
certain samples be submitted on a routine basis to EPA laboratories for 
analysis as well as being analyzed by the surveyor, and that EPA 
personnel participate in some field surveys.



Sec. 228.14  Dumping sites designated on an interim basis.

    (a)(1) The sites identified in this section are approved for dumping 
the indicated materials on an interim basis pending completion of 
baseline or trend assessment surveys and final designation or 
termination of use. Unless otherwise specifically provided in the entry 
for a particular site, such interim use sites are available indefinitely 
pending completion of the present studies and determination of the need 
for the continuing use of these sites, the completion of any necessary 
studies, and evaluation of their suitability. Designation studies for 
particular sites within this group will begin as soon as feasible after 
the completion of nearby sites presently being studied. The sizes and 
use specifications are based on historical usage and do not necessarily 
meet the criteria stated in this part.
    (2) Unless otherwise specifically noted, site management authority 
for each site set forth in this section is delegated to the EPA Regional 
office under which the site entry is listed.
    (3) Unless otherwise specifically noted, all ocean dumping site 
coordinates are based upon the North American Datum of 1927.
    (b) Region I Interim Dredged Material Sites.
    (1) Cape Arundel, ME.
    (i) Location: 43[deg]17[min]45[sec]N., 70[deg]27[min]12[sec]W. (500 
yds. diameter).
    (ii) [Reserved]
    (c) Region I Interim Other Wastes Sites.
    (1) No interim sites.
    (2) [Reserved]
    (d) Region II Interim Dredged Material Sites.

[[Page 227]]

    (1) No interim sites.
    (2) [Reserved]
    (e) Region II Interim Other Wastes Sites.
    (1) Incineration of Wood, NY/NJ.
    (i) Location: 40[deg]00[min]00[sec]N. to 40[deg]04[min]20[sec]N.; 
73[deg]41[min]00[sec]W. to 73[deg]38[min]10[sec]W.
    (ii) [Reserved]
    (2) [Reserved]
    (f) Region III Interim Dredged Material Sites.
    (1) No interim sites.
    (2) [Reserved]
    (g) Region III Interim Other Wastes Sites.
    (1) No interim sites.
    (2) [Reserved]
    (h) Region IV Interim Dredged Material Sites.
    (1) Port Royal Harbor North, SC.
    (i) Location: 32[deg]10[min]11[sec]N., 80[deg]36[min]00[sec]W.; 
32[deg]10[min]06[sec]N., 80[deg]36[min]35[sec]W.; 
32[deg]08[min]38[sec]N., 80[deg]36[min]23[sec]W.; 
32[deg]08[min]41[sec]N., 80[deg]35[min]49[sec]W.
    (ii) [Reserved]
    (2) Port Royal Harbor South, SC.
    (i) Location: 32[deg]05[min]46[sec]N., 80[deg]35[min]30[sec]W.; 
32[deg]05[min]42[sec]N., 80[deg]36[min]27[sec]W.; 
32[deg]04[min]22[sec]N., 80[deg]36[min]16[sec]W.; 
32[deg]04[min]27[sec]N., 80[deg]35[min]18[sec]W.
    (ii) [Reserved]
    (3)-(6) [Reserved]
    (7) Charlotte Harbor, FL.
    (i) Location: 26[deg]37[min]36[sec]N., 82[deg]19[min]55[sec]W.; 
26[deg]37[min]36[sec]N., 82[deg]18[min]47[sec]W.; 
26[deg]36[min]36[sec]N., 82[deg]18[min]47[sec]W.; 
26[deg]36[min]36[sec]N., 82[deg]19[min]55[sec]W.
    (ii) [Reserved]
    (8) Port St. Joe South, FL.
    (i) Location: 29[deg]50.9[min] N., 85[deg]29.9[min] W.; 
29[deg]51.3[min] N., 85[deg]29.5[min] W.; 29[deg]49.2[min] N., 
85[deg]28.2[min] W.; 29[deg]49.0[min] N., 85[deg]28.8[min] W.
    (ii) [Reserved]
    (9) Port St. Joe North, FL.
    (i) Location: 29[deg]53.9[min] N., 85[deg]31.8[min] W.; 
29[deg]54.1[min] N., 85[deg]31.3[min] W.; 29[deg]52.2[min] N., 
85[deg]30.1[min] W.; 29[deg]52.2[min] N., 85[deg]30.8[min] W.
    (ii) [Reserved]
    (10) Panama City, FL.
    (i) Location: 30[deg]07.1[min] N., 85[deg]45.9[min] W.; 
30[deg]07.2[min] N., 85[deg]45.5[min] W.; 30[deg]06.9[min] N., 
85[deg]45.1[min] W.; 30[deg]06.7[min] N., 85[deg]45.6[min]
    (ii) [Reserved]
    (i) Region IV Interim Other Wastes Sites.
    (1) No interim sites.
    (2) [Reserved]
    (j) Region VI Interim Dredged Material Sites.
    (1) Mississippi River, Baton Rouge to the Gulf of Mexico, LA--South 
Pass.
    (1) Description and location: Maintaince dredging disposal area 0.5 
mile square, parallel to the channel and located on the west side. 
Beginning at 28[deg]58[min]33[sec]N. and 89[deg]07[min]00[sec]W., 
following channel centerline (azimuth 295[deg]41[min]) of the Gulf 
entrance channel to 28[deg]58[min]24[sec]N. and 89[deg]06[min]30[sec]W., 
thence to 28[deg]57[min]54[sec]N. and 89[deg]06[min]42[sec]W., thence to 
28[deg]58[min]06[sec]N. and 89[deg]07[min]18[sec]W., thence to the point 
of beginning.
    (ii) [Reserved]
    (2) Mississippi River Outlets, Venice, LA--Tiger Pass.
    (i) Description and location: Maintenance dredging disposal area 0.5 
mile wide by 2.5 miles long, parallel and adjacent to the channel and 
located on the south side. Beginning at 29[deg]08[min]24[sec]W. and 
89[deg]25[min]35[sec]N. following 270[deg] azimuth to 
29[deg]08[min]24[sec]W. and 89[deg]28[min]05[sec]N., thence to 
29[deg]07[min]54[sec]W. and 89[deg]28[min]05[sec]N., thence to 
29[deg]07[min]54[sec]W. and 89[deg]25[min]35[sec]N., thence to the point 
of beginning.
    (ii) [Reserved]
    (3) Waterway from Empire, LA to the Gulf of Mexico--Bar channel.
    (i) Description and location: Maintenance dredging disposal area 0.5 
mile wide by 1 mile long, parallel to the channel and located on the 
west side. Beginning at 29[deg]15[min]06[sec]N. and 
89[deg]36[min]30[sec]W., following channel centerline (azimuth 
11[deg]08[min]) of the gulf entrance channel to 29[deg]14[min]30[sec]N. 
and 89[deg]36[min]36[sec]W., thence to 29[deg]14[min]36[sec]N. and 
89[deg]36[min]48[sec]W., thence to 29[deg]15[min]12[sec]N. and 
89[deg]36[min]42[sec]W., thence to the point of beginning.
    (ii) [Reserved]
    (4) Bayou Lafourche and Lafourche--Jump Waterway, LA--Bell Pass.
    (i) Description and location: Maintenance dredging disposal area 
2,000 feet wide by 1.5 miles long, parallel to the channel and located 
on the west side. Beginning at 29[deg]05[min]00[sec]N. and 
90[deg]13[min]45[sec]W., following Bell Pass centerline (azimuth 
12[deg]55[min]) in the gulf entrance channel to 29[deg]03[min]51[sec]N., 
and 90[deg]14[min]06[sec]W., thence to 29[deg]03[min]57[sec]N. and 
90[deg]14[min]21[sec]W., thence to 29[deg]05[min]06[sec]N. and 
90[deg]14[min]03[sec]W., thence to the point of beginning.
    (ii) [Reserved]
    (5) [Reserved]
    (6) Mermentau River, LA, Disposal Area ``A''.
    (i) Description and location: Maintenance dredging disposal area 0.5 
mile wide and 1.5 miles long, parallel to the entrance channels in the 
Lower Mermentau River and in the Lower

[[Page 228]]

Mud Lake, both located on the west side: Beginning at 
28[deg]44[min]48[sec]N. and 93[deg]07[min]12[sec]W., following channel 
centerline (azimuth 256[deg]59[min]) of the gulf entrance to 
29[deg]43[min]39[sec]N. and 93[deg]07[min]36[sec]W., thence to 
29[deg]43[min]42[sec]N. and 93[deg]07[min]48[sec]W., thence to 
29[deg]44[min]51[sec]N. and 93[deg]07[min]24[sec]W., thence to the point 
of beginning.
    (ii) [Reserved]
    (7) Mermentau River, LA, Disposal Area ``B''.
    (i) Description and location: Maintenance dredging disposal area 0.5 
mile wide by 1.5 miles long, parallel to the entrance channels in the 
Lower Mermentau River in the Lower Mud Lake, both located on the west 
side: Beginning at 29[deg]43[min]24[sec]N. and 93[deg]01[min]54[sec]W., 
following channel centerline (azimuth 359[deg]50[min]) of the gulf 
centerline to 29[deg]42[min]33[sec]N. and 93[deg]02[min]12[sec]W., 
thence to 29[deg]42[min]36[sec]N. and 93[deg]02[min]24[sec]W., thence to 
29[deg]43[min]36[sec]N. and 93[deg]02[min]06[sec]W., thence to the point 
of beginning.
    (ii) [Reserved]
    (8) Freshwater Bayou, LA--Bar channel.
    (i) Description and location: Maintenance dredging disposal area 
2,000 feet wide by 3.5 miles long, parallel to the channel and located 
on the west side. Beginning at 29[deg]32[min]00[sec]N. and 
92[deg]18[min]48[sec]W., following channel centerline (azimuth 
09[deg]25[min]) of the gulf entrance to 29[deg]28[min]24[sec]N. and 
92[deg]19[min]30[sec]W., thence to 29[deg]28[min]25[sec]N. and 
92[deg]19[min]42[sec]W., thence to 29[deg]32[min]01[sec]N. and 
92[deg]19[min]00[sec]W., thence to the point of beginning.
    (ii) [Reserved]
    (k) Region VI Interim Other Wastes Sites.
    (1) No interim sites.
    (2) [Reserved]
    (l) Region IX Interim Dredged Material Sites.
    (1) Newport Beach, CA (LA-3).
    (i) Location: 33[deg]31[min]42[sec]N., 117[deg]54[min]48[sec]W. 
(1,000 yd. radius).
    (ii) [Reserved]
    (2) Port Hueneme, CA (LA-1).
    (i) Location: 34[deg]05[min]00[sec]N., 119[deg]14[min]00[sec]W. 
(1,000 yd. radius).
    (ii) [Reserved]
    (3) Crescent City Harbor, CA (SF-1).
    (i) Location: 41[deg]43[min]15[sec]N., 124[deg]12[min]10[sec]W. 
(1,000 yd. diameter).
    (ii) [Reserved]
    (4) Noyo River, CA (SF-5).
    (i) Location: 39[deg]25[min]45[sec]N., 123[deg]49[min]42[sec]W. (500 
yd. diameter).
    (ii) [Reserved]
    (5) Guam--Apra Harbor.
    (i) Location: 13[deg]29[min]30[sec]N., 144[deg]34[min]30[sec] E. 
(1,000 yd. radius)
    (ii) [Reserved]
    (m) Region IX Interim Other Wastes Sites.
    (1) No interim sites.
    (2) [Reserved]
    (n) Region X Interim Dredged Material Sites.
    (1) Rogue River Entrance, OR.
    (i) Location: 42[deg]24[min]16[sec]N., 124[deg]26[min]48[sec]W.; 
42[deg]24[min]04[sec]N., 124[deg]26[min]35[sec]W.; 
42[deg]23[min]40[sec]N., 124[deg]27[min]13[sec]W.; 
42[deg]23[min]52[sec]N., 124[deg]27[min]26[sec]W.
    (ii) [Reserved]
    (2) Port Orford, OR.

    (i) Location: 42[deg]44[min]08[sec]N., 124[deg]29[min]38[sec]W.; 
42[deg]44[min]08[sec]N., 124[deg]29[min]28[sec]W.; 
42[deg]43[min]52[sec]N., 124[deg]29[min]28[sec]W.; 
42[deg]43[min]52[sec]N., 124[deg]29[min]38[sec]W.
    (ii) [Reserved]
    (3) Umpqua River Entrance, OR.
    (i) Location: 43[deg]40[min]07[sec]N., 124[deg]14[min]18[sec]W.; 
43[deg]40[min]07[sec]N., 124[deg]13[min]42[sec]W.; 
43[deg]39[min]53[sec]N., 124[deg]13[min]42[sec]W.; 
43[deg]39[min]53[sec]N., 124[deg]14[min]18[sec]W.
    (ii) [Reserved]
    (4) Siuslaw River Entrance, OR.
    (i) Location: 44[deg]01[min]32[sec]N., 124[deg]09[min]37[sec]W.; 
44[deg]01[min]22[sec]N., 124[deg]09[min]02[sec]W.; 
44[deg]01[min]14[sec]N., 124[deg]09[min]07[sec]W.; 
44[deg]01[min]24[sec]N., 124[deg]09[min]42[sec]W.
    (ii) [Reserved]
    (5) Yaquina Bay and Harbor Entrance, OR.
    (i) Location: 44[deg]36[min]31[sec]N., 124[deg]06[min]4[sec]W.; 
44[deg]36[min]31[sec]N., 124[deg]05[min]16[sec]W.; 
44[deg]36[min]17[sec]N., 124[deg]05[min]16[sec].; 
44[deg]36[min]17[sec]N., 124[deg]06[min]04[sec]W.
    (ii) [Reserved]
    (6) Tillamook Bay Entrance, OR.
    (i) Location: 45[deg]34[min]09[sec]N., 123[deg]59[min]37[sec]W.; 
45[deg]34[min]09[sec]N., 123[deg]58[min]45[sec]W.; 
45[deg]33[min]55[sec]N., 123[deg]58[min]45[sec]W.; 
45[deg]33[min]55[sec]N., 123[deg]59[min]37[sec]W.
    (ii) [Reserved]
    (7) Willapa Bay, WA.
    (i) Location: 46[deg]44[min]00[sec]N., 124[deg]10[min]00[sec]W.; 
46[deg]39[min]00[sec]N., 124[deg]09[min]00[sec]W.
    (ii) [Reserved]
    (o) Region X Interim Other Wastes Sites.
    (1) No interim sites.
    (2) [Reserved]

[59 FR 61129, Nov. 29, 1994, as amended at 61 FR 2946, Jan. 30, 1996; 65 
FR 31497, May 18, 2000; 70 FR 2817, Jan. 18, 2005]

[[Page 229]]



Sec. 228.15  Dumping sites designated on a final basis.

    (a)(1) The sites identified in this section are approved for dumping 
the indicated materials. Designation of these sites was based on 
environmental studies conducted in accordance with the provisions of 
this part 228, and the sites listed in this section have been found to 
meet the site designation criteria of Sec. Sec. 228.5 and 228.6.
    (2) Unless otherwise specifically noted, site management authority 
for each site set forth in this section is delegated to the EPA Regional 
office under which the site entry is listed.
    (3) Unless otherwise specifically noted, all ocean dumping site 
coordinates are based upon the North American Datum of 1927.
    (b) Region I Final Dredged Material Sites.
    (1) Portland, Maine, Dredged Material Disposal Site.
    (i) Location: 43[deg]33[min]36[sec]N., 70[deg]02[min]42[sec]W.; 
43[deg]33[min]36[sec]N., 70[deg]01[min]18[sec]W.; 
43[deg]34[min]36[sec]N., 70[deg]02[min]42[sec]W.; 
43[deg]34[min]36[sec]N., 70[deg]01[min]18[sec]W.
    (ii) Size: One square nautical mile.
    (iii) Depth: 50 meters.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material.
    (2) Massachusetts Bay Disposal Site.
    (i) Location: Center coordinates (NAD 1983) 42[deg]25.1[min] north 
latitude, 70[deg]35.0[min] west latitude.
    (ii) Size: 2 nautical mile diameter.
    (iii) Depth: Average 90 meters.
    (iv) Exclusive Use: Dredged material.
    (v) Period of Use: Continuing.
    (vi) Restriction: Disposal shall be limited to dredged material 
which meets the requirements of the MPRSA and its accompanying 
regulations. Disposal-and-capping is prohibited at the MBDS until its 
efficacy can be effectively demonstrated.
    (3) Rhode Island Sound Disposal Site (RISDS).
    (i) Location: Corner Coordinates (NAD 1983): 41[deg]14[min]21[sec] 
N, 71[deg]23[min]29[sec] W; 41[deg]14[min]21[sec] N, 
71[deg]22[min]09[sec] W; 41[deg]13[min]21[sec] N, 71[deg]23[min]29[sec] 
W; 41[deg]13[min]21[sec] N, 71[deg]22[min]09[sec] W.
    (ii) Size: One square nautical mile.
    (iii) Depth: Ranges from 115 to 128 feet (35 to 39 meters).
    (iv) Primary use: Dredged material disposal.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material. 
Disposal shall comply with conditions set forth in the most recent 
approved Site Management and Monitoring Plan.
    (4) Central Long Island Sound Dredged Material Disposal Site (CLIS).
    (i) Location: Corner Coordinates (NAD 1983) 41[deg]9.5[min] N., 
72[deg]54.4[min] W.; 41[deg]9.5[min] N., 72[deg]51.5[min] W.; 
41[deg]08.4[min] N., 72[deg]54.4[min] W.; 41[deg]08.4[min] N., 
72[deg]51.5[min] W.
    (ii) Size: A 1.1 by 2.2 nautical mile rectangular area, about 2.42 
square nautical miles in size.
    (iii) Depth: Ranges from 56 to 77 feet (17 to 23.5 meters).
    (iv) Primary use: Dredged material disposal.
    (v) Period of use: Continuing use, except as provided in paragraph 
(b)(4)(vi) of this section.
    (vi) Restrictions: The designation in this paragraph (b)(4) sets 
forth conditions for the use of Central Long Island Sound (CLIS) and 
Western Long Island Sound (WLIS) Dredged Material Disposal Sites. These 
conditions apply to all disposal subject to the MPRSA, namely all 
federal projects and non-federal projects greater than 25,000 cubic 
yards. All references to ``permittees'' shall be deemed to include the 
Army Corps of Engineers (USACE) when it is authorizing its own dredged 
material disposal from a USACE dredging project. The conditions for this 
designation are as follows:
    (A) Disposal shall be limited to dredged material from Long Island 
Sound and vicinity.
    (B) Disposal shall comply with conditions set forth in the most 
recent approved Site Management and Monitoring Plan.
    (C) Except as provided in paragraphs (b)(4)(vi)(D) and (E) of this 
section, the disposal of dredged material at the CLIS and WLIS sites 
pursuant to this designation shall not be allowed beginning eight (8) 
years after July 5, 2005 unless a regional dredged material management 
plan (DMMP) for Long Island Sound has been completed by the North 
Atlantic Division of the USACE, in consultation with the State of New 
York, State of Connecticut and EPA, with a goal of reducing or 
eliminating the disposal of dredged material in

[[Page 230]]

Long Island Sound, and the EPA thereafter amends this site designation 
to incorporate procedures and standards that are consistent with those 
recommended in the DMMP.\1\ Completion of the DMMP means finishing the 
items listed in the work plan (except for any ongoing long-term 
studies), including the identification of alternatives to open-water 
disposal, and the development of procedures and standards for the use of 
practicable alternatives to open-water disposal. If the completion of 
the DMMP does not occur within eight years of July 5, 2005 (plus any 
extensions under paragraphs (b)(4)(vi)(D) and (E) of this section), use 
of the sites shall be prohibited. However, if the DMMP is thereafter 
completed within one year, disposal of dredged material at the sites may 
resume.
---------------------------------------------------------------------------

    \1\ If the EPA has acted in good faith to adopt substantially all 
procedures and standards for the use of the sites and the use of 
practicable alternatives to open-water disposal recommended in the DMMP, 
termination of the use of the sites based on the EPA not adopting all 
procedures and standards shall not occur unless a party first files a 
petition with the EPA pursuant to item 7 setting forth in detail each 
procedure or standard that the party believes the EPA must adopt in 
order to be consistent with the DMMP, and the EPA has an opportunity to 
act on the petition. Termination of the use of the sites shall not occur 
if in response to a petition the EPA determines that it has adopted 
substantially all procedures and standards for the use of the sites and 
the use of practicable alternatives to open-water disposal recommended 
in the DMMP, unless and until otherwise directed by a court. Termination 
of the use of the sites shall not occur based on not adopting a DMMP 
provision if the DMMP provision is not consistent with applicable law. 
Termination of the use of the sites shall not occur based on the EPA not 
meeting the 60 and 120 day rulemaking deadlines set forth in item 7, but 
use of the sites shall be suspended if the EPA misses either deadline, 
until the EPA issues a final rule. Termination of the use of the sites 
shall not occur based on the EPA adopting procedures and standards which 
are stricter than the recommendations of the DMMP.
---------------------------------------------------------------------------

    (D) The EPA may extend the eight-year deadline in paragraph 
(b)(4)(vi)(C) of this section for any reasonable period (on one or more 
occasions) if it obtains the written agreement of the USACE, the State 
of Connecticut (Department of Environmental Protection) and the State of 
New York (Department of State).
    (E) The EPA may extend the eight-year deadline in paragraph 
(b)(4)(vi)(C) of this section by up to one year (on one occasion only) 
if it determines in writing that the parties participating in the 
development of the DMMP have attempted in good faith to meet the 
deadline, but that the deadline has not been met due to factors beyond 
the parties' control (including funding). Such an extension may be in 
addition to any extension(s) granted under paragraph (b)(4)(vi)(D) of 
this section.
    (F) The EPA will conduct an annual review of progress in developing 
the DMMP. If the EPA finds that the DMMP is being unreasonably delayed 
by one or more parties, the EPA reserves the right to take the following 
actions as appropriate: (1) Suspend use of the sites even prior to the 
deadlines established in paragraphs (b)(4)(vi)(C) through (E) of this 
section through an amended rulemaking or (2) Exercise through rulemaking 
its statutory and regulatory authorities regarding designation of ocean 
disposal sites.
    (G) Upon completion of the DMMP, disposal of dredged material at the 
designated sites pursuant to the designation in this paragraph (b)(4) 
shall be allowed only from permittees that comply with procedures and 
standards consistent with the recommendations of the DMMP, and 
consistent with applicable law, for the use of the sites and for the use 
of practicable alternatives to open-water disposal, so as to reduce or 
eliminate the disposal of dredged material in Long Island Sound. Upon 
the completion of the DMMP, the EPA will within 60 days propose and 
within 120 days (subject to consideration of public comments) issue a 
legally binding amendment to the designation in this paragraph (b)(4) 
describing all such procedures and standards and specifying that they 
must be complied with as part of this designation.\2\ If any

[[Page 231]]

party (or the EPA on its own initiative) is not satisfied that the final 
DMMP recommends sufficient procedures and standards to reduce or 
eliminate disposal of dredged material in Long Island Sound to the 
greatest extent practicable, or if any party is not satisfied with the 
EPA's amendment adopting such procedures and standards, the party may 
petition the EPA to do a rulemaking to amend the designation to 
establish different or additional standards. The EPA will act on any 
such petition within 120 days.
---------------------------------------------------------------------------

    \2\ The EPA must preserve its discretion, in response to public 
comments, not to adopt such an amendment to this designation. The EPA 
understands that the State of New York has reserved its rights to revive 
its objection to this designation if the DMMP procedures and standards 
are not adopted.
---------------------------------------------------------------------------

    (H) Disposal not subject to the restrictions in paragraphs 
(b)(4)(vi)(C) through (G) or (b)(4)(vi)(I) of this section shall be 
permitted only for materials resulting from currently authorized or 
permitted dredging projects at Norwalk, Rye and New Rochelle. Such 
disposal must meet all applicable statutory and regulatory requirements. 
All phases of any of these project must be initiated within four (4) 
years from the date of the designation, or the project will become 
subject to paragraph (b)(4)(vi)(I) of this section.
    (I) Except for the projects covered by paragraph (b)(4)(vi)(H) of 
this section and until completion of the DMMP, disposal of dredged 
material at the designated sites pursuant to the designation in this 
paragraph (b)(4) shall be allowed only if, after full consideration of 
recommendations provided by an established Regional Dredging Team \3\ 
(RDT), the USACE finds (and the EPA does not object to such finding), 
based on a fully documented analysis, that for a given dredging project:
---------------------------------------------------------------------------

    \3\ A Regional Dredging Team (RDT) comprised of regulatory and 
coastal policy specialists from state and federal agencies will be 
formed.
---------------------------------------------------------------------------

    (1) There are no practicable alternatives (as defined in 40 CFR 
227.16(b)) to open-water disposal in Long Island Sound and that any 
available practicable alternative to open-water disposal will be fully 
utilized for the maximum volume of dredged material practicable;
    (2) Determinations relating to paragraph (b)(4)(vi)(I)(1) of this 
section will recognize that any alternative to open-water disposal may 
add additional costs. Disposal of dredged material at the designated 
sites pursuant to this paragraph (b)(4) shall not be allowed if a 
practicable alternative is available. Any project subject to this 
restriction must be permitted or authorized prior to the completion of 
the DMMP and completed within two years after the completion of the 
DMMP.
    (J) Disposal shall be limited to dredged sediments that comply with 
the Ocean Dumping Regulations.
    (K) Disposal of dredged material at the designated sites pursuant to 
the designation in this paragraph (b)(4) shall not be allowed for any 
materials subject to a waiver under 33 U.S.C. 1413(d) unless, for any 
project where a waiver is sought, the New England or New York District 
of the USACE provides notification, by certified mail at least thirty 
(30) days before making the waiver request, to the Governors of the 
states of Connecticut and New York and the North Atlantic Division of 
the USACE that it will be requesting a waiver.
    (L) Transportation of dredged material to the sites shall only be 
allowed when weather and sea conditions will not interfere with safe 
transportation and will not create risk of spillage, leak or other loss 
of dredged material in transit. No disposal trips shall be initiated 
when the National Weather Service has issued a gale warning for local 
waters during the time period necessary to complete dumping operations.
    (M) The parties participating in the DMMP will need to seek 
additional funding in order to develop the DMMP. Nothing in the 
designation in this paragraph (b)(4) or elsewhere guarantees that any 
agency will be able to obtain funding for the DMMP. This designation 
shall not be interpreted as or constitute a commitment that the United 
States will obligate or expend funds in contravention of the Anti-
Deficiency Act, 31 U.S.C. 1341. Rather, the sole remedy for any failure 
to meet the conditions specified in this paragraph (b)(4)(vi) shall be 
the restriction of the authority to dispose of dredged material, as 
provided in this paragraph (b)(4).
    (N) Nothing in the designation in this paragraph (b)(4) or elsewhere 
precludes the EPA from exercising its statutory

[[Page 232]]

authority to designate other ocean disposal sites, not subject to the 
restrictions in paragraph (b)(4)(vi), or taking any subsequent action to 
modify the site designation in paragraph (b)(4), provided that the EPA 
makes any such designation or takes such subsequent action through a 
separate rulemaking in accordance with all applicable legal 
requirements. Nothing in this designation shall be interpreted to 
restrict the EPA's authorities under the MPRSA or the implementing 
regulations or to amend the implementing regulations.
    (5) Western Long Island Sound Dredged Material Disposal Site (WLIS).
    (i) Location: Corner Coordinates (NAD 1983) 41[deg]00.1[min] N., 
73[deg]29.8[min] W.; 41[deg]00.1[min] N., 73[deg]28.1[min] W.; 
40[deg]58.9[min] N., 73[deg]29.8[min] W.; 40[deg]58.9[min] N., 
73[deg]28.1[min] W.
    (ii) Size: A 1.2 by 1.3 nautical mile rectangular area, about 1.56 
square nautical miles in size.
    (iii) Depth: Ranges from 79 to 118 feet (24 to 36 meters).
    (iv) Primary use: Dredged material disposal.
    (v) Period of use: Continuing use except as provided in paragraph 
(b)(5)(vi) of this section.
    (vi) Restrictions: See 40 CFR 228.15(b)(4)(vi).
    (c) Region I Final Other Wastes Sites.
    (1) No final sites.
    (2) [Reserved]
    (d) Region II Final Dredged Material Sites.
    (1) Fire Island Inlet, Long Island, New York Dredged Material 
Disposal Site.
    (i) Location: 40[deg]36[min]49[sec]N., 73[deg]23[min]50[sec]W.; 
40[deg]37[min]12[sec]N., 73[deg]21[min]30[sec]W.; 
40[deg]36[min]41[sec]N., 73[deg]21[min]20[sec]W.; 
40[deg]36[min]10[sec]N., 73[deg]23[min]40[sec]W.
    (ii) Size: Approximately 1.09 square nautical miles.
    (iii) Depth: Ranges from 7 to 10 meters.
    (iv) Primary Use: Dredged material disposal.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from Fire Island Inlet, Long Island, New York.
    (2) Jones Inlet, Long Island, New York Dredged Material Disposal 
Site.
    (i) Location: 40[deg]34[min]32[sec]N., 73[deg]39[min]14[sec]W.; 
40[deg]34[min]32[sec]N., 73[deg]37[min]06[sec]W.; 
40[deg]33[min]48[sec]N., 73[deg]37[min]06[sec]W.; 
40[deg]33[min]48[sec]N., 73[deg]39[min]14[sec]W.
    (ii) Size: Approximately 1.19 square nautical miles.
    (iii) Depth: Ranges from 7 to 10 meters.
    (iv) Primary use: Dredged material disposal.
    (v) Period of use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from Jones Island Inlet, Long Island, New York.
    (3) East Rockaway Inlet, Long Island NY Dredged Material Disposal 
Site.
    (i) Location: 40[deg]34[min]36[sec]N., 73[deg]49[min]00[sec]W.; 
40[deg]35[min]06[sec]N., 73[deg]47[min]06[sec]W.; 
40[deg]34[min]10[sec]N., 73[deg]48[min]6[sec]W.; 
40[deg]34[min]12[sec]N., 73[deg]47[min]17[sec]W.
    (ii) Size: Approximately 0.81 square nautical miles.
    (iii) Depth: Ranges from 6 to 9 meters.
    (iv) Primary use: Dredged material disposal.
    (v) Period of use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from East Rockaway Inlet, Long Island, New York.
    (4) Rockaway Inlet, Long Island, New York Dredged Material Disposal 
Site.
    (i) Location: 40[deg]32[min]30[sec]N., 73[deg]55[min]00[sec]W.; 
40[deg]32[min]30[sec]N., 73[deg]54[min]00W[sec]; 
40[deg]32[min]00[sec]N., 73[deg]54[min]00[sec]W.; 
40[deg]32[min]00[sec]N., 73[deg]55[min]00[sec]W.
    (ii) Size: Approximately 0.38 square nautical miles.
    (iii) Depth: Ranges from 8 to 11 meters.
    (iv) Primary use: Dredged material disposal.
    (v) Period of use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from Rockaway Inlet, Long Island, New York.
    (5) Shark River, New Jersey Dredged Material Disposal Site.
    (i) Location: 40[deg]12[min]48[sec]N., 73[deg]59[min]45[sec]W.; 
40[deg]12[min]44[sec]N., 73[deg]59[min]06[sec]W.; 
40[deg]11[min]36[sec]N., 73[deg]59[min]28[sec]W.; 
40[deg]11[min]42[sec]N., 74[deg]00[min]12[sec]W.
    (ii) Size: Approximately 0.6 square nautical miles.
    (iii) Depth: Approximately 12 meters.
    (iv) Primary use: Dredged material disposal.
    (v) Period of use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from Shark River Inlet, New Jersey.
    (6) Historical Area Remediation Site (HARS) Designation/Mud Dump 
Site Termination.

[[Page 233]]

    (i) Status of Former Mud Dump Site: The Mud Dump Site, designated as 
an Impact Category I site on May 4, 1984, is terminated.
    (ii) Location: (A) The HARS (which includes the 2.2 square nautical 
mile area of the former Mud Dump Site) is a 15.7 square nautical mile 
area located approximately 3.5 nautical miles east of Highlands, New 
Jersey and 7.7 nautical miles south of Rockaway, Long Island. The HARS 
consists of a Primary Remediation Area (PRA), a Buffer Zone, and a No 
Discharge Zone. The HARS is bounded by the following coordinates:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                Point                        Latitude  DMS                Longitude  DMS               Latitude  DDM                Longitude  DDM
--------------------------------------------------------------------------------------------------------------------------------------------------------
A...................................  40[deg] 25[min] 39[sec] N..  73[deg] 53[min] 55[sec] W..  40[deg] 25.65[min] N.......  73[deg] 53.92[min] W.
M...................................  40[deg] 25[min] 39[sec] N..  73[deg] 48[min] 58[sec] W..  40[deg] 25.65[min] N.......  73[deg] 48.97[sec] W.
P...................................  40[deg] 21[min] 19[sec] N..  73[deg] 48[min] 57[sec] W..  40[deg] 21.32[min] N.......  73[deg] 48.95[min] W.
R...................................  40[deg] 21[min] 19[sec] N..  73[deg] 52[min] 30[sec] W..  40[deg] 21.32[min] N.......  73[deg] 52.50[min] W.
S...................................  40[deg] 21[min] 52[sec] N..  73[deg] 53[min] 55[sec] W..  40[deg] 21.87[min] N.......  73[deg] 53.92[min] W.
V...................................  40[deg] 21[min] 52[sec] N..  73[deg] 52[min] 30[sec] W..  40[deg] 21.87[min] N.......  73[deg] 52.50[min] W.
--------------------------------------------------------------------------------------------------------------------------------------------------------
DMS = Degrees, Minutes, Seconds.
DDM = Degrees, Decimal Minutes.

    (B) The PRA, is a 9.0 square nautical mile area to be remediated 
with at least a 1 meter cap of the Material for Remediation. The PRA is 
bounded by the following coordinates:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                Point                        Latitude  DMS                Longitude  DMS               Latitude  DDM                Longitude  DDM
--------------------------------------------------------------------------------------------------------------------------------------------------------
B...................................  40[deg] 25[min] 23[sec] N..  73[deg] 53[min] 34[sec] W..  40[deg] 25.38[min] N.......  73[deg] 53.57[min] W.
D...................................  40[deg] 25[min] 22[sec] N..  73[deg] 52[min] 08[sec] W..  40[deg] 25.37[min] N.......  73[deg] 52.13[min] W.
F...................................  40[deg] 23[min] 13[sec] N..  73[deg] 52[min] 09[sec] W..  40[deg] 23.22[min] N.......  73[deg] 52.15[sec] W.
G...................................  40[deg] 23[min] 13[sec] N..  73[deg] 51[min] 28[sec] W..  40[deg] 23.22[min] N.......  73[deg] 51.47[min] W.
H...................................  40[deg] 22[min] 41[sec] N..  73[deg] 51[min] 28[sec] W..  40[deg] 22.68[min] N.......  73[deg] 51.47[min] W.
I...................................  40[deg] 22[min] 41[sec] N..  73[deg] 50[min] 43[sec] W..  40[deg] 22.68[min] N.......  73[deg] 50.72[min] W.
L...................................  40[deg] 25[min] 22[sec] N..  73[deg] 50[min] 44[sec] W..  40[deg] 25.37[min] N.......  73[deg] 50.73[min] W.
N...................................  40[deg] 25[min] 22[sec] N..  73[deg] 49[min] 19[sec] W..  40[deg] 25.37[min] N.......  73[deg] 49.32[min] W.
O...................................  40[deg] 21[min] 35[sec] N..  73[deg] 49[min] 19[sec] W..  40[deg] 21.58[min] N.......  73[deg] 49.32[min] W.
Q...................................  40[deg] 21[min] 36[sec] N..  73[deg] 52[min] 08[sec] W..  40[deg] 21.60[min] N.......  73[deg] 52.13[min] W.
T...................................  40[deg] 22[min] 08[sec] N..  73[deg] 52[min] 08[sec] W..  40[deg] 22.13[min] N.......  73[deg] 52.13[min] W.
U...................................  40[deg] 22[min] 08[sec] N..  73[deg] 53[min] 34[sec] W..  40[deg] 22.13[min] N.......  73[deg] 53.57[min] W.
--------------------------------------------------------------------------------------------------------------------------------------------------------
DMS = Degrees, Minutes, Seconds.
DDM = Degrees, Decimal Minutes.

    (iii) Size: 15.7 square nautical miles.
    (iv) Depth: Ranges from 12 to 42 meters.
    (v) Restrictions on Use:
    (A) The site will be managed so as to reduce impacts within the PRA 
to acceptable levels in accordance with 40 CFR 228.11(c). Use of the 
site will be restricted to dredged material suitable for use as the 
Material for Remediation. This material shall be selected so as to 
ensure it will not cause significant undesirable effects including 
through bioaccumulation or unacceptable toxicity, in accordance with 40 
CFR 227.6.
    (B) Placement of Material for Remediation will be limited to the 
PRA. Placement of Material for Remediation within the PRA is not allowed 
in a 0.27 nautical mile radius around the following coordinates due to 
the presence of shipwrecks: 40[deg] 25.30[min] W, 73[deg] 52.80[min] N; 
40[deg] 25.27[min] W, 73[deg] 52.13[min] N; 40[deg] 25.07[min] W, 
73[deg] 50.05[min] N; 40[deg] 22.46[min] W, 73[deg] 53.27[min] N.
    (C) No placement of material may take place within the Buffer Zone, 
although this zone may receive material that incidentally spreads out of 
the PRA. The Buffer Zone is an approximately 5.7 square nautical mile 
area (0.27 nautical mile wide band around the PRA), which is bounded by 
the following coordinates:

[[Page 234]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                Point                         Latitude DMS                Longitude DMS                 Latitude DDM                Longitude DDM
--------------------------------------------------------------------------------------------------------------------------------------------------------
A...................................  40[deg]25[min]39[sec] N....  73[deg]53[min]55[sec] W....  40[deg]25.65[min] N........  73[deg]53.92[min] W.
B...................................  40[deg]25[min]23[sec] N....  73[deg]53[min]34[sec] W....  40[deg]25.38[min] N........  73[deg]53.57[min] W.
C...................................  40[deg]25[min]39[sec] N....  73[deg]51[min]48[sec] W....  40[deg]25.65[min] N........  73[deg]51.80[min] W.
D...................................  40[deg]25[min]22[sec] N....  73[deg]52[min]08[sec] W....  40[deg]25.37[min] N........  73[deg]52.13[min] W.
E...................................  40[deg]23[min]48[sec] N....  73[deg]51[min]48[sec] W....  40[deg]23.80[min] N........  73[deg]51.80[min] W.
F...................................  40[deg]23[min]13[sec] N....  73[deg]52[min]09[sec] W....  40[deg]23.22[min] N........  73[deg]52.15[min] W.
G...................................  40[deg]23[min]13[sec] N....  73[deg]51[min]28[sec] W....  40[deg]23.22[min] N........  73[deg]51.47[min] W.
H...................................  40[deg]22[min]41[sec] N....  73[deg]51[min]28[sec] W....  40[deg]22.68[min] N........  73[deg]51.47[min] W.
I...................................  40[deg]22[min]41[sec] N....  73[deg]50[min]43[sec] W....  40[deg]22.68[min] N........  73[deg]50.72[min] W.
J...................................  40[deg]23[min]48[sec] N....  73[deg]51[min]06[sec] W....  40[deg]23.80[min] N........  73[deg]51.10[min] W.
K...................................  40[deg]25[min]39[sec] N....  73[deg]51[min]06[sec] W....  40[deg]25.65[min] N........  73[deg]51.10[min] W.
L...................................  40[deg]25[min]22[sec] N....  73[deg]50[min]44[sec] W....  40[deg]25.37[min] N........  73[deg]50.73[min] W.
M...................................  40[deg]25[min]39[sec] N....  73[deg]48[min]58[sec] W....  40[deg]25.65[min] N........  73[deg]48.97[min] W.
N...................................  40[deg]25[min]22[sec] N....  73[deg]49[min]19[sec] W....  40[deg]25.37[min] N........  73[deg]49.32[min] W.
O...................................  40[deg]21[min]35[sec] N....  73[deg]49[min]19[sec] W....  40[deg]21.58[min] N........  73[deg]49.32[min] W.
P...................................  40[deg]21[min]19[sec] N....  73[deg]48[min]57[sec] W....  40[deg]21.32[min] N........  73[deg]48.95[min] W.
Q...................................  40[deg]21[min]36[sec] N....  73[deg]52[min]08[sec] W....  40[deg]21.60[min] N........  73[deg]52.13[min] W.
R...................................  40[deg]21[min]19[sec] N....  73[deg]52[min]30[sec] W....  40[deg]21.32[min] N........  73[deg]52.50[min] W.
S...................................  40[deg]21[min]52[sec] N....  73[deg]53[min]55[sec] W....  40[deg]21.87[min] N........  73[deg]53.92[min] W.
T...................................  40[deg]22[min]08[sec] N....  73[deg]52[min]08[sec] W....  40[deg]22.13[min] N........  73[deg]52.13[min] W.
U...................................  40[deg]22[min]08[sec] N....  73[deg]53[min]34[sec] W....  40[deg]22.13[min] N........  73[deg]53.57[min] W.
V...................................  40[deg]21[min]52[sec] N....  73[deg]52[min]30[sec] W....  40[deg]21.87[min] N........  73[deg]52.50[min] W.
--------------------------------------------------------------------------------------------------------------------------------------------------------
DMS = Degrees, Minutes, Seconds.
DDM = Degrees, Decimal Minutes.

    (D) No placement or incidental spread of the material is allowed 
within the No Discharge Zone, an approximately 1.0 square nautical mile 
area, bounded by the following coordinates:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                Point                         Latitude DMS                Longitude DMS                 Latitude DDM                Longitude DDM
--------------------------------------------------------------------------------------------------------------------------------------------------------
C...................................  40[deg]25[min]39[sec] N....  73[deg]51[min]48[sec] W....  40[deg]25.65[min] N........  73[deg]51.80[min] W.
E...................................  40[deg]23[min]48[sec] N....  73[deg]51[min]48[sec] W....  40[deg]23.80[min] N........  73[deg]51.80[min] W.
J...................................  40[deg]23[min]48[sec] N....  73[deg]51[min]06[sec] W....  40[deg]23.80[min] N........  73[deg]51.10[min] W.
K...................................  40[deg]25[min]39[sec] N....  73[deg]51[min]06[sec] W....  40[deg]25.65[min] N........  73[deg]51.10[min] W.
--------------------------------------------------------------------------------------------------------------------------------------------------------
DMS = Degrees, Minutes, Seconds.
DDM = Degrees, Decimal Minutes.

    (E) HARS-specific Polychlorinated Biphenyl (PCB) Tissue Criterion: 
Total PCB bioaccumulation worm test results for dredged material 
approved for placement at the HARS as Material for Remediation shall not 
exceed the HARS-specific PCB tissue criterion of 113 ppb. This HARS-
specific PCB tissue criterion will be applied to the arithmetic mean 
concentration reported for the analyses of the worm tissue replicates 
exposed to the tested sediments, without the use of statistical 
confidence limits.
    (vi) Period of Use: Continuing use until EPA determines that the PRA 
has been sufficiently capped with at least 1 meter of the Material for 
Remediation. At that time, EPA will undertake any necessary rulemaking 
to de-designate the HARS.
    (7) Manasquan, New Jersey Dredged Material Disposal Site.
    (i) Location: 40[deg]06[min]36[sec]N., 74[deg]01[min]34[sec]W.; 
40[deg]06[min]19[sec]N., 74[deg]01[min]39[sec]W.; 
40[deg]06[min]18[sec]N., 74[deg]01[min]53[sec]W.; 
40[deg]06[min]41[sec]N., 74[deg]01[min]51[sec]W.
    (ii) Size: Approximately 0.11 square nautical miles.
    (iii) Depth: Approximately 18 meters.
    (iv) Primary Use: Dredged material disposal.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from Manasquan Inlet, New Jersey.
    (8) Absecon Inlet, NJ Dredged Material Disposal Site.
    (i) Location: 39[deg]20[min]39[sec]N., 74[deg]18[min]43[sec]W.; 
39[deg]20[min]30[sec]N., 74[deg]18[min]25[sec]W.; 
39[deg]20[min]03[sec]N., 74[deg]18[min]43[sec]W.; 
39[deg]20[min]12[sec]N., 74[deg]19[min]01[sec]W.
    (ii) Size: Approximately 0.28 square nautical miles.
    (iii) Depth: Approximately 17 meters.
    (iv) Primary Use: Dredged material disposal.
    (v) Period of Use: Continuing use.

[[Page 235]]

    (vi) Restrictions: Disposal shall be limited to dredged material 
from Absecon Inlet, New Jersey.
    (9) Cold Spring Inlet, NJ Dredged Material Disposal Site.
    (i) Location: 38[deg]55[min]52[sec]N., 74[deg]53[min]04[sec]W.; 
38[deg]55[min]37[sec]N., 74[deg]52[min]55[sec]W.; 
38[deg]55[min]23[sec]N., 74[deg]53[min]27[sec]W.; 
38[deg]55[min]36[sec]N., 74[deg]53[min]36[sec]W.
    (ii) Size: Approximately 0.13 square nautical miles.
    (iii) Depth: Approximately 9 meters.
    (iv) Primary Use: Dredged material disposal.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from Cold Spring Inlet, New Jersey.
    (10) San Juan Harbor, PR, Dredged Material Site.
    (i) Location: 18[deg]30[min]10[sec]N., 66[deg]09[min]31[sec]W.; 
18[deg]30[min]10[sec]N., 66[deg]08[min]29[sec]W.; 
18[deg]31[min]10[sec]N., 66[deg]08[min]29[sec]W.; 
18[deg]31[min]10[sec]N., 66[deg]09[min]31[sec]W.
    (ii) Size: 0.98 square nautical mile.
    (iii) Depth: Ranges from 200 to 400 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Port of San Juan, Puerto Rico, and coastal areas within 20 miles of 
said port entrance.
    (11) Arecibo Harbor, PR Dredged Material Disposal Site.
    (i) Location: 18[deg]31[min]00[sec] N., 66[deg]43[min]47[sec] W.; 
18[deg]31[min]00[sec] N., 66[deg]42[min] 45[sec] W.; 
18[deg]30[min]00[sec] N., 66[deg]42[min]45[sec]W.; 18[deg]30[min]00[sec] 
N., 66[deg]43[min]47[sec] W.
    (ii) Size: Approximately 1 square nautical mile.
    (iii) Depth: Ranges from 101 to 417 meters.
    (iv) Primary Use: Dredged material disposal.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from Arecibo Harbor, PR.
    (12) Mayaguez Harbor, PR Dredged Material Disposal Site.
    (i) Location: 18[deg]15[min]30[sec] N., 67[deg]16[min]13[sec] W.; 
18[deg]15[min]30[sec] N., 67[deg]15[min]11[sec] W.; 
18[deg]14[min]30[sec] N., 67[deg]15[min]11[sec] W.; 
18[deg]14[min]30[sec] N., 67[deg]16[min]13[sec] W.
    (ii) Size: Approximately 1 square nautical mile.
    (iii) Depth: Ranges from 351 to 384 meters.
    (iv) Primary Use: Dredged material disposal.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from Mayaguez Harbor, PR.
    (13) Ponce Harbor, PR Dredged Material Disposal Site.
    (i) Location: 17[deg]54[min]00[sec] N., 66[deg]37[min]43[sec] W.; 
17[deg]54[min]00[sec] N., 66[deg]36[min]41[sec] W.; 
17[deg]53[min]00[sec] N., 66[deg]36[min]41[sec] W.; 
17[deg]53[min]00[sec] N., 66[deg]37[min]43[sec] W.
    (ii) Size: Approximately 1 square nautical mile.
    (iii) Depth: Ranges from 329 to 457 meters.
    (iv) Primary Use: Dredged material disposal.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from Ponce Harbor, PR.
    (14) Yabucoa Harbor, PR Dredged Material Disposal Site.
    (i) Location: 18[deg]03[min]42[sec] N., 65[deg]42[min]49[sec] W.; 
18[deg]03[min]42[sec] N., 65[deg]41[min]47[sec] W.; 
18[deg]02[min]42[sec] N., 65[deg]41[min]47[sec]W.; 18[deg]02[min]42[sec] 
N., 65[deg]42[min]49[sec] W.
    (ii) Size: Approximately 1 square nautical mile.
    (iii) Depth: Ranges from 549 to 914 meters.
    (iv) Primary Use: Dredged material disposal.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from Yabucoa Harbor, PR.
    (e) Region II Final Other Wastes Sites.
    (1) No final sites.
    (2) [Reserved]
    (f) Region III Final Dredged Material Sites.
    (1) Dam Neck, Virginia, Dredged Material Disposal Site.
    (i) Location: 36[deg]51[min]24.1[sec] N., 75[deg]54[min]41.4[sec] 
W.; 36[deg]51[min]24.1[sec] N., 75[deg]53[min]02.9[sec] W.; 
36[deg]50[min]52.0[sec] N., 75[deg]52[min]49.0[sec]W.; 
36[deg]46[min]27.4[sec] N., 75[deg]51[min]39.2[sec] W.; 
36[deg]46[min]27.5[sec] N., 75[deg]54[min]19.0[sec] W.; 
36[deg]50[min]05.0[sec] N., 75[deg]54[min]19.0[sec] W.
    (ii) Size: 8 square nautical miles.
    (iii) Depth: Averages 11 meters.
    (iv) Primary Use: Dredged Material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the mouth of Chesapeake Bay.
    (2) Norfolk, VA, Dredged Material Disposal Site.
    (i) Location: Center point: Latitude--36[deg]59[min]00[sec] N., 
Longitude--75[deg]39[min]00[sec] W.
    (ii) Size: Circular with a radius of 7.4 kilometers (4 nautical 
miles).

[[Page 236]]

    (iii) Depth: Ranges from 13.1 to 26 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Site shall be limited to suitable dredged 
material which passed the criteria for ocean dumping.
    (g) Region III Final Other Wastes Sites.
    (1) No final sites.
    (2) [Reserved]
    (h) Region IV Final Dredged Material Sites.
    (1) Morehead City, NC Dredged Material Disposal Site.
    (i) Location: 34[deg]38[min]30[sec] N., 76[deg]45[min]0[sec] W.; 
34[deg]38[min]30[sec] N., 76[deg]41[min]42[sec] W.; 
34[deg]38[min]09[sec] N., 76[deg]41[min]0[sec] W.; 34[deg]36[min]0[sec] 
N., 76[deg]41[min]0[sec] W.; 34[deg]36[min]0[sec] N., 
76[deg]45[min]0[sec] W.
    (ii) Size: 8 square nautical miles.
    (iii) Depth: Average 12.0 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Morehead City Harbor, North Carolina area. All material disposed 
must satisfy the requirements of the ocean dumping regulations.
    (2) Wilmington, NC Dredged Material Disposal Site.
    (i) Location: 33[deg]49[min]30[sec] N., 78[deg]03[min]06[sec] W.; 
33[deg]48[min]18[sec] N., 78[deg]01[min]39[sec] W.; 
33[deg]47[min]19[sec] N., 78[deg]02[min]48[sec] W.; 
33[deg]48[min]30[sec] N., 78[deg]04[min]16[sec] W.
    (ii) Size: 2.3 square nautical miles.
    (iii) Depth: Averages 13 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to the dredged material 
from Wilmington Harbor area.
    (3) Georgetown Harbor; Georgetown, South Carolina: Ocean Dredged 
Material Disposal Site.
    (i) Location: 33[deg]11[min]18[sec] N., 79[deg]07[min]20[sec] W.; 
33[deg]11[min]18[sec] N., 79[deg]05[min]23[sec] W.; 
33[deg]10[min]38[sec] N., 79[deg]05[min]24[sec] W.; 
33[deg]10[min]38[sec] N., 79[deg]07[min]21[sec] W.
    (ii) Size: 1 square nautical mile.
    (iii) Depth: 6 to 11 meter range.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to suitable dredged 
material from the greater Georgetown, South Carolina, area.
    (4) [Reserved]
    (5) Charleston, SC, Ocean Dredged Material Disposal Site.
    (i) Location: 32[deg]38[min]06[sec]N., 79[deg]41[min]57[sec]W.; 
32[deg]40[min]42[sec]N., 79[deg]47[min]30[sec]W.; 
32[deg]39[min]04[sec]N., 79[deg]49[min]21[sec]W.; 
32[deg]36[min]28[sec]N., 79[deg]43[min]48[sec]W.
    (ii) Size: 11.8 square nautical miles.
    (iii) Depth: Averages 11 meters.
    (iv) Primary use: Dredged material from the Charleston Harbor 
deepening project.
    (v) Period of Use: Continued use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Charleston Harbor area. All dredged materials must be placed within 
the box defined by the following four corner coordinates (NAD83): 
32.65663[deg] N, 79.75716[deg] W; 32.64257[deg] N, 79.72733[deg] W; 
32.61733[deg] N, 79.74381[deg] W; and 32.63142[deg] N, 79.77367[deg] W. 
Additionally, all disposals shall be in accordance with all provisions 
of disposal placement as specified by the Site Management Plan, which is 
periodically updated.
    (6) Savannah, GA Dredged Material Disposal Site.
    (i) Location: 31[deg]55[min]53[sec]N., 80[deg]44[min]20[sec]W.; 
31[deg]57[min]55[sec]N., 80[deg]46[min]48[sec]W.; 
31[deg]57[min]55[sec]N., 80[deg]44[min]20[sec]W.; 
31[deg]55[min]53[sec]N., 80[deg]46[min]48[sec]W.
    (ii) Size: 4.26 square nautical miles.
    (iii) Depth: Averages 11.4 meters.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Savannah Harbor area.
    (7) Brunswick Harbor, Brunswick, Georgia Ocean Dredged Material 
Disposal Site.
    (i) Location: 31[deg]02[min]35[sec]N., 81[deg]17[min]40[sec]W.; 
31[deg]02[min]35[sec]N., 81[deg]16[min]30[sec]W.; 
31[deg]00[min]30[sec]N., 81[deg]16[min]30[sec]W.; 
31[deg]00[min]30[sec]N., 81[deg]17[min]42[sec]W.
    (ii) Size: Approximately 2 square nautical miles.
    (iii) Depth: Average 9 meters.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to suitable dredged 
material from the greater Brunswick, Georgia, vicinity.
    (8) Fernandina Beach, FL Dredged Material Disposal Site.
    (i) Location: 30[deg]33[min]00[sec]N., 81[deg]16[min]52[sec]W.; 
30[deg]31[min]00[sec]N., 81[deg]16[min]52[sec]W.; 
30[deg]31[min]00[sec]N., 81[deg]19[min]08[sec]W.; 
30[deg]33[min]00[sec]N., 81[deg]19[min]08[sec]W.
    (ii) Size: Four square nautical miles.
    (iii) Depth: Average 16 meters.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing Use.

[[Page 237]]

    (vi) Restriction: Disposal shall be limited to dredged material 
which meets the criteria given in the Ocean Dumping Regulations in 40 
CFR part 227.
    (9) Jacksonville, FL Dredged Material Site.
    (i) Location: 30[deg]21[min]30[sec]N., 81[deg]18[min]34[sec]W.; 
30[deg]21[min]30[sec]N., 81[deg]17[min]26[sec]W.; 
30[deg]20[min]30[sec]N., 81[deg]17[min]26[sec]W.; 
30[deg]20[min]30[sec]N., 81[deg]18[min]34[sec]W.
    (ii) Size: One square nautical mile.
    (iii) Depth: Ranges from 12 to 16 meters.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Jacksonville, Florida, area.
    (10) Canaveral Harbor, FL, Dredged Material Dumpsite.
    (i) Location: 28[deg]20[min]15[sec]N., 80[deg]31[min]11[sec]W.; 
28[deg]18[min]51[sec]N., 80[deg]29[min]15[sec]W.; 
28[deg]17[min]13[sec]N., 80[deg]30[min]53[sec]W.; 
28[deg]18[min]36[sec]N., 80[deg]32[min]45[sec]W.
    Center coordinates: 28[deg]18[min]44[sec]N., 80[deg]31[min]00[sec]W. 
(NAD 27).
    (ii) Size: 4 square nautical miles.
    (iii) Depth: Range 47 to 55 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to suitable dredged 
material from the greater Canaveral, Florida, vicinity.
    (11) Fort Pierce Harbor, FL, Fort Pierce, FL, Ocean Dredged material 
Disposal Site.
    (i) Location: 27[deg]28[min]00[sec] N., 80[deg]12[min]33[sec] W.; 
27[deg]28[min]00[sec] N., 80[deg]11[min]27[sec] W.; 
27[deg]27[min]00[sec] N., 80[deg]11[min]27[sec] W.; and 
27[deg]27[min]00[sec] N., 80[deg]12[min]33[sec] W.
    (ii) Size: 1 square nautical mile.
    (iii) Depth: Average range 40 to 54 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to suitable dredged 
material from the greater Fort Pierce Harbor vicinity. All dredged 
material consisting of greater than 10% fine grained material (grain 
size of less than 0.047mm) by weight shall be limited to that part of 
the site east of 80[deg]12[min]00[sec]W. and south of 
27[deg]27[min]20[sec]N.
    (12) Pensacola Nearshore, FL Dredged Material Disposal Site.
    (i) Location: 30[deg]17[min]24[sec]N., 87[deg]18[min]30[sec]W.; 
30[deg]17[min]00[sec]N., 87[deg]19[min]50[sec]W.; 
30[deg]15[min]36[sec]N., 87[deg]17[min]48[sec]W.; 
30[deg]15[min]15[sec]N., 87[deg]19[min]18[sec]W.
    (ii) Size: 2.48 square nautical miles.
    (iii) Depth: Averages 11 meters.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged materials 
which are shown to be predominantly sand (defined by a median grain size 
greater than 0.125 mm and a composition of less than 10% fines) and meet 
the Ocean Dumping Criteria.
    (13) Pensacola, Florida Ocean Dredged Material Disposal Site, i.e. 
the Pensacola (Offshore) Ocean Dredged Material Disposal Site.
    (i) Location: 30[deg]08[min]50[sec]N., 87[deg]19[min]30[sec]W.; 
30[deg]08[min]50[sec]N., 87[deg]16[min]30[sec]W.; 
30[deg]07[min]05[sec][sec]N., 87[deg]16[min]30[sec]W.; 
30[deg]07[min]05[sec]N., 87[deg]19[min]30[sec]W.
    (ii) Size: Approximately 6 square statute miles.
    (iii) Depth: Ranges from 65 to 80 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal is restricted to predominantly fine-
grained dredged material from the greater Pensacola, Florida area that 
meets the Ocean Dumping Criteria but is not suitable for beach 
nourishment or disposal at the existing EPA designated Pensacola 
(Nearshore) ODMDS (Sec. 228.15(h)(11)). The Pensacola (Nearshore) ODMDS 
is restricted to suitable dredged material with a median grain size of 
 0.125 mm and a composition of < 10% fines.
    (14) Mobile, Alabama Dredged Material Disposal Site.
    (i) Location: 30[deg]10[min]00[sec]N., 88[deg]07[min]42[sec]W.; 
30[deg]10[min]24[sec]N., 88[deg]05[min]12[sec]W.; 
30[deg]09[min]24[sec]N., 88[deg]04[min]42[sec]W.; 
30[deg]08[min]30[sec]N., 88[deg]05[min]12[sec]W.; 
30[deg]08[min]30[sec]N., 88[deg]08[min]12[sec]W.
    (ii) Size: 4.8 square nautical miles.
    (iii) Depth: Average 14 meters.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged materials 
which meet the Ocean Dumping Criteria.
    (15) Pascagoula, MS, Ocean Dredged Material Dumpsite.
    (i) Location: 30[deg]12[min]06[sec]N., 88[deg]44[min]30[sec]W.;
    30[deg]11[min]42[sec]N., 88[deg]33[min]24[sec]W.; 
30[deg]08[min]30[sec]N., 88[deg]37[min]00[sec]W.; and 
30[deg]08[min]18[sec]N., 88[deg]41[min]54[sec]W.
    Center coordinates: 30[deg]10[min]09[sec]N., 88[deg]39[min]12[sec]W.
    (ii) Size: 18.5 square nautical miles.
    (iii) Depth: Average 46 feet, range 38-52 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.

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    (vi) Restriction: Disposal shall be limited to suitable material 
from the Mississippi Sound and vicinity.
    (16) Gulfport, Mississippi Dredged Material Disposal Site--Eastern 
Site
    (i) Location: 30[deg]11[min]10[sec]N., 88[deg]58[min]24[sec]W.; 
30[deg]11[min]12[sec]N., 88[deg]57[min]30[sec]W.; 
30[deg]07[min]36[sec]N., 88[deg]54[min]24[sec]W.; 
30[deg]07[min]24[sec]N., 88[deg]54[min]48[sec]W.
    (ii) Size: 2.47 square nautical miles.
    (iii) Depth: 9.1 meters.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to materials which meet 
the Ocean Dumping Criteria.
    (17) Gulfport, MS Dredged Material Disposal Site--Western Site.
    (i) Location: 30[deg]12[min]00[sec]N., 89[deg]00[min]30[sec]W.; 
30[deg]12[min]00[sec]N., 88[deg]59[min]30[sec]W.; 
30[deg]11[min]00[sec]N., 89[deg]00[min]00[sec]W.; 
30[deg]07[min]00[sec]N., 88[deg]56[min]30[sec]W.; 
30[deg]06[min]36[sec]N., 88[deg]57[min]00[sec]W.; 
30[deg]10[min]30[sec]N., 89[deg]00[min]36[sec]W.
    (ii) Size: 5.2 square nautical miles.
    (iii) Depth: 8.2 meters.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Disposal shall be limited to dredged material which meets the 
Ocean Dumping Criteria.
    (18) Tampa, Florida; Ocean Dredged Material Disposal Site -------- 
Region IV.
    (i) Location: 27[deg]32[min]27[sec]N.; 83[deg]06[min]02[sec]W; 
27[deg]32[min]27[sec]N.; 83[deg]03[min]46[sec]W.; 
27[deg]30[min]27[sec]N.; 83[deg]06[min]02[sec]W.; 
27[deg]30[min]27[sec]N.; 83[deg]03[min]46[sec]W.
    (ii) Size: Approximately 4 square nautical miles.
    (iii) Depth: Approximately 22 meters.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to suitable dredged 
material from the greater Tampa, Florida vicinity. Disposal shall comply 
with conditions set forth in the most recent approved Site Management 
and Monitoring Plan.
    (19) Miami, Florida; Ocean Dredged Material Disposal Site.
    (i) Location: 25[deg]45[min]30[sec]N.; 80[deg]03[min]54[sec]W.; 
25[deg]45[min]30[sec]N.; 80[deg]02[min]50[sec]W.; 
25[deg]44[min]30[sec]N.; 80[deg]03[min]54[sec]W.; 
25[deg]44[min]30[sec]N.; 80[deg]02[min]50[sec]W.
    Center coordinates are 25[deg]45[min]00[sec] N and 
80[deg]03[min]22[sec] W.
    (ii) Size: Approximately 1 square nautical mile.
    (iii) Depth: Ranges from 130 to 240 meters.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to suitable dredged 
material from the greater Miami, Florida vicinity. Disposal shall comply 
with conditions set forth in the most recent approved Site Management 
and Monitoring Plan.
    (20) New Wilmington, NC; Ocean Dredged Material Disposal Site.
    (i) Location:

33[deg]46[min] N.........................  78[deg]02.5[min] W.
33[deg]46[min] N.........................  78[deg]01[min] W.
33[deg]41[min] N.........................  78[deg]01[min] W.
33[deg]41[min] N.........................  78[deg]04[min] W.
 

    (ii) Size: Approximately 9.4 square nautical miles.
    (iii) Depth: Ranges from 35-52 feet.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to suitable dredged 
material from the greater Wilmington, North Carolina vicinity. Disposal 
shall comply with conditions set forth in the most recent approved Site 
Management and Monitoring Plan.
    (21) Palm Beach Harbor, FL Ocean Dredged Material Disposal Site.
    (i) Location (NAD83): 26[deg]47[min]30[sec] N., 
79[deg]57[min]09[sec] W.; 26[deg]47[min]30[sec] N., 
79[deg]56[min]02[sec] W.; 26[deg]46[min]30[sec] N., 
79[deg]57[min]09[sec] W.; 26[deg]46[min]30[sec] N., 
79[deg]56[min]02[sec] W. Center coordinates are 26[deg]47[min]00[sec] N 
and 79[deg]56[min]35[sec] W.
    (ii) Size: Approximately 1 square nautical mile.
    (iii) Depth: Ranges from 525 to 625 feet.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to suitable dredged 
material. Disposal shall comply with conditions set forth in the most 
recent approved Site Management and Monitoring Plan.
    (22) Port Everglades Harbor, FL Ocean Dredged Material Disposal 
Site.
    (i) Location (NAD83): 26[deg]07[min]30[sec] N., 
80[deg]02[min]00[sec] W.; 26[deg]07[min]30[sec] N., 
80[deg]01[min]00[sec] W.; 26[deg]06[min]30[sec] N., 
80[deg]02[min]00[sec] W.; 26[deg]06[min]30[sec] N., 
80[deg]01[min]00[sec] W. Center coordinates are 26[deg]07[min]00[sec] N 
and 80[deg]01[min]30[sec] W.
    (ii) Size: Approximately 1 square nautical mile.
    (iii) Depth: Ranges from 640 to 705 feet.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.

[[Page 239]]

    (vi) Restriction: Disposal shall be limited to suitable dredged 
material. Disposal shall comply with conditions set forth in the most 
recent approved Site Management and Monitoring Plan.
    (23) Port Royal, SC; Ocean Dredged Material Disposal Site.
    (i) Location (NAD83): 32[deg]05.00[min] N., 80[deg]36.47[min] W.; 
32[deg]05.00[min] N., 80[deg]35.30[min] W.; 32[deg]04.00[min] N., 
80[deg]35.30[min] W.; 32[deg]04.00[min] N., 80[deg]36.47[min] W.
    (ii) Size: Approximately 1.0 square nautical miles.
    (iii) Depth: Averages 36 feet.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to suitable dredged 
material from the greater Port Royal, South Carolina, vicinity. Disposal 
shall comply with conditions set forth in the most recent approved Site 
Management and Monitoring Plan.
    (i) Region IV Final Other Wastes Sites.
    (1) No final sites.
    (2) [Reserved]
    (j) Region VI Final Dredged Material Sites.
    (1) Mississippi River Gulf Outlet, LA.
    (i) Location: 29[deg]32[min]35[sec]N., 89[deg]12[min]38[sec]W.; 
29[deg]29[min]21[sec]N., 89[deg]08[min]00[sec]W.; 
29[deg]24[min]32[sec]N., 88[deg]59[min]23[sec]W.; 
29[deg]24[min]28[sec]N., 88[deg]59[min]39[sec]W.; 
29[deg]28[min]59[sec]N., 89[deg]08[min]19[sec]W.; 
29[deg]32[min]15[sec]N., 89[deg]12[min]57[sec]W.; thence to point of 
beginning.
    (ii) Size: 6.03 square nautical miles.
    (iii) Depth: Ranges from 20 to 40 feet.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from the vicinity of Mississippi River Gulf Outlet.
    (2) Southwest Pass--Mississippi River, LA.
    (i) Location: 28[deg]54[min]12[sec]N., 89[deg]27[min]15[sec]W.; 
28[deg]54[min]12[sec]N., 89[deg]26[min]00[sec]W.; 
28[deg]51[min]00[sec]N., 89[deg]27[min]15[sec]W.; 
28[deg]51[min]00[sec]N., 89[deg]26[min]00[sec]W.
    (ii) Size: 3.44 square nautical miles.
    (iii) Depth: Ranges from 2.7 to 32.2 meters.
    (iv) Primary use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from the vicinity of the Southwest Pass Channel.
    (3) Barataria Bay Waterway, LA.
    (i) Location: 29[deg]16[min]10[sec]N., 89[deg]56[min]20[sec]W.; 
29[deg]14[min]19[sec]N., 89[deg]53[min]16[sec]W.; 
29[deg]14[min]00[sec]N., 89[deg]53[min]36[sec]W.; 
29[deg]16[min]29[sec]N., 89[deg]55[min]59[sec]W.
    (ii) Size: 1.4 square nautical miles.
    (iii) Depth: Ranges from 8-20 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the vicinity of Barataria Bay Waterway.
    (4) Houma Navigation Canal, Louisiana.
    (i) Location: 29[deg]05[min]22.3[sec]N., 90[deg]34[min]43[sec]W.; 
thence following a line 1000 feet west of the channel centerline to 
29[deg]02[min]17.8[sec]N., 90[deg]34[min]28.4[sec]W.; thence to 
29[deg]02[min]12.6[sec]N., 90[deg]35[min]27.8[sec]W.; thence to 
29[deg]05[min]30.8[sec]N., 90[deg]35[min]27.8[sec]W.; thence to the 
point of beginning.
    (ii) Size: 2.08 square nautical miles.
    (iii) Depth: Ranges from 6 to 30 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from the vicinity of Cat Island Pass, Louisiana.
    (5) Calcasieu, LA Dredged Material Site 1.
    (i) Location: 29[deg]45[min]39[sec]N., 93[deg]19[min]36[sec]W.; 
29[deg]42[min]42[sec]N., 93[deg]19[min]06[sec]W.; 
29[deg]42[min]36[sec]N., 93[deg]19[min]48[sec]W.; 
29[deg]44[min]42[sec]N., 93[deg]20[min]12[sec]W.; 
29[deg]44[min]42[sec]N., 93[deg]20[min]24[sec]W.; 
29[deg]45[min]27[sec]N., 93[deg]20[min]33[sec]W.
    (ii) Size: 1.76 square nautical miles.
    (iii) Depth: Ranges from 2 to 8 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the vicinity of the Calcasieu River and Pass Project.
    (6) Calcasieu, LA Dredged Material Site 2.
    (i) Location: 29[deg]44[min]31[sec]N., 93[deg]20[min]43[sec]W.; 
29[deg]39[min]45[sec]N., 93[deg]19[min]56[sec]W.; 
29[deg]39[min]34[sec]N., 93[deg]20[min]46[sec]W.; 
29[deg]44[min]25[sec]N., 93[deg]21[min]33[sec]W.
    (ii) Size: 3.53 square nautical miles.
    (iii) Depth: Ranges from 2 to 11 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the vicinity of the Calcasieu River and Pass Project.
    (7) Calcasieu, LA Dredged Material Site 3.

[[Page 240]]

    (i) Location: 29[deg]37[min]50[sec]N., 93[deg]19[min]37[sec]W.; 
29[deg]37[min]25[sec]N., 93[deg]19[min]33[sec]W.; 
29[deg]33[min]55[sec]N., 93[deg]16[min]23[sec]W.; 
29[deg]33[min]49[sec]N., 93[deg]16[min]5[sec]W.; 
29[deg]30[min]59[sec]N., 93[deg]13[min]51[sec]W.; 
29[deg]29[min]10[sec]N., 93[deg]13[min]49[sec]W.; 
29[deg]29[min]05[sec]N., 93[deg]14[min]23[sec]W.; 
29[deg]30[min]49[sec]N., 93[deg]14[min]25[sec]W.; 
29[deg]37[min]26[sec]N., 93[deg]20[min]24[sec]W.; 
29[deg]37[min]44[sec]N., 93[deg]20[min]27[sec]W.
    (ii) Size: 5.88 square nautical miles.
    (iii) Depth: Ranges from 11 to 14 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the vicinity of the Calcasieu River and Pass Project.
    (8) Sabine-Neches, TX Dredged Material Site 1.
    (i) Location: 29[deg]28[min]03[sec]N., 93[deg]41[min]14[sec]W.; 
29[deg]26[min]11[sec]N., 93[deg]41[min]14[sec]W.; 
29[deg]26[min]11[sec]N., 93[deg]44[min]11[sec]W.
    (ii) Size: 2.4 square nautical miles.
    (iii) Depth: Ranges from 11-13 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Sabine-Neches area.
    (9) Sabine-Neches, TX Dredged Material Site 2.
    (i) Location: 29[deg]30[min]41[sec]N., 93[deg]43[min]49[sec]W.; 
29[deg]28[min]42[sec]N., 93[deg]41[min]33[sec]W.; 
29[deg]28[min]42[sec]N., 93[deg]44[min]49[sec]W.; 
29[deg]30[min]08[sec]N., 93[deg]46[min]27[sec]W.
    (ii) Size: 4.2 square nautical miles.
    (iii) Depth: Ranges from 9-13 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Sabine-Neches area.
    (10) Sabine-Neches, TX Dredged Material Site 3.
    (i) Location: 29[deg]34[min]24[sec]N., 93[deg]48[min]13[sec]W.; 
29[deg]32[min]47[sec]N., 93[deg]46[min]16[sec]W.; 
29[deg]32[min]06[sec]N., 93[deg]46[min]29[sec]W.; 
29[deg]31[min]42[sec]N., 93[deg]48[min]16[sec]W.; 
29[deg]32[min]59[sec]N., 93[deg]49[min]48[sec]W.
    (ii) Size: 4.7 square nautical miles.
    (iii) Depth: 10 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Sabine-Neches area.
    (11) Sabine-Neches, TX, Dredged Material Site 4.
    (i) Location: 29[deg]38[min]09[sec]N., 93[deg]49[min]23[sec]W.; 
29[deg]35[min]53[sec]N., 93[deg]48[min]18[sec]W.; 
29[deg]35[min]06[sec]N., 93[deg]50[min]24[sec]W.; 
29[deg]36[min]37[sec]N., 93[deg]51[min]09[sec]W.; 
29[deg]37[min]00[sec]N., 93[deg]50[min]06[sec]W.; 
29[deg]37[min]46[sec]N., 93[deg]50[min]26[sec]W.
    (ii) Size: 4.2 square nautical miles.
    (iii) Depth: Ranges from 5-9 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Sabine-Neches area.
    (12) Galveston, TX Dredged Material Site.
    (i) Location: 29[deg]18[min]00[sec]N., 94[deg]39[min]30[sec]W; 
29[deg]15[min]54[sec]N., 94[deg]37[min]06[sec]W.; 
29[deg]14[min]24[sec]N., 94[deg]3[min]8[min]42[sec]W.; 
29[deg]16[min]54[sec]N., 94[deg]41[min]30[sec]W.
    (ii) Size: 6.6 square nautical miles.
    (iii) Depth: Ranges from 10 to 15.5 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Galveston, Texas area.
    (13) Freeport Harbor, TX, New Work (45 Foot Project).
    (i) Location: 28[deg]50[sec]51[sec]N., 95[deg]13[min]54[sec]W.; 
28[deg]51[min]44[sec]N., 95[deg]14[min]49[sec]W.; 
28[deg]50[min]15[sec]N., 95[deg]16[min]40[sec]W.; 
28[deg]49[min]22[sec]N., 95[deg]15[min]45[sec]W.
    (ii) Size: 2.64 square nautical miles.
    (iii) Depth: 54 to 61 feet.
    (iv) Primary Use: Construction (new work) dredged material.
    (v) Period of Use: Indefinite period of time.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Freeport Harbor Entrance and Jetty Channels, Texas.
    (14) Freeport Harbor, TX, Maintenance (45 Foot Project).
    (i) Location: 28[deg]54[min]00[sec]N., 95[deg]15[min]49[sec]W.; 
28[deg]53[min]28[sec]N., 95[deg]15[min]16[sec]W.; 
28[deg]52[min]00[sec]N., 95[deg]16[min]59[sec]W.; 
28[deg]52[min]32[sec]N., 95[deg]17[min]32[sec]W.
    (ii) Size: 1.53 square nautical miles.
    (iii) Depth: 31 to 38 feet.
    (iv) Primary use: Maintenance dredged material.
    (v) Period of Use: Indefinite period of time.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Freeport Harbor Entrance and Jetty Channels, Texas.
    (15) Matagorda Ship Channel, TX.
    (i) Location: 28[deg]23[min]48[sec]N., 96[deg]18[min]00[sec]W.; 
28[deg]23[min]21[sec]N., 96[deg]18[min]31[sec]W.; 
28[deg]22[min]43[sec]N., 96[deg]17[min]52[sec]W.; 
28[deg]23[min]11[sec]N., 96[deg]17[min]22[sec]W.
    (ii) Size: 0.56 square nautical mile.
    (iii) Depth: Ranges from 25-40 feet.
    (iv) Primary Use: Dredged Material.

[[Page 241]]

    (v) Period of Use: Indefinite period of time.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Matagorda Ship Channel, Texas.
    (16) Homeport Project, Port Aransas, TX.
    (i) Location: 27[deg]47[min]42[sec] N., 97[deg]00[min]12[sec] W.; 
27[deg]47[min]15[sec] N., 96[deg]59[min]25[sec] W.; 
27[deg]46[min]17[sec] N., 97[deg]01[min]12[sec] W.; 
27[deg]45[min]49[sec] N., 97[deg]00[min]25[sec] W.
    (ii) Size: 1.4 square miles.
    (iii) Depth: Ranges from 45-55 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: 50 years.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the U.S. Navy Homeport Project, Corpus Christi/Ingleside, TX.
    (17) Corpus Christi Ship Channel, TX.
    (i) Location: 27[deg]49[min]10[sec]N., 97[deg]01[min]09[sec]W.; 
27[deg]48[min]42[sec]N., 97[deg]00[min]21[sec]W.; 
27[deg]48[min]06[sec]N., 97[deg]00[min]48[sec]W.; 
27[deg]48[min]33[sec]N., 97[deg]01[min]36[sec]W.
    (ii) Size: 0.63 square nautical mile.
    (iii) Depth: Ranges from 35 to 50 feet.
    (iv) Primary use: Dredged material.
    (v) Period of use: Indefinite period of time.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from the Corpus Christi Ship Channel, Texas.
    (18) Port Mansfield, TX.
    (i) Location: 26[deg]34[min]24[sec]N., 97[deg]15[min]15[sec]W.; 
26[deg]34[min]26[sec]N., 97[deg]14[min]17[sec]W.; 
26[deg]33[min]57[sec]N., 97[deg]14[min]17[sec]W.; 
26[deg]33[min]55[sec]N., 97[deg]15[min]15[sec]W.
    (ii) Size: 0.42 Square nautical miles.
    (iii) Depth: Ranges from 35-50 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Indefinite period of time.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Port Mansfield Entrance Channel, Texas.
    (19) Brazos Island Harbor, TX.
    (i) Location: 26[deg]04[min]32[sec] N., 97[deg]07[min]26[sec] W.; 
26[deg]04[min]32[sec] N., 97[deg]06[min]30[sec] W.; 
26[deg]04[min]02[sec] N., 97[deg]06[min]30[sec] W.; 
26[deg]04[min]02[sec] N., 97[deg]07[min]26[sec] W.
    (ii) Size: 0.42 square nautical miles.
    (iii) Depth: Ranges from 55 to 65 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Indefinite period of time.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Brazos Island Harbor Entrance Channel, Texas.
    (20) Brazos Island Harbor (42-Foot Project), TX.
    (i) Location: 26[deg]04[min]47[sec] N., 97[deg]05[min]07[sec] W.; 
26[deg]05[min]16[sec] N., 97[deg]05[min]04[sec] W.; 
26[deg]05[min]10[sec] N., 97[deg]04[min]06[sec] W.; 
26[deg]04[min]42[sec] N., 97[deg]04[min]09[sec] W.
    (ii) Size: 0.42 square nautical miles.
    (iii) Depth: Ranges from 60-67 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Indefinite period of time.
    (vi) Restrictions: Disposal shall be limited to construction 
material dredged from the Brazos Island Harbor Entrance Channel, Texas.
    (21) Atchafalaya River and Bayous Chene, Boeuf, and Black, LA
    (i) Location: 29E20[min]59.92[min] N, 91E 23[min] 33.23[sec] W; 
29E20[min]43.94[sec] N, 91E23[min]09.73[sec] W; 29E08[min]15.46[sec] N, 
91E34[min]51.02[sec] W; and 29E07[min]59.43[sec] N, 91E34[min]27.51[sec] 
W.
    (ii) Size: 9.14 square miles.
    (iii) Depth: Average water depth of 16 feet.
    (iv) Primary Use: Dredge material.
    (v) Period of Use: Indefinite period of time.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the bar channel of the Atchafalaya River and Bayous Chene, Boeuf, and 
Black, Louisiana.
    (k) Region VI Final Other Wastes Sites.
    (1) No final sites.
    (2) [Reserved]
    (l) Region IX Final Dredged Material Sites.
    (1) San Diego, CA (LA-5).
    (i) Location: Center coordinates of the site are: 32[deg]36.83[min] 
North Latitude and 117[deg]20.67[min] West Latitude (North American 
Datum from 1927), with a radius of 3,000 feet (910 meters).
    (ii) Size: 0.77 square nautical miles.
    (iii) Depth: 460 to 660 feet (145 to 200 meters).
    (iv) Primary Use: Ocean dredged material disposal.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged materials 
that comply with EPA's Ocean Dumping Regulations and Corps Permitting 
Regulations.
    (2) Los Angeles/Long Beach, CA (LA-2).
    (i) Location: 33[deg]37.10[min] North Latitude by 118[deg]17.40[min] 
West Longitude (North American Datum from 1983), with a radius of 3,000 
feet (910 meters).
    (ii) Size: 0.77 square nautical miles.
    (iii) Depth: 380 to 1060 feet (110 to 320 meters).

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    (iv) Primary use: Ocean dredged material disposal.
    (v) Period of use: Continuing use, subject to submission of a 
revised Consistency Determination to the California Coastal Commission 
after 5 years of site management and monitoring.
    (vi) Restrictions: Disposal shall be limited to dredged sediments 
that comply with EPA's Ocean Dumping Regulations.
    (3) San Francisco Deepwater Ocean Site (SF-DODS) Ocean Dredged 
Material Disposal Site--Region IX.
    (i) Location: Center coordinates of the oval-shaped site are: 
37[deg]39.0[min] North latitude by 123[deg]29.0[min] West longitude 
(North American Datum from 1983), with length (north-south axis) and 
width (west-east axis) dimensions of approximately 4 nautical miles (7.5 
kilometers) and 2.5 nautical miles (4.5 kilometers), respectively.
    (ii) Size: 6.5 square nautical miles (22 square kilometers).
    (iii) Depth: 8,200 to 9,840 feet (2,500 to 3,000 meters).
    (iv) Use Restricted to Disposal of: Dredged materials.
    (v) Period of Use: Continuing use over 50 years from date of site 
designation, subject to restrictions and provisions set forth below.
    (vi) Restrictions/provisions: The remainder of this Sec. 
228.15(l)(3) (hereinafter referred to as ``this section'') constitutes 
the required Site Management and Monitoring Plan (SMMP) for the SF-DODS. 
This SMMP shall be supplemented by a Site Management and Monitoring Plan 
Implementation Manual (SMMP Implementation Manual) containing more 
detailed operational guidance. The SMMP Implementation Manual may be 
periodically revised as necessary; proposed revisions to the SMMP 
Implementation Manual shall be made following opportunity for public 
review and comment. Adherence to the provisions of the most current SMMP 
Implementation Manual, including mandatory permit conditions, site 
monitoring activities, and any other condition(s) EPA or the Corps have 
required as part of the project authorization or permit, is a 
requirement for use of the SF-DODS. SF-DODS use shall be subject to the 
following restrictions and provisions:
    (vii) Type and capacity of disposed materials. Site disposal 
capacity is 4.8 million cubic yards of suitable dredged material per 
year for the remaining period of site designation. This limit is based 
on considerations in the regional Long Term Management Strategy for the 
placement of dredged material within the San Francisco Bay region, and 
on monitoring of site use since the SF-DODS was designated in 1994.
    (viii) Permit/project conditions. Paragraph (l)(3)(viii)(A) of this 
section sets forth requirements for inclusion in permits to use the SF-
DODS, and in all Army Corps of Engineers federal project authorizations. 
Paragraph (l)(3)(viii)(B) of this section describes additional project-
specific conditions that will be required of disposal permits and 
operations as appropriate. Paragraph (l)(3)(viii)(C) of this section 
describes how alternative permit conditions may be authorized by EPA and 
the Corps of Engineers. All references to ``permittees'' shall be deemed 
to include the Army Corps of Engineers when implementing a federal 
dredging project.
    (A) Mandatory conditions. All permits or federal project 
authorizations authorizing use of the SF-DODS shall include the 
following conditions, unless approval for an alternative permit 
condition is sought and granted pursuant to paragraph (l)(3)(viii)(C) of 
this section:
    (1) Transportation of dredged material to the SF-DODS shall only be 
allowed when weather and sea state conditions will not interfere with 
safe transportation and will not create risk of spillage, leak or other 
loss of dredged material in transit to the SF-DODS. No disposal trips 
shall be initiated when the National Weather Service has issued a gale 
warning for local waters during the time period necessary to complete 
dumping operations, or when wave heights are 16 feet or greater. The 
permittee must consult the most current version of the SMMP 
Implementation Manual for additional restrictions and/or clarifications 
regarding other sea state parameters, including, but not limited to wave 
period.
    (2) All vessels used for dredged material transportation and 
disposal must

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be loaded to no more than 80 percent by volume of the vessel. Before any 
disposal vessel departs for the SF-DODS, an independent quality control 
inspector must certify in writing that the vessel meets the conditions 
and requirements of a certification checklist that contains all of the 
substantive elements found in the example contained in the most current 
SMMP Implementation Manual. For the purposes of paragraph (l)(3)(viii) 
of this section, ``independent'' means not an employee of the permittee 
or dredging contractor; however, the Corps of Engineers may provide 
inspectors for Corps of Engineers dredged material disposal projects.
    (3) Dredged material shall not be leaked or spilled from disposal 
vessels during transit to the SF-DODS.
    (4) Disposal vessels in transit to and from the SF-DODS should 
remain at least three nautical miles from the Farallon Islands whenever 
possible. Closer approaches should occur only in situations where the 
designated vessel traffic lane enters the area encompassed by the 3-mile 
limit, and where safety may be compromised by staying outside of the 3-
mile limit. In no case may disposal vessels leave the designated vessel 
traffic lane.
    (5) When dredged material is discharged within the SF-DODS, no 
portion of the vessel from which the materials are to be released (e.g., 
hopper dredge or towed barge) can be further than 1,900 feet (600 
meters) from the center of the target area at 37[deg]39[min] N, 
123[deg]29[min] W.
    (6) No more than one disposal vessel may be present within the 
permissible dumping target area referred to in paragraph 
(l)(3)(viii)(A)(5) of this section at any time.
    (7) Disposal vessels shall use an appropriate navigation system 
capable of indicating the position of the vessel carrying dredged 
material (for example, a hopper dredged vessel or towed barge) with a 
minimum accuracy and precision of 100 feet during all disposal 
operations. The system must also indicate the opening and closing of the 
doors of the vessel carrying the dredged material. If the positioning 
system fails, all disposal operations must cease until the navigational 
capabilities are restored. The back-up navigation system, with all the 
capabilities listed in this condition, must be in place on the vessel 
carrying the dredged material.
    (8) The permittee shall maintain daily records of the amount of 
material dredged and loaded into barges for disposal, the times that 
disposal vessel depart for, arrive at and return from the SF-DODS, the 
exact locations and times of disposal, and the volumes of material 
disposed at the SF-DODS during each vessel trip. The permittee shall 
further record wind and sea state observations at intervals to be 
established in the permit.
    (9) For each disposal vessel trip, the permittee shall maintain a 
computer printout from a Global Positioning System or other acceptable 
navigation system showing transit routes and disposal coordinates, 
including the time and position of the disposal vessel when dumping was 
commenced and completed.
    (10) An independent quality control inspector (as defined in 
paragraph (l)(3)(viii)(A)(2)) of this section shall observe all dredging 
and disposal operations. The inspector shall verify the information 
required in paragraphs (l)(3)(viii)(A)(8) and (9) of this section. The 
inspector shall promptly inform permittees of any inaccuracies or 
discrepancies concerning this information and shall prepare summary 
reports, which summarize all such inaccuracies and discrepancies, from 
time to time as shall be specified in permits. Such summary reports 
shall be sent by the permittee to the District Engineer and the Regional 
Administrator within a time interval that shall be specified in the 
permit.
    (11) The permittee shall report any anticipated or actual permit 
violations to the District Engineer and the Regional Administrator 
within 24 hours of discovering such violation. If any anticipated or 
actual permit violations occur within the Gulf of the Farallones or the 
Monterey Bay National Marine Sanctuaries, the permittee must also report 
any such violation to the respective Sanctuary Manager within 24 hours. 
In addition, the permittee shall prepare and submit reports, certified 
accurate by the independent quality

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control inspector, on a frequency that shall be specified in permits, to 
the District Engineer and the Regional Administrator setting forth the 
information required by Mandatory Conditions in paragraphs 
(l)(3)(viii)(A)(8) and (9) of this section.
    (12) Permittees, and the Corps in its Civil Works projects, must 
make arrangements for independent observers to be present on disposal 
vessels for the purpose of conducting shipboard surveys of seabirds and 
marine mammals. Observers shall employ standardized monitoring 
protocols, as referenced in the most current SMMP Implementation Manual. 
At a minimum, permittees shall ensure that independent observers are 
present on at least one disposal trip during each calendar month that 
disposal occurs, AND on average at least once every 25 vessel trips to 
the SF-DODS.
    (13) At the completion of short-term dredging projects, at least 
annually for ongoing projects, and at any other time or interval 
requested by the District Engineer or Regional Administrator, permittees 
shall prepare and submit to the District Engineer and Regional 
Administrator a report that includes complete records of all dredging, 
transport and disposal activities, such as navigation logs, disposal 
coordinates, scow certification checklists, and other information 
required by permit conditions. Electronic data submittals may be 
required to conform to a format specified by the agencies. Permittees 
shall include a report indicating whether any dredged material was 
dredged outside the areas authorized for dredging or was dredged deeper 
than authorized for dredging by their permits.
    (B) Project-specific conditions. Permits or federal project 
authorizations authorizing use of the SF-DODS may include the following 
conditions, if EPA determines these conditions are necessary to 
facilitate safe use of the SF-DODS, the prevention of potential harm to 
the environment or accurate monitoring of site use:
    (1) Permittees may be required to limit the speed of disposal 
vessels in transit to the SF-DODS to a rate that is safe under the 
circumstances and will prevent the spillage of dredged materials.
    (2) Permittees may be required to use automated data logging systems 
for recording navigation and disposal coordinates and/or load levels 
throughout disposal trips when such systems are feasible and represent 
an improvement over manual recording methodologies.
    (3) Any other conditions that EPA or the Corps of Engineers 
determine to be necessary or appropriate to facilitate compliance with 
the requirements of the MPRSA and this section may be included in site 
use permits.
    (C) Alternative permit/project conditions. Alternatives to the 
permit conditions specified in paragraph (l)(3)(viii) of this section in 
a permit or federal project authorization may be authorized if the 
permittee demonstrates to the District Engineer and the Regional 
Administrator that the alternative conditions are sufficient to 
accomplish the specific intended purpose of the permit condition in 
issue and further demonstrates that the waiver will not increase the 
risk of harm to the environment, the health or safety of persons, nor 
will impede monitoring of compliance with the MPRSA, regulations 
promulgated under the MPRSA, or any permit issued under the MPRSA.
    (ix) Site monitoring. Data shall be collected in accordance with a 
three-tiered site monitoring program which consists of three 
interdependent types of monitoring for each tier: Physical, chemical and 
biological. In addition, periodic confirmatory monitoring concerning 
potential site contamination shall be performed. Specific guidance for 
site monitoring tasks required by this paragraph shall be described in a 
Site Management and Monitoring Implementation Manual (SMMP 
Implementation Manual) developed by EPA. The SMMP Implementation Manual 
shall be reviewed periodically and any necessary revisions to the Manual 
will be issued for public review under an EPA Public Notice.
    (A) Tier 1 monitoring activities. Tier 1 monitoring activities shall 
consist of the following:
    (1) Physical monitoring. Tier 1 Physical Monitoring shall consist of 
a physical survey to map the area on the

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seafloor within and in the vicinity of the disposal site where dredged 
material has been deposited (the footprint). Such a survey shall use 
appropriate technology (for example, sediment profile photography) to 
determine the areal extent and thickness of the disposed dredged 
material, and to determine if any dredged material has deposited outside 
of the disposal site boundary.
    (2) Chemical monitoring. Tier 1 Chemical Monitoring shall consist of 
collecting, processing, and preserving boxcore samples of sediments so 
that such sediments could be subjected to sediment chemistry analysis in 
the appropriate tier. Samples shall be collected within the dredged 
material footprint, outside of the dredged material footprint, and 
outside of the disposal site boundaries. Samples within the footprint 
shall be subjected to chemical analysis in annual Tier 1 activity. 
Samples from outside of the footprint and outside of the disposal site 
boundaries shall be archived and analyzed only when the criteria 
requiring Tier 2 as specified in paragraph (l)(3)(x) of this section are 
met. A sufficient number of samples shall be collected so that the 
potential for adverse impacts due to elevated chemistry can be assessed 
with an appropriate time-series or ordinal technique.
    (3) Biological monitoring. Tier 1 Biological Monitoring shall have 
two components: Monitoring of pelagic communities and monitoring of 
benthic communities.
    (i) Pelagic communities. Tier 1 Biological Monitoring shall include 
regional surveys of seabirds, marine mammals and mid-water column fish 
populations appropriate for evaluating how these populations might be 
affected by disposal site use. A combination of annual regional and 
periodic (random) shipboard surveys of seabirds and marine mammals will 
be used. The regional survey designs for each category of biota shall be 
similar to that used for the regional characterization studies 
referenced in the Final Environmental Impact Statement for Designation 
of a Deep Water Ocean Dredged Material Disposal Site off San Francisco, 
California (August 1993) with appropriate realignments to accommodate 
transects within and in the vicinity of the SF-DODS. The periodic 
shipboard surveys shall be performed from vessels involved in dredged 
material disposal operations at the SF-DODS as specified in permit 
conditions imposed pursuant to paragraph (l)(3)(viii)(A)(12) of this 
section. The minimum number of surveys must be sufficient to 
characterize the disposal operations for each project, and, as 
practicable, provide seasonal data for an assessment of the potential 
for adverse impacts for the one-year period. An appropriate time-series 
(ordinal), and community analysis shall be performed using data 
collected during the current year and previous years.
    (ii) Benthic communities. Tier 1 Biological Monitoring shall include 
collection and preservation of boxcore samples of benthic communities so 
that such samples could be analyzed as a Tier 2 activity.
    (4) Annual reporting. The results of the annual Tier 1 studies shall 
be compiled in an annual report which will be available for public 
review.
    (B) Tier 2 monitoring activities. Tier 2 monitoring activities shall 
consist of the following:
    (1) Physical monitoring. Tier 2 Physical Monitoring shall consist of 
oceanographic studies conducted to validate and/or improve the models 
used to predict the dispersion in the water column and deposition of 
dredged material on the seafloor at the SF-DODS. The appropriate 
physical oceanographic studies may include: The collection of additional 
current meter data, deployment of sediment traps, and deployment of 
surface and subsurface drifters.
    (2) Chemical monitoring. Tier 2 Chemical Monitoring shall consist of 
performing sediment chemistry analysis on samples collected and 
preserved in Tier 1 from outside of the footprint and outside of the 
disposal site boundaries.
    (3) Biological monitoring. Tier 2 Biological Monitoring shall 
involve monitoring of pelagic communities and monitoring of benthic 
communities.
    (i) Pelagic communities. Tier 2 Biological Monitoring for pelagic 
communities shall include supplemental surveys of similar type to those 
in Tier 1, or other surveys as appropriate.

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    (ii) Benthic communities. Tier 2 Biological Monitoring for benthic 
communities shall include a comparison of the benthic community within 
the dredged material footprint to benthic communities in adjacent areas 
outside of the dredged material footprint. An appropriate time-series 
(ordinal) and community analysis shall be performed using data collected 
during the current year and previous years to determine whether there 
are adverse changes in the benthic populations outside of the disposal 
site which may endanger the marine environment.
    (4) Annual reporting. The results of any required Tier 2 studies 
shall be compiled in an annual report which will be available for public 
review.
    (C) Tier 3 monitoring activities. Tier 3 monitoring activities shall 
consist of the following:
    (1) Physical monitoring. Tier 3 physical monitoring shall consist of 
advanced oceanographic studies to study the dispersion of dredged 
material in the water column and the deposition of dredged material on 
the seafloor in the vicinity of the SF-DODS. Such physical monitoring 
may include additional, intensified studies involving the collection of 
additional current meter data, deployment of sediment traps, and 
deployment of surface and subsurface drifters. Such studies may include 
additional sampling stations, greater frequency of sampling, more 
advanced sampling methodologies or equipment, or other additional 
increased study measures compared to similar studies conducted in Tier 1 
or 2.
    (2) Chemical monitoring. Tier 3 Chemical Monitoring shall consist of 
analysis of tissues of appropriate field-collected benthic and/or 
epifaunal organisms to determine bioaccumulation of contaminants that 
may be associated with dredged materials deposited at the SF-DODS. 
Sampling and analysis shall be designed and implemented to determine 
whether the SF-DODS is a source of adverse bioaccumulation in the 
tissues of benthic species collected at or outside the SF-DODS, compared 
to adjacent unimpacted areas, which may endanger the marine environment. 
Appropriate sampling methodologies for these tests will be determined 
and the appropriate analyses will involve the assessment of benthic body 
burdens of contaminants and correlation with comparison of the benthic 
communities inside and outside of the sediment footprint.
    (3) Biological monitoring. Tier 3 biological monitoring shall have 
two components: monitoring of pelagic communities and monitoring of 
benthic communities.
    (i) Pelagic communities. Tier 3 Biological Monitoring shall include 
advanced studies of seabirds, marine mammals and mid-water column fish 
to evaluate how these populations might be affected by disposal site 
use. Such studies may include additional sampling stations, greater 
frequency of sampling, more advanced sampling methodologies or 
equipment, or other additional increased study measures compared to 
similar studies conducted in Tier 1 or 2. Studies may include evaluation 
of sub-lethal changes in the health of pelagic organisms, such as the 
development of lesions, tumors, developmental abnormality, decreased 
fecundity or other adverse sub-lethal effect.
    (ii) Benthic communities. Tier 3 Biological Monitoring shall include 
advanced studies of benthic communities to evaluate how these 
populations might be affected by disposal site use. Such studies may 
include additional sampling stations, greater frequency of sampling, 
more advanced sampling methodologies or equipment, or other additional 
increased study measures compared to similar studies conducted in Tier 
2. Studies may include evaluation of sub-lethal changes in the health of 
benthic organisms, such as the development of lesions, tumors, 
developmental abnormality, decreased fecundity or other adverse sub-
lethal effect.
    (4) Reporting. The results of any required Tier 3 studies shall be 
compiled in a report which will be available for public review.
    (D) Periodic confirmatory monitoring. At least once every three 
years, the following confirmatory monitoring activities will be 
conducted and results compiled in a report which will be available for 
public review: Samples of sediments taken from the dredged material 
footprint shall be subjected to

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bioassay testing using one or more appropriate sensitive marine species 
consistent with applicable ocean disposal testing guidance (``Green 
Book'' or related Regional Implementation Agreements), as determined by 
the Regional Administrator, to confirm whether contaminated sediments 
are being deposited at the SF-DODS despite extensive pre-disposal 
testing. In addition, near-surface arrays of appropriate filter-feeding 
organisms (such as mussels) shall be deployed in at least three 
locations in and around the disposal site for at least one month during 
active site use, to confirm whether substantial bioaccumulation of 
contaminants may be associated with exposure to suspended sediment 
plumes from multiple disposal events. One array must be deployed outside 
the influence of any expected plumes to serve as a baseline reference.
    (x) Site management actions. Once disposal operations at the site 
begin, the three-tier monitoring program described in paragraphs 
(l)(3)(ix) (A) through (C) of this section shall be implemented on an 
annual basis, through December 31, 1998, independent of the actual 
volumes disposed at the site. Thereafter, the Regional Administrator may 
establish a minimum annual disposal volume (not to exceed 10 percent of 
the designated site capacity at any time) below which this monitoring 
program need not be fully implemented. The Regional Administrator shall 
promptly review monitoring reports for the SF-DODS along with any other 
information available to the Regional Administrator concerning site 
monitoring activities. If the information gathered from monitoring at a 
given monitoring tier is not sufficient for the Regional Administrator 
to base reasonable conclusions as to whether disposal at the SF-DODS 
might be endangering the marine ecosystem, then the Regional 
Administrator shall require intensified monitoring at a higher tier. If 
monitoring at a given tier establishes that disposal at the SF-DODS is 
endangering the marine ecosystem, then the Regional Administrator shall 
require modification, suspension or termination of site use.
    (A) Selection of site monitoring tiers--(1) Physical monitoring. 
Physical monitoring shall remain limited to Tier 1 monitoring when Tier 
1 monitoring establishes that no significant amount of dredged material 
has been deposited or transported outside of the site boundaries. Tier 2 
monitoring shall be employed when Tier 1 monitoring is insufficient to 
conclude that a significant amount of dredged material as defined in 
paragraph (l)(3)(x)(A)(4) of this section has not been deposited or 
transported outside of the site boundaries.
    (2) Chemical monitoring. (i) Chemical monitoring shall remain 
limited to Tier 1 Chemical Monitoring when the results of Physical 
Monitoring indicate that a significant amount of dredged material as 
defined in paragraph (l)(3)(x)(A)(4) of this section has not been 
deposited or transported off-site, and Tier 1 Chemical Monitoring 
establishes that dredged sediments deposited at the disposal site do not 
contain levels of chemical contaminants that are significantly elevated 
above the range of chemical contaminant levels in dredged sediments that 
the Regional Administrator and the District Engineer found to be 
suitable for disposal at the SF-DODS pursuant to 40 CFR part 227.
    (ii) Tier 2 monitoring shall be employed when the results of 
Physical Monitoring indicate that a significant amount of dredged 
material as defined in paragraph (l)(3)(x)(A)(4) of this section has 
been deposited off-site, and Tier 1 Chemical Monitoring is insufficient 
to establish that dredged sediments deposited at the disposal site do 
not contain levels of chemical contaminants that are significantly 
elevated above the range of chemical contaminant levels in dredged 
sediments that the Regional Administrator and the District Engineer 
found to be suitable for disposal at the SF-DODS pursuant to 40 CFR part 
227.
    The Regional Administrator may employ Tier 2 monitoring when 
available evidence indicates that a significant amount of dredged 
material as defined in paragraph (l)(3)(x)(A)(4) of this section has 
been deposited near the SF-DODS site boundary.
    (iii) Tier 3 monitoring shall be employed within and outside the 
dredged

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material footprint when Tier 2 Chemical Monitoring is insufficient to 
establish that dredged sediments deposited at the disposal site do not 
contain levels of chemical contaminants that are significantly elevated 
above the range of chemical contaminant levels in dredged sediments that 
the Regional Administrator and the District Engineer found to be 
suitable for disposal at the SF-DODS pursuant to 40 CFR part 227.
    (3) Biological monitoring. (i) Pelagic communities. Biological 
monitoring for pelagic communities shall remain limited to Tier 1 
monitoring when Tier 1 monitoring establishes that disposal at the SF-
DODS has not endangered the monitored pelagic communities. When Tier 1 
monitoring is insufficient to make reasonable conclusions whether 
disposal at the site has endangered the monitored pelagic communities, 
then Tier 2 monitoring of pelagic communities shall be employed. When 
Tier 2 monitoring is insufficient to make reasonable conclusions whether 
disposal at the site has endangered the monitored pelagic communities, 
then Tier 3 monitoring of pelagic communities shall be employed.
    (ii) Benthic communities. Biological monitoring for benthic 
communities shall remain limited to Tier 1 monitoring when physical 
monitoring establishes that a significant amount of dredged material has 
not been deposited outside of the site boundaries. If physical 
monitoring indicates that a significant amount of dredged material has 
been deposited or transported outside of the site boundaries, then Tier 
2 analysis of benthic communities shall be performed. If Chemical 
Monitoring establishes that there is significant bioaccumulation of 
contaminants in organisms sampled from within or outside the dredged 
material footprint, then Tier 3 Biological Monitoring of the disposal 
site shall be employed. Tier 3 Biological Monitoring may replace Tier 3 
Chemical Monitoring if observed biological effects are established as 
surrogate indicators for bioaccumulation of chemical contaminants in 
sampled organisms.
    (4) Definition of significant dredged material accumulation. For 
purposes of this paragraph (l)(3)(x)(A) of this section, dredged 
material accumulation on the ocean bottom to a thickness of five 
centimeters shall be considered to be a significant amount of dredged 
material. The Regional Administrator may determine that a lesser amount 
of accumulation is significant if available evidence indicates that a 
lesser amount of off-site accumulation could endanger marine resources.
    (B) Modification, suspension or termination of site use. (1) If the 
results of site monitoring or other information indicate that any of the 
following are occurring as a result of disposal at the SF-DODS, then the 
Regional Administrator shall modify, suspend, or terminate site use 
overall, or for individual projects as appropriate:
    (i) Exceedance of Federal marine water quality criteria within the 
SF-DODS following initial mixing as defined in 40 CFR 227.29(a) or 
beyond the site boundary at any time;
    (ii) Placement or movement of significant quantities of disposed 
material outside of site boundaries near or toward significant 
biological resource areas or marine sanctuaries;
    (iii) Endangerment of the marine environment related to potentially 
significant adverse changes in the structure of the benthic community 
outside the disposal site boundary;
    (iv) Endangerment to the health, welfare, or livelihood of persons 
or to the environment related to potentially significant adverse 
bioaccumulation in organisms collected from the disposal site or areas 
adjacent to the site boundary compared to the reference site;
    (v) Endangerment to the health, welfare, or livelihood of persons 
related to potentially significant adverse impacts upon commercial or 
recreational fisheries resources near the site; or
    (vi) Endangerment to the health, welfare, or livelihood of persons 
or to the environment related to any other potentially significant 
adverse environmental impacts.
    (2) The Regional Administrator shall modify site use, rather than 
suspend or terminate site use, when site use modification will be 
sufficient to eliminate the adverse environmental impacts referred to in 
paragraphs (l)(3)(x)(B)(1) (i) or (ii) of this section or the

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endangerment to human health, welfare or livelihood to the environment 
referred to in paragraphs (l)(3)(x)(B)(1) (iii) through (vi) of this 
section. Notwithstanding the provisions of any permit or federal project 
authorization authorizing site use, the Regional Administrator shall 
order, following opportunity for public comment, any of the following 
modifications to site use that he or she deems necessary to eliminate 
the adverse environmental effect or endangerment to human health, 
welfare, or livelihood or to the environment:
    (i) Change or additional restrictions upon the permissible times, 
rates and total volume of disposal of dredged material at the SF-DODS;
    (ii) Change or additional restrictions upon the method of disposal 
or transportation of dredged materials for disposal; or
    (iii) Change or additional limitations upon the type or quality of 
dredged materials according to chemical, physical, bioassay toxicity, or 
bioaccumulation characteristics.
    (3) The Regional Administrator shall suspend site use when site use 
suspension is both necessary and sufficient to eliminate any adverse 
environmental effect or endangerment to human health, welfare, or 
livelihood or to the environment referred to in paragraph 
(l)(3)(x)(B)(1) of this section. Notwithstanding the provisions of any 
permit or federal project authorization authorizing site use, the 
Regional Administrator shall order, following opportunity for public 
comment, site use suspension until an appropriate management action is 
identified or for a time period that will eliminate the adverse 
environmental effect or endangerment to human health, welfare, or 
livelihood or to the environment.
    (4) Notwithstanding the provisions of any permit or federal project 
authorization authorizing site use, the Regional Administrator shall 
order, following opportunity for public comment, site use permanently 
terminated if this is the only means for eliminating the adverse 
environmental impacts referred to in paragraphs (l)(3)(x)(B)(1) (i) or 
(ii) of this section or the endangerment to human health, welfare or 
livelihood to the environment referred to in paragraphs (l)(3)(x)(B)(1) 
(iii) through (vi) of this section.
    (4) Channel Bar Site, San Francisco, CA (SF-8).
    (i) Location: 37[deg]44[min]55[sec]N., 122[deg]37[min]18[sec]W; 
37[deg]45[min]45[sec]N., 122[deg]34[min]24[sec]W.; 
37[deg]44[min]24[sec]N., 122[deg]37[min]06[sec]W.; 
37[deg]45[min]15[sec]N., 122[deg]34[min]12[sec]W.
    (ii) Size: 4,572x914 meters.
    (iii) Depth: Ranges from 11 to 14.3 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to material from 
required dredging operations at the entrance of the San Francisco main 
ship channel which is composed primarily of sand having grain sizes 
compatible with naturally occurring sediments at the disposal site and 
containing approximately 5 percent of particles having grain sizes finer 
than that normally attributed to very fine sand (.075 millimeters). 
Other dredged materials meeting the requirements of 40 CFR 227.13 but 
having smaller grain sizes may be dumped at this site only upon 
completion of an appropriate case-by-case evaluation of the impact of 
such material on the site which demonstrates that such impact will be 
acceptable.
    (5) Hilo, HI.
    (i) Location: (center point): Latitude--19[deg]48[min]30[sec]N.; 
Longitude--154[deg]58[min]30[sec]W.
    (ii) Size: Circular with a radius of 920 meters.
    (iii) Depth: Ranges from 330 to 340 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material.
    (6) Kahului, HI.
    (i) Location: (center point): Latitude--21[deg]04[min]42[sec]N.; 
Longitude--156[deg]29[min]00[sec]W.
    (ii) Size: Circular with a radius of 920 meters.
    (iii) Depth: Ranges from 345 to 365 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material.
    (7) South Oahu, HI.

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    (i) Location: (center point): Latitude--21[deg]15[min]10[sec] N.; 
Longitude--157[deg]56[min]50[sec] W.
    (ii) Size: 2 kilometers wide and 2.6 kilometers long.
    (iii) Depth: Ranges from 400 to 475 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material.
    (8) Nawiliwili, HI.
    (i) Location: (centerpoint): Latitude--21[deg]55[min]00[sec] N. 
Longitude--159[deg]17[min]00[sec] W.
    (ii) Size: Circular with a radius of 920 meters.
    (iii) Depth: Ranges from 840 to 1,120 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material.
    (9) Port Allen, HI.
    (i) Location: (center point) Latitude--21[deg]50[min]00[sec] N. 
Longitude--159[deg]35[min]00[sec] W.
    (ii) Size: Circular with a radius of 920 meters.
    (iii) Depth: Ranges from 1,460 to 1,610 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material.
    (10) Humboldt Open Ocean Disposal Site (HOODS) Ocean Dredged 
Material Disposal Site--Region IX.
    (i) Location: The coordinates of the corners of the square site are: 
40[deg]48[min]25[sec] North latitude (N) by 124[deg]16[min]22[sec] West 
longitude (W); 40[deg]49[min]03[sec] N by 124[deg]17[min]22[sec] W; 
40[deg]47[min]38[sec] N by 124[deg]17[min]22[sec] N; and 
40[deg]48[min]17[sec] N by 124[deg]18[min]12[sec] W (North American 
Datum from 1983).
    (ii) Size: 1 square nautical mile (3 square kilometers).
    (iii) Depth: Water depths within the area range between 
approximately 160 to 180 feet (49 to 55 meters).
    (iv) Use Restricted to Disposal of: Dredged materials.
    (v) Period of Use: Continuing use over 50 years from date of site 
designation, subject to restrictions and provisions set forth in 
paragraph (l)(10)(vi) of this section.
    (vi) Restrictions/Provisions: Site management and monitoring 
activities shall be implemented during the period of site use and in 
accordance with the Site Management and Monitoring Plan (SMMP) for the 
HOODS as incorporated in the Final EIS, and summarized in Section D of 
this final rule. All disposal activities shall be terminated if 
monitoring, as described in the SMMP, is not implemented. The SMMP may 
be periodically revised as necessary; proposed substantive revisions to 
the SMMP shall be made following opportunity for public review and 
comment.
    (11) Newport Beach, CA, (LA-3) Ocean Dredged Material Disposal 
Site--Region IX.
    (i) Location: Center coordinates of the circle-shaped site are: 
33[deg]31[min]00[sec] North Latitude by 117[deg]53[min]30[sec] West 
Longitude (North American Datum from 1983), with a radius of 3,000 feet 
(915 meters).
    (ii) Size: 0.77 square nautical miles.
    (iii) Depth: 1,500 to 1,675 feet (460 to 510 meters).
    (iv) Use Restricted to Disposal of: Dredged materials.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged materials 
that comply with EPA's Ocean Dumping Regulations.
    (m) Region IX Final Other Wastes Sites.
    (1) Fish Processing Waste Disposal Site, American Samoa.
    (i) Location: 14[deg]24.00[min] South latitude by 170[deg]38.30[min] 
West longitude (1.5 nautical mile radius).
    (ii) Size: 7.07 square nautical miles.
    (iii) Depth: 1,502 fathoms (2,746 meters or 9,012 feet).
    (iv) Primary Use: Disposal of fish processing wastes.
    (v) Period of Use: Continued use.
    (vi) Restriction: Disposal shall be limited to dissolved air 
flotation (DAF) sludge, presswater, and precooker water produced as a 
result of fish processing operations at fish canneries generated in 
American Samoa.
    (2) [Reserved]
    (n) Region X Final Dredged Material Sites.
    (1) Chetco, OR, Dredged Material Site.
    (i) Location: 42[deg]01[min]55[sec] N., 124[deg]16[min]37[sec] W.; 
42[deg]01[min]55[sec] N., 124[deg]16[min]13[sec] W.; 
42[deg]01[min]37[sec] N., 124[deg]16[min]13[sec] W.; and 
42[deg]01[min]37[sec] N., 124[deg]16[min]37[sec] W. (NAD83)

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    (ii) Size: 0.09 square nautical mile.
    (iii) Depth: 21 meters (average).
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
determined to be suitable for unconfined disposal from the Chetco 
Estuary and River and adjacent areas.
    (2) Coos Bay, OR Dredged Material Site E.
    (i) Location: 43[deg]21[min]59[sec] N., 124[deg]22[min]45[sec] 
W.;43[deg]21[min]48[sec] N., 124[deg]21[min]59[sec] W.; 
43[deg]21[min]35[sec] N., 124[deg]22[min]05[sec] W.; 
43[deg]21[min]46[sec] N., 124[deg]22[min]51[sec] W.
    (ii) Size: 0.13 square nautical mile.
    (iii) Depth: Averages 17 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material in 
the Coos Bay area of type 1, as defined in the site designation final 
EIS.
    (3) Coos Bay, OR Dredged Material Site F.
    (i) Location: 43[deg]22[min]44[sec] N., 124[deg]22[min]18[sec] W.; 
43[deg]22[min]29[sec] N., 124[deg]21[min]34[sec] W.; 
43[deg]22[min]16[sec] N., 124[deg]21[min]42[sec] W.; 
43[deg]22[min]31[sec] N., 124[deg]22[min]26[sec] W.
    (ii) Size: 0.13 square nautical mile.
    (iii) Depth: Averages 24 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material in 
the Coos Bay area of type 1, as defined in the site designation final 
EIS.
    (4) Coos Bay, OR Dredged Material Site H.
    (i) Location: 43[deg]22[min]54.8887[sec] N, 
124[deg]19[min]28.9905[sec] W; 43[deg]21[min]32.8735[sec] N, 
124[deg]20[min]37.7373[sec] W; 43[deg]22[min]51.4004[sec] N, 
124[deg]23[min]32.4318[sec] W; 43[deg]23[min]58.4014[sec] N, 
124[deg]22[min]35.4308[sec] W (NAD 83).
    (ii) Size: 4.45 kilometers long and 2.45 kilometers wide.
    (iii) Depth: Ranges from 6 to 51 meters.
    (iv) Primary Use: Dredged material determined to be suitable for 
ocean disposal.
    (v) Period of Use: Continuing Use.
    (vi) Restriction: Disposal shall be limited to dredged material 
determined to be suitable for unconfined disposal; Disposal shall be 
managed by the restrictions and requirements contained in the currently-
approved Site Management and Monitoring Plan (SMMP); Monitoring, as 
specified in the SMMP, is required.
    (5) Coquille River Entrance, OR.
    (i) Location: 43[deg]08[min]26[sec] N., 124[deg]26[min]44[sec] W.; 
43[deg]08[min]3[sec] N., 124[deg]26[min]08[sec] W.; 
43[deg]08[min]13[sec] N., 124[deg]27[min]00[sec] W.; 
43[deg]07[min]50[sec] N., 124[deg]26[min]23[sec] W.
    Centroid: 43[deg]08[min]08[sec] N., 124[deg]26[min]34[sec] W.
    (ii) Size: 0.17 square nautical miles.
    (iii) Depth: 18.3 meters.
    (iv) Period of Use: Continuing use.
    (v) Restrictions: Disposal shall be limited to dredged material from 
the Coquille Estuary and River and adjacent areas.
    (6)--(7) [Reserved]
    (8) Mouth of the Columbia River, OR/WA Dredged Material Shallow 
Water site.
    (i) Location: Overall Site Coordinates: 46[deg]15[min]31.64[sec] N, 
124[deg]05[min]09.72[sec] W; 46[deg]14[min]17.66[sec] N, 
124[deg]07[min]14.54[sec] W; 46[deg]15[min]02.87[sec] N, 
124[deg]08[min]11.47[sec] W; 46[deg]15[min]52.77[sec] N, 
124[deg]05[min]42.92[sec] W. Drop Zone: 46[deg]15[min]35.36[sec] N, 
124[deg]05[min]15.55[sec] W; 46[deg]14[min]31.07[sec] N, 
124[deg]07[min]03.25[sec] W; 46[deg]14[min]58.83[sec] N, 
124[deg]07[min]36.89[sec] W; 46[deg]15[min]42.38[sec] N, 
124[deg]05[min]26.65[sec] W (All NAD 83)
    (ii) Size: 3.05 kilometers long and 0.32 to 1.10 kilometers wide or 
1.4 square nautical mile.
    (iii) Depth: Ranges from 14 to 23 meters.
    (iv) Primary Use: Dredged Material determined to be suitable for 
ocean disposal.
    (v) Period of Use: Continuing Use.
    (vi) Restriction: Disposal shall be limited to dredged material 
determined to be suitable for unconfined disposal; Site use shall be 
consistent with the ability of the site to disperse disposed material 
into the littoral zone.
    (9) Mouth of the Columbia River, OR/WA Dredged Material Deep Water 
site.
    (i) Location: Overall Site Coordinates: 46[deg]11[min]03.03[sec] N, 
124[deg]10[min]01.30[sec] W; 46[deg]13[min]09.78[sec] N, 
124[deg]12[min]39.67[sec] W; 46[deg]10[min]40.88[sec] N, 
124[deg]16[min]46.48[sec] W; 46[deg]08[min]34.22[sec] N, 
124[deg]14[min]08.07[sec] W (which includes a 3,000-foot buffer); Site 
Placement Area: 46[deg]11[min]06.00[sec] N, 124[deg]11[min]05.99[sec] W; 
46[deg]12[min]28.01[sec] N, 124[deg]12[min]48.48[sec] W; 
46[deg]10[min]37.96[sec] N, 124[deg]15[min]50.91[sec] W; 
46[deg]09[min]15.99[sec] N, 124[deg]14[min]08.40[sec] W (All NAD, 83).
    (ii) Size: 7.01 kilometers long by 5.18 kilometers wide or 10.5 
square nautical mile.
    (iii) Depth: Ranges from 58 to 91 meters.
    (iv) Primary Use: Dredged material determined to be suitable for 
ocean disposal.

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    (v) Period of Use: Continuing Use or until placed material has 
mounded to an average height of 40 feet within the placement area (see 
restriction 4 below).
    (vi) Restrictions: Disposal shall be limited to dredged material 
determined to be suitable for unconfined disposal; Site use shall be 
consistent with the ability of the site to retain disposed material on-
site; Direct disposal of dredged material into the identified buffer 
zone is prohibited; and The Corps and/or EPA shall undertake specific 
re-evaluation of site capacity once the site is used and an average 
mound height of 30 feet has accumulated throughout the placement area. 
This evaluation will either confirm the original 40-foot height 
restriction, or recommend a more technically appropriate one.
    (10) Grays Harbor Eight Mile Site.
    (i) Location: Circle with a 0.40 mile radius around a central 
coordinate at 46[deg]57[min] N., 124[deg]20.06[min] W.
    (ii) Size: 0.5 square nautical miles.
    (iii) Depth: 42-49 meters.
    (iv) Primary use: Dredged material.
    (v) Period of Use: One time use over multiple years. Designation of 
the site is anticipated within five years following completion of 
disposal and monitoring activities.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from initial construction of the Grays Harbor navigation project. Post-
disposal monitoring will determine the need and extent of closure 
requirements.
    (11) Grays Harbor Southwest Navigation Site.
    (i) Location: 46[deg]52.94[min] N., 124[deg]13.81[min] W; 
46[deg]52.17[min] N., 124[deg]12.96[min] W.; 46[deg]51.15[min] N., 
124[deg]14.19[min] W.; 46[deg]51.92[min] N., 124[deg]14.95[min] W.
    (ii) Size: 1.25 square nautical miles.
    (iii) Depth: 30-37 meters (average).
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
determined to be suitable for unconfined disposal from Grays Harbor 
estuary and adjacent areas. Additional discharge restrictions will be 
contained in the EPA/Corps management plan for the site.
    (12) Nome, AK--East Site.
    (i) Location: 64[deg]29[min]54[sec]N., 165[deg]24[min]41[sec]W.; 
64[deg]29[min]45[sec]N., 165[deg]23[min]27[sec]W.; 
64[deg]28[min]57[sec]N., 165[deg]23[min]29[sec]W.; 
64[deg]29[min]07[sec]N., 165[deg]24[min]25[sec].
    (ii) Size: 0.37 square nautical mile.
    (iii) Depth: Ranges from 1 to 12 meters.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from Nome, Alaska, and adjacent areas. Use will be coordinated with the 
City of Nome prior to dredging.
    (13) Nome, AK--West Site.
    (i) Location: 64[deg]30[min]04[sec]N., 165[deg]25[min]52[sec]W.; 
64[deg]29[min]18[sec]N., 165[deg]26[min]04[sec]W.; 
64[deg]29[min]13[sec]N., 165[deg]25[min]22[sec]W.; 
64[deg]29[min]54[sec]N., 165[deg]24[min]45[sec]W.
    (ii) Size: 0.30 nautical miles.
    (iii) Depth: Ranges from 1 to 11 meters.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from Nome, Alaska, and adjacent areas. Use will be coordinated with the 
City of Nome prior to dredging. Preference will be given to placing any 
material in the inner third of the site to supplement littoral drift, as 
needed.
    (o) Region X Final Other Wastes Sites.
    (1) No final sites.
    (2) [Reserved]

[59 FR 61130, Nov. 29, 1994]

    Editorial Note: For Federal Register citations affecting Sec. 
228.15, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



PART 229_GENERAL PERMITS--Table of Contents




Sec.
229.1 Burial at sea.
229.2 Transport of target vessels.
229.3 Transportation and disposal of vessels.

    Authority: 33 U.S.C. 1412 and 1418.

    Source: 42 FR 2489, Jan. 11, 1977, unless otherwise noted.



Sec. 229.1  Burial at sea.

    (a) All persons subject to title I of the Act are hereby granted a 
general permit to transport human remains from the United States and all 
persons owning or operating a vessel or aircraft

[[Page 253]]

registered in the United States or flying the United States flag and all 
departments, agencies, or instrumentalities of the United States are 
hereby granted a general permit to transport human remains from any 
location for the purpose of burial at sea and to bury such remains at 
sea subject to the following conditions:
    (1) Except as herein otherwise provided, human remains shall be 
prepared for burial at sea and shall be buried in accordance with 
accepted practices and requirements as may be deemed appropriate and 
desirable by the United States Navy, United States Coast Guard, or civil 
authority charged with the responsibility for making such arrangements;
    (2) Burial at sea of human remains which are not cremated shall take 
place no closer than 3 nautical miles from land and in water no less 
than one hundred fathoms (six hundred feet) deep and in no less than 
three hundred fathoms (eighteen hundred feet) from (i) 
27[deg]30[min]00[sec] to 31[deg]00[min]00[sec] North Latitude off St. 
Augustine and Cape Canaveral, Florida; (ii) 82[deg]20[min]00[sec] to 
84[deg]00[min]00[sec] West Longitude off Dry Tortugas, Florida; and 
(iii) 87[deg]15[min]00[sec] to 89[deg]50[min]00[sec] West Longitude off 
the Mississippi River Delta, Louisiana, to Pensacola, Florida. All 
necessary measures shall be taken to ensure that the remains sink to the 
bottom rapidly and permanently; and
    (3) Cremated remains shall be buried in or on ocean waters without 
regard to the depth limitations specified in paragraph (a)(2) of this 
section provided that such burial shall take place no closer than 3 
nautical miles from land.
    (b) For purposes of this section and Sec. Sec. 229.2 and 229.3, 
land means that portion of the baseline from which the territorial sea 
is measured, as provided for in the Convention on the Territorial Sea 
and the Contiguous Zone, which is in closest proximity to the proposed 
disposal site.
    (c) Flowers and wreaths consisting of materials which are readily de 
com pos a ble in the marine environment may be disposed of under the 
general permit set forth in this section at the site at which disposal 
of human remains is authorized.
    (d) All burials conducted under this general permit shall be 
reported within 30 days to the Regional Administrator of the Region from 
which the vessel carrying the remains departed.



Sec. 229.2  Transport of target vessels.

    (a) The U.S. Navy is hereby granted a general permit to transport 
vessels from the United States or from any other location for the 
purpose of sinking such vessels in ocean waters in testing ordnance and 
providing related data subject to the following conditions:
    (1) Such vessels may be sunk at times determined by the appropriate 
Navy official;
    (2) Necessary measures shall be taken to insure that the vessel 
sinks to the bottom rapidly and permanently, and that marine navigation 
is not otherwise impaired by the sunk vessel;
    (3) All such vessel sinkings shall be conducted in water at least 
1,000 fathoms (6,000 feet) deep and at least 50 nautical miles from 
land, as defined in Sec. 229.1(b); and
    (4) Before sinking, appropriate measures shall be taken by qualified 
personnel at a Navy or other certified facility to remove to the maximum 
extent practicable all materials which may degrade the marine 
environment, including without limitation (i) emptying of all fuel tanks 
and fuel lines to the lowest point practicable, flushing of such tanks 
and lines with water, and again emptying such tanks and lines to the 
lowest point practicable so that such tanks and lines are essentially 
free of petroleum, and (ii) removing from the hulls other pollutants and 
all readily detachable material capable of creating debris or 
contributing to chemical pollution.
    (b) An annual report will be made to the Administrator of the 
Environmental Protection Agency setting forth the name of each vessel 
used as a target vessel, its approximate tonnage, and the location and 
date of sinking.



Sec. 229.3  Transportation and disposal of vessels.

    (a) All persons subject to title I of the Act are hereby granted a 
general permit to transport vessels from the United States, and all 
departments, agencies, or instrumentalities of the United States are 
hereby granted a

[[Page 254]]

general permit to transport vessels from any location for the purpose of 
disposal in the ocean subject to the following conditions:
    (1) Except in emergency situations, as determined by the U.S. Army 
Corps of Engineers and/or the U.S. Coast Guard, the person desiring to 
dispose of a vessel under this general permit shall, no later than 1 
month prior to the proposed disposal date, provide the following 
information in writing to the EPA Regional Administrator for the Region 
in which the proposed disposal will take place:
    (i) A statement detailing the need for the disposal of the vessel;
    (ii) Type and description of vessel to be disposed of and type of 
cargo normally carried;
    (iii) Detailed description of the proposed disposal procedures;
    (iv) Information on the potential effect of the vessel disposal on 
the marine environment; and
    (v) Documentation of an adequate evaluation of alternatives to ocean 
disposal (i.e., scrap, salvage, and reclamation).
    (2) Transportation for the purpose of ocean disposal may be 
accomplished under the supervision of the District Commander of the U.S. 
Coast Guard or his designee.
    (3) Except in emergency situations, as determined by the U.S. Army 
Corps of Engineers and/or the District Commander of the U.S. Coast 
Guard, appropriate measures shall be taken, prior to disposal, by 
qualified personnel to remove to the maximum extent practicable all 
materials which may degrade the marine environment, including without 
limitation (i) emptying of all fuel lines and fuel tanks to the lowest 
point practicable, flushing of such lines and tanks with water, and 
again emptying such lines and tanks to the lowest point practicable so 
that such lines and tanks are essentially free of petroleum, and (ii) 
removing from the hulls other pollutants and all readily detachable 
material capable of creating debris or contributing to chemical 
pollution.
    (4) Except in emergency situations, as determined by the U.S. Army 
Corps of Engineers and/or the U.S. Coast Guard, the dumper shall, no 
later than 10 days prior to the proposed disposal date, notify the EPA 
Regional Administrator and the District Commander of the U.S. Coast 
Guard that the vessel has been cleaned and is available for inspection; 
the vessel may be transported for dumping only after EPA and the Coast 
Guard agree that the requirements of paragraph (a)(3) of this section 
have been met.
    (5) Disposal of these vessels shall take place in a site designated 
on current nautical charts for the disposal of wrecks or no closer than 
22 kilometers (12 miles) from the nearest land and in water no less than 
50 fathoms (300 feet) deep, and all necessary measures shall be taken to 
insure that the vessels sink to the bottom rapidly and that marine 
navigation is not otherwise impaired.
    (6) Disposal shall not take place in established shipping lanes 
unless at a designated wreck site, nor in a designated marine sanctuary, 
nor in a location where the hulk may present a hazard to commercial 
trawling or national defense (see 33 CFR part 205).
    (7) Except in emergency situations, as determined by the U.S. Army 
Corps of Engineers and/or the U.S. Coast Guard, disposal of these 
vessels shall be performed during daylight hours only.
    (8) Except in emergency situations, as determined by the U.S. Army 
Corps of Engineers and/or the District Commander of the U.S. Coast 
Guard, the Captain-of-the-Port (COTP), U.S. Coast Guard, and the EPA 
Regional Administrator shall be notified forty-eight (48) hours in 
advance of the proposed disposal. In addition, the COTP and the EPA 
Regional Administrator shall be notified by telephone at least twelve 
(12) hours in advance of the vessel's departure from port with such 
details as the proposed departure time and place, disposal site 
location, estimated time of arrival on site, and the name and 
communication capability of the towing vessel. Schedule changes are to 
be reported to the COTP as rapidly as possible.
    (9) The National Ocean Survey, NOAA, 6010 Executive Blvd., 
Rockville, MD 20852, shall be notified in writing, within 1 week, of the 
exact coordinates of the disposal site so that it may be marked on 
appropriate charts.

[[Page 255]]



PART 230_SECTION 404(b)(1) GUIDELINES FOR SPECIFICATION OF DISPOSAL SITES FOR 

DREDGED OR FILL MATERIAL--Table of Contents




                            Subpart A_General

Sec.
230.1 Purpose and policy.
230.2 Applicability.
230.3 Definitions.
230.4 Organization.
230.5 General procedures to be followed.
230.6 Adaptability.
230.7 General permits.

                Subpart B_Compliance With the Guidelines

230.10 Restrictions on discharge.
230.11 Factual determinations.
230.12 Findings of compliance or non-compliance with the restrictions on 
          discharge.

Subpart C_Potential Impacts on Physical and Chemical Characteristics of 
                          the Aquatic Ecosystem

230.20 Substrate.
230.21 Suspended particulates/turbidity.
230.22 Water.
230.23 Current patterns and water circulation.
230.24 Normal water fluctuations.
230.25 Salinity gradients.

Subpart D_Potential Impacts on Biological Characteristics of the Aquatic 
                                Ecosystem

230.30 Threatened and endangered species.
230.31 Fish, crustaceans, mollusks, and other aquatic organisms in the 
          food web.
230.32 Other wildlife.

          Subpart E_Potential Impacts on Special Aquatic Sites

230.40 Sanctuaries and refuges.
230.41 Wetlands.
230.42 Mud flats.
230.43 Vegetated shallows.
230.44 Coral reefs.
230.45 Riffle and pool complexes.

        Subpart F_Potential Effects on Human Use Characteristics

230.50 Municipal and private water supplies.
230.51 Recreational and commercial fisheries.
230.52 Water-related recreation.
230.53 Aesthetics.
230.54 Parks, national and historical monuments, national seashores, 
          wilderness areas, research sites, and similar preserves.

                    Subpart G_Evaluation and Testing

230.60 General evaluation of dredged or fill material.
230.61 Chemical, biological, and physical evaluation and testing.

              Subpart H_Actions To Minimize Adverse Effects

230.70 Actions concerning the location of the discharge.
230.71 Actions concerning the material to be discharged.
230.72 Actions controlling the material after discharge.
230.73 Actions affecting the method of dispersion.
230.74 Actions related to technology.
230.75 Actions affecting plant and animal populations.
230.76 Actions affecting human use.
230.77 Other actions.

          Subpart I_Planning To Shorten Permit Processing Time

230.80 Advanced identification of disposal areas.

    Subpart J_Compensatory Mitigation for Losses of Aquatic Resources

Sec.
230.91 Purpose and general considerations.
230.92 Definitions.
230.93 General compensatory mitigation requirements.
230.94 Planning and documentation.
230.95 Ecological performance standards.
230.96 Monitoring.
230.97 Management.
230.98 Mitigation banks and in-lieu fee programs.

    Authority: Secs. 404(b) and 501(a) of the Clean Water Act of 1977 
(33 U.S.C. 1344(b) and 1361(a)).

    Source: 45 FR 85344, Dec. 24, 1980, unless otherwise noted.



                            Subpart A_General



Sec. 230.1  Purpose and policy.

    (a) The purpose of these Guidelines is to restore and maintain the 
chemical, physical, and biological integrity of waters of the United 
States through the control of discharges of dredged or fill material.
    (b) Congress has expressed a number of policies in the Clean Water 
Act. These Guidelines are intended to be

[[Page 256]]

consistent with and to implement those policies.
    (c) Fundamental to these Guidelines is the precept that dredged or 
fill material should not be discharged into the aquatic ecosystem, 
unless it can be demonstrated that such a discharge will not have an 
unacceptable adverse impact either individually or in combination with 
known and/or probable impacts of other activities affecting the 
ecosystems of concern.
    (d) From a national perspective, the degradation or destruction of 
special aquatic sites, such as filling operations in wetlands, is 
considered to be among the most severe environmental impacts covered by 
these Guidelines. The guiding principle should be that degradation or 
destruction of special sites may represent an irreversible loss of 
valuable aquatic resources.



Sec. 230.2  Applicability.

    (a) These Guidelines have been developed by the Administrator of the 
Environmental Protection Agency in conjunction with the Secretary of the 
Army acting through the Chief of Engineers under section 404(b)(1) of 
the Clean Water Act (33 U.S.C. 1344). The Guidelines are applicable to 
the specification of disposal sites for discharges of dredged or fill 
material into waters of the United States. Sites may be specified 
through:
    (1) The regulatory program of the U.S. Army Corps of Engineers under 
sections 404(a) and (e) of the Act (see 33 CFR Parts 320, 323 and 325);
    (2) The civil works program of the U.S. Army Corps of Engineers (see 
33 CFR 209.145 and section 150 of Pub. L. 94-587, Water Resources 
Development Act of 1976);
    (3) Permit programs of States approved by the Administrator of the 
Environmental Protection Agency in accordance with section 404(g) and 
(h) of the Act (see 40 CFR parts 122, 123 and 124);
    (4) Statewide dredged or fill material regulatory programs with best 
management practices approved under section 208(b)(4)(B) and (C) of the 
Act (see 40 CFR 35.1560);
    (5) Federal construction projects which meet criteria specified in 
section 404(r) of the Act.
    (b) These Guidelines will be applied in the review of proposed 
discharges of dredged or fill material into navigable waters which lie 
inside the baseline from which the territorial sea is measured, and the 
discharge of fill material into the territorial sea, pursuant to the 
procedures referred to in paragraphs (a)(1) and (2) of this section. The 
discharge of dredged material into the territorial sea is governed by 
the Marine Protection, Research, and Sanctuaries Act of 1972, Pub. L. 
92-532, and regulations and criteria issued pursuant thereto (40 CFR 
parts 220 through 228).
    (c) Guidance on interpreting and implementing these Guidelines may 
be prepared jointly by EPA and the Corps at the national or regional 
level from time to time. No modifications to the basic application, 
meaning, or intent of these Guidelines will be made without rulemaking 
by the Administrator under the Administrative Procedure Act (5 U.S.C. 
551 et seq.).



Sec. 230.3  Definitions.

    For purposes of this part, the following terms shall have the 
meanings indicated:
    (a) The term Act means the Clean Water Act (also known as the 
Federal Water Pollution Control Act or FWPCA) Pub. L. 92-500, as amended 
by Pub. L. 95-217, 33 U.S.C. 1251, et seq.
    (b) The term adjacent means bordering, contiguous, or neighboring. 
Wetlands separated from other waters of the United States by man-made 
dikes or barriers, natural river berms, beach dunes, and the like are 
``adjacent wetlands.''
    (c) The terms aquatic environment and aquatic ecosystem mean waters 
of the United States, including wetlands, that serve as habitat for 
interrelated and interacting communities and populations of plants and 
animals.
    (d) The term carrier of contaminant means dredged or fill material 
that contains contaminants.
    (e) The term contaminant means a chemical or biological substance in 
a form that can be incorporated into, onto or be ingested by and that 
harms aquatic organisms, consumers of aquatic organisms, or users of the 
aquatic environment, and includes but

[[Page 257]]

is not limited to the substances on the 307(a)(1) list of toxic 
pollutants promulgated on January 31, 1978 (43 FR 4109).
    (f)-(g) [Reserved]
    (h) The term discharge point means the point within the disposal 
site at which the dredged or fill material is released.
    (i) The term disposal site means that portion of the ``waters of the 
United States'' where specific disposal activities are permitted and 
consist of a bottom surface area and any overlying volume of water. In 
the case of wetlands on which surface water is not present, the disposal 
site consists of the wetland surface area.
    (j) [Reserved]
    (k) The term extraction site means the place from which the dredged 
or fill material proposed for discharge is to be removed.
    (l) [Reserved]
    (m) The term mixing zone means a limited volume of water serving as 
a zone of initial dilution in the immediate vicinity of a discharge 
point where receiving water quality may not meet quality standards or 
other requirements otherwise applicable to the receiving water. The 
mixing zone should be considered as a place where wastes and water mix 
and not as a place where effluents are treated.
    (n) The term permitting authority means the District Engineer of the 
U.S. Army Corps of Engineers or such other individual as may be 
designated by the Secretary of the Army to issue or deny permits under 
section 404 of the Act; or the State Director of a permit program 
approved by EPA under section 404(g) and section 404(h) or his delegated 
representative.
    (o) The term pollutant means dredged spoil, solid waste, incinerator 
residue, sewage, garbage, sewage sludge, munitions, chemical wastes, 
biological materials, radioactive materials not covered by the Atomic 
Energy Act, heat, wrecked or discarded equipment, rock, sand, cellar 
dirt, and industrial, municipal, and agricultural waste discharged into 
water. The legislative history of the Act reflects that ``radioactive 
materials'' as included within the definition of ``pollutant'' in 
section 502 of the Act means only radioactive materials which are not 
encompassed in the definition of source, byproduct, or special nuclear 
materials as defined by the Atomic Energy Act of 1954, as amended, and 
regulated under the Atomic Energy Act. Examples of radioactive materials 
not covered by the Atomic Energy Act and, therefore, included within the 
term ``pollutant'', are radium and accelerator produced isotopes. See 
Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1 
(1976).
    (p) The term pollution means the man-made or man-induced alteration 
of the chemical, physical, biological or radiological integrity of an 
aquatic ecosystem.
    (q) The term practicable means available and capable of being done 
after taking into consideration cost, existing technology, and logistics 
in light of overall project purposes.
    (q-1) Special aquatic sites means those sites identified in subpart 
E. They are geographic areas, large or small, possessing special 
ecological characteristics of productivity, habitat, wildlife 
protection, or other important and easily disrupted ecological values. 
These areas are generally recognized as significantly influencing or 
positively contributing to the general overall environmental health or 
vitality of the entire ecosystem of a region. (See Sec. 230.10(a)(3))
    (r) The term territorial sea means the belt of the sea measured from 
the baseline as determined in accordance with the Convention on the 
Territorial Sea and the Contiguous Zone and extending seaward a distance 
of three miles.
    (s) The term waters of the United States means:
    (1) All waters which are currently used, or 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) All interstate waters including interstate wetlands;
    (3) 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

[[Page 258]]

destruction of which 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; or
    (ii) From which fish or shellfish are or could be taken and sold in 
interstate or foreign commerce; or
    (iii) Which are used or could be used for industrial purposes by 
industries in interstate commerce;
    (4) All impoundments of waters otherwise defined as waters of the 
United States under this definition;
    (5) Tributaries of waters identified in paragraphs (s)(1) through 
(4) of this section;
    (6) The territorial sea;
    (7) Wetlands adjacent to waters (other than waters that are 
themselves wetlands) identified in paragraphs (s)(1) through (6) of this 
section; 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.

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.
    (t) The term wetlands means those areas that are inundated or 
saturated by surface or ground water at a frequency and duration 
sufficient to support, and that under normal circumstances do support, a 
prevalence of vegetation typically adapted for life in saturated soil 
conditions. Wetlands generally include swamps, marshes, bogs and similar 
areas.

[45 FR 85344, Dec. 24, 1980, as amended at 58 FR 45037, Aug. 25, 1993]



Sec. 230.4  Organization.

    The Guidelines are divided into eight subparts. Subpart A presents 
those provisions of general applicability, such as purpose and 
definitions. Subpart B establishes the four conditions which must be 
satisfied in order to make a finding that a proposed discharge of 
dredged or fill material complies with the Guidelines. Section 230.11 of 
subpart B, sets forth factual determinations which are to be considered 
in determining whether or not a proposed discharge satisfies the subpart 
B conditions of compliance. Subpart C describes the physical and 
chemical components of a site and provides guidance as to how proposed 
discharges of dredged or fill material may affect these components. 
Subparts D through F detail the special characteristics of particular 
aquatic ecosystems in terms of their values, and the possible loss of 
these values due to discharges of dredged or fill material. Subpart G 
prescribes a number of physical, chemical, and biological evaluations 
and testing procedures to be used in reaching the required factual 
determinations. Subpart H details the means to prevent or mimimize 
adverse effects. Subpart I concerns advanced identification of disposal 
areas.



Sec. 230.5  General procedures to be followed.

    In evaluating whether a particular discharge site may be specified, 
the permitting authority should use these Guidelines in the following 
sequence:
    (a) In order to obtain an overview of the principal regulatory 
provisions of the Guidelines, review the restrictions on discharge in 
Sec. 230.10(a) through (d), the measures to mimimize adverse impact of 
subpart H, and the required factual determinations of Sec. 230.11.
    (b) Determine if a General permit (Sec. 230.7) is applicable; if 
so, the applicant needs merely to comply with its terms, and no further 
action by the permitting authority is necessary. Special conditions for 
evaluation of proposed General permits are contained in Sec. 230.7. If 
the discharge is not covered by a General permit:
    (c) Examine practicable alternatives to the proposed discharge, that 
is, not discharging into the waters of the U.S. or discharging into an 
alternative aquatic site with potentially less damaging consequences 
(Sec. 230.10(a)).
    (d) Delineate the candidate disposal site consistent with the 
criteria and evaluations of Sec. 230.11(f).

[[Page 259]]

    (e) Evaluate the various physical and chemical components which 
characterize the non-living environment of the candidate site, the 
substrate and the water including its dynamic characteristics (subpart 
C).
    (f) Identify and evaluate any special or critical characteristics of 
the candidate disposal site, and surrounding areas which might be 
affected by use of such site, related to their living communities or 
human uses (subparts D, E, and F).
    (g) Review Factual Determinations in Sec. 230.11 to determine 
whether the information in the project file is sufficient to provide the 
documentation required by Sec. 230.11 or to perform the pre-testing 
evaluation described in Sec. 230.60, or other information is necessary.
    (h) Evaluate the material to be discharged to determine the 
possibility of chemical contamination or physical incompatibility of the 
material to be discharged (Sec. 230.60).
    (i) If there is a reasonable probability of chemical contamination, 
conduct the appropriate tests according to the section on Evaluation and 
Testing (Sec. 230.61).
    (j) Identify appropriate and practicable changes to the project plan 
to minimize the environmental impact of the discharge, based upon the 
specialized methods of minimization of impacts in subpart H.
    (k) Make and document Factual Determinations in Sec. 230.11.
    (l) Make and document Findings of Compliance (Sec. 230.12) by 
comparing Factual Determinations with the requirements for discharge of 
Sec. 230.10.

This outline of the steps to follow in using the Guidelines is 
simplified for purposes of illustration. The actual process followed may 
be iterative, with the results of one step leading to a reexamination of 
previous steps. The permitting authority must address all of the 
relevant provisions of the Guidelines in reaching a Finding of 
Compliance in an individual case.



Sec. 230.6  Adaptability.

    (a) The manner in which these Guidelines are used depends on the 
physical, biological, and chemical nature of the proposed extraction 
site, the material to be discharged, and the candidate disposal site, 
including any other important components of the ecosystem being 
evaluated. Documentation to demonstrate knowledge about the extraction 
site, materials to be extracted, and the candidate disposal site is an 
essential component of guideline application. These Guidelines allow 
evaluation and documentation for a variety of activities, ranging from 
those with large, complex impacts on the aquatic environment to those 
for which the impact is likely to be innocuous. It is unlikely that the 
Guidelines will apply in their entirety to any one activity, no matter 
how complex. It is anticipated that substantial numbers of permit 
applications will be for minor, routine activities that have little, if 
any, potential for significant degradation of the aquatic environment. 
It generally is not intended or expected that extensive testing, 
evaluation or analysis will be needed to make findings of compliance in 
such routine cases. Where the conditions for General permits are met, 
and where numerous applications for similar activities are likely, the 
use of General permits will eliminate repetitive evaluation and 
documentation for individual discharges.
    (b) The Guidelines user, including the agency or agencies 
responsible for implementing the Guidelines, must recognize the 
different levels of effort that should be associated with varying 
degrees of impact and require or prepare commensurate documentation. The 
level of documentation should reflect the significance and complexity of 
the discharge activity.
    (c) An essential part of the evaluation process involves making 
determinations as to the relevance of any portion(s) of the Guidelines 
and conducting further evaluation only as needed. However, where 
portions of the Guidelines review procedure are ``short form'' 
evaluations, there still must be sufficient information (including 
consideration of both individual and cumulative impacts) to support the 
decision of whether to specify the site for disposal of dredged or fill 
material and to support the decision to curtail or abbreviate the 
evaluation process. The presumption against the discharge in Sec. 230.1 
applies to this decision-making.

[[Page 260]]

    (d) In the case of activities covered by General permits or section 
208(b)(4)(B) and (C) Best Management Practices, the analysis and 
documentation required by the Guidelines will be performed at the time 
of General permit issuance or section 208(b)(4)(B) and (C) Best 
Management Practices promulgation and will not be repeated when 
activities are conducted under a General permit or section 208(b)(4)(B) 
and (C) Best Management Practices control. These Guidelines do not 
require reporting or formal written communication at the time individual 
activities are initiated under a General permit or section 208(b)(4)(B) 
and (C) Best Management Practices. However, a particular General permit 
may require appropriate reporting.



Sec. 230.7  General permits.

    (a) Conditions for the issuance of General permits. A General permit 
for a category of activities involving the discharge of dredged or fill 
material complies with the Guidelines if it meets the applicable 
restrictions on the discharge in Sec. 230.10 and if the permitting 
authority determines that:
    (1) The activities in such category are similar in nature and 
similar in their impact upon water quality and the aquatic environment;
    (2) The activities in such category will have only minimal adverse 
effects when performed separately; and
    (3) The activities in such category will have only minimal 
cumulative adverse effects on water quality and the aquatic environment.
    (b) Evaluation process. To reach the determinations required in 
paragraph (a) of this section, the permitting authority shall set forth 
in writing an evaluation of the potential individual and cumulative 
impacts of the category of activities to be regulated under the General 
permit. While some of the information necessary for this evaluation can 
be obtained from potential permittees and others through the proposal of 
General permits for public review, the evaluation must be completed 
before any General permit is issued, and the results must be published 
with the final permit.
    (1) This evaluation shall be based upon consideration of the 
prohibitions listed in Sec. 230.10(b) and the factors listed in Sec. 
230.10(c), and shall include documented information supporting each 
factual determination in Sec. 230.11 of the Guidelines (consideration 
of alternatives in Sec. 230.10(a) are not directly applicable to 
General permits);
    (2) The evaluation shall include a precise description of the 
activities to be permitted under the General permit, explaining why they 
are sufficiently similar in nature and in environmental impact to 
warrant regulation under a single General permit based on subparts C 
through F of the Guidelines. Allowable differences between activities 
which will be regulated under the same General permit shall be 
specified. Activities otherwise similar in nature may differ in 
environmental impact due to their location in or near ecologically 
sensitive areas, areas with unique chemical or physical characteristics, 
areas containing concentrations of toxic substances, or areas regulated 
for specific human uses or by specific land or water management plans 
(e.g., areas regulated under an approved Coastal Zone Management Plan). 
If there are specific geographic areas within the purview of a proposed 
General permit (called a draft General permit under a State 404 
program), which are more appropriately regulated by individual permit 
due to the considerations cited in this paragraph, they shall be clearly 
delineated in the evaluation and excluded from the permit. In addition, 
the permitting authority may require an individual permit for any 
proposed activity under a General permit where the nature or location of 
the activity makes an individual permit more appropriate.
    (3) To predict cumulative effects, the evaluation shall include the 
number of individual discharge activities likely to be regulated under a 
General permit until its expiration, including repetitions of individual 
discharge activities at a single location.



                Subpart B_Compliance With the Guidelines



Sec. 230.10  Restrictions on discharge.

    Note: Because other laws may apply to particular discharges and 
because the Corps of Engineers or State 404 agency may have

[[Page 261]]

additional procedural and substantive requirements, a discharge 
complying with the requirement of these Guidelines will not 
automatically receive a permit.
    Although all requirements in Sec. 230.10 must be met, the 
compliance evaluation procedures will vary to reflect the seriousness of 
the potential for adverse impacts on the aquatic ecosystems posed by 
specific dredged or fill material discharge activities.
    (a) Except as provided under section 404(b)(2), no discharge of 
dredged or fill material shall be permitted if there is a practicable 
alternative to the proposed discharge which would have less adverse 
impact on the aquatic ecosystem, so long as the alternative does not 
have other significant adverse environmental consequences.
    (1) For the purpose of this requirement, practicable alternatives 
include, but are not limited to:
    (i) Activities which do not involve a discharge of dredged or fill 
material into the waters of the United States or ocean waters;
    (ii) Discharges of dredged or fill material at other locations in 
waters of the United States or ocean waters;
    (2) An alternative is practicable if it is available and capable of 
being done after taking into consideration cost, existing technology, 
and logistics in light of overall project purposes. If it is otherwise a 
practicable alternative, an area not presently owned by the applicant 
which could reasonably be obtained, utilized, expanded or managed in 
order to fulfill the basic purpose of the proposed activity may be con 
sidered.
    (3) Where the activity associated with a discharge which is proposed 
for a special aquatic site (as defined in subpart E) does not require 
access or proximity to or siting within the special aquatic site in 
question to fulfill its basic purpose (i.e., is not ``water 
dependent''), practicable alternatives that do not involve special 
aquatic sites are presumed to be available, unless clearly demonstrated 
otherwise. In addition, where a discharge is proposed for a special 
aquatic site, all practicable alternatives to the proposed discharge 
which do not involve a discharge into a special aquatic site are 
presumed to have less adverse impact on the aquatic ecosystem, unless 
clearly demonstrated otherwise.
    (4) For actions subject to NEPA, where the Corps of Engineers is the 
permitting agency, the analysis of alternatives required for NEPA 
environmental documents, including supplemental Corps NEPA documents, 
will in most cases provide the information for the evaluation of 
alternatives under these Guidelines. On occasion, these NEPA documents 
may address a broader range of alternatives than required to be 
considered under this paragraph or may not have considered the 
alternatives in sufficient detail to respond to the requirements of 
these Guidelines. In the latter case, it may be necessary to supplement 
these NEPA documents with this additional information.
    (5) To the extent that practicable alternatives have been identified 
and evaluated under a Coastal Zone Management program, a section 208 
program, or other planning process, such evaluation shall be considered 
by the permitting authority as part of the consideration of alternatives 
under the Guidelines. Where such evaluation is less complete than that 
contemplated under this subsection, it must be supplemented accordingly.
    (b) No discharge of dredged or fill material shall be permitted if 
it:
    (1) Causes or contributes, after consideration of disposal site 
dilution and dispersion, to violations of any applicable State water 
quality standard;
    (2) Violates any applicable toxic effluent standard or prohibition 
under section 307 of the Act;
    (3) Jeopardizes the continued existence of species listed as 
endangered or threatened under the Endangered Species Act of 1973, as 
amended, or results in likelihood of the destruction or adverse 
modification of a habitat which is determined by the Secretary of 
Interior or Commerce, as appropriate, to be a critical habitat under the 
Endangered Species Act of 1973, as amended. If an exemption has been 
granted by the Endangered Species Committee, the terms of such exemption 
shall apply in lieu of this subparagraph;
    (4) Violates any requirement imposed by the Secretary of Commerce to 
protect any marine sanctuary designated

[[Page 262]]

under title III of the Marine Protection, Research, and Sanctuaries Act 
of 1972.
    (c) Except as provided under section 404(b)(2), no discharge of 
dredged or fill material shall be permitted which will cause or 
contribute to significant degradation of the waters of the United 
States. Findings of significant degradation related to the proposed 
discharge shall be based upon appropriate factual determinations, 
evaluations, and tests required by subparts B and G, after consideration 
of subparts C through F, with special emphasis on the persistence and 
permanence of the effects outlined in those subparts. Under these 
Guidelines, effects contributing to significant degradation considered 
individually or collectively, include:
    (1) Significantly adverse effects of the discharge of pollutants on 
human health or welfare, including but not limited to effects on 
municipal water supplies, plankton, fish, shellfish, wildlife, and 
special aquatic sites.
    (2) Significantly adverse effects of the discharge of pollutants on 
life stages of aquatic life and other wildlife dependent on aquatic 
ecosystems, including the transfer, concentration, and spread of 
pollutants or their byproducts outside of the disposal site through 
biological, physical, and chemical processes;
    (3) Significantly adverse effects of the discharge of pollutants on 
aquatic ecosystem diversity, productivity, and stability. Such effects 
may include, but are not limited to, loss of fish and wildlife habitat 
or loss of the capacity of a wetland to assimilate nutrients, purify 
water, or reduce wave energy; or
    (4) Significantly adverse effects of discharge of pollutants on 
recreational, aesthetic, and economic values.
    (d) Except as provided under section 404(b)(2), no discharge of 
dredged or fill material shall be permitted unless appropriate and 
practicable steps have been taken which will minimize potential adverse 
impacts of the discharge on the aquatic ecosystem. Subpart H identifies 
such possible steps.



Sec. 230.11  Factual determinations.

    The permitting authority shall determine in writing the potential 
short-term or long-term effects of a proposed discharge of dredged or 
fill material on the physical, chemical, and biological components of 
the aquatic environment in light of subparts C through F. Such factual 
determinations shall be used in Sec. 230.12 in making findings of 
compliance or non-compliance with the restrictions on discharge in Sec. 
230.10. The evaluation and testing procedures described in Sec. 230.60 
and Sec. 230.61 of subpart G shall be used as necessary to make, and 
shall be described in, such determination. The determinations of effects 
of each proposed discharge shall include the following:
    (a) Physical substrate determinations. Determine the nature and 
degree of effect that the proposed discharge will have, individually and 
cumulatively, on the characteristics of the substrate at the proposed 
disposal site. Consideration shall be given to the similarity in 
particle size, shape, and degree of compaction of the material proposed 
for discharge and the material constituting the substrate at the 
disposal site, and any potential changes in substrate elevation and 
bottom contours, including changes outside of the disposal site which 
may occur as a result of erosion, slumpage, or other movement of the 
discharged material. The duration and physical extent of substrate 
changes shall also be considered. The possible loss of environmental 
values (Sec. 230.20) and actions to minimize impact (subpart H) shall 
also be considered in making these determinations. Potential changes in 
substrate elevation and bottom contours shall be predicted on the basis 
of the proposed method, volume, location, and rate of discharge, as well 
as on the individual and combined effects of current patterns, water 
circulation, wind and wave action, and other physical factors that may 
af fect the movement of the discharged material.
    (b) Water circulation, fluctuation, and salinity determinations. 
Determine the nature and degree of effect that the proposed discharge 
will have individually and cumulatively on water, current patterns, 
circulation including downstream flows, and normal water fluctuation. 
Consideration shall be given to water chemistry, salinity, clarity, 
color, odor, taste, dissolved gas

[[Page 263]]

levels, temperature, nutrients, and eutrophication plus other 
appropriate characteristics. Consideration shall also be given to the 
potential diversion or obstruction of flow, alterations of bottom 
contours, or other significant changes in the hydrologic regime. 
Additional consideration of the possible loss of environmental values 
(Sec. Sec. 230.23 through 230.25) and actions to minimize impacts 
(subpart H), shall be used in making these determinations. Potential 
significant effects on the current patterns, water circulation, normal 
water fluctuation and salinity shall be evaluated on the basis of the 
proposed method, volume, location, and rate of discharge.
    (c) Suspended particulate/turbidity determinations. Determine the 
nature and degree of effect that the proposed discharge will have, 
individually and cumulatively, in terms of potential changes in the 
kinds and concentrations of suspended particulate/turbidity in the 
vicinity of the disposal site. Consideration shall be given to the grain 
size of the material proposed for discharge, the shape and size of the 
plume of suspended particulates, the duration of the discharge and 
resulting plume and whether or not the potential changes will cause 
violations of applicable water quality standards. Consideration should 
also be given to the possible loss of environmental values (Sec. 
230.21) and to actions for minimizing impacts (subpart H). Consideration 
shall include the proposed method, volume, location, and rate of 
discharge, as well as the individual and combined effects of current 
patterns, water circulation and fluctuations, wind and wave action, and 
other physical factors on the movement of suspended par ticulates.
    (d) Contaminant determinations. Determine the degree to which the 
material proposed for discharge will introduce, relocate, or increase 
contaminants. This determination shall consider the material to be 
discharged, the aquatic environment at the proposed disposal site, and 
the availability of contaminants.
    (e) Aquatic ecosystem and organism determinations. Determine the 
nature and degree of effect that the proposed discharge will have, both 
individually and cumulatively, on the structure and function of the 
aquatic ecosystem and organisms. Consideration shall be given to the 
effect at the proposed disposal site of potential changes in substrate 
characteristics and elevation, water or substrate chemistry, nutrients, 
currents, circulation, fluctuation, and salinity, on the recolonization 
and existence of indigenous aquatic organisms or communities. Possible 
loss of environmental values (Sec. 230.31), and actions to minimize 
impacts (subpart H) shall be examined. Tests as described in Sec. 
230.61 (Evaluation and Testing), may be required to provide information 
on the effect of the discharge material on communities or populations of 
organisms expected to be exposed to it.
    (f) Proposed disposal site determinations. (1) Each disposal site 
shall be specified through the application of these Guidelines. The 
mixing zone shall be confined to the smallest practicable zone within 
each specified disposal site that is consistent with the type of 
dispersion determined to be appropriate by the application of these 
Guidelines. In a few special cases under unique environmental 
conditions, where there is adequate justification to show that 
widespread dispersion by natural means will result in no significantly 
adverse environmental effects, the discharged material may be intended 
to be spread naturally in a very thin layer over a large area of the 
substrate rather than be contained within the disposal site.
    (2) The permitting authority and the Regional Administrator shall 
consider the following factors in determining the acceptability of a 
proposed mixing zone:
    (i) Depth of water at the disposal site;
    (ii) Current velocity, direction, and variability at the disposal 
site;
    (iii) Degree of turbulence;
    (iv) Stratification attributable to causes such as obstructions, 
salinity or density profiles at the disposal site;
    (v) Discharge vessel speed and direction, if appropriate;
    (vi) Rate of discharge;
    (vii) Ambient concentration of constituents of interest;
    (viii) Dredged material characteristics, particularly concentrations 
of

[[Page 264]]

constituents, amount of material, type of material (sand, silt, clay, 
etc.) and settling velocities;
    (ix) Number of discharge actions per unit of time;
    (x) Other factors of the disposal site that affect the rates and 
patterns of mixing.
    (g) Determination of cumulative effects on the aquatic ecosystem. 
(1) Cumulative impacts are the changes in an aquatic ecosystem that are 
attributable to the collective effect of a number of individual 
discharges of dredged or fill material. Although the impact of a 
particular discharge may constitute a minor change in itself, the 
cumulative effect of numerous such piecemeal changes can result in a 
major impairment of the water resources and interfere with the 
productivity and water quality of existing aquatic ecosystems.
    (2) Cumulative effects attributable to the discharge of dredged or 
fill material in waters of the United States should be predicted to the 
extent reasonable and practical. The permitting authority shall collect 
information and solicit information from other sources about the 
cumulative impacts on the aquatic ecosystem. This information shall be 
documented and considered during the decision-making process concerning 
the evaluation of individual permit applications, the issuance of a 
General permit, and monitoring and enforcement of existing permits.
    (h) Determination of secondary effects on the aquatic ecosystem. (1) 
Secondary effects are effects on an aquatic ecosystem that are 
associated with a discharge of dredged or fill materials, but do not 
result from the actual placement of the dredged or fill material. 
Information about secondary effects on aquatic ecosystems shall be 
considered prior to the time final section 404 action is taken by 
permitting authorities.
    (2) Some examples of secondary effects on an aquatic ecosystem are 
fluctuating water levels in an impoundment and downstream associated 
with the operation of a dam, septic tank leaching and surface runoff 
from residential or commercial developments on fill, and leachate and 
runoff from a sanitary landfill located in waters of the U.S. Activities 
to be conducted on fast land created by the discharge of dredged or fill 
material in waters of the United States may have secondary impacts 
within those waters which should be considered in evaluating the impact 
of creating those fast lands.



Sec. 230.12  Findings of compliance or non-compliance with the restrictions on 

discharge.

    (a) On the basis of these Guidelines (subparts C through G) the 
proposed disposal sites for the discharge of dredged or fill material 
must be:
    (1) Specified as complying with the requirements of these 
Guidelines; or
    (2) Specified as complying with the requirements of these Guidelines 
with the inclusion of appropriate and practicable discharge conditions 
(see subparts H and J) to minimize pollution or adverse effects to the 
affected aquatic ecosystems; or
    (3) Specified as failing to comply with the requirements of these 
Guidelines where:
    (i) There is a practicable alternative to the proposed discharge 
that would have less adverse effect on the aquatic ecosystem, so long as 
such alternative does not have other significant adverse environmental 
consequences; or
    (ii) The proposed discharge will result in significant degradation 
of the aquatic ecosystem under Sec. 230.10(b) or (c); or
    (iii) The proposed discharge does not include all appropriate and 
practicable measures to minimize potential harm to the aquatic 
ecosystem; or
    (iv) There does not exist sufficient information to make a 
reasonable judgment as to whether the proposed discharge will comply 
with these Guidelines.
    (b) Findings under this section shall be set forth in writing by the 
permitting authority for each proposed discharge and made available to 
the permit applicant. These findings shall include the factual 
determinations required by Sec. 230.11, and a brief explanation of any 
adaptation of these Guidelines to the activity under consideration. In 
the case of a General permit, such findings shall be prepared at the 
time of issuance of that permit

[[Page 265]]

rather than for each subsequent discharge under the authority of that 
permit.



Subpart C_Potential Impacts on Physical and Chemical Characteristics of 
                          the Aquatic Ecosystem

    Note: The effects described in this subpart should be considered in 
making the factual determinations and the findings of compliance or non-
compliance in subpart B.

[45 FR 85344, Dec. 24, 1980, as amended at 73 FR 19687, Apr. 10, 2008]



Sec. 230.20  Substrate.

    (a) The substrate of the aquatic ecosystem underlies open waters of 
the United States and constitutes the surface of wetlands. It consists 
of organic and inorganic solid materials and includes water and other 
liquids or gases that fill the spaces between solid particles.
    (b) Possible loss of environmental characteristics and values: The 
discharge of dredged or fill material can result in varying degrees of 
change in the complex physical, chemical, and biological characteristics 
of the substrate. Discharges which alter substrate elevation or contours 
can result in changes in water circulation, depth, current pattern, 
water fluctuation and water temperature. Discharges may adversely affect 
bottom-dwelling organisms at the site by smothering immobile forms or 
forcing mobile forms to migrate. Benthic forms present prior to a 
discharge are unlikely to recolonize on the discharged material if it is 
very dissimilar from that of the discharge site. Erosion, slumping, or 
lateral displacement of surrounding bottom of such deposits can 
adversely affect areas of the substrate outside the perimeters of the 
disposal site by changing or destroying habitat. The bulk and 
composition of the discharged material and the location, method, and 
timing of discharges may all influence the degree of impact on the 
substrate.



Sec. 230.21  Suspended particulates/turbidity.

    (a) Suspended particulates in the aquatic ecosystem consist of fine-
grained mineral particles, usually smaller than silt, and organic 
particles. Suspended particulates may enter water bodies as a result of 
land runoff, flooding, vegetative and planktonic breakdown, resuspension 
of bottom sediments, and man's activities including dredging and 
filling. Particulates may remain suspended in the water column for 
variable periods of time as a result of such factors as agitation of the 
water mass, particulate specific gravity, particle shape, and physical 
and chemical properties of particle surfaces.
    (b) Possible loss of environmental characteristics and values: The 
discharge of dredged or fill material can result in greatly elevated 
levels of suspended particulates in the water column for varying lengths 
of time. These new levels may reduce light penetration and lower the 
rate of photosynthesis and the primary productivity of an aquatic area 
if they last long enough. Sight-dependent species may suffer reduced 
feeding ability leading to limited growth and lowered resistance to 
disease if high levels of suspended particulates persist. The biological 
and the chemical content of the suspended material may react with the 
dissolved oxygen in the water, which can result in oxygen depletion. 
Toxic metals and organics, pathogens, and viruses absorbed or adsorbed 
to fine-grained particulates in the material may become biologically 
available to organisms either in the water column or on the substrate. 
Significant increases in suspended particulate levels create turbid 
plumes which are highly visible and aesthetically displeasing. The 
extent and persistence of these adverse impacts caused by discharges 
depend upon the relative increase in suspended particulates above the 
amount occurring naturally, the duration of the higher levels, the 
current patterns, water level, and fluctuations present when such 
discharges occur, the volume, rate, and duration of the discharge, 
particulate deposition, and the seasonal timing of the discharge.



Sec. 230.22  Water.

    (a) Water is the part of the aquatic ecosystem in which organic and 
inorganic constituents are dissolved and suspended. It constitutes part 
of the

[[Page 266]]

liquid phase and is contained by the substrate. Water forms part of a 
dynamic aquatic life-supporting system. Water clarity, nutrients and 
chemical content, physical and biological content, dissolved gas levels, 
pH, and temperature contribute to its life-sustaining capabilities.
    (b) Possible loss of environmental characteristics and values: The 
discharge of dredged or fill material can change the chemistry and the 
physical characteristics of the receiving water at a disposal site 
through the introduction of chemical constituents in suspended or 
dissolved form. Changes in the clarity, color, odor, and taste of water 
and the addition of contaminants can reduce or eliminate the suitability 
of water bodies for populations of aquatic organisms, and for human 
consumption, recreation, and aesthetics. The introduction of nutrients 
or organic material to the water column as a result of the discharge can 
lead to a high biochemical oxygen demand (BOD), which in turn can lead 
to reduced dissolved oxygen, thereby potentially affecting the survival 
of many aquatic organisms. Increases in nutrients can favor one group of 
organisms such as algae to the detriment of other more desirable types 
such as submerged aquatic vegetation, potentially causing adverse health 
effects, objectionable tastes and odors, and other problems.



Sec. 230.23  Current patterns and water circulation.

    (a) Current patterns and water circulation are the physical 
movements of water in the aquatic ecosystem. Currents and circulation 
respond to natural forces as modified by basin shape and cover, physical 
and chemical characteristics of water strata and masses, and energy 
dissipating factors.
    (b) Possible loss of environmental characteristics and values: The 
discharge of dredged or fill material can modify current patterns and 
water circulation by obstructing flow, changing the direction or 
velocity of water flow, changing the direction or velocity of water flow 
and circulation, or otherwise changing the dimensions of a water body. 
As a result, adverse changes can occur in: Location, structure, and 
dynamics of aquatic communities; shoreline and substrate erosion and 
depositIon rates; the deposition of suspended particulates; the rate and 
extent of mixing of dissolved and suspended components of the water 
body; and water stratification.



Sec. 230.24  Normal water fluctuations.

    (a) Normal water fluctuations in a natural aquatic system consist of 
daily, seasonal, and annual tidal and flood fluctuations in water level. 
Biological and physical components of such a system are either attuned 
to or characterized by these periodic water fluctuations.
    (b) Possible loss of environmental characteristics and values: The 
discharge of dredged or fill material can alter the normal water-level 
fluctuation pattern of an area, resulting in prolonged periods of 
inundation, exaggerated extremes of high and low water, or a static, 
nonfluctuating water level. Such water level modifications may change 
salinity patterns, alter erosion or sedimentation rates, aggravate water 
temperature extremes, and upset the nutrient and dissolved oxygen 
balance of the aquatic ecosystem. In addition, these modifications can 
alter or destroy communities and populations of aquatic animals and 
vegetation, induce populations of nuisance organisms, modify habitat, 
reduce food supplies, restrict movement of aquatic fauna, destroy 
spawning areas, and change adjacent, upstream, and downstream areas.



Sec. 230.25  Salinity gradients.

    (a) Salinity gradients form where salt water from the ocean meets 
and mixes with fresh water from land.
    (b) Possible loss of environmental characteristics and values: 
Obstructions which divert or restrict flow of either fresh or salt water 
may change existing salinity gradients. For example, partial blocking of 
the entrance to an estuary or river mouth that significantly restricts 
the movement of the salt water into and out of that area can effectively 
lower the volume of salt water available for mixing within that estuary. 
The downstream migration of the salinity gradient can occur, displacing 
the maximum sedimentation

[[Page 267]]

zone and requiring salinity-dependent aquatic biota to adjust to the new 
conditions, move to new locations if possible, or perish. In the 
freshwater zone, discharge operations in the upstream regions can have 
equally adverse impacts. A significant reduction in the volume of fresh 
water moving into an estuary below that which is considered normal can 
affect the location and type of mixing thereby changing the 
characteristic salinity patterns. The resulting changed circulation 
pattern can cause the upstream migration of the salinity gradient 
displacing the maximim sedimentation zone. This migration may affect 
those organisms that are adapted to freshwater environments. It may also 
affect municipal water supplies.
    Note: Possible actions to minimize adverse impacts regarding site 
characteristics can be found in subpart H.



Subpart D_Potential Impacts on Biological Characteristics of the Aquatic 
                                Ecosystem

    Note: The impacts described in this subpart should be considered in 
making the factual determinations and the findings of compliance or non-
compliance in subpart B.



Sec. 230.30  Threatened and endangered species.

    (a) An endangered species is a plant or animal in danger of 
extinction throughout all or a significant portion of its range. A 
threatened species is one in danger of becoming an endangered species in 
the foreseeable future throughout all or a significant portion of its 
range. Listings of threatened and endangered species as well as critical 
habitats are maintained by some individual States and by the U.S. Fish 
and Wildlife Service of the Department of the Interior (codified 
annually at 50 CFR 17.11). The Department of Commerce has authority over 
some threatened and endangered marine mammals, fish and reptiles.
    (b) Possible loss of values: The major potential impacts on 
threatened or endangered species from the discharge of dredged or fill 
material include:
    (1) Covering or otherwise directly killing species;
    (2) The impairment or destruction of habitat to which these species 
are limited. Elements of the aquatic habitat which are particularly 
crucial to the continued survival of some threatened or endangered 
species include adequate good quality water, spawning and maturation 
areas, nesting areas, protective cover, adequate and reliable food 
supply, and resting areas for migratory species. Each of these elements 
can be adversely affected by changes in either the normal water 
conditions for clarity, chemical content, nutrient balance, dissolved 
oxygen, pH, temperature, salinity, current patterns, circulation and 
fluctuation, or the physical removal of habitat; and
    (3) Facilitating incompatible activities.
    (c) Where consultation with the Secretary of the Interior occurs 
under section 7 of the Endangered Species Act, the conclusions of the 
Secretary concerning the impact(s) of the discharge on threatened and 
endangered species and their habitat shall be considered final.



Sec. 230.31  Fish, crustaceans, mollusks, and other aquatic organisms in the 

food web.

    (a) Aquatic organisms in the food web include, but are not limited 
to, finfish, crustaceans, mollusks, insects, annelids, planktonic 
organisms, and the plants and animals on which they feed and depend upon 
for their needs. All forms and life stages of an organism, throughout 
its geographic range, are included in this category.
    (b) Possible loss of values: The discharge of dredged or fill 
material can variously affect populations of fish, crustaceans, mollusks 
and other food web organisms through the release of contaminants which 
adversely affect adults, juveniles, larvae, or eggs, or result in the 
establishment or proliferation of an undesirable competitive species of 
plant or animal at the expense of the desired resident species. 
Suspended particulates settling on attached or buried eggs can smother 
the eggs by limiting or sealing off their exposure to oxygenated water. 
Discharge of dredged and fill material may result in the debilitation or 
death of sedentary organisms by smothering, exposure to chemical 
contaminants in dissolved or suspended form, exposure to

[[Page 268]]

high levels of suspended particulates, reduction in food supply, or 
alteration of the substrate upon which they are dependent. Mollusks are 
particularly sensitive to the discharge of material during periods of 
reproduction and growth and development due primarily to their limited 
mobility. They can be rendered unfit for human consumption by tainting, 
by production and accumulation of toxins, or by ingestion and retention 
of pathogenic organisms, viruses, heavy metals or persistent synthetic 
organic chemicals. The discharge of dredged or fill material can 
redirect, delay, or stop the reproductive and feeding movements of some 
species of fish and crustacea, thus preventing their aggregation in 
accustomed places such as spawning or nursery grounds and potentially 
leading to reduced populations. Reduction of detrital feeding species or 
other representatives of lower trophic levels can impair the flow of 
energy from primary consumers to higher trophic levels. The reduction or 
potential elimination of food chain organism populations decreases the 
overall productivity and nutrient export capability of the ecosystem.



Sec. 230.32  Other wildlife.

    (a) Wildlife associated with aquatic ecosystems are resident and 
transient mammals, birds, reptiles, and amphibians.
    (b) Possible loss of values: The discharge of dredged or fill 
material can result in the loss or change of breeding and nesting areas, 
escape cover, travel corridors, and preferred food sources for resident 
and transient wildlife species associated with the aquatic ecosystem. 
These adverse impacts upon wildlife habitat may result from changes in 
water levels, water flow and circulation, salinity, chemical content, 
and substrate characteristics and elevation. Increased water turbidity 
can adversely affect wildlife species which rely upon sight to feed, and 
disrupt the respiration and feeding of certain aquatic wildlife and food 
chain organisms. The availability of contaminants from the discharge of 
dredged or fill material may lead to the bioaccumulation of such 
contaminants in wildlife. Changes in such physical and chemical factors 
of the environment may favor the introduction of undesirable plant and 
animal species at the expense of resident species and communities. In 
some aquatic environments lowering plant and animal species diversity 
may disrupt the normal functions of the ecosystem and lead to reductions 
in overall biological productivity.

    Note: Possible actions to minimize adverse impacts regarding 
characteristics of biological components of the aquatic ecosystem can be 
found in subpart H.



          Subpart E_Potential Impacts on Special Aquatic Sites

    Note: The impacts described in this subpart should be considered in 
making the factual determinations and the findings of compliance or non-
compliance in subpart B. The definition of special aquatic sites is 
found in Sec. 230.3(q-1).



Sec. 230.40  Sanctuaries and refuges.

    (a) Sanctuaries and refuges consist of areas designated under State 
and Federal laws or local ordinances to be managed principally for the 
preservation and use of fish and wildlife resources.
    (b) Possible loss of values: Sanctuaries and refuges may be affected 
by discharges of dredged or fill material which will:
    (1) Disrupt the breeding, spawning, migratory movements or other 
critical life requirements of resident or transient fish and wildlife 
resources;
    (2) Create unplanned, easy and incompatible human access to remote 
aquatic areas;
    (3) Create the need for frequent maintenance activity;
    (4) Result in the establishment of undesirable competitive species 
of plants and animals;
    (5) Change the balance of water and land areas needed to provide 
cover, food, and other fish and wildlife habitat requirements in a way 
that modifies sanctuary or refuge management practices;
    (6) Result in any of the other adverse impacts discussed in subparts 
C and D as they relate to a particular sanctuary or refuge.

[[Page 269]]



Sec. 230.41  Wetlands.

    (a)(1) Wetlands consist of areas that are inundated or saturated by 
surface or ground water at a frequency and duration sufficient to 
support, and that under normal circumstances do support, a prevalence of 
vegetation typically adapted for life in saturated soil conditions.
    (2) Where wetlands are adjacent to open water, they generally 
constitute the transition to upland. The margin between wetland and open 
water can best be established by specialists familiar with the local 
environment, particularly where emergent vegetation merges with 
submerged vegetation over a broad area in such places as the lateral 
margins of open water, headwaters, rainwater catch basins, and 
groundwater seeps. The landward margin of wetlands also can best be 
identified by specialists familiar with the local environment when 
vegetation from the two regions merges over a broad area.
    (3) Wetland vegetation consists of plants that require saturated 
soils to survive (obligate wetland plants) as well as plants, including 
certain trees, that gain a competitive advantage over others because 
they can tolerate prolonged wet soil conditions and their competitors 
cannot. In addition to plant populations and communities, wetlands are 
delimited by hydrological and physical characteristics of the 
environment. These characteristics should be considered when information 
about them is needed to supplement information available about 
vegetation, or where wetland vegetation has been removed or is dormant.
    (b) Possible loss of values: The discharge of dredged or fill 
material in wetlands is likely to damage or destroy habitat and 
adversely affect the biological productivity of wetlands ecosystems by 
smothering, by dewatering, by permanently flooding, or by altering 
substrate elevation or periodicity of water movement. The addition of 
dredged or fill material may destroy wetland vegetation or result in 
advancement of succession to dry land species. It may reduce or 
eliminate nutrient exchange by a reduction of the system's productivity, 
or by altering current patterns and velocities. Disruption or 
elimination of the wetland system can degrade water quality by 
obstructing circulation patterns that flush large expanses of wetland 
systems, by interfering with the filtration function of wetlands, or by 
changing the aquifer recharge capability of a wetland. Discharges can 
also change the wetland habitat value for fish and wildlife as discussed 
in subpart D. When disruptions in flow and circulation patterns occur, 
apparently minor loss of wetland acreage may result in major losses 
through secondary impacts. Discharging fill material in wetlands as part 
of municipal, industrial or recreational development may modify the 
capacity of wetlands to retain and store floodwaters and to serve as a 
buffer zone shielding upland areas from wave actions, storm damage and 
erosion.



Sec. 230.42  Mud flats.

    (a) Mud flats are broad flat areas along the sea coast and in 
coastal rivers to the head of tidal influence and in inland lakes, 
ponds, and riverine systems. When mud flats are inundated, wind and wave 
action may resuspend bottom sediments. Coastal mud flats are exposed at 
extremely low tides and inundated at high tides with the water table at 
or near the surface of the substrate. The substrate of mud flats 
contains organic material and particles smaller in size than sand. They 
are either unvegetated or vegetated only by algal mats.
    (b) Possible loss of values: The discharge of dredged or fill 
material can cause changes in water circulation patterns which may 
permanently flood or dewater the mud flat or disrupt periodic 
inundation, resulting in an increase in the rate of erosion or 
accretion. Such changes can deplete or eliminate mud flat biota, 
foraging areas, and nursery areas. Changes in inundation patterns can 
affect the chemical and biological exchange and decomposition process 
occurring on the mud flat and change the deposition of suspended 
material affecting the productivity of the area. Changes may reduce the 
mud flat's capacity to dissipate storm surge runoff.

[[Page 270]]



Sec. 230.43  Vegetated shallows.

    (a) Vegetated shallows are permanently inundated areas that under 
normal circumstances support communities of rooted aquatic vegetation, 
such as turtle grass and eelgrass in estuarine or marine systems as well 
as a number of freshwater species in rivers and lakes.
    (b) Possible loss of values: The discharge of dredged or fill 
material can smother vegetation and benthic organisms. It may also 
create unsuitable conditions for their continued vigor by: (1) Changing 
water circulation patterns; (2) releasing nutrients that increase 
undesirable algal populations; (3) releasing chemicals that adversely 
affect plants and animals; (4) increasing turbidity levels, thereby 
reducing light penetration and hence photosynthesis; and (5) changing 
the capacity of a vegetated shallow to stabilize bottom materials and 
decrease channel shoaling. The discharge of dredged or fill material may 
reduce the value of vegetated shallows as nesting, spawning, nursery, 
cover, and forage areas, as well as their value in protecting shorelines 
from erosion and wave actions. It may also encourage the growth of 
nuisance vegetation.



Sec. 230.44  Coral reefs.

    (a) Coral reefs consist of the skeletal deposit, usually of 
calcareous or silicaceous materials, produced by the vital activities of 
anthozoan polyps or other invertebrate organisms present in growing 
portions of the reef.
    (b) Possible loss of values: The discharge of dredged or fill 
material can adversely affect colonies of reef building organisms by 
burying them, by releasing contaminants such as hydrocarbons into the 
water column, by reducing light penetration through the water, and by 
increasing the level of suspended particulates. Coral organisms are 
extremely sensitive to even slight reductions in light penetration or 
increases in suspended particulates. These adverse effects will cause a 
loss of productive colonies which in turn provide habitat for many 
species of highly specialized aquatic organisms.



Sec. 230.45  Riffle and pool complexes.

    (a) Steep gradient sections of streams are sometimes characterized 
by riffle and pool complexes. Such stream sections are recognizable by 
their hydraulic characteristics. The rapid movement of water over a 
coarse substrate in riffles results in a rough flow, a turbulent 
surface, and high dissolved oxygen levels in the water. Pools are deeper 
areas associated with riffles. Pools are characterized by a slower 
stream velocity, a steaming flow, a smooth surface, and a finer 
substrate. Riffle and pool complexes are particularly valuable habitat 
for fish and wildlife.
    (b) Possible loss of values: Discharge of dredged or fill material 
can eliminate riffle and pool areas by displacement, hydrologic 
modification, or sedimentation. Activities which affect riffle and pool 
areas and especially riffle/pool ratios, may reduce the aeration and 
filtration capabilities at the discharge site and downstream, may reduce 
stream habitat diversity, and may retard repopulation of the disposal 
site and downstream waters through sedimentation and the creation of 
unsuitable habitat. The discharge of dredged or fill material which 
alters stream hydrology may cause scouring or sedimentation of riffles 
and pools. Sedimentation induced through hydrological modification or as 
a direct result of the deposition of unconsolidated dredged or fill 
material may clog riffle and pool areas, destroy habitats, and create 
anaerobic conditions. Eliminating pools and meanders by the discharge of 
dredged or fill material can reduce water holding capacity of streams 
and cause rapid runoff from a watershed. Rapid runoff can deliver large 
quantities of flood water in a short time to downstream areas resulting 
in the destruction of natural habitat, high property loss, and the need 
for further hydraulic modification.

    Note: Possible actions to minimize adverse impacts on site or 
material characteristics can be found in subpart H.



        Subpart F_Potential Effects on Human Use Characteristics

    Note: The effects described in this subpart should be considered in 
making the factual

[[Page 271]]

determinations and the findings of compliance or non-compliance in 
subpart B.



Sec. 230.50  Municipal and private water supplies.

    (a) Municipal and private water supplies consist of surface water or 
ground water which is directed to the intake of a municipal or private 
water supply system.
    (b) Possible loss of values: Discharges can affect the quality of 
water supplies with respect to color, taste, odor, chemical content and 
suspended particulate concentration, in such a way as to reduce the 
fitness of the water for consumption. Water can be rendered unpalatable 
or unhealthy by the addition of suspended particulates, viruses and 
pathogenic organisms, and dissolved materials. The expense of removing 
such substances before the water is delivered for consumption can be 
high. Discharges may also affect the quantity of water available for 
municipal and private water supplies. In addition, certain commonly used 
water treatment chemicals have the potential for combining with some 
suspended or dissolved substances from dredged or fill material to form 
other prod ucts that can have a toxic effect on con sumers.



Sec. 230.51  Recreational and commercial fisheries.

    (a) Recreational and commercial fisheries consist of harvestable 
fish, crustaceans, shellfish, and other aquatic organisms used by man.
    (b) Possible loss of values: The discharge of dredged or fill 
materials can affect the suitability of recreational and commercial 
fishing grounds as habitat for populations of consumable aquatic 
organisms. Discharges can result in the chemical contamination of 
recreational or commercial fisheries. They may also interfere with the 
reproductive success of recreational and commercially important aquatic 
species through disruption of migration and spawning areas. The 
introduction of pollutants at critical times in their life cycle may 
directly reduce populations of commercially important aquatic organisms 
or indirectly reduce them by reducing organisms upon which they depend 
for food. Any of these impacts can be of short duration or prolonged, 
depending upon the physical and chemical impacts of the discharge and 
the biological availability of contaminants to aquatic organisms.



Sec. 230.52  Water-related recreation.

    (a) Water-related recreation encompasses activities undertaken for 
amusement and relaxation. Activities encompass two broad categories of 
use: consumptive, e.g., harvesting resources by hunting and fishing; and 
non-comsumptive, e.g. canoeing and sight-seeing.
    (b) Possible loss of values: One of the more important direct 
impacts of dredged or fill disposal is to impair or destroy the 
resources which support recreation activities. The disposal of dredged 
or fill material may adversely modify or destroy water use for 
recreation by changing turbidity, suspended particulates, temperature, 
dissolved oxygen, dissolved materials, toxic materials, pathogenic 
organisms, quality of habitat, and the aesthetic qualities of sight, 
taste, odor, and color.



Sec. 230.53  Aesthetics.

    (a) Aesthetics associated with the aquatic ecosystem consist of the 
perception of beauty by one or a combination of the senses of sight, 
hearing, touch, and smell. Aesthetics of aquatic ecosystems apply to the 
quality of life enjoyed by the general public and property owners.
    (b) Possible loss of values: The discharge of dredged or fill 
material can mar the beauty of natural aquatic ecosystems by degrading 
water quality, creating distracting disposal sites, inducing 
inappropriate development, encouraging unplanned and incompatible human 
access, and by destroying vital elements that contribute to the 
compositional harmony or unity, visual distinctiveness, or diversity of 
an area. The discharge of dredged or fill material can adversely affect 
the particular features, traits, or characteristics of an aquatic area 
which make it valuable to property owners. Activities which degrade 
water quality, disrupt natural substrate and vegetational 
characteristics, deny access to or visibility of the resource, or result 
in changes in odor, air quality, or noise

[[Page 272]]

levels may reduce the value of an aquatic area to private property 
owners.



Sec. 230.54  Parks, national and historical monuments, national seashores, 

wilderness areas, research sites, and similar preserves.

    (a) These preserves consist of areas designated under Federal and 
State laws or local ordinances to be managed for their aesthetic, 
educational, historical, recreational, or scientific value.
    (b) Possible loss of values: The discharge of dredged or fill 
material into such areas may modify the aes thetic, educational, 
historical, rec re a tional and/or scientific qualities there by 
reducing or eliminating the uses for which such sites are set aside and 
managed.

    Note: Possible actions to minimize adverse impacts regarding site or 
material characteristics can be found in subpart H.



                    Subpart G_Evaluation and Testing



Sec. 230.60  General evaluation of dredged or fill material.

    The purpose of these evaluation procedures and the chemical and 
biological testing sequence outlined in Sec. 230.61 is to provide 
information to reach the determinations required by Sec. 230.11. Where 
the results of prior evaluations, chemical and biological tests, 
scientific research, and experience can provide information helpful in 
making a determination, these should be used. Such prior results may 
make new testing unnecessary. The information used shall be documented. 
Where the same information applies to more than one determination, it 
may be docu mented once and referenced in later deter minations.
    (a) If the evaluation under paragraph (b) indicates the dredged or 
fill material is not a carrier of contaminants, then the required 
determinations pertaining to the presence and effects of contaminants 
can be made without testing. Dredged or fill material is most likely to 
be free from chemical, biological, or other pollutants where it is 
composed primarily of sand, gravel, or other naturally occurring inert 
material. Dredged material so composed is generally found in areas of 
high current or wave energy such as streams with large bed loads or 
coastal areas with shifting bars and channels. However, when such 
material is discolored or contains other indications that contaminants 
may be present, further inquiry should be made.
    (b) The extraction site shall be examined in order to assess whether 
it is sufficiently removed from sources of pollution to provide 
reasonable assurance that the proposed discharge material is not a 
carrier of contaminants. Factors to be considered include but are not 
limited to:
    (1) Potential routes of contaminants or contaminated sediments to 
the extraction site, based on hydrographic or other maps, aerial 
photography, or other materials that show watercourses, surface relief, 
proximity to tidal movement, private and public roads, location of 
buildings, municipal and industrial areas, and agricultural or forest 
lands.
    (2) Pertinent results from tests previously carried out on the 
material at the extraction site, or carried out on similar material for 
other permitted projects in the vicinity. Materials shall be considered 
similar if the sources of contamination, the physical configuration of 
the sites and the sediment composition of the materials are comparable, 
in light of water circulation and stratification, sediment accumulation 
and general sediment characteristics. Tests from other sites may be 
relied on only if no changes have occurred at the extraction sites to 
render the results irrelevant.
    (3) Any potential for significant introduction of persistent 
pesticides from land runoff or percolation;
    (4) Any records of spills or disposal of petroleum products or 
substances designated as hazardous under section 311 of the Clean Water 
Act (See 40 CFR part 116);
    (5) Information in Federal, State and local records indicating 
significant introduction of pollutants from industries, municipalities, 
or other sources, including types and amounts of waste materials 
discharged along the potential routes of contaminants to the extraction 
site; and

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    (6) Any possibility of the presence of substantial natural deposits 
of minerals or other substances which could be released to the aquatic 
environment in harmful quantities by man-induced discharge activities.
    (c) To reach the determinations in Sec. 230.11 involving potential 
effects of the discharge on the characteristics of the disposal site, 
the narrative guidance in subparts C through F shall be used along with 
the general evaluation procedure in Sec. 230.60 and, if necessary, the 
chemical and biological testing sequence in Sec. 230.61. Where the 
discharge site is adjacent to the extraction site and subject to the 
same sources of contaminants, and materials at the two sites are 
substantially similar, the fact that the material to be discharged may 
be a carrier of contaminants is not likely to result in degradation of 
the disposal site. In such circumstances, when dissolved material and 
suspended particulates can be controlled to prevent carrying pollutants 
to less contaminated areas, testing will not be required.
    (d) Even if the Sec. 230.60(b) evaluation (previous tests, the 
presence of polluting industries and information about their discharge 
or runoff into waters of the U.S., bioinventories, etc.) leads to the 
conclusion that there is a high probability that the material proposed 
for discharge is a carrier of contaminants, testing may not be necessary 
if constraints are available to reduce contamination to acceptable 
levels within the disposal site and to prevent contaminants from being 
transported beyond the boundaries of the disposal site, if such 
constraints are acceptable to the permitting authority and the Regional 
Administrator, and if the potential discharger is willing and able to 
implement such constraints. However, even if tests are not performed, 
the permitting authority must still determine the probable impact of the 
operation on the receiving aquatic ecosystem. Any decision not to test 
must be explained in the determinations made under Sec. 230.11.



Sec. 230.61  Chemical, biological, and physical evaluation and testing.

    Note: The Agency is today proposing revised testing guidelines. The 
evaluation and testing procedures in this section are based on the 1975 
section 404(b)(1) interim final Guidelines and shall remain in effect 
until the revised testing guidelines are published as final regulations.
    (a) No single test or approach can be applied in all cases to 
evaluate the effects of proposed discharges of dredged or fill 
materials. This section provides some guidance in determining which test 
and/or evaluation procedures are appropriate in a given case. Interim 
guidance to applicants concerning the applicability of specific 
approaches or procedures will be furnished by the permitting authority.
    (b) Chemical-biological interactive effects. The principal concerns 
of discharge of dredged or fill material that contain contaminants are 
the potential effects on the water column and on communities of aquatic 
organisms.
    (1) Evaluation of chemical-biological interactive effects. Dredged 
or fill material may be excluded from the evaluation procedures 
specified in paragraphs (b) (2) and (3) of this section if it is 
determined, on the basis of the evaluation in Sec. 230.60, that the 
likelihood of contamination by contaminants is acceptably low, unless 
the permitting authority, after evaluating and considering any comments 
received from the Regional Administrator, determines that these 
procedures are necessary. The Regional Administrator may require, on a 
case-by-case basis, testing approaches and procedures by stating what 
additional information is needed through further analyses and how the 
results of the analyses will be of value in evaluating potential 
environmental effects.

If the General Evaluation indicates the presence of a sufficiently large 
number of chemicals to render impractical the identification of all 
contaminants by chemical testing, information may be obtained from 
bioassays in lieu of chemical tests.
    (2) Water column effects. (i) Sediments normally contain 
constituents that exist in various chemical forms and in various 
concentrations in several locations within the sediment. An elutriate 
test may be used to predict the effect on water quality due to release 
of contaminants from the sediment to the water column. However, in the 
case of fill material originating on land which

[[Page 274]]

may be a carrier of contaminants, a water leachate test is appropriate.
    (ii) Major constituents to be analyzed in the elutriate are those 
deemed critical by the permitting authority, after evaluating and 
considering any comments received from the Regional Administrator, and 
considering results of the evaluation in Sec. 230.60. Elutriate 
concentrations should be compared to concentrations of the same 
constituents in water from the disposal site. Results should be 
evaluated in light of the volume and rate of the intended discharge, the 
type of discharge, the hydrodynamic regime at the disposal site, and 
other information relevant to the impact on water quality. The 
permitting authority should consider the mixing zone in evaluating water 
column effects. The permitting authority may specify bioassays when such 
procedures will be of value.
    (3) Effects on benthos. The permitting authority may use an 
appropriate benthic bioassay (including bio ac cum u la tion tests) when 
such procedures will be of value in assessing eco logical effects and in 
establishing dis charge conditions.
    (c) Procedure for comparison of sites.
    (1) When an inventory of the total concentration of contaminants 
would be of value in comparing sediment at the dredging site with 
sediment at the disposal site, the permitting authority may require a 
sediment chemical analysis. Markedly different concentrations of 
contaminants between the excavation and disposal sites may aid in making 
an environmental assessment of the proposed disposal operation. Such 
differences should be interpreted in terms of the potential for harm as 
supported by any pertinent scientific literature.
    (2) When an analysis of biological community structure will be of 
value to assess the potential for adverse environmental impact at the 
proposed disposal site, a comparison of the biological characteristics 
between the excavation and disposal sites may be required by the 
permitting authority. Biological indicator species may be useful in 
evaluating the existing degree of stress at both sites. Sensitive 
species representing community components colonizing various substrate 
types within the sites should be identified as possible bioassay 
organisms if tests for toxicity are required. Community structure 
studies should be performed only when they will be of value in 
determining discharge conditions. This is particularly applicable to 
large quantities of dredged material known to contain adverse quantities 
of toxic materials. Community studies should include benthic organisms 
such as microbiota and harvestable shellfish and finfish. Abundance, 
diversity, and distribution should be documented and correlated with 
substrate type and other appropriate physical and chemical environmental 
characteristics.
    (d) Physical tests and evaluation. The effect of a discharge of 
dredged or fill material on physical substrate characteristics at the 
disposal site, as well as on the water circulation, fluctuation, 
salinity, and suspended particulates content there, is important in 
making factual determinations in Sec. 230.11. Where information on such 
effects is not otherwise available to make these factual determinations, 
the permitting authority shall require appropriate physical tests and 
evaluations as are justified and deemed necessary. Such tests may 
include sieve tests, settleability tests, compaction tests, mixing zone 
and suspended particulate plume determinations, and site assessments of 
water flow, circulation, and salinity characteristics.



              Subpart H_Actions To Minimize Adverse Effects

    Note: There are many actions which can be undertaken in response to 
Sec. 203.10(d) to minimize the adverse effects of discharges of dredged 
or fill material. Some of these, grouped by type of activity, are listed 
in this subpart. Additional criteria for compensation measures are 
provided in subpart J of this part.



Sec. 230.70  Actions concerning the location of the discharge.

    The effects of the discharge can be minimized by the choice of the 
disposal site. Some of the ways to accomplish this are by:
    (a) Locating and confining the discharge to minimize smothering of 
organisms;

[[Page 275]]

    (b) Designing the discharge to avoid a disruption of periodic water 
inundation patterns;
    (c) Selecting a disposal site that has been used previously for 
dredged ma terial discharge;
    (d) Selecting a disposal site at which the substrate is composed of 
material similar to that being discharged, such as discharging sand on 
sand or mud on mud;
    (e) Selecting the disposal site, the discharge point, and the method 
of discharge to minimize the extent of any plume;
    (f) Designing the discharge of dredged or fill material to minimize 
or prevent the creation of standing bodies of water in areas of normally 
fluctuating water levels, and minimize or prevent the drainage of areas 
subject to such fluctuations.



Sec. 230.71  Actions concerning the material to be discharged.

    The effects of a discharge can be minimized by treatment of, or 
limitations on the material itself, such as:
    (a) Disposal of dredged material in such a manner that 
physiochemical conditions are maintained and the potency and 
availability of pollutants are reduced.
    (b) Limiting the solid, liquid, and gaseous components of material 
to be discharged at a particular site;
    (c) Adding treatment substances to the discharge material;
    (d) Utilizing chemical flocculants to enhance the deposition of 
suspended particulates in diked disposal areas.



Sec. 230.72  Actions controlling the material after discharge.

    The effects of the dredged or fill material after discharge may be 
controlled by:
    (a) Selecting discharge methods and disposal sites where the 
potential for erosion, slumping or leaching of materials into the 
surrounding aquatic ecosystem will be reduced. These sites or methods 
include, but are not limited to:
    (1) Using containment levees, sediment basins, and cover crops to 
reduce erosion;
    (2) Using lined containment areas to reduce leaching where leaching 
of chemical constituents from the discharged material is expected to be 
a problem;
    (b) Capping in-place contaminated material with clean material or 
selectively discharging the most contaminated material first to be 
capped with the remaining material;
    (c) Maintaining and containing discharged material properly to 
prevent point and nonpoint sources of pollution;
    (d) Timing the discharge to minimize impact, for instance during 
periods of unusual high water flows, wind, wave, and tidal actions.



Sec. 230.73  Actions affecting the method of dispersion.

    The effects of a discharge can be minimized by the manner in which 
it is dispersed, such as:
    (a) Where environmentally desirable, distributing the dredged 
material widely in a thin layer at the disposal site to maintain natural 
substrate contours and elevation;
    (b) Orienting a dredged or fill material mound to minimize 
undesirable obstruction to the water current or circulation pattern, and 
utilizing natural bottom contours to minimize the size of the mound;
    (c) Using silt screens or other appropriate methods to confine 
suspended particulate/turbidity to a small area where settling or 
removal can occur;
    (d) Making use of currents and circulation patterns to mix, disperse 
and dilute the discharge;
    (e) Minimizing water column turbidity by using a submerged diffuser 
system. A similar effect can be accomplished by submerging pipeline 
discharges or otherwise releasing materials near the bottom;
    (f) Selecting sites or managing discharges to confine and minimize 
the release of suspended particulates to give decreased turbidity levels 
and to maintain light penetration for organisms;
    (g) Setting limitations on the amount of material to be discharged 
per unit of time or volume of receiving water.

[[Page 276]]



Sec. 230.74  Actions related to technology.

    Discharge technology should be adapted to the needs of each site. In 
determining whether the discharge operation sufficiently minimizes 
adverse environmental impacts, the applicant should consider:
    (a) Using appropriate equipment or machinery, including protective 
devices, and the use of such equipment or machinery in activities 
related to the discharge of dredged or fill material;
    (b) Employing appropriate maintenance and operation on equipment or 
machinery, including adequate training, staffing, and working 
procedures;
    (c) Using machinery and techniques that are especially designed to 
reduce damage to wetlands. This may include machines equipped with 
devices that scatter rather than mound excavated materials, machines 
with specially designed wheels or tracks, and the use of mats under 
heavy machines to reduce wetland surface compaction and rutting;
    (d) Designing access roads and channel spanning structures using 
culverts, open channels, and diversions that will pass both low and high 
water flows, accommodate fluctuating water levels, and maintain 
circulation and faunal movement;
    (e) Employing appropriate machinery and methods of transport of the 
material for discharge.



Sec. 230.75  Actions affecting plant and animal populations.

    Minimization of adverse effects on populations of plants and animals 
can be achieved by:
    (a) Avoiding changes in water current and circulation patterns which 
would interfere with the movement of animals;
    (b) Selecting sites or managing discharges to prevent or avoid 
creating habitat conducive to the development of undesirable predators 
or species which have a competitive edge ecologically over indigenous 
plants or animals;
    (c) Avoiding sites having unique habitat or other value, including 
habitat of threatened or endangered species;
    (d) Using planning and construction practices to institute habitat 
development and restoration to produce a new or modified environmental 
state of higher ecological value by displacement of some or all of the 
existing environmental characteristics. Habitat development and 
restoration techniques can be used to minimize adverse impacts and to 
compensate for destroyed habitat. Additional criteria for compensation 
measures are provided in subpart J of this part. Use techniques that 
have been demonstrated to be effective in circumstances similar to those 
under consideration wherever possible. Where proposed development and 
restoration techniques have not yet advanced to the pilot demonstration 
stage, initiate their use on a small scale to allow corrective action if 
unanticipated adverse impacts occur;
    (e) Timing discharge to avoid spawning or migration seasons and 
other biologically critical time periods;
    (f) Avoiding the destruction of remnant natural sites within areas 
already affected by development.

[45 FR 85344, Dec. 24, 1980, as amended at 73 FR 19687, Apr. 10, 2008]



Sec. 230.76  Actions affecting human use.

    Minimization of adverse effects on human use potential may be 
achieved by:
    (a) Selecting discharge sites and following discharge procedures to 
prevent or minimize any potential damage to the aesthetically pleasing 
features of the aquatic site (e.g. viewscapes), particularly with 
respect to water quality;
    (b) Selecting disposal sites which are not valuable as natural 
aquatic areas;
    (c) Timing the discharge to avoid the seasons or periods when human 
recreational activity associated with the aquatic site is most 
important;
    (d) Following discharge procedures which avoid or minimize the 
disturbance of aesthetic features of an aquatic site or ecosystem;
    (e) Selecting sites that will not be detrimental or increase 
incompatible human activity, or require the need for frequent dredge or 
fill maintenance activity in remote fish and wildlife areas;
    (f) Locating the disposal site outside of the vicinity of a public 
water supply intake.

[[Page 277]]



Sec. 230.77  Other actions.

    (a) In the case of fills, controlling runoff and other discharges 
from activities to be conducted on the fill;
    (b) In the case of dams, designing water releases to accommodate the 
needs of fish and wildlife;
    (c) In dredging projects funded by Federal agencies other than the 
Corps of Engineers, maintain desired water quality of the return 
discharge through agreement with the Federal funding authority on 
scientifically defensible pollutant concentration levels in addition to 
any applicable water quality standards;
    (d) When a significant ecological change in the aquatic environment 
is proposed by the discharge of dredged or fill material, the permitting 
authority should consider the ecosystem that will be lost as well as the 
environmental benefits of the new system.



          Subpart I_Planning To Shorten Permit Processing Time



Sec. 230.80  Advanced identification of disposal areas.

    (a) Consistent with these Guidelines, EPA and the permitting 
authority, on their own initiative or at the request of any other party 
and after consultation with any affected State that is not the 
permitting authority, may identify sites which will be considered as:
    (1) Possible future disposal sites, including existing disposal 
sites and non-sensitive areas; or
    (2) Areas generally unsuitable for disposal site specification;
    (b) The identification of any area as a possible future disposal 
site should not be deemed to constitute a permit for the discharge of 
dredged or fill material within such area or a specification of a 
disposal site. The identification of areas that generally will not be 
available for disposal site specification should not be deemed as 
prohibiting applications for permits to discharge dredged or fill 
material in such areas. Either type of identification constitutes 
information to facilitate individual or General permit application and 
processing.
    (c) An appropriate public notice of the proposed identification of 
such areas shall be issued;
    (d) To provide the basis for advanced identification of disposal 
areas, and areas unsuitable for disposal, EPA and the permitting 
authority shall consider the likelihood that use of the area in question 
for dredged or fill material disposal will comply with these Guidelines. 
To facilitate this analysis, EPA and the permitting authority should 
review available water resources management data including data 
available from the public, other Federal and State agencies, and 
information from approved Coastal Zone Management programs and River 
Basin Plans;
    (e) The permitting authority should maintain a public record of the 
identified areas and a written statement of the basis for 
identification.



    Subpart J_Compensatory Mitigation for Losses of Aquatic Resources

    Source: 73 FR 19687, Apr. 10, 2008, unless otherwise noted.



Sec. 230.91  Purpose and general considerations.

    (a) Purpose. (1) The purpose of this subpart is to establish 
standards and criteria for the use of all types of compensatory 
mitigation, including on-site and off-site permittee-responsible 
mitigation, mitigation banks, and in-lieu fee mitigation to offset 
unavoidable impacts to waters of the United States authorized through 
the issuance of permits by the U.S. Army Corps of Engineers (Corps) 
pursuant to section 404 of the Clean Water Act (33 U.S.C. 1344). This 
subpart implements section 314(b) of the 2004 National Defense 
Authorization Act (Pub. L. 108-136), which directs that the standards 
and criteria shall, to the maximum extent practicable, maximize 
available credits and opportunities for mitigation, provide for regional 
variations in wetland conditions, functions, and values, and apply 
equivalent standards and criteria to each type of compensatory 
mitigation. This subpart is intended to further

[[Page 278]]

clarify mitigation requirements established under the Corps and EPA 
regulations at 33 CFR part 320 and this part, respectively.
    (2) This subpart has been jointly developed by the Secretary of the 
Army, acting through the Chief of Engineers, and the Administrator of 
the Environmental Protection Agency. From time to time guidance on 
interpreting and implementing this subpart may be prepared jointly by 
EPA and the Corps at the national or regional level. No modifications to 
the basic application, meaning, or intent of this subpart will be made 
without further joint rulemaking by the Secretary of the Army, acting 
through the Chief of Engineers and the Administrator of the 
Environmental Protection Agency, pursuant to the Administrative 
Procedure Act (5 U.S.C. 551 et seq.).
    (b) Applicability. This subpart does not alter the circumstances 
under which compensatory mitigation is required or the definition of 
``waters of the United States,'' which is provided at Sec. 230.3(s). 
Use of resources as compensatory mitigation that are not otherwise 
subject to regulation under section 404 of the Clean Water Act does not 
in and of itself make them subject to such regulation.
    (c) Sequencing. (1) Nothing in this section affects the requirement 
that all DA permits subject to section 404 of the Clean Water Act comply 
with applicable provisions of this part.
    (2) Pursuant to these requirements, the district engineer will issue 
an individual section 404 permit only upon a determination that the 
proposed discharge complies with applicable provisions of 40 CFR part 
230, including those which require the permit applicant to take all 
appropriate and practicable steps to avoid and minimize adverse impacts 
to waters of the United States. Practicable means available and capable 
of being done after taking into consideration cost, existing technology, 
and logistics in light of overall project purposes. Compensatory 
mitigation for unavoidable impacts may be required to ensure that an 
activity requiring a section 404 permit complies with the Section 
404(b)(1) Guidelines.
    (3) Compensatory mitigation for unavoidable impacts may be required 
to ensure that an activity requiring a section 404 permit complies with 
the Section 404(b)(1) Guidelines. During the 404(b)(1) Guidelines 
compliance analysis, the district engineer may determine that a DA 
permit for the proposed activity cannot be issued because of the lack of 
appropriate and practicable compensatory mitigation options.
    (d) Accounting for regional variations. Where appropriate, district 
engineers shall account for regional characteristics of aquatic resource 
types, functions and services when determining performance standards and 
monitoring requirements for compensatory mitigation projects.
    (e) Relationship to other guidance documents. (1) This subpart 
applies instead of the ``Federal Guidance for the Establishment, Use, 
and Operation of Mitigation Banks,'' which was issued on November 28, 
1995, the ``Federal Guidance on the Use of In-Lieu Fee Arrangements for 
Compensatory Mitigation Under Section 404 of the Clean Water Act and 
Section 10 of the Rivers and Harbors Act,'' which was issued on November 
7, 2000, and Regulatory Guidance Letter 02-02, ``Guidance on 
Compensatory Mitigation Projects for Aquatic Resource Impacts Under the 
Corps Regulatory Program Pursuant to Section 404 of the Clean Water Act 
and Section 10 of the Rivers and Harbors Act of 1899'' which was issued 
on December 24, 2002. These guidance documents are no longer to be used 
as compensatory mitigation policy in the Corps Regulatory Program.
    (2) In addition, this subpart also applies instead of the provisions 
relating to the amount, type, and location of compensatory mitigation 
projects, including the use of preservation, in the February 6, 1990, 
Memorandum of Agreement (MOA) between the Department of the Army and the 
Environmental Protection Agency on the Determination of Mitigation Under 
the Clean Water Act Section 404(b)(1) Guidelines. All other provisions 
of this MOA remain in effect.



Sec. 230.92  Definitions.

    For the purposes of this subpart, the following terms are defined:
    Adaptive management means the development of a management strategy

[[Page 279]]

that anticipates likely challenges associated with compensatory 
mitigation projects and provides for the implementation of actions to 
address those challenges, as well as unforeseen changes to those 
projects. It requires consideration of the risk, uncertainty, and 
dynamic nature of compensatory mitigation projects and guides 
modification of those projects to optimize performance. It includes the 
selection of appropriate measures that will ensure that the aquatic 
resource functions are provided and involves analysis of monitoring 
results to identify potential problems of a compensatory mitigation 
project and the identification and implementation of measures to rectify 
those problems.
    Advance credits means any credits of an approved in-lieu fee program 
that are available for sale prior to being fulfilled in accordance with 
an approved mitigation project plan. Advance credit sales require an 
approved in-lieu fee program instrument that meets all applicable 
requirements including a specific allocation of advance credits, by 
service area where applicable. The instrument must also contain a 
schedule for fulfillment of advance credit sales.
    Buffer means an upland, wetland, and/or riparian area that protects 
and/or enhances aquatic resource functions associated with wetlands, 
rivers, streams, lakes, marine, and estuarine systems from disturbances 
associated with adjacent land uses.
    Compensatory mitigation means the restoration (re-establishment or 
rehabilitation), establishment (creation), enhancement, and/or in 
certain circumstances preservation of aquatic resources for the purposes 
of offsetting unavoidable adverse impacts which remain after all 
appropriate and practicable avoidance and minimization has been 
achieved.
    Compensatory mitigation project means compensatory mitigation 
implemented by the permittee as a requirement of a DA permit (i.e., 
permittee-responsible mitigation), or by a mitigation bank or an in-lieu 
fee program.
    Condition means the relative ability of an aquatic resource to 
support and maintain a community of organisms having a species 
composition, diversity, and functional organization comparable to 
reference aquatic resources in the region.
    Credit means a unit of measure (e.g., a functional or areal measure 
or other suitable metric) representing the accrual or attainment of 
aquatic functions at a compensatory mitigation site. The measure of 
aquatic functions is based on the resources restored, established, 
enhanced, or preserved.
    DA means Department of the Army.
    Days means calendar days.
    Debit means a unit of measure (e.g., a functional or areal measure 
or other suitable metric) representing the loss of aquatic functions at 
an impact or project site. The measure of aquatic functions is based on 
the resources impacted by the authorized activity.
    Enhancement means the manipulation of the physical, chemical, or 
biological characteristics of an aquatic resource to heighten, 
intensify, or improve a specific aquatic resource function(s). 
Enhancement results in the gain of selected aquatic resource 
function(s), but may also lead to a decline in other aquatic resource 
function(s). Enhancement does not result in a gain in aquatic resource 
area.
    Establishment (creation) means the manipulation of the physical, 
chemical, or biological characteristics present to develop an aquatic 
resource that did not previously exist at an upland site. Establishment 
results in a gain in aquatic resource area and functions.
    Fulfillment of advance credit sales of an in-lieu fee program means 
application of credits released in accordance with a credit release 
schedule in an approved mitigation project plan to satisfy the 
mitigation requirements represented by the advance credits. Only after 
any advance credit sales within a service area have been fulfilled 
through the application of released credits from an in-lieu fee project 
(in accordance with the credit release schedule for an approved 
mitigation project plan), may additional released credits from that 
project be sold or transferred to permittees. When advance credits are 
fulfilled, an equal number of new advance credits is restored to the 
program sponsor for sale or transfer to permit applicants.

[[Page 280]]

    Functional capacity means the degree to which an area of aquatic 
resource performs a specific function.
    Functions means the physical, chemical, and biological processes 
that occur in ecosystems.
    Impact means adverse effect.
    In-kind means a resource of a similar structural and functional type 
to the impacted resource.
    In-lieu fee program means a program involving the restoration, 
establishment, enhancement, and/or preservation of aquatic resources 
through funds paid to a governmental or non-profit natural resources 
management entity to satisfy compensatory mitigation requirements for DA 
permits. Similar to a mitigation bank, an in-lieu fee program sells 
compensatory mitigation credits to permittees whose obligation to 
provide compensatory mitigation is then transferred to the in-lieu 
program sponsor. However, the rules governing the operation and use of 
in-lieu fee programs are somewhat different from the rules governing 
operation and use of mitigation banks. The operation and use of an in-
lieu fee program are governed by an in-lieu fee program instrument.
    In-lieu fee program instrument means the legal document for the 
establishment, operation, and use of an in-lieu fee program.
    Instrument means mitigation banking instrument or in-lieu fee 
program instrument.
    Interagency Review Team (IRT) means an interagency group of federal, 
tribal, state, and/or local regulatory and resource agency 
representatives that reviews documentation for, and advises the district 
engineer on, the establishment and management of a mitigation bank or an 
in-lieu fee program.
    Mitigation bank means a site, or suite of sites, where resources 
(e.g., wetlands, streams, riparian areas) are restored, established, 
enhanced, and/or preserved for the purpose of providing compensatory 
mitigation for impacts authorized by DA permits. In general, a 
mitigation bank sells compensatory mitigation credits to permittees 
whose obligation to provide compensatory mitigation is then transferred 
to the mitigation bank sponsor. The operation and use of a mitigation 
bank are governed by a mitigation banking instrument.
    Mitigation banking instrument means the legal document for the 
establishment, operation, and use of a mitigation bank.
    Off-site means an area that is neither located on the same parcel of 
land as the impact site, nor on a parcel of land contiguous to the 
parcel containing the impact site.
    On-site means an area located on the same parcel of land as the 
impact site, or on a parcel of land contiguous to the impact site.
    Out-of-kind means a resource of a different structural and 
functional type from the impacted resource.
    Performance standards are observable or measurable physical 
(including hydrological), chemical and/or biological attributes that are 
used to determine if a compensatory mitigation project meets its 
objectives.
    Permittee-responsible mitigation means an aquatic resource 
restoration, establishment, enhancement, and/or preservation activity 
undertaken by the permittee (or an authorized agent or contractor) to 
provide compensatory mitigation for which the permittee retains full 
responsibility.
    Preservation means the removal of a threat to, or preventing the 
decline of, aquatic resources by an action in or near those aquatic 
resources. This term includes activities commonly associated with the 
protection and maintenance of aquatic resources through the 
implementation of appropriate legal and physical mechanisms. 
Preservation does not result in a gain of aquatic resource area or 
functions.
    Re-establishment means the manipulation of the physical, chemical, 
or biological characteristics of a site with the goal of returning 
natural/historic functions to a former aquatic resource. Re-
establishment results in rebuilding a former aquatic resource and 
results in a gain in aquatic resource area and functions.
    Reference aquatic resources are a set of aquatic resources that 
represent the full range of variability exhibited by a regional class of 
aquatic resources as a result of natural processes and anthropogenic 
disturbances.

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    Rehabilitation means the manipulation of the physical, chemical, or 
biological characteristics of a site with the goal of repairing natural/
historic functions to a degraded aquatic resource. Rehabilitation 
results in a gain in aquatic resource function, but does not result in a 
gain in aquatic resource area.
    Release of credits means a determination by the district engineer, 
in consultation with the IRT, that credits associated with an approved 
mitigation plan are available for sale or transfer, or in the case of an 
in-lieu fee program, for fulfillment of advance credit sales. A 
proportion of projected credits for a specific mitigation bank or in-
lieu fee project may be released upon approval of the mitigation plan, 
with additional credits released as milestones specified in the credit 
release schedule are achieved.
    Restoration means the manipulation of the physical, chemical, or 
biological characteristics of a site with the goal of returning natural/
historic functions to a former or degraded aquatic resource. For the 
purpose of tracking net gains in aquatic resource area, restoration is 
divided into two categories: re-establishment and rehabilitation.
    Riparian areas are lands adjacent to streams, rivers, lakes, and 
estuarine-marine shorelines. Riparian areas provide a variety of 
ecological functions and services and help improve or maintain local 
water quality.
    Service area means the geographic area within which impacts can be 
mitigated at a specific mitigation bank or an in-lieu fee program, as 
designated in its instrument.
    Services mean the benefits that human populations receive from 
functions that occur in ecosystems.
    Sponsor means any public or private entity responsible for 
establishing, and in most circumstances, operating a mitigation bank or 
in-lieu fee program.
    Standard permit means a standard, individual permit issued under the 
authority of section 404 of the Clean Water Act.
    Temporal loss is the time lag between the loss of aquatic resource 
functions caused by the permitted impacts and the replacement of aquatic 
resource functions at the compensatory mitigation site. Higher 
compensation ratios may be required to compensate for temporal loss. 
When the compensatory mitigation project is initiated prior to, or 
concurrent with, the permitted impacts, the district engineer may 
determine that compensation for temporal loss is not necessary, unless 
the resource has a long development time.
    Watershed means a land area that drains to a common waterway, such 
as a stream, lake, estuary, wetland, or ultimately the ocean.
    Watershed approach means an analytical process for making 
compensatory mitigation decisions that support the sustainability or 
improvement of aquatic resources in a watershed. It involves 
consideration of watershed needs, and how locations and types of 
compensatory mitigation projects address those needs. A landscape 
perspective is used to identify the types and locations of compensatory 
mitigation projects that will benefit the watershed and offset losses of 
aquatic resource functions and services caused by activities authorized 
by DA permits. The watershed approach may involve consideration of 
landscape scale, historic and potential aquatic resource conditions, 
past and projected aquatic resource impacts in the watershed, and 
terrestrial connections between aquatic resources when determining 
compensatory mitigation requirements for DA permits.
    Watershed plan means a plan developed by federal, tribal, state, 
and/or local government agencies or appropriate non-governmental 
organizations, in consultation with relevant stakeholders, for the 
specific goal of aquatic resource restoration, establishment, 
enhancement, and preservation. A watershed plan addresses aquatic 
resource conditions in the watershed, multiple stakeholder interests, 
and land uses. Watershed plans may also identify priority sites for 
aquatic resource restoration and protection. Examples of watershed plans 
include special area management plans, advance identification programs, 
and wetland management plans.



Sec. 230.93  General compensatory mitigation requirements.

    (a) General considerations. (1) The fundamental objective of 
compensatory

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mitigation is to offset environmental losses resulting from unavoidable 
impacts to waters of the United States authorized by DA permits. The 
district engineer must determine the compensatory mitigation to be 
required in a DA permit, based on what is practicable and capable of 
compensating for the aquatic resource functions that will be lost as a 
result of the permitted activity. When evaluating compensatory 
mitigation options, the district engineer will consider what would be 
environmentally preferable. In making this determination, the district 
engineer must assess the likelihood for ecological success and 
sustainability, the location of the compensation site relative to the 
impact site and their significance within the watershed, and the costs 
of the compensatory mitigation project. In many cases, the 
environmentally preferable compensatory mitigation may be provided 
through mitigation banks or in-lieu fee programs because they usually 
involve consolidating compensatory mitigation projects where 
ecologically appropriate, consolidating resources, providing financial 
planning and scientific expertise (which often is not practical for 
permittee-responsible compensatory mitigation projects), reducing 
temporal losses of functions, and reducing uncertainty over project 
success. Compensatory mitigation requirements must be commensurate with 
the amount and type of impact that is associated with a particular DA 
permit. Permit applicants are responsible for proposing an appropriate 
compensatory mitigation option to offset unavoidable impacts.
    (2) Compensatory mitigation may be performed using the methods of 
restoration, enhancement, establishment, and in certain circumstances 
preservation. Restoration should generally be the first option 
considered because the likelihood of success is greater and the impacts 
to potentially ecologically important uplands are reduced compared to 
establishment, and the potential gains in terms of aquatic resource 
functions are greater, compared to enhancement and preservation.
    (3) Compensatory mitigation projects may be sited on public or 
private lands. Credits for compensatory mitigation projects on public 
land must be based solely on aquatic resource functions provided by the 
compensatory mitigation project, over and above those provided by public 
programs already planned or in place. All compensatory mitigation 
projects must comply with the standards in this part, if they are to be 
used to provide compensatory mitigation for activities authorized by DA 
permits, regardless of whether they are sited on public or private lands 
and whether the sponsor is a governmental or private entity.
    (b) Type and location of compensatory mitigation. (1) When 
considering options for successfully providing the required compensatory 
mitigation, the district engineer shall consider the type and location 
options in the order presented in paragraphs (b)(2) through (b)(6) of 
this section. In general, the required compensatory mitigation should be 
located within the same watershed as the impact site, and should be 
located where it is most likely to successfully replace lost functions 
and services, taking into account such watershed scale features as 
aquatic habitat diversity, habitat connectivity, relationships to 
hydrologic sources (including the availability of water rights), trends 
in land use, ecological benefits, and compatibility with adjacent land 
uses. When compensating for impacts to marine resources, the location of 
the compensatory mitigation site should be chosen to replace lost 
functions and services within the same marine ecological system (e.g., 
reef complex, littoral drift cell). Compensation for impacts to aquatic 
resources in coastal watersheds (watersheds that include a tidal water 
body) should also be located in a coastal watershed where practicable. 
Compensatory mitigation projects should not be located where they will 
increase risks to aviation by attracting wildlife to areas where 
aircraft-wildlife strikes may occur (e.g., near airports).
    (2) Mitigation bank credits. When permitted impacts are located 
within the service area of an approved mitigation bank, and the bank has 
the appropriate number and resource type of credits available, the 
permittee's compensatory mitigation requirements may be met by securing 
those credits from the sponsor. Since an approved instrument

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(including an approved mitigation plan and appropriate real estate and 
financial assurances) for a mitigation bank is required to be in place 
before its credits can begin to be used to compensate for authorized 
impacts, use of a mitigation bank can help reduce risk and uncertainty, 
as well as temporal loss of resource functions and services. Mitigation 
bank credits are not released for debiting until specific milestones 
associated with the mitigation bank site's protection and development 
are achieved, thus use of mitigation bank credits can also help reduce 
risk that mitigation will not be fully successful. Mitigation banks 
typically involve larger, more ecologically valuable parcels, and more 
rigorous scientific and technical analysis, planning and implementation 
than permittee-responsible mitigation. Also, development of a mitigation 
bank requires site identification in advance, project-specific planning, 
and significant investment of financial resources that is often not 
practicable for many in-lieu fee programs. For these reasons, the 
district engineer should give preference to the use of mitigation bank 
credits when these considerations are applicable. However, these same 
considerations may also be used to override this preference, where 
appropriate, as, for example, where an in-lieu fee program has released 
credits available from a specific approved in-lieu fee project, or a 
permittee-responsible project will restore an outstanding resource based 
on rigorous scientific and technical analysis.
    (3) In-lieu fee program credits. Where permitted impacts are located 
within the service area of an approved in-lieu fee program, and the 
sponsor has the appropriate number and resource type of credits 
available, the permittee's compensatory mitigation requirements may be 
met by securing those credits from the sponsor. Where permitted impacts 
are not located in the service area of an approved mitigation bank, or 
the approved mitigation bank does not have the appropriate number and 
resource type of credits available to offset those impacts, in-lieu fee 
mitigation, if available, is generally preferable to permittee-
responsible mitigation. In-lieu fee projects typically involve larger, 
more ecologically valuable parcels, and more rigorous scientific and 
technical analysis, planning and implementation than permittee-
responsible mitigation. They also devote significant resources to 
identifying and addressing high-priority resource needs on a watershed 
scale, as reflected in their compensation planning framework. For these 
reasons, the district engineer should give preference to in-lieu fee 
program credits over permittee-responsible mitigation, where these 
considerations are applicable. However, as with the preference for 
mitigation bank credits, these same considerations may be used to 
override this preference where appropriate. Additionally, in cases where 
permittee-responsible mitigation is likely to successfully meet 
performance standards before advance credits secured from an in-lieu fee 
program are fulfilled, the district engineer should also give 
consideration to this factor in deciding between in-lieu fee mitigation 
and permittee-responsible mitigation.
    (4) Permittee-responsible mitigation under a watershed approach. 
Where permitted impacts are not in the service area of an approved 
mitigation bank or in-lieu fee program that has the appropriate number 
and resource type of credits available, permittee-responsible mitigation 
is the only option. Where practicable and likely to be successful and 
sustainable, the resource type and location for the required permittee-
responsible compensatory mitigation should be determined using the 
principles of a watershed approach as outlined in paragraph (c) of this 
section.
    (5) Permittee-responsible mitigation through on-site and in-kind 
mitigation. In cases where a watershed approach is not practicable, the 
district engineer should consider opportunities to offset anticipated 
aquatic resource impacts by requiring on-site and in-kind compensatory 
mitigation. The district engineer must also consider the practicability 
of on-site compensatory mitigation and its compatibility with the 
proposed project.
    (6) Permittee-responsible mitigation through off-site and/or out-of-
kind mitigation. If, after considering opportunities for on-site, in-
kind compensatory mitigation as provided in paragraph (b)(5)

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of this section, the district engineer determines that these 
compensatory mitigation opportunities are not practicable, are unlikely 
to compensate for the permitted impacts, or will be incompatible with 
the proposed project, and an alternative, practicable off-site and/or 
out-of-kind mitigation opportunity is identified that has a greater 
likelihood of offsetting the permitted impacts or is environmentally 
preferable to on-site or in-kind mitigation, the district engineer 
should require that this alternative compensatory mitigation be 
provided.
    (c) Watershed approach to compensatory mitigation. (1) The district 
engineer must use a watershed approach to establish compensatory 
mitigation requirements in DA permits to the extent appropriate and 
practicable. Where a watershed plan is available, the district engineer 
will determine whether the plan is appropriate for use in the watershed 
approach for compensatory mitigation. In cases where the district 
engineer determines that an appropriate watershed plan is available, the 
watershed approach should be based on that plan. Where no such plan is 
available, the watershed approach should be based on information 
provided by the project sponsor or available from other sources. The 
ultimate goal of a watershed approach is to maintain and improve the 
quality and quantity of aquatic resources within watersheds through 
strategic selection of compensatory mitigation sites.
    (2) Considerations. (i) A watershed approach to compensatory 
mitigation considers the importance of landscape position and resource 
type of compensatory mitigation projects for the sustainability of 
aquatic resource functions within the watershed. Such an approach 
considers how the types and locations of compensatory mitigation 
projects will provide the desired aquatic resource functions, and will 
continue to function over time in a changing landscape. It also 
considers the habitat requirements of important species, habitat loss or 
conversion trends, sources of watershed impairment, and current 
development trends, as well as the requirements of other regulatory and 
non-regulatory programs that affect the watershed, such as storm water 
management or habitat conservation programs. It includes the protection 
and maintenance of terrestrial resources, such as non-wetland riparian 
areas and uplands, when those resources contribute to or improve the 
overall ecological functioning of aquatic resources in the watershed. 
Compensatory mitigation requirements determined through the watershed 
approach should not focus exclusively on specific functions (e.g., water 
quality or habitat for certain species), but should provide, where 
practicable, the suite of functions typically provided by the affected 
aquatic resource.
    (ii) Locational factors (e.g., hydrology, surrounding land use) are 
important to the success of compensatory mitigation for impacted habitat 
functions and may lead to siting of such mitigation away from the 
project area. However, consideration should also be given to functions 
and services (e.g., water quality, flood control, shoreline protection) 
that will likely need to be addressed at or near the areas impacted by 
the permitted impacts.
    (iii) A watershed approach may include on-site compensatory 
mitigation, off-site compensatory mitigation (including mitigation banks 
or in-lieu fee programs), or a combination of on-site and off-site 
compensatory mitigation.
    (iv) A watershed approach to compensatory mitigation should include, 
to the extent practicable, inventories of historic and existing aquatic 
resources, including identification of degraded aquatic resources, and 
identification of immediate and long-term aquatic resource needs within 
watersheds that can be met through permittee-responsible mitigation 
projects, mitigation banks, or in-lieu fee programs. Planning efforts 
should identify and prioritize aquatic resource restoration, 
establishment, and enhancement activities, and preservation of existing 
aquatic resources that are important for maintaining or improving 
ecological functions of the watershed. The identification and 
prioritization of resource needs should be as specific as possible, to 
enhance the usefulness of the approach in determining compensatory 
mitigation requirements.
    (v) A watershed approach is not appropriate in areas where watershed

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boundaries do not exist, such as marine areas. In such cases, an 
appropriate spatial scale should be used to replace lost functions and 
services within the same ecological system (e.g., reef complex, littoral 
drift cell).
    (3) Information Needs. (i) In the absence of a watershed plan 
determined by the district engineer under paragraph (c)(1) of this 
section to be appropriate for use in the watershed approach, the 
district engineer will use a watershed approach based on analysis of 
information regarding watershed conditions and needs, including 
potential sites for aquatic resource restoration activities and 
priorities for aquatic resource restoration and preservation. Such 
information includes: Current trends in habitat loss or conversion; 
cumulative impacts of past development activities, current development 
trends, the presence and needs of sensitive species; site conditions 
that favor or hinder the success of compensatory mitigation projects; 
and chronic environmental problems such as flooding or poor water 
quality.
    (ii) This information may be available from sources such as wetland 
maps; soil surveys; U.S. Geological Survey topographic and hydrologic 
maps; aerial photographs; information on rare, endangered and threatened 
species and critical habitat; local ecological reports or studies; and 
other information sources that could be used to identify locations for 
suitable compensatory mitigation projects in the watershed.
    (iii) The level of information and analysis needed to support a 
watershed approach must be commensurate with the scope and scale of the 
proposed impacts requiring a DA permit, as well as the functions lost as 
a result of those impacts.
    (4) Watershed Scale. The size of watershed addressed using a 
watershed approach should not be larger than is appropriate to ensure 
that the aquatic resources provided through compensation activities will 
effectively compensate for adverse environmental impacts resulting from 
activities authorized by DA permits. The district engineer should 
consider relevant environmental factors and appropriate locally-
developed standards and criteria when determining the appropriate 
watershed scale in guiding compensation activities.
    (d) Site selection. (1) The compensatory mitigation project site 
must be ecologically suitable for providing the desired aquatic resource 
functions. In determining the ecological suitability of the compensatory 
mitigation project site, the district engineer must consider, to the 
extent practicable, the following factors:
    (i) Hydrological conditions, soil characteristics, and other 
physical and chemical characteristics;
    (ii) Watershed-scale features, such as aquatic habitat diversity, 
habitat connectivity, and other landscape scale functions;
    (iii) The size and location of the compensatory mitigation site 
relative to hydrologic sources (including the availability of water 
rights) and other ecological features;
    (iv) Compatibility with adjacent land uses and watershed management 
plans;
    (v) Reasonably foreseeable effects the compensatory mitigation 
project will have on ecologically important aquatic or terrestrial 
resources (e.g., shallow sub-tidal habitat, mature forests), cultural 
sites, or habitat for federally- or state-listed threatened and 
endangered species; and
    (vi) Other relevant factors including, but not limited to, 
development trends, anticipated land use changes, habitat status and 
trends, the relative locations of the impact and mitigation sites in the 
stream network, local or regional goals for the restoration or 
protection of particular habitat types or functions (e.g., re-
establishment of habitat corridors or habitat for species of concern), 
water quality goals, floodplain management goals, and the relative 
potential for chemical contamination of the aquatic resources.
    (2) District engineers may require on-site, off-site, or a 
combination of on-site and off-site compensatory mitigation to replace 
permitted losses of aquatic resource functions and services.
    (3) Applicants should propose compensation sites adjacent to 
existing aquatic resources or where aquatic resources previously 
existed.

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    (e) Mitigation type. (1) In general, in-kind mitigation is 
preferable to out-of-kind mitigation because it is most likely to 
compensate for the functions and services lost at the impact site. For 
example, tidal wetland compensatory mitigation projects are most likely 
to compensate for unavoidable impacts to tidal wetlands, while perennial 
stream compensatory mitigation projects are most likely to compensate 
for unavoidable impacts to perennial streams. Thus, except as provided 
in paragraph (e)(2) of this section, the required compensatory 
mitigation shall be of a similar type to the affected aquatic resource.
    (2) If the district engineer determines, using the watershed 
approach in accordance with paragraph (c) of this section that out-of-
kind compensatory mitigation will serve the aquatic resource needs of 
the watershed, the district engineer may authorize the use of such out-
of-kind compensatory mitigation. The basis for authorization of out-of-
kind compensatory mitigation must be documented in the administrative 
record for the permit action.
    (3) For difficult-to-replace resources (e.g., bogs, fens, springs, 
streams, Atlantic white cedar swamps) if further avoidance and 
minimization is not practicable, the required compensation should be 
provided, if practicable, through in-kind rehabilitation, enhancement, 
or preservation since there is greater certainty that these methods of 
compensation will successfully offset permitted impacts.
    (f) Amount of compensatory mitigation. (1) If the district engineer 
determines that compensatory mitigation is necessary to offset 
unavoidable impacts to aquatic resources, the amount of required 
compensatory mitigation must be, to the extent practicable, sufficient 
to replace lost aquatic resource functions. In cases where appropriate 
functional or condition assessment methods or other suitable metrics are 
available, these methods should be used where practicable to determine 
how much compensatory mitigation is required. If a functional or 
condition assessment or other suitable metric is not used, a minimum 
one-to-one acreage or linear foot compensation ratio must be used.
    (2) The district engineer must require a mitigation ratio greater 
than one-to-one where necessary to account for the method of 
compensatory mitigation (e.g., preservation), the likelihood of success, 
differences between the functions lost at the impact site and the 
functions expected to be produced by the compensatory mitigation 
project, temporal losses of aquatic resource functions, the difficulty 
of restoring or establishing the desired aquatic resource type and 
functions, and/or the distance between the affected aquatic resource and 
the compensation site. The rationale for the required replacement ratio 
must be documented in the administrative record for the permit action.
    (3) If an in-lieu fee program will be used to provide the required 
compensatory mitigation, and the appropriate number and resource type of 
released credits are not available, the district engineer must require 
sufficient compensation to account for the risk and uncertainty 
associated with in-lieu fee projects that have not been implemented 
before the permitted impacts have occurred.
    (g) Use of mitigation banks and in-lieu fee programs. Mitigation 
banks and in-lieu fee programs may be used to compensate for impacts to 
aquatic resources authorized by general permits and individual permits, 
including after-the-fact permits, in accordance with the preference 
hierarchy in paragraph (b) of this section. Mitigation banks and in-lieu 
fee programs may also be used to satisfy requirements arising out of an 
enforcement action, such as supplemental environmental projects.
    (h) Preservation. (1) Preservation may be used to provide 
compensatory mitigation for activities authorized by DA permits when all 
the following criteria are met:
    (i) The resources to be preserved provide important physical, 
chemical, or biological functions for the watershed;
    (ii) The resources to be preserved contribute significantly to the 
ecological sustainability of the watershed. In determining the 
contribution of those resources to the ecological sustainability of the 
watershed, the district

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engineer must use appropriate quantitative assessment tools, where 
available;
    (iii) Preservation is determined by the district engineer to be 
appropriate and practicable;
    (iv) The resources are under threat of destruction or adverse 
modifications; and
    (v) The preserved site will be permanently protected through an 
appropriate real estate or other legal instrument (e.g., easement, title 
transfer to state resource agency or land trust).
    (2) Where preservation is used to provide compensatory mitigation, 
to the extent appropriate and practicable the preservation shall be done 
in conjunction with aquatic resource restoration, establishment, and/or 
enhancement activities. This requirement may be waived by the district 
engineer where preservation has been identified as a high priority using 
a watershed approach described in paragraph (c) of this section, but 
compensation ratios shall be higher.
    (i) Buffers. District engineers may require the restoration, 
establishment, enhancement, and preservation, as well as the 
maintenance, of riparian areas and/or buffers around aquatic resources 
where necessary to ensure the long-term viability of those resources. 
Buffers may also provide habitat or corridors necessary for the 
ecological functioning of aquatic resources. If buffers are required by 
the district engineer as part of the compensatory mitigation project, 
compensatory mitigation credit will be provided for those buffers.
    (j) Relationship to other federal, tribal, state, and local 
programs. (1) Compensatory mitigation projects for DA permits may also 
be used to satisfy the environmental requirements of other programs, 
such as tribal, state, or local wetlands regulatory programs, other 
federal programs such as the Surface Mining Control and Reclamation Act, 
Corps civil works projects, and Department of Defense military 
construction projects, consistent with the terms and requirements of 
these programs and subject to the following considerations:
    (i) The compensatory mitigation project must include appropriate 
compensation required by the DA permit for unavoidable impacts to 
aquatic resources authorized by that permit.
    (ii) Under no circumstances may the same credits be used to provide 
mitigation for more than one permitted activity. However, where 
appropriate, compensatory mitigation projects, including mitigation 
banks and in-lieu fee projects, may be designed to holistically address 
requirements under multiple programs and authorities for the same 
activity.
    (2) Except for projects undertaken by federal agencies, or where 
federal funding is specifically authorized to provide compensatory 
mitigation, federally-funded aquatic resource restoration or 
conservation projects undertaken for purposes other than compensatory 
mitigation, such as the Wetlands Reserve Program, Conservation Reserve 
Program, and Partners for Wildlife Program activities, cannot be used 
for the purpose of generating compensatory mitigation credits for 
activities authorized by DA permits. However, compensatory mitigation 
credits may be generated by activities undertaken in conjunction with, 
but supplemental to, such programs in order to maximize the overall 
ecological benefits of the restoration or conservation project.
    (3) Compensatory mitigation projects may also be used to provide 
compensatory mitigation under the Endangered Species Act or for Habitat 
Conservation Plans, as long as they comply with the requirements of 
paragraph (j)(1) of this section.
    (k) Permit conditions. (1) The compensatory mitigation requirements 
for a DA permit, including the amount and type of compensatory 
mitigation, must be clearly stated in the special conditions of the 
individual permit or general permit verification (see 33 CFR 325.4 and 
330.6(a)). The special conditions must be enforceable.
    (2) For an individual permit that requires permittee-responsible 
mitigation, the special conditions must:
    (i) Identify the party responsible for providing the compensatory 
mitigation;
    (ii) Incorporate, by reference, the final mitigation plan approved 
by the district engineer;

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    (iii) State the objectives, performance standards, and monitoring 
required for the compensatory mitigation project, unless they are 
provided in the approved final mitigation plan; and
    (iv) Describe any required financial assurances or long-term 
management provisions for the compensatory mitigation project, unless 
they are specified in the approved final mitigation plan.
    (3) For a general permit activity that requires permittee-
responsible compensatory mitigation, the special conditions must 
describe the compensatory mitigation proposal, which may be either 
conceptual or detailed. The general permit verification must also 
include a special condition that states that the permittee cannot 
commence work in waters of the United States until the district engineer 
approves the final mitigation plan, unless the district engineer 
determines that such a special condition is not practicable and not 
necessary to ensure timely completion of the required compensatory 
mitigation. To the extent appropriate and practicable, special 
conditions of the general permit verification should also address the 
requirements of paragraph (k)(2) of this section.
    (4) If a mitigation bank or in-lieu fee program is used to provide 
the required compensatory mitigation, the special conditions must 
indicate whether a mitigation bank or in-lieu fee program will be used, 
and specify the number and resource type of credits the permittee is 
required to secure. In the case of an individual permit, the special 
condition must also identify the specific mitigation bank or in-lieu fee 
program that will be used. For general permit verifications, the special 
conditions may either identify the specific mitigation bank or in-lieu 
fee program, or state that the specific mitigation bank or in-lieu fee 
program used to provide the required compensatory mitigation must be 
approved by the district engineer before the credits are secured.
    (l) Party responsible for compensatory mitigation. (1) For 
permittee-responsible mitigation, the special conditions of the DA 
permit must clearly indicate the party or parties responsible for the 
implementation, performance, and long-term management of the 
compensatory mitigation project.
    (2) For mitigation banks and in-lieu fee programs, the instrument 
must clearly indicate the party or parties responsible for the 
implementation, performance, and long-term management of the 
compensatory mitigation project(s). The instrument must also contain a 
provision expressing the sponsor's agreement to assume responsibility 
for a permittee's compensatory mitigation requirements, once that 
permittee has secured the appropriate number and resource type of 
credits from the sponsor and the district engineer has received the 
documentation described in paragraph (l)(3) of this section.
    (3) If use of a mitigation bank or in-lieu fee program is approved 
by the district engineer to provide part or all of the required 
compensatory mitigation for a DA permit, the permittee retains 
responsibility for providing the compensatory mitigation until the 
appropriate number and resource type of credits have been secured from a 
sponsor and the district engineer has received documentation that 
confirms that the sponsor has accepted the responsibility for providing 
the required compensatory mitigation. This documentation may consist of 
a letter or form signed by the sponsor, with the permit number and a 
statement indicating the number and resource type of credits that have 
been secured from the sponsor. Copies of this documentation will be 
retained in the administrative records for both the permit and the 
instrument. If the sponsor fails to provide the required compensatory 
mitigation, the district engineer may pursue measures against the 
sponsor to ensure compliance.
    (m) Timing. Implementation of the compensatory mitigation project 
shall be, to the maximum extent practicable, in advance of or concurrent 
with the activity causing the authorized impacts. The district engineer 
shall require, to the extent appropriate and practicable, additional 
compensatory mitigation to offset temporal losses of aquatic functions 
that will result from the permitted activity.

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    (n) Financial assurances. (1) The district engineer shall require 
sufficient financial assurances to ensure a high level of confidence 
that the compensatory mitigation project will be successfully completed, 
in accordance with applicable performance standards. In cases where an 
alternate mechanism is available to ensure a high level of confidence 
that the compensatory mitigation will be provided and maintained (e.g., 
a formal, documented commitment from a government agency or public 
authority) the district engineer may determine that financial assurances 
are not necessary for that compensatory mitigation project.
    (2) The amount of the required financial assurances must be 
determined by the district engineer, in consultation with the project 
sponsor, and must be based on the size and complexity of the 
compensatory mitigation project, the degree of completion of the project 
at the time of project approval, the likelihood of success, the past 
performance of the project sponsor, and any other factors the district 
engineer deems appropriate. Financial assurances may be in the form of 
performance bonds, escrow accounts, casualty insurance, letters of 
credit, legislative appropriations for government sponsored projects, or 
other appropriate instruments, subject to the approval of the district 
engineer. The rationale for determining the amount of the required 
financial assurances must be documented in the administrative record for 
either the DA permit or the instrument. In determining the assurance 
amount, the district engineer shall consider the cost of providing 
replacement mitigation, including costs for land acquisition, planning 
and engineering, legal fees, mobilization, construction, and monitoring.
    (3) If financial assurances are required, the DA permit must include 
a special condition requiring the financial assurances to be in place 
prior to commencing the permitted activity.
    (4) Financial assurances shall be phased out once the compensatory 
mitigation project has been determined by the district engineer to be 
successful in accordance with its performance standards. The DA permit 
or instrument must clearly specify the conditions under which the 
financial assurances are to be released to the permittee, sponsor, and/
or other financial assurance provider, including, as appropriate, 
linkage to achievement of performance standards, adaptive management, or 
compliance with special conditions.
    (5) A financial assurance must be in a form that ensures that the 
district engineer will receive notification at least 120 days in advance 
of any termination or revocation. For third-party assurance providers, 
this may take the form of a contractual requirement for the assurance 
provider to notify the district engineer at least 120 days before the 
assurance is revoked or terminated.
    (6) Financial assurances shall be payable at the direction of the 
district engineer to his designee or to a standby trust agreement. When 
a standby trust is used (e.g., with performance bonds or letters of 
credit) all amounts paid by the financial assurance provider shall be 
deposited directly into the standby trust fund for distribution by the 
trustee in accordance with the district engineer's instructions.
    (o) Compliance with applicable law. The compensatory mitigation 
project must comply with all applicable federal, state, and local laws. 
The DA permit, mitigation banking instrument, or in-lieu fee program 
instrument must not require participation by the Corps or any other 
federal agency in project management, including receipt or management of 
financial assurances or long-term financing mechanisms, except as 
determined by the Corps or other agency to be consistent with its 
statutory authority, mission, and priorities.



Sec. 230.94  Planning and documentation.

    (a) Pre-application consultations. Potential applicants for standard 
permits are encouraged to participate in pre-application meetings with 
the Corps and appropriate agencies to discuss potential mitigation 
requirements and information needs.
    (b) Public review and comment. (1) For an activity that requires a 
standard DA permit pursuant to section 404 of the Clean Water Act, the 
public notice for the proposed activity must contain a

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statement explaining how impacts associated with the proposed activity 
are to be avoided, minimized, and compensated for. This explanation 
shall address, to the extent that such information is provided in the 
mitigation statement required by 33 CFR 325.1(d)(7), the proposed 
avoidance and minimization and the amount, type, and location of any 
proposed compensatory mitigation, including any out-of-kind 
compensation, or indicate an intention to use an approved mitigation 
bank or in-lieu fee program. The level of detail provided in the public 
notice must be commensurate with the scope and scale of the impacts. The 
notice shall not include information that the district engineer and the 
permittee believe should be kept confidential for business purposes, 
such as the exact location of a proposed mitigation site that has not 
yet been secured. The permittee must clearly identify any information 
being claimed as confidential in the mitigation statement when 
submitted. In such cases, the notice must still provide enough 
information to enable the public to provide meaningful comment on the 
proposed mitigation.
    (2) For individual permits, district engineers must consider any 
timely comments and recommendations from other federal agencies; tribal, 
state, or local governments; and the public.
    (3) For activities authorized by letters of permission or general 
permits, the review and approval process for compensatory mitigation 
proposals and plans must be conducted in accordance with the terms and 
conditions of those permits and applicable regulations including the 
applicable provisions of this part.
    (c) Mitigation plan. (1) Preparation and Approval. (i) For 
individual permits, the permittee must prepare a draft mitigation plan 
and submit it to the district engineer for review. After addressing any 
comments provided by the district engineer, the permittee must prepare a 
final mitigation plan, which must be approved by the district engineer 
prior to issuing the individual permit. The approved final mitigation 
plan must be incorporated into the individual permit by reference. The 
final mitigation plan must include the items described in paragraphs 
(c)(2) through (c)(14) of this section, but the level of detail of the 
mitigation plan should be commensurate with the scale and scope of the 
impacts. As an alternative, the district engineer may determine that it 
would be more appropriate to address any of the items described in 
paragraphs (c)(2) through (c)(14) of this section as permit conditions, 
instead of components of a compensatory mitigation plan. For permittees 
who intend to fulfill their compensatory mitigation obligations by 
securing credits from approved mitigation banks or in-lieu fee programs, 
their mitigation plans need include only the items described in 
paragraphs (c)(5) and (c)(6) of this section, and the name of the 
specific mitigation bank or in-lieu fee program to be used.
    (ii) For general permits, if compensatory mitigation is required, 
the district engineer may approve a conceptual or detailed compensatory 
mitigation plan to meet required time frames for general permit 
verifications, but a final mitigation plan incorporating the elements in 
paragraphs (c)(2) through (c)(14) of this section, at a level of detail 
commensurate with the scale and scope of the impacts, must be approved 
by the district engineer before the permittee commences work in waters 
of the United States. As an alternative, the district engineer may 
determine that it would be more appropriate to address any of the items 
described in paragraphs (c)(2) through (c)(14) of this section as permit 
conditions, instead of components of a compensatory mitigation plan. For 
permittees who intend to fulfill their compensatory mitigation 
obligations by securing credits from approved mitigation banks or in-
lieu fee programs, their mitigation plans need include only the items 
described in paragraphs (c)(5) and (c)(6) of this section, and either 
the name of the specific mitigation bank or in-lieu fee program to be 
used or a statement indicating that a mitigation bank or in-lieu fee 
program will be used (contingent upon approval by the district 
engineer).
    (iii) Mitigation banks and in-lieu fee programs must prepare a 
mitigation plan including the items in paragraphs (c)(2) through (c)(14) 
of this section for

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each separate compensatory mitigation project site. For mitigation banks 
and in-lieu fee programs, the preparation and approval process for 
mitigation plans is described in Sec. 230.98.
    (2) Objectives. A description of the resource type(s) and amount(s) 
that will be provided, the method of compensation (i.e., restoration, 
establishment, enhancement, and/or preservation), and the manner in 
which the resource functions of the compensatory mitigation project will 
address the needs of the watershed, ecoregion, physiographic province, 
or other geographic area of interest.
    (3) Site selection. A description of the factors considered during 
the site selection process. This should include consideration of 
watershed needs, on-site alternatives where applicable, and the 
practicability of accomplishing ecologically self-sustaining aquatic 
resource restoration, establishment, enhancement, and/or preservation at 
the compensatory mitigation project site. (See Sec. 230.93(d).)
    (4) Site protection instrument. A description of the legal 
arrangements and instrument, including site ownership, that will be used 
to ensure the long-term protection of the compensatory mitigation 
project site (see Sec. 230.97(a)).
    (5) Baseline information. A description of the ecological 
characteristics of the proposed compensatory mitigation project site 
and, in the case of an application for a DA permit, the impact site. 
This may include descriptions of historic and existing plant 
communities, historic and existing hydrology, soil conditions, a map 
showing the locations of the impact and mitigation site(s) or the 
geographic coordinates for those site(s), and other site characteristics 
appropriate to the type of resource proposed as compensation. The 
baseline information should also include a delineation of waters of the 
United States on the proposed compensatory mitigation project site. A 
prospective permittee planning to secure credits from an approved 
mitigation bank or in-lieu fee program only needs to provide baseline 
information about the impact site, not the mitigation bank or in-lieu 
fee project site.
    (6) Determination of credits. A description of the number of credits 
to be provided, including a brief explanation of the rationale for this 
determination. (See Sec. 230.93(f).)
    (i) For permittee-responsible mitigation, this should include an 
explanation of how the compensatory mitigation project will provide the 
required compensation for unavoidable impacts to aquatic resources 
resulting from the permitted activity.
    (ii) For permittees intending to secure credits from an approved 
mitigation bank or in-lieu fee program, it should include the number and 
resource type of credits to be secured and how these were determined.
    (7) Mitigation work plan. Detailed written specifications and work 
descriptions for the compensatory mitigation project, including, but not 
limited to, the geographic boundaries of the project; construction 
methods, timing, and sequence; source(s) of water, including connections 
to existing waters and uplands; methods for establishing the desired 
plant community; plans to control invasive plant species; the proposed 
grading plan, including elevations and slopes of the substrate; soil 
management; and erosion control measures. For stream compensatory 
mitigation projects, the mitigation work plan may also include other 
relevant information, such as planform geometry, channel form (e.g., 
typical channel cross-sections), watershed size, design discharge, and 
riparian area plantings.
    (8) Maintenance plan. A description and schedule of maintenance 
requirements to ensure the continued viability of the resource once 
initial construction is completed.
    (9) Performance standards. Ecologically-based standards that will be 
used to determine whether the compensatory mitigation project is 
achieving its objectives. (See Sec. 230.95.)
    (10) Monitoring requirements. A description of parameters to be 
monitored in order to determine if the compensatory mitigation project 
is on track to meet performance standards and if adaptive management is 
needed. A schedule for monitoring and reporting on monitoring results to 
the district engineer must be included. (See Sec. 230.96.)

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    (11) Long-term management plan. A description of how the 
compensatory mitigation project will be managed after performance 
standards have been achieved to ensure the long-term sustainability of 
the resource, including long-term financing mechanisms and the party 
responsible for long-term management. (See Sec. 230.97(d).)
    (12) Adaptive management plan. A management strategy to address 
unforeseen changes in site conditions or other components of the 
compensatory mitigation project, including the party or parties 
responsible for implementing adaptive management measures. The adaptive 
management plan will guide decisions for revising compensatory 
mitigation plans and implementing measures to address both foreseeable 
and unforeseen circumstances that adversely affect compensatory 
mitigation success. (See Sec. 230.97(c).)
    (13) Financial assurances. A description of financial assurances 
that will be provided and how they are sufficient to ensure a high level 
of confidence that the compensatory mitigation project will be 
successfully completed, in accordance with its performance standards 
(see Sec. 230.93(n)).
    (14) Other information. The district engineer may require additional 
information as necessary to determine the appropriateness, feasibility, 
and practicability of the compensatory mitigation project.



Sec. 230.95  Ecological performance standards.

    (a) The approved mitigation plan must contain performance standards 
that will be used to assess whether the project is achieving its 
objectives. Performance standards should relate to the objectives of the 
compensatory mitigation project, so that the project can be objectively 
evaluated to determine if it is developing into the desired resource 
type, providing the expected functions, and attaining any other 
applicable metrics (e.g., acres).
    (b) Performance standards must be based on attributes that are 
objective and verifiable. Ecological performance standards must be based 
on the best available science that can be measured or assessed in a 
practicable manner. Performance standards may be based on variables or 
measures of functional capacity described in functional assessment 
methodologies, measurements of hydrology or other aquatic resource 
characteristics, and/or comparisons to reference aquatic resources of 
similar type and landscape position. The use of reference aquatic 
resources to establish performance standards will help ensure that those 
performance standards are reasonably achievable, by reflecting the range 
of variability exhibited by the regional class of aquatic resources as a 
result of natural processes and anthropogenic disturbances. Performance 
standards based on measurements of hydrology should take into 
consideration the hydrologic variability exhibited by reference aquatic 
resources, especially wetlands. Where practicable, performance standards 
should take into account the expected stages of the aquatic resource 
development process, in order to allow early identification of potential 
problems and appropriate adaptive management.



Sec. 230.96  Monitoring.

    (a) General. (1) Monitoring the compensatory mitigation project site 
is necessary to determine if the project is meeting its performance 
standards, and to determine if measures are necessary to ensure that the 
compensatory mitigation project is accomplishing its objectives. The 
submission of monitoring reports to assess the development and condition 
of the compensatory mitigation project is required, but the content and 
level of detail for those monitoring reports must be commensurate with 
the scale and scope of the compensatory mitigation project, as well as 
the compensatory mitigation project type. The mitigation plan must 
address the monitoring requirements for the compensatory mitigation 
project, including the parameters to be monitored, the length of the 
monitoring period, the party responsible for conducting the monitoring, 
the frequency for submitting monitoring reports to the district 
engineer, and the party responsible for submitting those monitoring 
reports to the district engineer.
    (2) The district engineer may conduct site inspections on a regular 
basis (e.g., annually) during the monitoring period

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to evaluate mitigation site performance.
    (b) Monitoring period. The mitigation plan must provide for a 
monitoring period that is sufficient to demonstrate that the 
compensatory mitigation project has met performance standards, but not 
less than five years. A longer monitoring period must be required for 
aquatic resources with slow development rates (e.g., forested wetlands, 
bogs). Following project implementation, the district engineer may 
reduce or waive the remaining monitoring requirements upon a 
determination that the compensatory mitigation project has achieved its 
performance standards. Conversely the district engineer may extend the 
original monitoring period upon a determination that performance 
standards have not been met or the compensatory mitigation project is 
not on track to meet them. The district engineer may also revise 
monitoring requirements when remediation and/or adaptive management is 
required.
    (c) Monitoring reports. (1) The district engineer must determine the 
information to be included in monitoring reports. This information must 
be sufficient for the district engineer to determine how the 
compensatory mitigation project is progressing towards meeting its 
performance standards, and may include plans (such as as-built plans), 
maps, and photographs to illustrate site conditions. Monitoring reports 
may also include the results of functional, condition, or other 
assessments used to provide quantitative or qualitative measures of the 
functions provided by the compensatory mitigation project site.
    (2) The permittee or sponsor is responsible for submitting 
monitoring reports in accordance with the special conditions of the DA 
permit or the terms of the instrument. Failure to submit monitoring 
reports in a timely manner may result in compliance action by the 
district engineer.
    (3) Monitoring reports must be provided by the district engineer to 
interested federal, tribal, state, and local resource agencies, and the 
public, upon request.



Sec. 230.97  Management.

    (a) Site protection. (1) The aquatic habitats, riparian areas, 
buffers, and uplands that comprise the overall compensatory mitigation 
project must be provided long-term protection through real estate 
instruments or other available mechanisms, as appropriate. Long-term 
protection may be provided through real estate instruments such as 
conservation easements held by entities such as federal, tribal, state, 
or local resource agencies, non-profit conservation organizations, or 
private land managers; the transfer of title to such entities; or by 
restrictive covenants. For government property, long-term protection may 
be provided through federal facility management plans or integrated 
natural resources management plans. When approving a method for long-
term protection of non-government property other than transfer of title, 
the district engineer shall consider relevant legal constraints on the 
use of conservation easements and/or restrictive covenants in 
determining whether such mechanisms provide sufficient site protection. 
To provide sufficient site protection, a conservation easement or 
restrictive covenant should, where practicable, establish in an 
appropriate third party (e.g., governmental or non-profit resource 
management agency) the right to enforce site protections and provide the 
third party the resources necessary to monitor and enforce these site 
protections.
    (2) The real estate instrument, management plan, or other mechanism 
providing long-term protection of the compensatory mitigation site must, 
to the extent appropriate and practicable, prohibit incompatible uses 
(e.g., clear cutting or mineral extraction) that might otherwise 
jeopardize the objectives of the compensatory mitigation project. Where 
appropriate, multiple instruments recognizing compatible uses (e.g., 
fishing or grazing rights) may be used.
    (3) The real estate instrument, management plan, or other long-term 
protection mechanism must contain a provision requiring 60-day advance 
notification to the district engineer before any action is taken to void 
or modify the instrument, management plan, or

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long-term protection mechanism, including transfer of title to, or 
establishment of any other legal claims over, the compensatory 
mitigation site.
    (4) For compensatory mitigation projects on public lands, where 
Federal facility management plans or integrated natural resources 
management plans are used to provide long-term protection, and changes 
in statute, regulation, or agency needs or mission results in an 
incompatible use on public lands originally set aside for compensatory 
mitigation, the public agency authorizing the incompatible use is 
responsible for providing alternative compensatory mitigation that is 
acceptable to the district engineer for any loss in functions resulting 
from the incompatible use.
    (5) A real estate instrument, management plan, or other long-term 
protection mechanism used for site protection of permittee-responsible 
mitigation must be approved by the district engineer in advance of, or 
concurrent with, the activity causing the authorized impacts.
    (b) Sustainability. Compensatory mitigation projects shall be 
designed, to the maximum extent practicable, to be self-sustaining once 
performance standards have been achieved. This includes minimization of 
active engineering features (e.g., pumps) and appropriate siting to 
ensure that natural hydrology and landscape context will support long-
term sustainability. Where active long-term management and maintenance 
are necessary to ensure long-term sustainability (e.g., prescribed 
burning, invasive species control, maintenance of water control 
structures, easement enforcement), the responsible party must provide 
for such management and maintenance. This includes the provision of 
long-term financing mechanisms where necessary. Where needed, the 
acquisition and protection of water rights must be secured and 
documented in the permit conditions or instrument.
    (c) Adaptive management. (1) If the compensatory mitigation project 
cannot be constructed in accordance with the approved mitigation plans, 
the permittee or sponsor must notify the district engineer. A 
significant modification of the compensatory mitigation project requires 
approval from the district engineer.
    (2) If monitoring or other information indicates that the 
compensatory mitigation project is not progressing towards meeting its 
performance standards as anticipated, the responsible party must notify 
the district engineer as soon as possible. The district engineer will 
evaluate and pursue measures to address deficiencies in the compensatory 
mitigation project. The district engineer will consider whether the 
compensatory mitigation project is providing ecological benefits 
comparable to the original objectives of the compensatory mitigation 
project.
    (3) The district engineer, in consultation with the responsible 
party (and other federal, tribal, state, and local agencies, as 
appropriate), will determine the appropriate measures. The measures may 
include site modifications, design changes, revisions to maintenance 
requirements, and revised monitoring requirements. The measures must be 
designed to ensure that the modified compensatory mitigation project 
provides aquatic resource functions comparable to those described in the 
mitigation plan objectives.
    (4) Performance standards may be revised in accordance with adaptive 
management to account for measures taken to address deficiencies in the 
compensatory mitigation project. Performance standards may also be 
revised to reflect changes in management strategies and objectives if 
the new standards provide for ecological benefits that are comparable or 
superior to the approved compensatory mitigation project. No other 
revisions to performance standards will be allowed except in the case of 
natural disasters.
    (d) Long-term management. (1) The permit conditions or instrument 
must identify the party responsible for ownership and all long-term 
management of the compensatory mitigation project. The permit conditions 
or instrument may contain provisions allowing the permittee or sponsor 
to transfer the long-term management responsibilities of the 
compensatory mitigation project site to a land stewardship entity, such 
as a public agency,

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non-governmental organization, or private land manager, after review and 
approval by the district engineer. The land stewardship entity need not 
be identified in the original permit or instrument, as long as the 
future transfer of long-term management responsibility is approved by 
the district engineer.
    (2) A long-term management plan should include a description of 
long-term management needs, annual cost estimates for these needs, and 
identify the funding mechanism that will be used to meet those needs.
    (3) Any provisions necessary for long-term financing must be 
addressed in the original permit or instrument. The district engineer 
may require provisions to address inflationary adjustments and other 
contingencies, as appropriate. Appropriate long-term financing 
mechanisms include non-wasting endowments, trusts, contractual 
arrangements with future responsible parties, and other appropriate 
financial instruments. In cases where the long-term management entity is 
a public authority or government agency, that entity must provide a plan 
for the long-term financing of the site.
    (4) For permittee-responsible mitigation, any long-term financing 
mechanisms must be approved in advance of the activity causing the 
authorized impacts.



Sec. 230.98  Mitigation banks and in-lieu fee programs.

    (a) General considerations. (1) All mitigation banks and in-lieu fee 
programs must have an approved instrument signed by the sponsor and the 
district engineer prior to being used to provide compensatory mitigation 
for DA permits.
    (2) To the maximum extent practicable, mitigation banks and in-lieu 
fee project sites must be planned and designed to be self-sustaining 
over time, but some active management and maintenance may be required to 
ensure their long-term viability and sustainability. Examples of 
acceptable management activities include maintaining fire dependent 
habitat communities in the absence of natural fire and controlling 
invasive exotic plant species.
    (3) All mitigation banks and in-lieu fee programs must comply with 
the standards in this part, if they are to be used to provide 
compensatory mitigation for activities authorized by DA permits, 
regardless of whether they are sited on public or private lands and 
whether the sponsor is a governmental or private entity.
    (b) Interagency Review Team. (1) The district engineer will 
establish an Interagency Review Team (IRT) to review documentation for 
the establishment and management of mitigation banks and in-lieu fee 
programs. The district engineer or his designated representative serves 
as Chair of the IRT. In cases where a mitigation bank or in-lieu fee 
program is proposed to satisfy the requirements of another federal, 
tribal, state, or local program, in addition to compensatory mitigation 
requirements of DA permits, it may be appropriate for the administering 
agency to serve as co-Chair of the IRT.
    (2) In addition to the Corps, representatives from the U.S. 
Environmental Protection Agency, U.S. Fish and Wildlife Service, NOAA 
Fisheries, the Natural Resources Conservation Service, and other federal 
agencies, as appropriate, may participate in the IRT. The IRT may also 
include representatives from tribal, state, and local regulatory and 
resource agencies, where such agencies have authorities and/or mandates 
directly affecting, or affected by, the establishment, operation, or use 
of the mitigation bank or in-lieu fee program. The district engineer 
will seek to include all public agencies with a substantive interest in 
the establishment of the mitigation bank or in-lieu fee program on the 
IRT, but retains final authority over its composition.
    (3) The primary role of the IRT is to facilitate the establishment 
of mitigation banks or in-lieu fee programs through the development of 
mitigation banking or in-lieu fee program instruments. The IRT will 
review the prospectus, instrument, and other appropriate documents and 
provide comments to the district engineer. The district engineer and the 
IRT should use a watershed approach to the extent practicable in 
reviewing proposed mitigation banks and in-lieu fee programs.

[[Page 296]]

Members of the IRT may also sign the instrument, if they so choose. By 
signing the instrument, the IRT members indicate their agreement with 
the terms of the instrument. As an alternative, a member of the IRT may 
submit a letter expressing concurrence with the instrument. The IRT will 
also advise the district engineer in assessing monitoring reports, 
recommending remedial or adaptive management measures, approving credit 
releases, and approving modifications to an instrument. In order to 
ensure timely processing of instruments and other documentation, 
comments from IRT members must be received by the district engineer 
within the time limits specified in this section. Comments received 
after these deadlines will only be considered at the discretion of the 
district engineer to the extent that doing so does not jeopardize the 
deadlines for district engineer action.
    (4) The district engineer will give full consideration to any timely 
comments and advice of the IRT. The district engineer alone retains 
final authority for approval of the instrument in cases where the 
mitigation bank or in-lieu fee program is used to satisfy compensatory 
mitigation requirements of DA permits.
    (5) MOAs with other agencies. The district engineer and members of 
the IRT may enter into a memorandum of agreement (MOA) with any other 
federal, state or local government agency to perform all or some of the 
IRT review functions described in this section. Such MOAs must include 
provisions for appropriate federal oversight of the review process. The 
district engineer retains sole authority for final approval of 
instruments and other documentation required under this section.
    (c) Compensation planning framework for in-lieu fee programs. (1) 
The approved instrument for an in-lieu fee program must include a 
compensation planning framework that will be used to select, secure, and 
implement aquatic resource restoration, establishment, enhancement, and/
or preservation activities. The compensation planning framework must 
support a watershed approach to compensatory mitigation. All specific 
projects used to provide compensation for DA permits must be consistent 
with the approved compensation planning framework. Modifications to the 
framework must be approved as a significant modification to the 
instrument by the district engineer, after consultation with the IRT.
    (2) The compensation planning framework must contain the following 
elements:
    (i) The geographic service area(s), including a watershed-based 
rationale for the delineation of each service area;
    (ii) A description of the threats to aquatic resources in the 
service area(s), including how the in-lieu fee program will help offset 
impacts resulting from those threats;
    (iii) An analysis of historic aquatic resource loss in the service 
area(s);
    (iv) An analysis of current aquatic resource conditions in the 
service area(s), supported by an appropriate level of field 
documentation;
    (v) A statement of aquatic resource goals and objectives for each 
service area, including a description of the general amounts, types and 
locations of aquatic resources the program will seek to provide;
    (vi) A prioritization strategy for selecting and implementing 
compensatory mitigation activities;
    (vii) An explanation of how any preservation objectives identified 
in paragraph (c)(2)(v) of this section and addressed in the 
prioritization strategy in paragraph (c)(2)(vi) satisfy the criteria for 
use of preservation in Sec. 230.93(h);
    (viii) A description of any public and private stakeholder 
involvement in plan development and implementation, including, where 
appropriate, coordination with federal, state, tribal and local aquatic 
resource management and regulatory authorities;
    (ix) A description of the long-term protection and management 
strategies for activities conducted by the in-lieu fee program sponsor;
    (x) A strategy for periodic evaluation and reporting on the progress 
of the program in achieving the goals and objectives in paragraph 
(c)(2)(v) of this section, including a process for revising the planning 
framework as necessary; and

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    (xi) Any other information deemed necessary for effective 
compensation planning by the district engineer.
    (3) The level of detail necessary for the compensation planning 
framework is at the discretion of the district engineer, and will take 
into account the characteristics of the service area(s) and the scope of 
the program. As part of the in-lieu fee program instrument, the 
compensation planning framework will be reviewed by the IRT, and will be 
a major factor in the district engineer's decision on whether to approve 
the instrument.
    (d) Review process. (1) The sponsor is responsible for preparing all 
documentation associated with establishment of the mitigation bank or 
in-lieu fee program, including the prospectus, instrument, and other 
appropriate documents, such as mitigation plans for a mitigation bank. 
The prospectus provides an overview of the proposed mitigation bank or 
in-lieu fee program and serves as the basis for public and initial IRT 
comment. For a mitigation bank, the mitigation plan, as described in 
Sec. 230.94(c), provides detailed plans and specifications for the 
mitigation bank site. For in-lieu fee programs, mitigation plans will be 
prepared as in-lieu fee project sites are identified after the 
instrument has been approved and the in-lieu fee program becomes 
operational. The instrument provides the authorization for the 
mitigation bank or in-lieu fee program to provide credits to be used as 
compensatory mitigation for DA permits.
    (2) Prospectus. The prospectus must provide a summary of the 
information regarding the proposed mitigation bank or in-lieu fee 
program, at a sufficient level of detail to support informed public and 
IRT comment. The review process begins when the sponsor submits a 
complete prospectus to the district engineer. For modifications of 
approved instruments, submittal of a new prospectus is not required; 
instead, the sponsor must submit a written request for an instrument 
modification accompanied by appropriate documentation. The district 
engineer must notify the sponsor within 30 days whether or not a 
submitted prospectus is complete. A complete prospectus includes the 
following information:
    (i) The objectives of the proposed mitigation bank or in-lieu fee 
program.
    (ii) How the mitigation bank or in-lieu fee program will be 
established and operated.
    (iii) The proposed service area.
    (iv) The general need for and technical feasibility of the proposed 
mitigation bank or in-lieu fee program.
    (v) The proposed ownership arrangements and long-term management 
strategy for the mitigation bank or in-lieu fee project sites.
    (vi) The qualifications of the sponsor to successfully complete the 
type(s) of mitigation project(s) proposed, including information 
describing any past such activities by the sponsor.
    (vii) For a proposed mitigation bank, the prospectus must also 
address:
    (A) The ecological suitability of the site to achieve the objectives 
of the proposed mitigation bank, including the physical, chemical, and 
biological characteristics of the bank site and how that site will 
support the planned types of aquatic resources and functions; and
    (B) Assurance of sufficient water rights to support the long-term 
sustainability of the mitigation bank.
    (viii) For a proposed in-lieu fee program, the prospectus must also 
include:
    (A) The compensation planning framework (see paragraph (c) of this 
section); and
    (B) A description of the in-lieu fee program account required by 
paragraph (i) of this section.
    (3) Preliminary review of prospectus. Prior to submitting a 
prospectus, the sponsor may elect to submit a draft prospectus to the 
district engineer for comment and consultation. The district engineer 
will provide copies of the draft prospectus to the IRT and will provide 
comments back to the sponsor within 30 days. Any comments from IRT 
members will also be forwarded to the sponsor. This preliminary review 
is optional but is strongly recommended. It is intended to identify 
potential issues early so that the sponsor may attempt to address those 
issues prior to the start of the formal review process.

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    (4) Public review and comment. Within 30 days of receipt of a 
complete prospectus or an instrument modification request that will be 
processed in accordance with paragraph (g)(1) of this section, the 
district engineer will provide public notice of the proposed mitigation 
bank or in-lieu fee program, in accordance with the public notice 
procedures at 33 CFR 325.3. The public notice must, at a minimum, 
include a summary of the prospectus and indicate that the full 
prospectus is available to the public for review upon request. For 
modifications of approved instruments, the public notice must instead 
summarize, and make available to the public upon request, whatever 
documentation is appropriate for the modification (e.g., a new or 
revised mitigation plan). The comment period for public notice will be 
30 days, unless the district engineer determines that a longer comment 
period is appropriate. The district engineer will notify the sponsor if 
the comment period is extended beyond 30 days, including an explanation 
of why the longer comment period is necessary. Copies of all comments 
received in response to the public notice must be distributed to the 
other IRT members and to the sponsor within 15 days of the close of the 
public comment period. The district engineer and IRT members may also 
provide comments to the sponsor at this time, and copies of any such 
comments will also be distributed to all IRT members. If the 
construction of a mitigation bank or an in-lieu fee program project 
requires a DA permit, the public notice requirement may be satisfied 
through the public notice provisions of the permit processing 
procedures, provided all of the relevant information is provided.
    (5) Initial evaluation. (i) After the end of the comment period, the 
district engineer will review the comments received in response to the 
public notice, and make a written initial evaluation as to the potential 
of the proposed mitigation bank or in-lieu fee program to provide 
compensatory mitigation for activities authorized by DA permits. This 
initial evaluation letter must be provided to the sponsor within 30 days 
of the end of the public notice comment period.
    (ii) If the district engineer determines that the proposed 
mitigation bank or in-lieu fee program has potential for providing 
appropriate compensatory mitigation for activities authorized by DA 
permits, the initial evaluation letter will inform the sponsor that he/
she may proceed with preparation of the draft instrument (see paragraph 
(d)(6) of this section).
    (iii) If the district engineer determines that the proposed 
mitigation bank or in-lieu fee program does not have potential for 
providing appropriate compensatory mitigation for DA permits, the 
initial evaluation letter must discuss the reasons for that 
determination. The sponsor may revise the prospectus to address the 
district engineer's concerns, and submit the revised prospectus to the 
district engineer. If the sponsor submits a revised prospectus, a 
revised public notice will be issued in accordance with paragraph (d)(4) 
of this section.
    (iv) This initial evaluation procedure does not apply to proposed 
modifications of approved instruments.
    (6) Draft instrument. (i) After considering comments from the 
district engineer, the IRT, and the public, if the sponsor chooses to 
proceed with establishment of the mitigation bank or in-lieu fee 
program, he must prepare a draft instrument and submit it to the 
district engineer. In the case of an instrument modification, the 
sponsor must prepare a draft amendment (e.g., a specific instrument 
provision, a new or modified mitigation plan), and submit it to the 
district engineer. The district engineer must notify the sponsor within 
30 days of receipt, whether the draft instrument or amendment is 
complete. If the draft instrument or amendment is incomplete, the 
district engineer will request from the sponsor the information 
necessary to make the draft instrument or amendment complete. Once any 
additional information is submitted, the district engineer must notify 
the sponsor as soon as he determines that the draft instrument or 
amendment is complete. The draft instrument must be based on the 
prospectus and must describe in detail the physical and legal 
characteristics of

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the mitigation bank or in-lieu fee program and how it will be 
established and operated.
    (ii) For mitigation banks and in-lieu fee programs, the draft 
instrument must include the following information:
    (A) A description of the proposed geographic service area of the 
mitigation bank or in-lieu fee program. The service area is the 
watershed, ecoregion, physiographic province, and/or other geographic 
area within which the mitigation bank or in-lieu fee program is 
authorized to provide compensatory mitigation required by DA permits. 
The service area must be appropriately sized to ensure that the aquatic 
resources provided will effectively compensate for adverse environmental 
impacts across the entire service area. For example, in urban areas, a 
U.S. Geological Survey 8-digit hydrologic unit code (HUC) watershed or a 
smaller watershed may be an appropriate service area. In rural areas, 
several contiguous 8-digit HUCs or a 6-digit HUC watershed may be an 
appropriate service area. Delineation of the service area must also 
consider any locally-developed standards and criteria that may be 
applicable. The economic viability of the mitigation bank or in-lieu fee 
program may also be considered in determining the size of the service 
area. The basis for the proposed service area must be documented in the 
instrument. An in-lieu fee program or umbrella mitigation banking 
instrument may have multiple service areas governed by its instrument 
(e.g., each watershed within a State or Corps district may be a separate 
service area under the instrument); however, all impacts and 
compensatory mitigation must be accounted for by service area;
    (B) Accounting procedures;
    (C) A provision stating that legal responsibility for providing the 
compensatory mitigation lies with the sponsor once a permittee secures 
credits from the sponsor;
    (D) Default and closure provisions;
    (E) Reporting protocols; and
    (F) Any other information deemed necessary by the district engineer.
    (iii) For a mitigation bank, a complete draft instrument must 
include the following additional information:
    (A) Mitigation plans that include all applicable items listed in 
Sec. 230.94(c)(2) through (14); and
    (B) A credit release schedule, which is tied to achievement of 
specific milestones. All credit releases must be approved by the 
district engineer, in consultation with the IRT, based on a 
determination that required milestones have been achieved. The district 
engineer, in consultation with the IRT, may modify the credit release 
schedule, including reducing the number of available credits or 
suspending credit sales or transfers altogether, where necessary to 
ensure that all credits sales or transfers remain tied to compensatory 
mitigation projects with a high likelihood of meeting performance 
standards;
    (iv) For an in-lieu fee program, a complete draft instrument must 
include the following additional information:
    (A) The compensation planning framework (see paragraph (c) of this 
section);
    (B) Specification of the initial allocation of advance credits (see 
paragraph (n) of this section) and a draft fee schedule for these 
credits, by service area, including an explanation of the basis for the 
allocation and draft fee schedule;
    (C) A methodology for determining future project-specific credits 
and fees; and
    (D) A description of the in-lieu fee program account required by 
paragraph (i) of this section.
    (7) IRT review. Upon receipt of notification by the district 
engineer that the draft instrument or amendment is complete, the sponsor 
must provide the district engineer with a sufficient number of copies of 
the draft instrument or amendment to distribute to the IRT members. The 
district engineer will promptly distribute copies of the draft 
instrument or amendment to the IRT members for a 30 day comment period. 
The 30-day comment period begins 5 days after the district engineer 
distributes the copies of the draft instrument or amendment to the IRT. 
Following the comment period, the district engineer will discuss any 
comments with the appropriate agencies and with the sponsor. The 
district engineer will seek

[[Page 300]]

to resolve issues using a consensus based approach, to the extent 
practicable, while still meeting the decision-making time frames 
specified in this section. Within 90 days of receipt of the complete 
draft instrument or amendment by the IRT members, the district engineer 
must notify the sponsor of the status of the IRT review. Specifically, 
the district engineer must indicate to the sponsor if the draft 
instrument or amendment is generally acceptable and what changes, if 
any, are needed. If there are significant unresolved concerns that may 
lead to a formal objection from one or more IRT members to the final 
instrument or amendment, the district engineer will indicate the nature 
of those concerns.
    (8) Final instrument. The sponsor must submit a final instrument to 
the district engineer for approval, with supporting documentation that 
explains how the final instrument addresses the comments provided by the 
IRT. For modifications of approved instruments, the sponsor must submit 
a final amendment to the district engineer for approval, with supporting 
documentation that explains how the final amendment addresses the 
comments provided by the IRT. The final instrument or amendment must be 
provided directly by the sponsor to all members of the IRT. Within 30 
days of receipt of the final instrument or amendment, the district 
engineer will notify the IRT members whether or not he intends to 
approve the instrument or amendment. If no IRT member objects, by 
initiating the dispute resolution process in paragraph (e) of this 
section within 45 days of receipt of the final instrument or amendment, 
the district engineer will notify the sponsor of his final decision and, 
if the instrument or amendment is approved, arrange for it to be signed 
by the appropriate parties. If any IRT member initiates the dispute 
resolution process, the district engineer will notify the sponsor. 
Following conclusion of the dispute resolution process, the district 
engineer will notify the sponsor of his final decision, and if the 
instrument or amendment is approved, arrange for it to be signed by the 
appropriate parties. For mitigation banks, the final instrument must 
contain the information items listed in paragraphs (d)(6)(ii), and (iii) 
of this section. For in-lieu fee programs, the final instrument must 
contain the information items listed in paragraphs (d)(6)(ii) and (iv) 
of this section. For the modification of an approved instrument, the 
amendment must contain appropriate information, as determined by the 
district engineer. The final instrument or amendment must be made 
available to the public upon request.
    (e) Dispute resolution process. (1) Within 15 days of receipt of the 
district engineer's notification of intent to approve an instrument or 
amendment, the Regional Administrator of the U.S. EPA, the Regional 
Director of the U.S. Fish and Wildlife Service, the Regional Director of 
the National Marine Fisheries Service, and/or other senior officials of 
agencies represented on the IRT may notify the district engineer and 
other IRT members by letter if they object to the approval of the 
proposed final instrument or amendment. This letter must include an 
explanation of the basis for the objection and, where feasible, offer 
recommendations for resolving the objections. If the district engineer 
does not receive any objections within this time period, he may proceed 
to final action on the instrument or amendment.
    (2) The district engineer must respond to the objection within 30 
days of receipt of the letter. The district engineer's response may 
indicate an intent to disapprove the instrument or amendment as a result 
of the objection, an intent to approve the instrument or amendment 
despite the objection, or may provide a modified instrument or amendment 
that attempts to address the objection. The district engineer's response 
must be provided to all IRT members.
    (3) Within 15 days of receipt of the district engineer's response, 
if the Regional Administrator or Regional Director is not satisfied with 
the response he may forward the issue to the Assistant Administrator for 
Water of the U.S. EPA, the Assistant Secretary for Fish and Wildlife and 
Parks of the U.S. FWS, or the Undersecretary for Oceans and Atmosphere 
of NOAA, as appropriate, for review and must notify the district 
engineer by letter via electronic mail or facsimile machine (with

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copies to all IRT members) that the issue has been forwarded for 
Headquarters review. This step is available only to the IRT members 
representing these three federal agencies, however, other IRT members 
who do not agree with the district engineer's final decision do not have 
to sign the instrument or amendment or recognize the mitigation bank or 
in-lieu fee program for purposes of their own programs and authorities. 
If an IRT member other than the one filing the original objection has a 
new objection based on the district engineer's response, he may use the 
first step in this procedure (paragraph (e)(1) of this section) to 
provide that objection to the district engineer.
    (4) If the issue has not been forwarded to the objecting agency's 
Headquarters, then the district engineer may proceed with final action 
on the instrument or amendment. If the issue has been forwarded to the 
objecting agency's Headquarters, the district engineer must hold in 
abeyance the final action on the instrument or amendment, pending 
Headquarters level review described below.
    (5) Within 20 days from the date of the letter requesting 
Headquarters level review, the Assistant Administrator for Water, the 
Assistant Secretary for Fish and Wildlife and Parks, or the 
Undersecretary for Oceans and Atmosphere must either notify the 
Assistant Secretary of the Army (Civil Works) (ASA(CW)) that further 
review will not be requested, or request that the ASA(CW) review the 
final instrument or amendment.
    (6) Within 30 days of receipt of the letter from the objecting 
agency's Headquarters request for ASA(CW)'s review of the final 
instrument, the ASA(CW), through the Director of Civil Works, must 
review the draft instrument or amendment and advise the district 
engineer on how to proceed with final action on that instrument or 
amendment. The ASA(CW) must immediately notify the Assistant 
Administrator for Water, the Assistant Secretary for Fish and Wildlife 
and Parks, and/or the Undersecretary for Oceans and Atmosphere of the 
final decision.
    (7) In cases where the dispute resolution procedure is used, the 
district engineer must notify the sponsor of his final decision within 
150 days of receipt of the final instrument or amendment.
    (f) Extension of deadlines. (1) The deadlines in paragraphs (d) and 
(e) of this section may be extended by the district engineer at his sole 
discretion in cases where:
    (i) Compliance with other applicable laws, such as consultation 
under section 7 of the Endangered Species Act or section 106 of the 
National Historic Preservation Act, is required;
    (ii) It is necessary to conduct government-to-government 
consultation with Indian tribes;
    (iii) Timely submittal of information necessary for the review of 
the proposed mitigation bank or in-lieu fee program or the proposed 
modification of an approved instrument is not accomplished by the 
sponsor; or
    (iv) Information that is essential to the district engineer's 
decision cannot be reasonably obtained within the specified time frame.
    (2) In such cases, the district engineer must promptly notify the 
sponsor in writing of the extension and the reason for it. Such 
extensions shall be for the minimum time necessary to resolve the issue 
necessitating the extension.
    (g) Modification of instruments. (1) Approval of an amendment to an 
approved instrument. Modification of an approved instrument, including 
the addition and approval of umbrella mitigation bank sites or in-lieu 
fee project sites or expansions of previously approved mitigation bank 
or in-lieu fee project sites, must follow the appropriate procedures in 
paragraph (d) of this section, unless the district engineer determines 
that the streamlined review process described in paragraph (g)(2) of 
this section is warranted.
    (2) Streamlined review process. The streamlined modification review 
process may be used for the following modifications of instruments: 
changes reflecting adaptive management of the mitigation bank or in-lieu 
fee program, credit releases, changes in credit releases and credit 
release schedules, and changes that the district engineer determines are 
not significant. If the district engineer determines that the

[[Page 302]]

streamlined review process is warranted, he must notify the IRT members 
and the sponsor of this determination and provide them with copies of 
the proposed modification. IRT members and the sponsor have 30 days to 
notify the district engineer if they have concerns with the proposed 
modification. If IRT members or the sponsor notify the district engineer 
of such concerns, the district engineer shall attempt to resolve those 
concerns. Within 60 days of providing the proposed modification to the 
IRT, the district engineer must notify the IRT members of his intent to 
approve or disapprove the proposed modification. If no IRT member 
objects, by initiating the dispute resolution process in paragraph (e) 
of this section, within 15 days of receipt of this notification, the 
district engineer will notify the sponsor of his final decision and, if 
the modification is approved, arrange for it to be signed by the 
appropriate parties. If any IRT member initiates the dispute resolution 
process, the district engineer will so notify the sponsor. Following 
conclusion of the dispute resolution process, the district engineer will 
notify the sponsor of his final decision, and if the modification is 
approved, arrange for it to be signed by the appropriate parties.
    (h) Umbrella mitigation banking instruments. A single mitigation 
banking instrument may provide for future authorization of additional 
mitigation bank sites. As additional sites are selected, they must be 
included in the mitigation banking instrument as modifications, using 
the procedures in paragraph (g)(1) of this section. Credit withdrawal 
from the additional bank sites shall be consistent with paragraph (m) of 
this section.
    (i) In-lieu fee program account. (1) The in-lieu fee program sponsor 
must establish a program account after the instrument is approved by the 
district engineer, prior to accepting any fees from permittees. If the 
sponsor accepts funds from entities other than permittees, those funds 
must be kept in separate accounts. The program account must be 
established at a financial institution that is a member of the Federal 
Deposit Insurance Corporation. All interests and earnings accruing to 
the program account must remain in that account for use by the in-lieu 
fee program for the purposes of providing compensatory mitigation for DA 
permits. The program account may only be used for the selection, design, 
acquisition, implementation, and management of in-lieu fee compensatory 
mitigation projects, except for a small percentage (as determined by the 
district engineer in consultation with the IRT and specified in the 
instrument) that can be used for administrative costs.
    (2) The sponsor must submit proposed in-lieu fee projects to the 
district engineer for funding approval. Disbursements from the program 
account may only be made upon receipt of written authorization from the 
district engineer, after the district engineer has consulted with the 
IRT. The terms of the program account must specify that the district 
engineer has the authority to direct those funds to alternative 
compensatory mitigation projects in cases where the sponsor does not 
provide compensatory mitigation in accordance with the time frame 
specified in paragraph (n)(4) of this section.
    (3) The sponsor must provide annual reports to the district engineer 
and the IRT. The annual reports must include the following information:
    (i) All income received, disbursements, and interest earned by the 
program account;
    (ii) A list of all permits for which in-lieu fee program funds were 
accepted. This list shall include: the Corps permit number (or the state 
permit number if there is no corresponding Corps permit number, in cases 
of state programmatic general permits or other regional general 
permits), the service area in which the authorized impacts are located, 
the amount of authorized impacts, the amount of required compensatory 
mitigation, the amount paid to the in-lieu fee program, and the date the 
funds were received from the permittee;
    (iii) A description of in-lieu fee program expenditures from the 
account, such as the costs of land acquisition, planning, construction, 
monitoring, maintenance, contingencies, adaptive management, and 
administration;

[[Page 303]]

    (iv) The balance of advance credits and released credits at the end 
of the report period for each service area; and
    (v) Any other information required by the district engineer.
    (4) The district engineer may audit the records pertaining to the 
program account. All books, accounts, reports, files, and other records 
relating to the in-lieu fee program account shall be available at 
reasonable times for inspection and audit by the district engineer.
    (j) In-lieu fee project approval. (1) As in-lieu fee project sites 
are identified and secured, the sponsor must submit mitigation plans to 
the district engineer that include all applicable items listed in Sec. 
230.94(c)(2) through (14). The mitigation plan must also include a 
credit release schedule consistent with paragraph (o)(8) of this section 
that is tied to achievement of specific performance standards. The 
review and approval of in-lieu fee projects will be conducted in 
accordance with the procedures in paragraph (g)(1) of this section, as 
modifications of the in-lieu fee program instrument. This includes 
compensatory mitigation projects conducted by another party on behalf of 
the sponsor through requests for proposals and awarding of contracts.
    (2) If a DA permit is required for an in-lieu fee project, the 
permit should not be issued until all relevant provisions of the 
mitigation plan have been substantively determined, to ensure that the 
DA permit accurately reflects all relevant provisions of the approved 
mitigation plan, such as performance standards.
    (k) Coordination of mitigation banking instruments and DA permit 
issuance. In cases where initial establishment of the mitigation bank, 
or the development of a new project site under an umbrella banking 
instrument, involves activities requiring DA authorization, the permit 
should not be issued until all relevant provisions of the mitigation 
plan have been substantively determined. This is to ensure that the DA 
permit accurately reflects all relevant provisions of the final 
instrument, such as performance standards.
    (l) Project implementation. (1) The sponsor must have an approved 
instrument prior to collecting funds from permittees to satisfy 
compensatory mitigation requirements for DA permits.
    (2) Authorization to sell credits to satisfy compensatory mitigation 
requirements in DA permits is contingent on compliance with all of the 
terms of the instrument. This includes constructing a mitigation bank or 
in-lieu fee project in accordance with the mitigation plan approved by 
the district engineer and incorporated by reference in the instrument. 
If the aquatic resource restoration, establishment, enhancement, and/or 
preservation activities cannot be implemented in accordance with the 
approved mitigation plan, the district engineer must consult with the 
sponsor and the IRT to consider modifications to the instrument, 
including adaptive management, revisions to the credit release schedule, 
and alternatives for providing compensatory mitigation to satisfy any 
credits that have already been sold.
    (3) An in-lieu fee program sponsor is responsible for the 
implementation, long-term management, and any required remediation of 
the restoration, establishment, enhancement, and/or preservation 
activities, even though those activities may be conducted by other 
parties through requests for proposals or other contracting mechanisms.
    (m) Credit withdrawal from mitigation banks. The mitigation banking 
instrument may allow for an initial debiting of a percentage of the 
total credits projected at mitigation bank maturity, provided the 
following conditions are satisfied: the mitigation banking instrument 
and mitigation plan have been approved, the mitigation bank site has 
been secured, appropriate financial assurances have been established, 
and any other requirements determined to be necessary by the district 
engineer have been fulfilled. The mitigation banking instrument must 
provide a schedule for additional credit releases as appropriate 
milestones are achieved (see paragraph (o)(8) of this section). 
Implementation of the approved mitigation plan shall be initiated no 
later than the first full growing season after the date of the first 
credit transaction.

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    (n) Advance credits for in-lieu fee programs. (1) The in-lieu fee 
program instrument may make a limited number of advance credits 
available to permittees when the instrument is approved. The number of 
advance credits will be determined by the district engineer, in 
consultation with the IRT, and will be specified for each service area 
in the instrument. The number of advance credits will be based on the 
following considerations:
    (i) The compensation planning framework;
    (ii) The sponsor's past performance for implementing aquatic 
resource restoration, establishment, enhancement, and/or preservation 
activities in the proposed service area or other areas; and
    (iii) The projected financing necessary to begin planning and 
implementation of in-lieu fee projects.
    (2) To determine the appropriate number of advance credits for a 
particular service area, the district engineer may require the sponsor 
to provide confidential supporting information that will not be made 
available to the general public. Examples of confidential supporting 
information may include prospective in-lieu fee project sites.
    (3) As released credits are produced by in-lieu fee projects, they 
must be used to fulfill any advance credits that have already been 
provided within the project service area before any remaining released 
credits can be sold or transferred to permittees. Once previously 
provided advance credits have been fulfilled, an equal number of advance 
credits is re-allocated to the sponsor for sale or transfer to fulfill 
new mitigation requirements, consistent with the terms of the 
instrument. The number of advance credits available to the sponsor at 
any given time to sell or transfer to permittees in a given service area 
is equal to the number of advance credits specified in the instrument, 
minus any that have already been provided but not yet fulfilled.
    (4) Land acquisition and initial physical and biological 
improvements must be completed by the third full growing season after 
the first advance credit in that service area is secured by a permittee, 
unless the district engineer determines that more or less time is needed 
to plan and implement an in-lieu fee project. If the district engineer 
determines that there is a compensatory mitigation deficit in a specific 
service area by the third growing season after the first advance credit 
in that service area is sold, and determines that it would not be in the 
public interest to allow the sponsor additional time to plan and 
implement an in-lieu fee project, the district engineer must direct the 
sponsor to disburse funds from the in-lieu fee program account to 
provide alternative compensatory mitigation to fulfill those 
compensation obligations.
    (5) The sponsor is responsible for complying with the terms of the 
in-lieu fee program instrument. If the district engineer determines, as 
a result of review of annual reports on the operation of the in-lieu fee 
program (see paragraphs (p)(2) and (q)(1) of this section), that it is 
not performing in compliance with its instrument, the district engineer 
will take appropriate action, which may include suspension of credit 
sales, to ensure compliance with the in-lieu fee program instrument (see 
paragraph (o)(10) of this section). Permittees that secured credits from 
the in-lieu fee program are not responsible for in-lieu fee program 
compliance.
    (o) Determining credits. (1) Units of measure. The principal units 
for credits and debits are acres, linear feet, functional assessment 
units, or other suitable metrics of particular resource types. 
Functional assessment units or other suitable metrics may be linked to 
acres or linear feet.
    (2) Assessment. Where practicable, an appropriate assessment method 
(e.g., hydrogeomorphic approach to wetlands functional assessment, index 
of biological integrity) or other suitable metric must be used to assess 
and describe the aquatic resource types that will be restored, 
established, enhanced and/or preserved by the mitigation bank or in-lieu 
fee project.
    (3) Credit production. The number of credits must reflect the 
difference between pre- and post-compensatory mitigation project site 
conditions, as

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determined by a functional or condition assessment or other suitable 
metric.
    (4) Credit value. Once a credit is debited (sold or transferred to a 
permittee), its value cannot change.
    (5) Credit costs. (i) The cost of compensatory mitigation credits 
provided by a mitigation bank or in-lieu fee program is determined by 
the sponsor.
    (ii) For in-lieu fee programs, the cost per unit of credit must 
include the expected costs associated with the restoration, 
establishment, enhancement, and/or preservation of aquatic resources in 
that service area. These costs must be based on full cost accounting, 
and include, as appropriate, expenses such as land acquisition, project 
planning and design, construction, plant materials, labor, legal fees, 
monitoring, and remediation or adaptive management activities, as well 
as administration of the in-lieu fee program. The cost per unit credit 
must also take into account contingency costs appropriate to the stage 
of project planning, including uncertainties in construction and real 
estate expenses. The cost per unit of credit must also take into account 
the resources necessary for the long-term management and protection of 
the in-lieu fee project. In addition, the cost per unit credit must 
include financial assurances that are necessary to ensure successful 
completion of in-lieu fee projects.
    (6) Credits provided by preservation. These credits should be 
specified as acres, linear feet, or other suitable metrics of 
preservation of a particular resource type. In determining the 
compensatory mitigation requirements for DA permits using mitigation 
banks or in-lieu fee programs, the district engineer should apply a 
higher mitigation ratio if the requirements are to be met through the 
use of preservation credits. In determining this higher ratio, the 
district engineer must consider the relative importance of both the 
impacted and the preserved aquatic resources in sustaining watershed 
functions.
    (7) Credits provided by riparian areas, buffers, and uplands. These 
credits should be specified as acres, linear feet, or other suitable 
metrics of riparian area, buffer, and uplands respectively. Non-aquatic 
resources can only be used as compensatory mitigation for impacts to 
aquatic resources authorized by DA permits when those resources are 
essential to maintaining the ecological viability of adjoining aquatic 
resources. In determining the compensatory mitigation requirements for 
DA permits using mitigation banks and in-lieu fee programs, the district 
engineer may authorize the use of riparian area, buffer, and/or upland 
credits if he determines that these areas are essential to sustaining 
aquatic resource functions in the watershed and are the most appropriate 
compensation for the authorized impacts.
    (8) Credit release schedule. (i) General considerations. Release of 
credits must be tied to performance based milestones (e.g., 
construction, planting, establishment of specified plant and animal 
communities). The credit release schedule should reserve a significant 
share of the total credits for release only after full achievement of 
ecological performance standards. When determining the credit release 
schedule, factors to be considered may include, but are not limited to: 
The method of providing compensatory mitigation credits (e.g., 
restoration), the likelihood of success, the nature and amount of work 
needed to generate the credits, and the aquatic resource type(s) and 
function(s) to be provided by the mitigation bank or in-lieu fee 
project. The district engineer will determine the credit release 
schedule, including the share to be released only after full achievement 
of performance standards, after consulting with the IRT. Once released, 
credits may only be used to satisfy compensatory mitigation requirements 
of a DA permit if the use of credits for a specific permit has been 
approved by the district engineer.
    (ii) For single-site mitigation banks, the terms of the credit 
release schedule must be specified in the mitigation banking instrument. 
The credit release schedule may provide for an initial debiting of a 
limited number of credits once the instrument is approved and other 
appropriate milestones are achieved (see paragraph (m) of this section).
    (iii) For in-lieu fee projects and umbrella mitigation bank sites, 
the terms

[[Page 306]]

of the credit release schedule must be specified in the approved 
mitigation plan. When an in-lieu fee project or umbrella mitigation bank 
site is implemented and is achieving the performance-based milestones 
specified in the credit release schedule, credits are generated in 
accordance with the credit release schedule for the approved mitigation 
plan. If the in-lieu fee project or umbrella mitigation bank site does 
not achieve those performance-based milestones, the district engineer 
may modify the credit release schedule, including reducing the number of 
credits.
    (9) Credit release approval. Credit releases for mitigation banks 
and in-lieu fee projects must be approved by the district engineer. In 
order for credits to be released, the sponsor must submit documentation 
to the district engineer demonstrating that the appropriate milestones 
for credit release have been achieved and requesting the release. The 
district engineer will provide copies of this documentation to the IRT 
members for review. IRT members must provide any comments to the 
district engineer within 15 days of receiving this documentation. 
However, if the district engineer determines that a site visit is 
necessary, IRT members must provide any comments to the district 
engineer within 15 days of the site visit. The district engineer must 
schedule the site visit so that it occurs as soon as it is practicable, 
but the site visit may be delayed by seasonal considerations that affect 
the ability of the district engineer and the IRT to assess whether the 
applicable credit release milestones have been achieved. After full 
consideration of any comments received, the district engineer will 
determine whether the milestones have been achieved and the credits can 
be released. The district engineer shall make a decision within 30 days 
of the end of that comment period, and notify the sponsor and the IRT.
    (10) Suspension and termination. If the district engineer determines 
that the mitigation bank or in-lieu fee program is not meeting 
performance standards or complying with the terms of the instrument, 
appropriate action will be taken. Such actions may include, but are not 
limited to, suspending credit sales, adaptive management, decreasing 
available credits, utilizing financial assurances, and terminating the 
instrument.
    (p) Accounting procedures. (1) For mitigation banks, the instrument 
must contain a provision requiring the sponsor to establish and maintain 
a ledger to account for all credit transactions. Each time an approved 
credit transaction occurs, the sponsor must notify the district 
engineer.
    (2) For in-lieu fee programs, the instrument must contain a 
provision requiring the sponsor to establish and maintain an annual 
report ledger in accordance with paragraph (i)(3) of this section, as 
well as individual ledgers that track the production of released credits 
for each in-lieu fee project.
    (q) Reporting. (1) Ledger account. The sponsor must compile an 
annual ledger report showing the beginning and ending balance of 
available credits and permitted impacts for each resource type, all 
additions and subtractions of credits, and any other changes in credit 
availability (e.g., additional credits released, credit sales 
suspended). The ledger report must be submitted to the district 
engineer, who will distribute copies to the IRT members. The ledger 
report is part of the administrative record for the mitigation bank or 
in-lieu fee program. The district engineer will make the ledger report 
available to the public upon request.
    (2) Monitoring reports. The sponsor is responsible for monitoring 
the mitigation bank site or the in-lieu fee project site in accordance 
with the approved monitoring requirements to determine the level of 
success and identify problems requiring remedial action or adaptive 
management measures. Monitoring must be conducted in accordance with the 
requirements in Sec. 230.96, and at time intervals appropriate for the 
particular project type and until such time that the district engineer, 
in consultation with the IRT, has determined that the performance 
standards have been attained. The instrument must include requirements 
for periodic monitoring reports to be submitted to the district 
engineer, who will provide copies to other IRT members.
    (3) Financial assurance and long-term management funding report. The 
district engineer may require the sponsor to

[[Page 307]]

provide an annual report showing beginning and ending balances, 
including deposits into and any withdrawals from, the accounts providing 
funds for financial assurances and long-term management activities. The 
report should also include information on the amount of required 
financial assurances and the status of those assurances, including their 
potential expiration.
    (r) Use of credits. Except as provided below, all activities 
authorized by DA permits are eligible, at the discretion of the district 
engineer, to use mitigation banks or in-lieu fee programs to fulfill 
compensatory mitigation requirements for DA permits. The district 
engineer will determine the number and type(s) of credits required to 
compensate for the authorized impacts. Permit applicants may propose to 
use a particular mitigation bank or in-lieu fee program to provide the 
required compensatory mitigation. In such cases, the sponsor must 
provide the permit applicant with a statement of credit availability. 
The district engineer must review the permit applicant's compensatory 
mitigation proposal, and notify the applicant of his determination 
regarding the acceptability of using that mitigation bank or in-lieu fee 
program.
    (s) IRT concerns with use of credits. If, in the view of a member of 
the IRT, an issued permit or series of issued permits raises concerns 
about how credits from a particular mitigation bank or in-lieu fee 
program are being used to satisfy compensatory mitigation requirements 
(including concerns about whether credit use is consistent with the 
terms of the instrument), the IRT member may notify the district 
engineer in writing of the concern. The district engineer shall promptly 
consult with the IRT to address the concern. Resolution of the concern 
is at the discretion of the district engineer, consistent with 
applicable statutes, regulations, and policies regarding compensatory 
mitigation requirements for DA permits. Nothing in this section limits 
the authorities designated to IRT agencies under existing statutes or 
regulations.
    (t) Site protection. (1) For mitigation bank sites, real estate 
instruments, management plans, or other long-term mechanisms used for 
site protection must be finalized before any credits can be released.
    (2) For in-lieu fee project sites, real estate instruments, 
management plans, or other long-term protection mechanisms used for site 
protection must be finalized before advance credits can become released 
credits.
    (u) Long-term management. (1) The legal mechanisms and the party 
responsible for the long-term management and the protection of the 
mitigation bank site must be documented in the instrument or, in the 
case of umbrella mitigation banking instruments and in-lieu fee 
programs, the approved mitigation plans. The responsible party should 
make adequate provisions for the operation, maintenance, and long-term 
management of the compensatory mitigation project site. The long-term 
management plan should include a description of long-term management 
needs and identify the funding mechanism that will be used to meet those 
needs.
    (2) The instrument may contain provisions for the sponsor to 
transfer long-term management responsibilities to a land stewardship 
entity, such as a public agency, non-governmental organization, or 
private land manager.
    (3) The instrument or approved mitigation plan must address the 
financial arrangements and timing of any necessary transfer of long-term 
management funds to the steward.
    (4) Where needed, the acquisition and protection of water rights 
should be secured and documented in the instrument or, in the case of 
umbrella mitigation banking instruments and in-lieu fee programs, the 
approved mitigation site plan.
    (v) Grandfathering of existing instruments. (1) Mitigation banking 
instruments. All mitigation banking instruments approved on or after 
July 9, 2008 must meet the requirements of this part. Mitigation banks 
approved prior to July 9, 2008 may continue to operate under the terms 
of their existing instruments. However, any modification to such a 
mitigation banking instrument on or after July 9, 2008, including 
authorization of additional sites under

[[Page 308]]

an umbrella mitigation banking instrument, expansion of an existing 
site, or addition of a different type of resource credits (e.g., stream 
credits to a wetland bank) must be consistent with the terms of this 
part.
    (2) In-lieu fee program instruments. All in-lieu fee program 
instruments approved on or after July 9, 2008 must meet the requirements 
of this part. In-lieu fee programs operating under instruments approved 
prior to July 9, 2008 may continue to operate under those instruments 
for two years after the effective date of this rule, after which time 
they must meet the requirements of this part, unless the district 
engineer determines that circumstances warrant an extension of up to 
three additional years. The district engineer must consult with the IRT 
before approving such extensions. Any revisions made to the in-lieu-fee 
program instrument on or after July 9, 2008 must be consistent with the 
terms of this part. Any approved project for which construction was 
completed under the terms of a previously approved instrument may 
continue to operate indefinitely under those terms if the district 
engineer determines that the project is providing appropriate mitigation 
substantially consistent with the terms of this part.



PART 231_SECTION 404(c) PROCEDURES--Table of Contents




Sec.
231.1 Purpose and scope.
231.2 Definitions.
231.3 Procedures for proposed determinations.
231.4 Public comments and hearings.
231.5 Recommended determination.
231.6 Administrator's final determinations.
231.7 Emergency procedure.
231.8 Extension of time.

    Authority: 33 U.S.C. 1344(c).

    Source: 44 FR 58082, Oct. 9, 1979, unless otherwise noted.



Sec. 231.1  Purpose and scope.

    (a) The Regulations of this part include the procedures to be 
followed by the Environmental Protection agency in prohibiting or 
withdrawing the specification, or denying, restricting, or withdrawing 
the use for specification, of any defined area as a disposal site for 
dredged or fill material pursuant to section 404(c) of the Clean Water 
Act (``CWA''), 33 U.S.C. 1344(c). The U.S. Army Corps of Engineers or a 
state with a 404 program which has been approved under section 404(h) 
may grant permits specifying disposal sites for dredged or fill material 
by determining that the section 404(b)(1) Guidelines (40 CFR Part 230) 
allow specification of a particular site to receive dredged or fill 
material. The Corps may also grant permits by determining that the 
discharge of dredged or fill material is necessary under the economic 
impact provision of section 404(b)(2). Under section 404(c), the 
Administrator may exercise a veto over the specification by the U.S. 
Army Corps of Engineers or by a state of a site for the discharge of 
dredged or fill material. The Administrator may also prohibit the 
specification of a site under section 404(c) with regard to any existing 
or potential disposal site before a permit application has been 
submitted to or approved by the Corps or a state. The Administrator is 
authorized to prohibit or otherwise restrict a site whenever he 
determines that the discharge of dredged or fill material is having or 
will have an ``unacceptable adverse effect'' on municipal water 
supplies, shellfish beds and fishery areas (including spawning and 
breeding areas), wildlife, or recreational areas. In making this 
determination, the Administrator will take into account all information 
available to him, including any written determination of compliance with 
the section 404(b)(1) Guidelines made in 40 CFR part 230, and will 
consult with the Chief of Engineers or with the state.
    (b) These regulations establish procedures for the following steps:
    (1) The Regional Administrator's proposed determinations to prohibit 
or withdraw the specification of a defined area as a disposal site, or 
to deny, restrict or withdraw the use of any defined area for the 
discharge of any particular dredged or fill material;
    (2) The Regional Administrator's recommendation to the Administrator 
for determination as to the specification of a defined area as a 
disposal site.
    (3) The Administrator's final determination to affirm, modify or 
rescind

[[Page 309]]

the recommended determination after consultation with the Chief of 
Engineers or with the state.
    (c) Applicability: The regulations set forth in this part are 
applicable whenever the Administrator is considering whether the 
specification of any defined area as a disposal site should be 
prohibited, denied, restricted, or withdrawn. These regulations apply to 
all existing, proposed or potential disposal sites for discharges of 
dredged or fill material into waters of the United States, as defined in 
40 CFR 230.2.



Sec. 231.2  Definitions.

    For the purposes of this part, the definitions of terms in 40 CFR 
230.2 shall apply. In addition, the term:
    (a) Withdraw specification means to remove from designation any area 
already specified as a disposal site by the U.S. Army Corps of Engineers 
or by a state which has assumed the section 404 program, or any portion 
of such area.
    (b) Prohibit specification means to prevent the designation of an 
area as a present or future disposal site.
    (c) Deny or restrict the use of any defined area for specification 
is to deny or restrict the use of any area for the present or future 
discharge of any dredged or fill material.
    (d) Person means an individual, corporation, partnership, 
association, Federal agency, state, municipality, or commission, or 
political subdivision of a state, or any interstate body.
    (e) Unacceptable adverse effect means impact on an aquatic or 
wetland ecosystem which is likely to result in significant degradation 
of municipal water supplies (including surface or ground water) or 
significant loss of or damage to fisheries, shellfishing, or wildlife 
habitat or recreation areas. In evaluating the unacceptability of such 
impacts, consideration should be given to the relevant portions of the 
section 404(b)(1) guidelines (40 CFR part 230).
    (f) State means any state agency administering a 404 program which 
has been approved under section 404(h).



Sec. 231.3  Procedures for proposed determinations.

    (a) If the Regional Administrator has reason to believe after 
evaluating the information available to him, including any record 
developed under the section 404 referral process specified in 33 CFR 
323.5(b), that an ``unacceptable adverse effect'' could result from the 
specification or use for specification of a defined area for the 
disposal of dredged or fill material, he may initiate the following 
actions:
    (1) The Regional Administrator will notify the District Engineer or 
the state, if the site is covered by an approved state program, the 
owner of record of the site, and the applicant, if any, in writing that 
the Regional Administrator intends to issue a public notice of a 
proposed determination to prohibit or withdraw the specification, or to 
deny, restrict or withdraw the use for specification, whichever the case 
may be, of any defined area as a disposal site.
    (2) If within 15 days of receipt of the Regional Administrator's 
notice under paragraph (a)(1) of this section, it has not been 
demonstrated to the satisfaction of the Regional Administrator that no 
unacceptable adverse effect(s) will occur or the District Engineer or 
state does not notify the Regional Administrator of his intent to take 
corrective action to prevent an unacceptable adverse effect satisfactory 
to the Regional Administrator, the Regional Administrator shall publish 
notice of a proposed determination in accordance with the procedures of 
this section. Where the Regional Administrator has notified the District 
Engineer under paragraph (a)(1) of this section that he is considering 
exercising section 404(c) authority with respect to a particular 
disposal site for which a permit application is pending but for which no 
permit has been issued, the District Engineer, in accordance with 33 CFR 
325.8, shall not issue the permit until final action is taken under this 
part.

    Comment: In cases involving a proposed disposal site for which a 
permit application is pending, it is anticipated that the procedures of 
the section 404 referral process will normally be exhausted prior to any 
final decision of whether to initiate a 404(c) proceeding.

    (b) Public notice of every proposed determination and notice of all 
public hearings shall be given by the Regional

[[Page 310]]

Administrator. Every public notice shall contain, at a minimum:
    (1) An announcement that the Regional Administrator has proposed a 
determination to prohibit or withdraw specification, or to deny, 
restrict, or withdraw the use for specification, of an area as a 
disposal site, including a summary of the facts on which the proposed 
determination is based;
    (2) The location of the existing, proposed or potential disposal 
site, and a summary of its characteristics;
    (3) A summary of information concerning the nature of the proposed 
discharge, where applicable;
    (4) The identity of the permit applicant, if any;
    (5) A brief description of the right to, and procedures for 
requesting, a public hearing; and
    (6) The address and telephone number of the office where interested 
persons may obtain additional information, including copies of the 
proposed determination; and
    (7) Such additional statements, representations, or information as 
the Regional Administrator considers necessary or proper.
    (c) In addition to the information required under paragraph (b) of 
this section, public notice of a public hearing held under Sec. 231.4 
shall contain the following information:
    (1) Reference to the date of public notice of the proposed 
determination;
    (2) Date, time and place of the hearing; and
    (3) A brief description of the nature and purpose of the hearing 
including the applicable rules and procedures.
    (d) The following procedures for giving public notice of the 
proposed determination or of a public hearing shall be followed:
    (1) Publication at least once in a daily or weekly newspaper of 
general circulation in the area in which the defined area is located. In 
addition the Regional Administrator may (i) post a copy of the notice at 
the principal office of the municipality in which the defined area is 
located, or if the defined area is not located near a sizeable 
community, at the principal office of the political subdivision (State, 
county or local, whichever is appropriate) with general jurisdiction 
over the area in which the disposal site is located, and (ii) post a 
copy of the notice at the United States Post Office serving that area.
    (2) A copy of the notice shall be mailed to the owner of record of 
the site, to the permit applicant or permit holder, if any, to the U.S. 
Fish and Wildlife Service, National Marine Fisheries Service and any 
other interested Federal and State water pollution control and resource 
agencies, and to any person who has filed a written request with the 
Regional Administrator to receive copies of notices relating to section 
404(c) determinations;
    (3) A copy of the notice shall be mailed to the appropriate District 
and Division Engineer(s) and state;
    (4) The notice will also be published in the Federal Register.



Sec. 231.4  Public comments and hearings.

    (a) The Regional Administrator shall provide a comment period of not 
less than 30 or more than 60 days following the date of public notice of 
the proposed determination. During this period any interested persons 
may submit written comments on the proposed determination. Comments 
should be directed to whether the proposed determination should become 
the final determination and corrective action that could be taken to 
reduce the adverse impact of the discharge. All such comments shall be 
considered by the Regional Administrator or his designee in preparing 
his recommended determination in Sec. 231.5.
    (b) Where the Regional Administrator finds a significant degree of 
public interest in a proposed determination or that it would be 
otherwise in the public interest to hold a hearing, or if an affected 
landowner or permit applicant or holder requests a hearing, he or his 
designee shall hold a public hearing. Public notice of that hearing 
shall be given as specified in Sec. 231.3(c). No hearing may be held 
prior to 21 days after the date of the public notice. The hearing may be 
scheduled either by the Regional Administrator at his own initiative, or 
in response to a request received during the comment period provided for 
in paragraph (a) of this section. If no public hearing is held the 
Regional Administrator shall notify

[[Page 311]]

any persons who requested a hearing of the reasons for that decision. 
Where practicable, hearings shall be conducted in the vicinity of the 
affected site.
    (c) Hearings held under this section shall be conducted by the 
Regional Administrator, or his designee, in an orderly and expeditious 
manner. A record of the proceeding shall be made by either tape 
recording or verbatim transcript.
    (d) Any person may appear at the hearing and submit oral or written 
statements and data and may be represented by counsel or other 
authorized representative. Any person may present written statements for 
the hearing file prior to the time the hearing file is closed to public 
submissions, and may present proposed findings and recommendations. The 
Regional Administrator or his designee shall afford the participants an 
opportunity for rebuttal.
    (e) The Regional Administrator, or his designee, shall have 
discretion to establish reasonable limits on the nature, amount or form 
of presentation of documentary material and oral presentations. No cross 
examination of any hearing participant shall be permitted, although the 
Regional Administrator, or his designee, may make appropriate inquiries 
of any such participant.
    (f) The Regional Administrator or his designee shall allow a 
reasonable time not to exceed 15 days after the close of the public 
hearing for submission of written comments. After such time has expired, 
unless such period is extended by the Regional Administrator or his 
designee for good cause, the hearing file shall be closed to additional 
public written comments.
    (g) No later than the time a public notice of proposed determination 
is issued, a Record Clerk shall be designated with responsibility for 
maintaining the administrative record identified in Sec. 231.5(e). 
Copying of any documents in the record shall be permitted under 
appropriate arrangements to prevent their loss. The charge for such 
copies shall be in accordance with the written schedule contained in 
part 2 of this chapter.



Sec. 231.5  Recommended determination.

    (a) The Regional Administrator or his designee shall, within 30 days 
after the conclusion of the public hearing (but not before the end of 
the comment period), or, if no hearing is held, within 15 days after the 
expiration of the comment period on the public notice of the proposed 
determination, either withdraw the proposed determination or prepare a 
recommended determination to prohibit or withdraw specification, or to 
deny, restrict, or withdraw the use for specification, of the disposal 
site because the discharge of dredged or fill material at such site 
would be likely to have an unacceptable ad verse effect.
    (b) Where a recommended determination is prepared, the Regional 
Administrator or his designee shall promptly forward the recommended 
determination and administrative record to the Administrator for review, 
with a copy of the recommended determination to the Assistant 
Administrator for Water and Waste Management.
    (c) Where the Regional Administrator, or his designee, decides to 
withdraw the proposed determination, he shall promptly notify the 
Administrator by mail, with a copy to the Assistant Administrator for 
Water and Waste Management, who shall have 10 days from receipt of such 
notice to notify the Regional Administrator of his intent to review such 
withdrawal. Copies of the notification shall be sent to all persons who 
commented on the proposed determination or participated at the hearing. 
Such persons may submit timely written recommendations concerning 
review.
    (1) If the Administrator does not notify him, the Regional 
Administrator shall give notice at the withdrawal of the proposed 
determination as provided in Sec. 231.3(d). Such notice shall 
constitute final agency action.
    (2) If the Administrator does decide to review, the Regional 
Administrator or his designee shall forward the administrative record to 
the Administrator for a final determination under Sec. 231.6. Where 
there is review of a withdrawal of proposed determination or review of a 
recommended determination under Sec. 231.6, final agency action

[[Page 312]]

does not occur until the Administrator makes a final determination.
    (d) Any recommended determination under paragraph (b) of this 
section shall include the following:
    (1) A summary of the unacceptable adverse effects that could occur 
from use of the disposal site for the proposed discharge;
    (2) Recommendations regarding a final determination to prohibit, 
deny, restrict, or withdraw, which shall confirm or modify the proposed 
determination, with a statement of reasons.
    (e) The administrative record shall consist of the following:
    (1) A copy of the proposed deter mination, public notice, written 
com ments on the public notice and written submissions in the hearing 
file;
    (2) A transcript or recording of the public hearing, where a hearing 
was held;
    (3) The recommended determination;
    (4) Where possible a copy of the record of the Corps or the state 
pertaining to the site in question;
    (5) Any other information considered by the Regional Administrator 
or his designee.



Sec. 231.6  Administrator's final determinations.

    After reviewing the recommendations of the Regional Administrator or 
his designee, the Administrator shall within 30 days of receipt of the 
recommendations and administrative record initiate consultation with the 
Chief of Engineers, the owner of record, and, where applicable, the 
State and the applicant, if any. They shall have 15 days to notify the 
Administrator of their intent to take corrective action to prevent an 
unacceptable adverse effect(s), satisfactory to the Administrator. 
Within 60 days of receipt of the recommendations and record, the 
Administrator shall make a final determination affirming, modifying, or 
rescinding the recommended determination. The final determination shall 
describe the satisfactory corrective action, if any, make findings, and 
state the reasons for the final determination. Notice of such final 
determination shall be published as provided in Sec. 231.3, and shall 
be given to all persons who participated in the public hearing. Notice 
of the Administrator's final determination shall also be published in 
the Federal Register. For purposes of judicial review, a final 
determination constitutes final agency action under section 404(c) of 
the Act.



Sec. 231.7  Emergency procedure.

    Where a permit has already been issued, and the Administrator has 
reason to believe that a discharge under the permit presents an imminent 
danger of irreparable harm to municipal water supplies, shellfish beds 
and fishery areas (including spawning and breeding areas) wildlife, or 
recreational areas, and that the public health, interest, or safety 
requires, the Administrator may ask the Chief of Engineers to suspend 
the permit under 33 CFR 325.7, or the state, pending completion of 
proceedings under Part 231. The Administrator may also take appropriate 
action as authorized under section 504 of the Clean Water Act. If a 
permit is suspended, the Administrator and Regional Administrator (or 
his designee) may, where appropriate, shorten the times allowed by these 
regulations to take particular actions.



Sec. 231.8  Extension of time.

    The Administrator or the Regional Administrator may, upon a showing 
of good cause, extend the time requirements in these regulations. Notice 
of any such extension shall be published in the Federal Register and, as 
appropriate, through other forms of notice.



PART 232_404 PROGRAM DEFINITIONS; EXEMPT ACTIVITIES NOT REQUIRING 404 

PERMITS--Table of Contents




Sec.
232.1 Purpose and scope of this part.
232.2 Definitions.
232.3 Activities not requiring permits.

    Authority: 33 U.S.C. 1344.

    Source: 53 FR 20773, June 6, 1988, unless otherwise noted.



Sec. 232.1  Purpose and scope of this part.

    Part 232 contains definitions applicable to the section 404 program 
for discharges of dredged or fill material.

[[Page 313]]

These definitions apply to both the federally operated program and State 
administered programs after program approval. This part also describes 
those activities which are exempted from regulation. Regulations 
prescribing the substantive environmental criteria for issuance of 
section 404 permits appear at 40 CFR part 230. Regulations establishing 
procedures to be followed by the EPA in denying or restricting a 
disposal site appear at 40 CFR part 231. Regulations containing the 
procedures and policies used by the Corps in administering the 404 
program appear at 33 CFR parts 320-330. Regulations specifying the 
procedures EPA will follow, and the criteria EPA will apply in 
approving, monitoring, and withdrawing approval of section 404 State 
programs appear at 40 CFR part 233.



Sec. 232.2  Definitions.

    Administrator means the Administrator of the Environmental 
Protection Agency or an authorized representative.
    Application means a form for applying for a permit to discharge 
dredged or fill material into waters of the United States.
    Approved program means a State program which has been approved by 
the Regional Administrator under part 233 of this chapter or which is 
deemed approved under section 404(h)(3), 33 U.S.C. 1344(h)(3).
    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 from discharges of dredged or fill material. BMPs include 
methods, measures, practices, or design and performance standards which 
facilitate compliance with the section 404(b)(1) Guidelines (40 CFR part 
230), effluent limitations or prohibitions under section 307(a), and 
applicable water quality standards.
    Discharge of dredged material. (1) Except as provided below in 
paragraph (3), the term discharge of dredged material means any addition 
of dredged material into, including redeposit of dredged material other 
than incidental fallback within, the waters of the United States. The 
term includes, but is not limited to, the following:
    (i) The addition of dredged material to a specified discharge site 
located in waters of the United States;
    (ii) The runoff or overflow, associated with a dredging operation, 
from a contained land or water disposal area; and
    (iii) Any addition, including redeposit other than incidental 
fallback, of dredged material, including excavated material, into waters 
of the United States which is incidental to any activity, including 
mechanized landclearing, ditching, channelization, or other excavation.
    (2)(i) The Corps and EPA regard the use of mechanized earth-moving 
equipment to conduct landclearing, ditching, channelization, in-stream 
mining or other earth-moving activity in waters of the United States as 
resulting in a discharge of dredged material unless project-specific 
evidence shows that the activity results in only incidental fallback. 
This paragraph (i) does not and is not intended to shift any burden in 
any administrative or judicial proceeding under the CWA.
    (ii) Incidental fallback is the redeposit of small volumes of 
dredged material that is incidental to excavation activity in waters of 
the United States when such material falls back to substantially the 
same place as the initial removal. Examples of incidental fallback 
include soil that is disturbed when dirt is shoveled and the back-spill 
that comes off a bucket when such small volume of soil or dirt falls 
into substantially the same place from which it was initially removed.
    (3) The term discharge of dredged material does not include the 
following:
    (i) Discharges of pollutants into waters of the United States 
resulting from the onshore subsequent processing of dredged material 
that is extracted for any commercial use (other than fill). These 
discharges are subject to section 402 of the Clean Water Act even though 
the extraction and deposit of such material may require a permit from 
the Corps or applicable state.
    (ii) Activities that involve only the cutting or removing of 
vegetation above the ground (e.g., mowing, rotary cutting, and 
chainsawing) where the activity neither substantially disturbs

[[Page 314]]

the root system nor involves mechanized pushing, dragging, or other 
similar activities that redeposit excavated soil material.
    (iii) Incidental fallback.
    (4) Section 404 authorization is not required for the following:
    (i) Any incidental addition, including redeposit, of dredged 
material associated with any activity that does not have or would not 
have the effect of destroying or degrading an area of waters of the U.S. 
as defined in paragraphs (5) and (6) of this definition; however, this 
exception does not apply to any person preparing to undertake mechanized 
landclearing, ditching, channelization and other excavation activity in 
a water of the United States, which would result in a redeposit of 
dredged material, unless the person demonstrates to the satisfaction of 
the Corps, or EPA as appropriate, prior to commencing the activity 
involving the discharge, that the activity would not have the effect of 
destroying or degrading any area of waters of the United States, as 
defined in paragraphs (5) and (6) of this definition. The person 
proposing to undertake mechanized landclearing, ditching, channelization 
or other excavation activity bears the burden of demonstrating that such 
activity would not destroy or degrade any area of waters of the United 
States.
    (ii) Incidental movement of dredged material occurring during normal 
dredging operations, defined as dredging for navigation in navigable 
waters of the United States, as that term is defined in 33 CFR part 329, 
with proper authorization from the Congress or the Corps pursuant to 33 
CFR part 322; however, this exception is not applicable to dredging 
activities in wetlands, as that term is defined at Sec. 232.2(r) of 
this chapter.
    (iii) Certain discharges, such as those associated with normal 
farming, silviculture, and ranching activities, are not prohibited by or 
otherwise subject to regulation under Section 404. See 40 CFR 232.3 for 
discharges that do not require permits.
    (5) For purposes of this section, an activity associated with a 
discharge of dredged material destroys an area of waters of the United 
States if it alters the area in such a way that it would no longer be a 
water of the United States.

    Note: Unauthorized discharges into waters of the United States do 
not eliminate Clean Water Act jurisdiction, even where such unauthorized 
discharges have the effect of destroying waters of the United States.

    (6) For purposes of this section, an activity associated with a 
discharge of dredged material degrades an area of waters of the United 
States if it has more than a de minimis (i.e., inconsequential) effect 
on the area by causing an identifiable individual or cumulative adverse 
effect on any aquatic function.
    Discharge of fill material. (1) The term discharge of fill material 
means the addition of fill material into waters of the United States. 
The term generally includes, without limitation, the following 
activities: Placement of fill that is necessary for the construction of 
any structure or infrastructure in a water of the United States; the 
building of any structure, infrastructure, or impoundment requiring 
rock, sand, dirt, or other material for its construction; site-
development fills for recreational, industrial, commercial, residential, 
or other uses; causeways or road fills; dams and dikes; artificial 
islands; property protection and/or reclamation devices such as riprap, 
groins, seawalls, breakwaters, and revetments; beach nourishment; 
levees; fill for structures such as sewage treatment facilities, intake 
and outfall pipes associated with power plants and subaqueous utility 
lines; placement of fill material for construction or maintenance of any 
liner, berm, or other infrastructure associated with solid waste 
landfills; placement of overburden, slurry, or tailings or similar 
mining-related materials;'' after the words ``utility lines; and 
artificial reefs.
    (2) In addition, placement of pilings in waters of the United States 
constitutes a discharge of fill material and requires a Section 404 
permit when such placement has or would have the effect of a discharge 
of fill material. Examples of such activities that have the effect of a 
discharge of fill material include, but are not limited to, the 
following: Projects where the pilings are so closely spaced that 
sedimentation rates would be increased; projects in

[[Page 315]]

which the pilings themselves effectively would replace the bottom of a 
waterbody; projects involving the placement of pilings that would reduce 
the reach or impair the flow or circulation of waters of the United 
States; and projects involving the placement of pilings which would 
result in the adverse alteration or elimination of aquatic functions.
    (i) Placement of pilings in waters of the United States that does 
not have or would not have the effect of a discharge of fill material 
shall not require a Section 404 permit. Placement of pilings for linear 
projects, such as bridges, elevated walkways, and powerline structures, 
generally does not have the effect of a discharge of fill material. 
Furthermore, placement of pilings in waters of the United States for 
piers, wharves, and an individual house on stilts generally does not 
have the effect of a discharge of fill material. All pilings, however, 
placed in the navigable waters of the United States, as that term is 
defined in 33 CFR part 329, require authorization under section 10 of 
the Rivers and Harbors Act of 1899 (see 33 CFR part 322).
    (ii) [Reserved]
    Dredged material means material that is excavated or dredged from 
waters of the United States.
    Effluent means dredged material or fill material, including return 
flow from confined sites.
    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.
    Fill material. (1) Except as specified in paragraph (3) of this 
definition, the term fill material means material placed in waters of 
the United States where the material has the effect of:
    (i) Replacing any portion of a water of the United States with dry 
land; or
    (ii) Changing the bottom elevation of any portion of a water of the 
United States.
    (2) Examples of such fill material include, but are not limited to: 
rock, sand, soil, clay, plastics, construction debris, wood chips, 
overburden from mining or other excavation activities, and materials 
used to create any structure or infrastructure in the waters of the 
United States.
    (3) The term fill material does not include trash or garbage.
    General permit means a permit authorizing a category of discharges 
of dredged or fill material under the Act. General permits are permits 
for categories of discharge which are similar in nature, will cause only 
minimal adverse environmental effects when performed separately, and 
will have only minimal cumulative adverse effect on the environment.
    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.
    Owner or operator means the owner or operator of any activity 
subject to regulation under the 404 program.
    Permit means a written authorization issued by an approved State to 
implement the requirements of part 233, or by the Corps under 33 CFR 
parts 320-330. When used in these regulations, ``permit'' includes 
``general permit'' as well as individual permit.
    Person means an individual, association, partnership, corporation, 
municipality, State or Federal agency, or an agent or employee thereof.
    Regional Administrator means the Regional Administrator of the 
appropriate Regional Office of the Environmental Protection Agency or 
the authorized representative of the Regional Administrator.
    Secretary means the Secretary of the Army acting through the Chief 
of Engineers.
    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 this part, which meet 
the requirements of Sec. 233.60.
    State regulated waters means those waters of the United States in 
which the Corps suspends the issuance of section 404 permits upon 
approval of a State's section 404 permit program by the Administrator 
under section 404(h). The program cannot be transferred for

[[Page 316]]

those waters which are presently used, or are susceptible to use in 
their natural condition or by reasonable improvement as a means to 
transport interstate or foreign commerce shoreward to their ordinary 
high water mark, including all waters which are subject to the ebb and 
flow of the tide shoreward to the high tide line, including wetlands 
adjacent thereto. All other waters of the United States in a State with 
an approved program shall be under jurisdiction of the State program, 
and shall be identified in the program description as required by part 
233.
    Waters of the United States means:
    All waters which are currently used, were used in the past, or may 
be susceptible to us in interstate or foreign commerce, including all 
waters which are subject to the ebb and flow of the tide.
    All interstate waters including interstate wetlands.
    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 or could affect 
interstate or foreign commerce including any such waters:
    Which are or could be used by interstate or foreign travelers for 
recreational or other purposes; or
    From which fish or shellfish are or could be taken and sold in 
interstate or foreign commerce; or
    Which are used or could be used for industrial purposes by 
industries in interstate commerce.
    All impoundments of waters otherwise defined as waters of the United 
States under this definition;
    Tributaries of waters identified in paragraphs (g)(1)-(4) of this 
section;
    The territorial sea; and
    Wetlands adjacent to waters (other than waters that are themselves 
wetlands) identified in paragraphs (q)(1)-(6) of this section.
    Waste treatment systems, including treatment ponds or lagoons 
designed to meet the requirements of the Act (other than cooling ponds 
as defined in 40 CFR 123.11(m) which also meet the criteria of this 
definition) are not waters of the United States.
    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 ground water at a frequency and duration sufficient to 
support, and that under normal circumstances do support, a prevalence of 
vegetation typically adapted for life in saturated soil conditions. 
Wetlands generally include swamps, marshes, bogs, and similar areas.

[53 FR 20773, June 6, 1988, as amended at 58 FR 8182, Feb. 11, 1993; 58 
FR 45037, Aug. 25, 1993; 64 FR 25123, May 10, 1999; 66 FR 4575, Jan. 17, 
2001; 67 FR 31142, May 9, 2002]



Sec. 232.3  Activities not requiring permits.

    Except as specified in paragraphs (a) and (b) of this section, any 
discharge of dredged or fill material that may result from any of the 
activities described in paragraph (c) of this section is not prohibited 
by or otherwise subject to regulation under this part.
    (a) If any discharge of dredged or fill material resulting from the 
activities listed in paragraph (c) of this section contains any toxic 
pollutant listed under section 307 of the Act, such discharge shall be 
subject to any applicable toxic effluent standard or prohibition, and 
shall require a section 404 permit.
    (b) Any discharge of dredged or fill material into waters of the 
United States incidental to any of the activities identified in 
paragraph (c) of this section must have a permit if it is part of an 
activity whose purpose is to convert an area of the waters of the United 
States into a use to which it was not previously subject, where the flow 
or circulation of waters of the United States may be impaired or the 
reach of such waters reduced. Where the proposed discharge will result 
in significant discernable alterations to flow or circulation, the 
presumption is that

[[Page 317]]

flow or circulation may be impaired by such alteration.

    Note: For example, a permit will be required for the conversion of a 
cypress swamp to some other use or the conversion of a wetland from 
silvicultural to agricultural use when there is a discharge of dredged 
or fill material into waters of the United States in conjunction with 
constuction of dikes, drainage ditches or other works or structures used 
to effect such conversion. A conversion of section 404 wetland to a non-
wetland is a change in use of an area of waters of the U.S. A discharge 
which elevates the bottom of waters of the United States without 
converting it to dry land does not thereby reduce the reach of, but may 
alter the flow or circulation of, waters of the United States.

    (c) The following activities are exempt from section 404 permit 
requirements, except as specified in paragraphs (a) and (b) of this 
section:
    (1)(i) Normal farming, silviculture and ranching activities such as 
plowing, seeding, cultivating, minor drainage, and harvesting for the 
production of food, fiber, and forest products, or upland soil and water 
conservation practices, as defined in paragraph (d) of this section.
    (ii)(A) To fall under this exemption, the activities specified in 
paragraph (c)(1) of this section must be part of an established (i.e., 
ongong) farming, silviculture, or ranching operation, and must be in 
accordance with definitions in paragraph (d) of this section. Activities 
on areas lying fallow as part of a conventional rotational cycle are 
part of an established operation.
    (B) Activities which bring an area into farming, silviculture or 
ranching use are not part of an established operation. An operation 
ceases to be established when the area in which it was conducted has 
been converted to another use or has lain idle so long that 
modifications to the hydrological regime are necessary to resume 
operation. If an activity takes place outside the waters of the United 
States, or if it does not involve a discharge, it does not need a 
section 404 permit whether or not it was part of an es tab lished 
farming, silviculture or ranching operation.
    (2) Maintenance, including emergency reconstruction of recently 
damaged parts, of currently serviceable structures such as dikes, dams, 
levees, groins, riprap, breakwaters, cause ways, bridge abutments or 
approaches, and transportation structures. Maintenance does not include 
any modification that changes the character, scope, or size of the 
original fill design. Emergency reconstruction must occur within a 
reasonable period of time after damage occurs in order to qualify for 
this exemption.
    (3) Construction or maintenance of farm or stock ponds or irrigation 
ditches or the maintenance (but not construction) of drainage ditches. 
Discharge associated with siphons, pumps, headgates, wingwalls, wiers, 
diversion structures, and such other facilities as are appurtenant and 
functionally related to irrigation ditches are included in this 
exemption.
    (4) Construction of temporary sedimentation basins on a construction 
site which does not include placement of fill material into waters of 
the United States. The term ``construction site'' refers to any site 
involving the erection of buildings, roads, and other discrete 
structures and the installation of support facilities necessary for 
construction and utilization of such structures. The term also includes 
any other land areas which involve land-disturbing excavation 
activities, including quarrying or other mining activities, where an 
increase in the runoff of sediment is controlled through the use of 
temporary sedimentation basins.
    (5) Any activity with respect to which a State has an approved 
program under section 208(b)(4) of the Act which meets the requirements 
of section 208(b)(4)(B) and (C).
    (6) Construction or maintenance of farm roads, forest roads, or 
temporary roads for moving mining equipment, where such roads are 
constructed and maintained in accordance with best management practices 
(BMPs) to assure that flow and circulation patterns and chemical and 
biological characteristics of waters of the United States are not 
impaired, that the reach of the waters of the United States is not 
reduced, and that any adverse effect on the aquatic environment will be 
otherwise minimized. The BMPs which must be applied to satisfy this 
provision include the following baseline provisions:

[[Page 318]]

    (i) Permanent roads (for farming or forestry activities), temporary 
access roads (for mining, forestry, or farm purposes) and skid trails 
(for logging) in waters of the United States shall be held to the 
minimum feasible number, width, and total length consistent with the 
purpose of specific farming, silvicultural or mining operations, and 
local topographic and climatic conditions;
    (ii) All roads, temporary or permanent, shall be located 
sufficiently far from streams or other water bodies (except for portions 
of such roads which must cross water bodies) to minimize discharges of 
dredged or fill material into waters of the United States;
    (iii) The road fill shall be bridged, culverted, or otherwise 
designed to prevent the restriction of expected flood flows;
    (iv) The fill shall be properly stabilized and maintained to prevent 
erosion during and following construction;
    (v) Discharges of dredged or fill material into waters of the United 
States to construct a road fill shall be made in a manner that minimizes 
the encroachment of trucks, tractors, bulldozers, or other heavy 
equipment within the waters of the United States (including adjacent 
wetlands) that lie outside the lateral boundaries of the fill itself;
    (vi) In designing, constructing, and maintaining roads, vegetative 
disturbance in the waters of the United States shall be kept to a 
minimum;
    (vii) The design, construction and maintenance of the road crossing 
shall not disrupt the migration or other movement of those species of 
aquatic life inhabiting the water body;
    (viii) Borrow material shall be taken from upland sources whenever 
feasible;
    (ix) The discharge shall not take, or jeopardize the continued 
existence of, a threatened or endangered species as defined under the 
Endangered Species Act, or adversely modify or destroy the critical 
habitat of such species;
    (x) Discharges into breeding and nesting areas for migratory 
waterfowl, spawning areas, and wetlands shall be avoided if practical 
alternatives exist;
    (xi) The discharge shall not be located in the proximity of a public 
water supply intake;
    (xii) The discharge shall not occur in areas of concentrated 
shellfish production;
    (xiii) The discharge shall not occur in a component of the National 
Wild and Scenic River System;
    (xiv) The discharge of material shall consist of suitable material 
free from toxic pollutants in toxic amounts; and
    (xv) All temporary fills shall be removed in their entirety and the 
area restored to its original elevation.
    (d) For purpose of paragraph (c)(1) of this section, cultivating, 
harvesting, minor drainage, plowing, and seeding are defined as follows:
    (1) Cultivating means physical methods of soil treatment employed 
within established farming, ranching and silviculture lands on farm, 
ranch, or forest crops to aid and improve their growth, quality, or 
yield.
    (2) Harvesting means physical measures employed directly upon farm, 
forest, or ranch crops within established agricultural and silvicultural 
lands to bring about their removal from farm, forest, or ranch land, but 
does not include the construction of farm, forest, or ranch roads.
    (3)(i) Minor drainage means:
    (A) The discharge of dredged or fill material incidental to 
connecting upland drainage facilities to waters of the United States, 
adequate to effect the removal of excess soil moisture from upland 
croplands. Construction and maintenance of upland (dryland) facilities, 
such as ditching and tiling, incidental to the planting, cultivating, 
protecting, or harvesting of crops, involve no discharge of dredged or 
fill material into waters of the United States, and as such never 
require a section 404 permit;
    (B) The discharge of dredged or fill material for the purpose of 
installing ditching or other water control facilities incidental to 
planting, cultivating, protecting, or harvesting of rice, cranberries or 
other wetland crop species, where these activities and the discharge 
occur in waters of the United States which are in established use for 
such agricultural and silvicultural wetland crop production;
    (C) The discharge of dredged or fill material for the purpose of 
manipulating the water levels of, or regulating

[[Page 319]]

the flow or distribution of water within, existing impoundments which 
have been constructed in accordance with applicable requirements of the 
Act, and which are in established use for the production or rice, 
cranberries, or other wetland crop species.

    Note: The provisions of paragraphs (d)(3)(i) (B) and (C) of this 
section apply to areas that are in established use exclusively for 
wetland crop production as well as areas in established use for 
conventional wetland/non-wetland crop rotation (e.g., the rotations of 
rice and soybeans) where such rotation results in the cyclical or 
intermittent temporary dewatering of such areas.

    (D) The discharge of dredged or fill material incidental to the 
emergency removal of sandbars, gravel bars, or other similar blockages 
which are formed during flood flows or other events, where such 
blockages close or constrict previously existing drain age ways and, if 
not promptly removed, would result in damage to or loss of existing 
crops or would impair or prevent the plowing, seeding, harvesting or 
cultivating of crops on land in established use for crop production. 
Such removal does not include enlarging or extending the dimensions of, 
or changing the bottom elevations of, the affected drainageway as it 
existed prior to the formation of the blockage. Removal must be 
accomplished within one year after such blockages are discovered in 
order to be eligible for exemption.
    (ii) Minor drainage in waters of the United States is limited to 
drainage within areas that are part of an established farming or 
silviculture operation. It does not include drainage associated with the 
immediate or gradual conversion of a wetland to a non-wetland (e.g., 
wetland species to upland species not typically adequate to life in 
saturated soil conditions), or conversion from one wetland use to 
another (for example, silviculture to farming).

In addition, minor drainage does not include the construction of any 
canal, ditch, dike or other waterway or structure which drains or 
otherwise significantly modifies a stream, lake, swamp, bog or any other 
wetland or aquatic area constituting waters of the United States. Any 
discharge of dredged or fill material into the waters of the United 
States incidental to the construction of any such structure or waterway 
requires a permit.
    (4) Plowing means all forms of primary tillage, including moldboard, 
chisel, or wide-blade plowing, discing, harrowing, and similar physical 
means used on farm, forest or ranch land for the breaking up, cutting, 
turning over, or stirring of soil to prepare it for the planting of 
crops. Plowing does not include the redistribution of soil, rock, sand, 
or other surficial materials in a manner which changes any area of the 
waters of the United States to dryland. For example, the redistribution 
of surface materials by blading, grading, or other means to fill in 
wetland areas is not plowing. Rock crushing activities which result in 
the loss of natural drainage characteristics, the reduction of water 
storage and recharge capabilities, or the overburden of natural water 
filtration capacities do not constitute plowing. Plowing, as described 
above, will never involve a discharge of dredged or fill material.
    (5) Seeding means the sowing of seed and placement of seedlings to 
produce farm, ranch, or forest crops and includes the placement of soil 
beds for seeds or seedlings on established farm and forest lands.
    (e) Federal projects which qualify under the criteria contained in 
section 404(r) of the Act are exempt from section 404 permit 
requirements, but may be subject to other State or Federal requirements.



PART 233_404 STATE PROGRAM REGULATIONS--Table of Contents




                            Subpart A_General

Sec.
233.1 Purpose and scope.
233.2 Definitions.
233.3 Confidentiality of information.
233.4 Conflict of interest.

                       Subpart B_Program Approval

233.10 Elements of a program submission.
233.11 Program description.
233.12 Attorney General's statement.
233.13 Memorandum of Agreement with Regional Administrator.
233.14 Memorandum of Agreement with the Secretary.
233.15 Procedures for approving State programs.

[[Page 320]]

233.16 Procedures for revision of State programs.

                      Subpart C_Permit Requirements

233.20 Prohibitions.
233.21 General permits.
233.22 Emergency permits.
233.23 Permit conditions.

                       Subpart D_Program Operation

233.30 Application for a permit.
233.31 Coordination requirements.
233.32 Public notice.
233.33 Public hearing.
233.34 Making a decision on the permit application.
233.35 Issuance and effective date of permit.
233.36 Modification, suspension or revocation of permits.
233.37 Signatures on permit applications and reports.
233.38 Continuation of expiring permits.
233.39 Electronic reporting.

             Subpart E_Compliance Evaluation and Enforcement

233.40 Requirements for compliance evaluation programs.
233.41 Requirements for enforcement authority.

                       Subpart F_Federal Oversight

233.50 Review of and objection to State permits.
233.51 Waiver of review.
233.52 Program reporting.
233.53 Withdrawal of program approval.

                    Subpart G_Eligible Indian Tribes

233.60 Requirements for eligibility.
233.61 Determination of Tribal eligibility.
233.62 Procedures for processing an Indian Tribe's application.

                    Subpart H_Approved State Programs

233.70 Michigan.
233.71 New Jersey.

    Authority: 33 U.S.C. 1251 et seq.

    Source: 53 FR 20776, June 1, 1988, unless otherwise noted.



                            Subpart A_General



Sec. 233.1  Purpose and scope.

    (a) This part specifies the procedures EPA will follow, and the 
criteria EPA will apply, in approving, reviewing, and withdrawing 
approval of State programs under section 404 of the Act.
    (b) Except as provided in Sec. 232.3, a State program must regulate 
all discharges of dredged or fill material into waters regulated by the 
State under section 404(g)-(1). Partial State programs are not 
approvable under section 404. A State's decision not to assume existing 
Corps' general permits does not constitute a partial program. The 
discharges previously authorized by general permit will be regulated by 
State individual permits. However, 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 which is not an Indian Tribe to regulate activities 
on Indian lands does not constitute a partial program. The Secretary of 
the Army acting through the Corps of Engineers will continue to 
administer the program on Indian lands if a State which is not an Indian 
Tribe does not seek and have authority to regulate activities on Indian 
lands.
    (c) Nothing in this part precludes a State from adopting or 
enforcing requirements which are more stringent or from operating a 
program with greater scope, than required under this part. Where an 
approved State program has a greater scope than required by Federal law, 
the additional coverage is not part of the Federally approved program 
and is not subject to Federal oversight or enforcement.

    Note: State assumption of the section 404 program is limited to 
certain waters, as provided in section 404(g)(1). The Federal program 
operated by the Corps of Engineers continues to apply to the remaining 
waters in the State even after program approval. However, this does not 
restrict States from regulating discharges of dredged or fill material 
into those waters over which the Secretary retains section 404 
jurisdiction.

    (d) Any approved State Program shall, at all times, be conducted in 
accordance with the requirements of the Act and of this part. While 
States may impose more stringent requirements, they may not impose any 
less stringent requirements for any purpose.

[53 FR 20776, June 1, 1988, as amended at 58 FR 8183, Feb. 11, 1993]

[[Page 321]]



Sec. 233.2  Definitions.

    The definitions in parts 230 and 232 as well as the following 
definitions apply to this part.
    Act means the Clean Water Act (33 U.S.C. 1251 et seq.).
    Corps means the U.S. Army Corps of Engineers.
    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.
    FWS means the U.S. Fish and Wildlife Service.
    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.
    NMFS means the National Marine Fisheries Service.
    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 this part, which meet 
the requirements of Sec. 233.60. For purposes of this part, the word 
State also includes any interstate agency requesting program approval or 
administering an approved program.
    State Director (Director) means the chief administrative officer of 
any State or interstate agency operating an approved program, or the 
delegated representative of the Director. If responsibility is divided 
among two or more State or interstate agencies, 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 404 program or State program means a State program which has 
been approved by EPA under section 404 of the Act to regulate the 
discharge of dredged or fill material into certain waters as defined in 
Sec. 232.2(p).

[53 FR 20776, June 1, 1988, as amended at 58 FR 8183, Feb. 11, 1993]



Sec. 233.3  Confidentiality of information.

    (a) Any information submitted to EPA pursuant to these regulations 
may be claimed as confidential by the submitter at the time of submittal 
and a final determination as to that claim will be made in accordance 
with the procedures of 40 CFR part 2 and paragraph (c) of this section.
    (b) Any information submitted to the Director may be claimed as 
confidential in accordance with State law, subject to paragraphs (a) and 
(c) of this section.
    (c) Claims of confidentiality for the following information will be 
denied:
    (1) The name and address of any permit applicant or permittee,
    (2) Effluent data,
    (3) Permit application, and
    (4) Issued permit.



Sec. 233.4  Conflict of interest.

    Any public officer or employee who has a direct personal or 
pecuniary interest in any matter that is subject to decision by the 
agency shall make known such interest in the official records of the 
agency and shall refrain from participating in any manner in such 
decision.



                       Subpart B_Program Approval



Sec. 233.10  Elements of a program submission.

    Any State that seeks to administer a 404 program under this part 
shall submit to the Regional Administrator at least three copies of the 
following:
    (a) A letter from the Governor of the State requesting program 
approval.
    (b) A complete program description, as set forth in Sec. 233.11.
    (c) An Attorney General's statement, as set forth in Sec. 233.12.
    (d) A Memorandum of Agreement with the Regional Administrator, as 
set forth in Sec. 233.13.
    (e) A Memorandum of Agreement with the Secretary, as set forth in 
Sec. 233.14.

[[Page 322]]

    (f) Copies of all applicable State statutes and regulations, 
including those governing applicable State administrative procedures.



Sec. 233.11  Program description.

    The program description as required under Sec. 233.10 shall 
include:
    (a) A description of the scope and structure of the State's program. 
The description should include extent of State's jurisdiction, scope of 
activities regulated, anticipated coordination, scope of permit 
exemptions if any, and permit review criteria;
    (b) A description of the State's permitting, administrative, 
judicial review, and other applicable procedures;
    (c) A description of the basic organization and structure of the 
State agency (agencies) which will have responsibility for administering 
the program. If more than one State agency is responsible for the 
administration of the program, the description shall address the 
responsibilities of each agency and how the agencies intend to 
coordinate administration and evaluation of the program;
    (d) A description of the funding and manpower which will be 
available for program administration;
    (e) An estimate of the anticipated workload, e.g., number of 
discharges.
    (f) Copies of permit application forms, permit forms, and reporting 
forms;
    (g) A description of the State's compliance evaluation and 
enforcement programs, including a description of how the State will 
coordinate its enforcement strategy with that of the Corps and EPA;
    (h) A description of the waters of the United States within a State 
over which the State assumes jurisdiction under the approved program; a 
description of the waters of the United States within a State over which 
the Secretary retains jurisdiction subsequent to program approval; and a 
comparison of the State and Federal definitions of wetlands.

    Note: States should obtain from the Secretary an identification of 
those waters of the U.S. within the State over which the Corps retains 
authority under section 404(g) of the Act.

    (i) A description of the specific best management practices proposed 
to be used to satisfy the exemption provisions of section 404(f)(1)(E) 
of the Act for construction or maintenance of farm roads, forest roads, 
or temporary roads for moving mining equipment.



Sec. 233.12  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 independence 
legal counsel), that the laws and regulations of the State, or an 
interstate compact, provide adequate authority to carry out the program 
and meet the applicable requirements of this part. This statement shall 
cite specific statutes and administrative regulations which are lawfully 
adopted at the time the statement is signed and which shall be fully 
effective by the time the program is approved, and, where appropriate, 
judicial decisions which demonstrate adequate authority. The attorney 
signing the statement required by this section must have authority to 
represent the State agency in court on all matters pertaining to the 
State program.
    (b) If a State seeks approval of a program covering activities on 
Indian lands, the statement shall contain an analysis of the State's 
authority over such activities.
    (c) The State Attorney General's statement shall contain a legal 
analysis of the effect of State law regarding the prohibition on taking 
private property without just compensation on the successful 
implementation of the State's program.
    (d) In those States where more than one agency has responsibility 
for administering the State program, the statement must include 
certification that each agency has full authority to administer the 
program within its category of jurisdiction and that the State, as a 
whole, has full authority to administer a complete State section 404 
program.



Sec. 233.13  Memorandum of Agreement with Regional Administrator.

    (a) Any State that seeks to administer a program under this part 
shall

[[Page 323]]

submit a Memorandum of Agreement executed by the Director and the 
Regional Administrator. The Memorandum of Agreement shall become 
effective upon approval of the State program. When more than one agency 
within a State has responsibility for administering the State program, 
Directors of each of the responsible State agencies shall be parties to 
the Memorandum of Agreement.
    (b) The Memorandum of Agreement shall set out the State and Federal 
responsibilities for program administration and enforcement. These shall 
include, but not be limited to:
    (1) Provisions specifying classes and categories of permit 
applications for which EPA will waive Federal review (as specified in 
Sec. 233.51).
    (2) Provisions specifying the frequency and content of reports, 
documents and other information which the State may be required to 
submit to EPA in addition to the annual report, as well as a provision 
establishing the submission date for the annual report. The State shall 
also allow EPA routinely to review State records, reports and files 
relevant to the administration and enforcement of the approved program.
    (3) Provisions addressing EPA and State roles and coordination with 
respect to compliance monitoring and enforcement activities.
    (4) Provisions addressing modification of the Memorandum of 
Agreement.



Sec. 233.14  Memorandum of Agreement with the Secretary.

    (a) Before a State program is approved under this part, the Director 
shall enter into a Memorandum of Agreement with the Secretary. When more 
than one agency within a State has responsibility for administering the 
State program, Directors of each of the responsible agencies shall be 
parties of the Memorandum of Agreement.
    (b) The Memorandum of Agreement shall include:
    (1) A description of waters of the United States within the State 
over which the Secretary retains jurisdiction, as identified by the 
Secretary.
    (2) Procedures whereby the Secretary will, upon program approval, 
transfer to the State pending 404 permit applications for discharges in 
State regulated waters and other relevant information not already in the 
possession of the Director.

    Note: Where a State permit program includes coverage of those 
traditionally navigable waters in which only the Secretary may issue 
section 404 permits, the State is encouraged to establish in this MOA 
procedures for joint processing of Federal and State permits, including 
joint public notices and public hearings.

    (3) An identification of all general permits issued by the Secretary 
the terms and conditions of which the State intends to administer and 
enforce upon receiving approval of its program, and a plan for 
transferring responsibility for these general permits to the State, 
including procedures for the prompt transmission from the Secretary to 
the Director of relevant information not already in the possession of 
the Director, including support files for permit issuance, compliance 
reports and records of enforcement actions.



Sec. 233.15  Procedures for approving State programs.

    (a) The 120 day statutory review period shall commence on the date 
of receipt of a complete State program submission as set out in Sec. 
233.10 of this part. EPA shall determine whether the submission is 
complete within 30 days of receipt of the submission and shall notify 
the State of its determination. If EPA finds that a State's submission 
is incomplete, the statutory review period shall not begin until all the 
necessary information is received by EPA.
    (b) If EPA determines the State significantly changes its submission 
during the review period, the statutory review period shall begin again 
upon the receipt of a revised submission.
    (c) The State and EPA may extend the statutory review period by 
agreement.
    (d) Within 10 days of receipt of a complete State section 404 
program submission, the Regional Administrator shall provide copies of 
the State's submission to the Corps, FWS, and NMFS (both Headquarters 
and appropriate Regional organizations.)
    (e) After determining that a State program submission is complete, 
the

[[Page 324]]

Regional Administrator 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. The Regional Administrator shall 
also mail notice to persons known to be interested in such matters. 
Existing State, EPA, Corps, FWS, and NMFS mailing lists shall be used as 
a basis for this mailing. However, failure to mail all such notices 
shall not be grounds for invalidating approval (or disapproval) of an 
otherwise acceptable (or unacceptable) program. This notice shall:
    (1) Provide for 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 not 
less than 30 days after notice of hearing is published in the Federal 
Register;
    (3) Indicate where and when the State's submission may be reviewed 
by the public;
    (4) Indicate whom an interested member of the public with questions 
should contact; and
    (5) Briefly outline the fundamental aspects of the State's proposed 
program and the process for EPA review and decision.
    (f) Within 90 days of EPA's receipt of a complete program 
submission, the Corps, FWS, and NMFS shall submit to EPA any comments on 
the State's program.
    (g) Within 120 days of receipt of a complete program submission 
(unless an extension is agreed to by the State), the Regional 
Administrator shall approve or disapprove the program based on whether 
the State's program fulfills the requirements of this part and the Act, 
taking into consideration all comments received. The Regional 
Administrator shall prepare a responsiveness summary of significant 
comments received and his response to these comments. The Regional 
Administrator shall respond individually to comments received from the 
Corps, FWS, and NMFS.
    (h) If the Regional Administrator approves the State's section 404 
program, he shall notify the State and the Secretary of the decision and 
publish notice in the Federal Register. Transfer of the program to the 
State shall not be considered effective until such notice appears in the 
Federal Register. The Secretary shall suspend the issuance by the Corps 
of section 404 permits in State regulated waters on such effective date.
    (i) If the Regional Administrator disapproves the State's program 
based on the State not meeting the requirements of the Act and this 
part, the Regional Administrator shall notify the State of the reasons 
for the disapproval and of any revisions or modifications to the State's 
program which are necessary to obtain approval. If the State resubmits a 
program submission remedying the identified problem areas, the approval 
procedure and statutory review period shall begin upon receipt of the 
revised submission.



Sec. 233.16  Procedures for revision of State programs.

    (a) The State shall keep the Regional Administrator fully informed 
of any proposed or actual changes to the State's statutory or regulatory 
authority or any other modifications which are significant to 
administration of the program.
    (b) Any approved program which requires revision because of a 
modification to this part or to any other applicable Federal statute or 
regulation shall be revised within one year of the date of promulgation 
of such regulation, except that if a State must amend or enact a statute 
in order to make the required revision, the revision shall take place 
within two years.
    (c) States with approved programs shall notify the Regional 
Administrator whenever they propose to transfer all or part of any 
program from the approved State agency to any other State agency. The 
new agency is not authorized to administer the program until approved by 
the Regional Administrator under paragraph (d) of this section.
    (d) Approval of revision of a State program shall be accomplished as 
follows:
    (1) The Director shall submit a modified program description or 
other documents which the Regional Administrator determines to be 
necessary to

[[Page 325]]

evaluate whether the program complies with the requirements of the Act 
and this part.
    (2) Notice of approval of program changes which are not substantial 
revisions may be given by letter from the Regional Administrator to the 
Governor or his designee.
    (3) Whenever the Regional Administrator determines that the proposed 
revision is substantial, he shall publish and circulate notice to those 
persons known to be interested in such matters, provide opportunity for 
a public hearing, and consult with the Corps, FWS, and NMFS. The 
Regional Administrator shall approve or disapprove program revisions 
based on whether the program fulfills the requirements of the Act and 
this part, and shall publish notice of his decision in the Federal 
Register. For purposes of this paragraph, substantial revisions include, 
but are not limited to, revisions that affect the area of jurisdiction, 
scope of activities regulated, criteria for review of permits, public 
participation, or enforcement capability.
    (4) Substantial program changes shall become effective upon approval 
by the Regional Administrator and publication of notice in the Federal 
Register.
    (e) Whenever the Regional Administrator has reason to believe that 
circumstances have changed with respect to a State's 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 to evaluate the program's compliance with the 
requirements of the Act and this part.



                      Subpart C_Permit Requirements



Sec. 233.20  Prohibitions.

    No permit shall be issued by the Director in the following 
circumstances:
    (a) When permit does not comply with the requirements of the Act or 
regulations thereunder, including the section 404(b)(1) Guidelines (part 
230 of this chapter).
    (b) When the Regional Administrator has objected to issuance of the 
permit under Sec. 233.50 and the objection has not been resolved.
    (c) When the proposed discharges would be in an area which has been 
prohibited, withdrawn, or denied as a disposal site by the Administrator 
under section 404(c) of the Act, or when the discharge would fail to 
comply with a restriction imposed thereunder.
    (d) If the Secretary determines, after consultation with the 
Secretary of the Department in which the Coast Guard is operating, that 
anchorage and navigation of any of the navigable waters would be 
substantially impaired.



Sec. 233.21  General permits.

    (a) Under section 404(h)(5) of the Act, States may, after program 
approval, administer and enforce general permits previously issued by 
the Secretary in State regulated waters.

    Note: If States intend to assume existing general permits, they must 
be able to ensure compliance with existing permit conditions an any 
reporting monitoring, or prenotification requirements.

    (b) The Director may issue a general permit for categories of 
similar activities if he determines that the regulated activities will 
cause only minimal adverse environmental effects when performed 
separately and will have only minimal cumulative adverse effects on the 
environment. Any general permit issued shall be in compliance with the 
section 404(b)(1) Guidelines.
    (c) In addition to the conditions specified in Sec. 233.23, each 
general permit shall contain:
    (1) A specific description of the type(s) of activities which are 
authorized, including limitations for any single operation. The 
description shall be detailed enough to ensure that the requirements of 
paragraph (b) of this section are met. (This paragraph super cedes Sec. 
233.23(c)(1) for general permits.)
    (2) A precise description of the geographic area to which the 
general permit applies, including limitations on the type(s) of water 
where operations may be conducted sufficient to ensure that the 
requirements of paragraph (b) of this section are met.
    (d) Predischarge notification or other reporting requirements may be 
required by the Director on a permit-by-permit basis as appropriate to 
ensure that the general permit will comply with the requirement (section 
404(e) of

[[Page 326]]

the Act) that the regulated activities will cause only minimal adverse 
environmental effects when performed separately and will have only 
minimal cumulative adverse effects on the environment.
    (e) The Director may, without revoking the general permit, require 
any person authorized under a general permit to apply for an individual 
permit. This discretionary authority will be based on concerns for the 
aquatic environment including compliance with paragraph (b) of this 
section and the 404(b)(1) Guidelines (40 CFR part 230.)
    (1) This provision in no way affects the legality of activities 
undertaken pursuant to the general permit prior to notification by the 
Director of such requirement.
    (2) Once the Director notifies the discharger of his decision to 
exercise discretionary authority to require an individual permit, the 
discharger's activity is no longer authorized by the general permit.



Sec. 233.22  Emergency permits.

    (a) Notwithstanding any other provision of this part, the Director 
may issue a temporary emergency permit for a discharge of dredged or 
fill material if unacceptable harm to life or severe loss of physical 
property is likely to occur before a permit could be issued or modified 
under procedures normally required.
    (b) Emergency permits shall incorporate, to the extent possible and 
not inconsistent with the emergency situation, all applicable 
requirements of Sec. 233.23.
    (1) Any emergency permit shall be limited to the duration of time 
(typically no more than 90 days) required to complete the authorized 
emergency action.
    (2) The emergency permit shall have a condition requiring 
appropriate restoration of the site.
    (c) The emergency permit may be terminated at any time without 
process (Sec. 233.36) if the Director determines that termination is 
necessary to protect human health or the environment.
    (d) The Director shall consult in an expeditious manner, such as by 
telephone, with the Regional Administrator, the Corps, FWS, and NMFS 
about issuance of an emergency permit.
    (e) The emergency permit may be oral or written. If oral, it must be 
followed within 5 days by a written emergency permit. A copy of the 
written permit shall be sent to the Regional Administrator.
    (f) Notice of the emergency permit shall be published and public 
comments solicited in accordance with Sec. 233.32 as soon as possible 
but no later than 10 days after the issuance date.



Sec. 233.23  Permit conditions.

    (a) For each permit the Director shall establish conditions which 
assure compliance with all applicable statutory and regulatory 
requirements, including the 404(b)(1) Guidelines, applicable section 303 
water quality standards, and applicable section 307 effluent standards 
and prohibitions.
    (b) Section 404 permits shall be effective for a fixed term not to 
exceed 5 years.
    (c) Each 404 permit shall include conditions meeting or implementing 
the following requirements:
    (1) A specific identification and complete description of the 
authorized activity including name and address of permittee, location 
and purpose of discharge, type and quantity of material to be 
discharged. (This subsection is not applicable to general permits).
    (2) Only the activities specifically described in the permit are 
authorized.
    (3) The permittee shall comply with all conditions of the permit 
even if that requires halting or reducing the permitted activity to 
maintain compliance. Any permit violation constitutes a violation of the 
Act as well as of State statute and/or regulation.
    (4) The permittee shall take all reasonable steps to minimize or 
prevent any discharge in violation of this permit.
    (5) The permittee shall inform the Director of any expected or known 
actual noncompliance.
    (6) The permittee shall provide such information to the Director, as 
the Director requests, to determine compliance status, or whether cause 
exists for permit modification, revocation or termination.

[[Page 327]]

    (7) Monitoring, reporting and recordkeeping requirements as needed 
to safeguard the aquatic environment. (Such requirements will be 
determined on a case-by-case basis, but at a minimum shall include 
monitoring and reporting of any expected leachates, reporting of 
noncompliance, planned changes or transfer of the permit.)
    (8) Inspection and entry. The permittee shall allow the Director, or 
his authorized representative, upon presentation of proper 
identification, at reasonable times to:
    (i) Enter upon the permittee's premises where a regulated activity 
is located or where records must be kept under the conditions of the 
permit,
    (ii) Have access to and copy any records that must be kept under the 
conditions of the permit,
    (iii) Inspect operations regulated or required under the permit, and
    (iv) Sample or monitor, for the purposes of assuring permit 
compliance or as otherwise authorized by the Act, any substances or 
parameters at any location.
    (9) Conditions assuring that the discharge will be conducted in a 
manner which minimizes adverse impacts upon the physical, chemical and 
biological integrity of the waters of the United States, such as 
requirements for restoration or mitigation.



                       Subpart D_Program Operation



Sec. 233.30  Application for a permit.

    (a) Except when an activity is authorized by a general permit issued 
pursuant to Sec. 233.21 or is exempt from the requirements to obtain a 
permit under Sec. 232.3, any person who proposes to discharge dredged 
or fill material into State regulated waters shall complete, sign and 
submit a permit application to the Director. Persons proposing to 
discharge dredged or fill material under the authorization of a general 
permit must comply with any reporting requirements of the general 
permit.
    (b) A complete application shall include:
    (1) Name, address, telephone number of the applicant and name(s) and 
address(es) of adjoining property owners.
    (2) A complete description of the proposed activity including 
necessary drawings, sketches or plans sufficient for public notice (the 
applicant is not generally expected to submit detailed engineering plans 
and specifications); the location, purpose and intended use of the 
proposed activity; scheduling of the activity; the location and 
dimensions of adjacent structures; and a list of authorizations required 
by other Federal, interstate, State or local agencies for the work, 
including all approvals received or denials already made.
    (3) The application must include a description of the type, 
composition, source and quantity of the material to be discharged, the 
method of discharge, and the site and plans for disposal of the dredged 
or fill material.
    (4) A certification that all information contained in the 
application is true and accurate and acknowledging awareness of 
penalties for submitting false information.
    (5) All activities which the applicant plans to undertake which are 
reasonably related to the same project should be included in the same 
permit application.
    (c) In addition to the information indicated in Sec. 233.30(b), the 
applicant will be required to furnish such additional information as the 
Director deems appropriate to assist in the evaluation of the 
application. Such additional information may include environmental data 
and information on alternate methods and sites as may be necessary for 
the preparation of the required environmental documentation.
    (d) The level of detail shall be reasonably commensurate with the 
type and size of discharge, proximity to critical areas, likelihood of 
long-lived toxic chemical substances, and potential level of 
environmental degradation.

    Note: EPA encourages States to provide permit applicants guidance 
regarding the level of detail of information and documentation required 
under this subsection. This guidance can be provided either through the 
application form or on an individual basis. EPA also encourages the 
State to maintain a program to inform potential applicants for permits 
of the requirements of the State program and of the steps required to 
obtain permits for activities in State regulated waters.

[[Page 328]]



Sec. 233.31  Coordination requirements.

    (a) If a proposed discharge may affect the biological, chemical, or 
physical integrity of the waters of any State(s) other than the State in 
which the discharge occurs, the Director shall provide an opportunity 
for such State(s) to submit written comments within the public comment 
period and to suggest permit conditions. If these recommendations are 
not accepted by the Director, he shall notify the affected State and the 
Regional Administrator prior to permit issuance in writing of his 
failure to accept these recommendations, together with his reasons for 
so doing. The Regional Administrator shall then have the time provided 
for in Sec. 233.50(d) to comment upon, object to, or make 
recommendations.
    (b) State section 404 permits shall be coordinated with Federal and 
Federal-State water related planning and review processes.



Sec. 233.32  Public notice.

    (a) Applicability.
    (1) The Director shall give public notice of the following actions:
    (i) Receipt of a permit application.
    (ii) Preparation of a draft general permit.
    (iii) Consideration of a major modification to an issued permit.
    (iv) Scheduling of a public hearing.
    (v) Issuance of an emergency permit.
    (2) Public notices may describe more than one permit or action.
    (b) Timing.
    (1) The public notice shall provide a reasonable period of time, 
normally at least 30 days, within which interested parties may express 
their views concerning the permit application.
    (2) Public notice of a public hearing shall be given at least 30 
days before the hearing.
    (3) The Regional Administrator may approve a program with shorter 
public notice timing if the Regional Administrator determines that 
sufficient public notice is provided for.
    (c) The Director shall give public notice by each of the following 
methods:
    (1) By mailing a copy of the notice to the following persons (any 
person otherwise entitled to receive notice under this paragraph may 
waive his rights to receive notice for any classes or categories of 
permits):
    (i) The applicant.
    (ii) Any agency with jurisdiction over the activity or the disposal 
site, whether or not the agency issues a permit.
    (iii) Owners of property adjoining the property where the regulated 
activity will occur.
    (iv) All persons who have specifically requested copies of public 
notices. (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.)
    (v) Any State whose waters may be affected by the proposed 
discharge.
    (2) In addition, by providing notice in at least one other way (such 
as advertisement in a newspaper of sufficient circulation) reasonably 
calculated to cover the area affected by the activity.
    (d) All public notices shall contain at least the following 
information:
    (1) The name and address of the applicant and, if different, the 
address or location of the activity(ies) regulated by the permit.
    (2) The name, address, and telephone number of a person to contact 
for further information.
    (3) A brief description of the comment procedures and procedures to 
request a public hearing, including deadlines.
    (4) A brief description of the proposed activity, its purpose and 
intended use, so as to provide sufficient information concerning the 
nature of the activity to generate meaningful comments, including a 
description of the type of structures, if any, to be erected on fills, 
and a description of the type, composition and quantity of materials to 
be discharged.
    (5) A plan and elevation drawing showing the general and specific 
site location and character of all proposed activities, including the 
size relationship of the proposed structures to the size of the impacted 
waterway and depth of water in the area.
    (6) A paragraph describing the various evaluation factors, including 
the 404(b)(1) Guidelines or State-equivalent criteria, on which 
decisions are based.

[[Page 329]]

    (7) Any other information which would significantly assist 
interested parties in evaluating the likely impact of the proposed 
activity.
    (e) Notice of public hearing shall also contain the following 
information:
    (1) Time, date, and place of hearing.
    (2) Reference to the date of any previous public notices relating to 
the permit.
    (3) Brief description of the nature and purpose of the hearing.



Sec. 233.33  Public hearing.

    (a) Any interested person may request a public hearing during the 
public comment period as specified in Sec. 233.32. Requests shall be in 
writing and shall state the nature of the issues proposed to be raised 
at the hearing.
    (b) The Director shall hold a public hearing whenever he determines 
there is a significant degree of public interest in a permit application 
or a draft general permit. He may also hold a hearing, at his 
discretion, whenever he determines a hearing may be useful to a decision 
on the permit application.
    (c) At a hearing, any person may submit oral or written statements 
or data concerning the permit application or draft general permit. The 
public comment period shall automatically be extended to the close of 
any public hearing under this section. The presiding officer may also 
extend the comment period at the hearing.
    (d) All public hearings shall be reported verbatim. Copies of the 
record of proceedings may be purchased by any person from the Director 
or the reporter of such hearing. A copy of the transcript (or if none is 
prepared, a tape of the proceedings) shall be made available for public 
inspection at an appropriate State office.



Sec. 233.34  Making a decision on the permit application.

    (a) The Director will review all ap plications for compliance with 
the 404(b)(1) Guidelines and/or equivalent State environmental criteria 
as well as any other applicable State laws or regulations.
    (b) The Director shall consider all comments received in response to 
the public notice, and public hearing if a hearing is held. All 
comments, as well as the record of any public hearing, shall be made 
part of the official record on the application.
    (c) After the Director has completed his review of the application 
and consideration of comments, the Director will determine, in 
accordance with the record and all applicable regulations, whether or 
not the permit should be issued. No permit shall be issued by the 
Director under the circumstances described in Sec. 233.20. The Director 
shall prepare a written determination on each application outlining his 
decision and rationale for his decision. The determination shall be 
dated, signed and included in the official record prior to final action 
on the application. The official record shall be open to the public.



Sec. 233.35  Issuance and effective date of permit.

    (a) If the Regional Administrator comments on a permit application 
or draft general permit under Sec. 233.50, the Director shall follow 
the procedures specified in that section in issuing the permit.
    (b) If the Regional Administrator does not comment on a permit 
application or draft general permit, the Director shall make a final 
permit decision after the close of the public comment period and shall 
notify the applicant.
    (1) If the decision is to issue a permit, the permit becomes 
effective when it is signed by the Director and the applicant.
    (2) If the decision is to deny the permit, the Director will notify 
the applicant in writing of the reason(s) for denial.



Sec. 233.36  Modification, suspension or revocation of permits.

    (a) General. The Director may reevaluate the circumstances and 
conditions of a permit either on his own motion or at the request of the 
permittee or of a third party and initiate action to modify, suspend, or 
revoke a permit if he determines that sufficient cause exists. Among the 
factors to be considered are:
    (1) Permittee's noncompliance with any of the terms or conditions of 
the permit;

[[Page 330]]

    (2) 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 the time;
    (3) Information that activities authorized by a general permit are 
having more than minimal individual or cumulative adverse effect on the 
environment, or that the permitted activities are more appropriately 
regulated by individual permits;
    (4) Circumstances relating to the authorized activity have changed 
since the permit was issued and justify changed permit conditions or 
temporary or permanent cessation of any discharge controlled by the 
permit;
    (5) Any significant information relating to the activity authorized 
by the permit if such information was not available at the time the 
permit was issued and would have justified the imposition of different 
permit conditions or denial at the time of issuance;
    (6) Revisions to applicable statutory or regulatory authority, 
including toxic effluent standards or prohibitions or water quality 
standards.
    (b) Limitations. Permit modifications shall be in compliance with 
Sec. 233.20.
    (c) Procedures. (1) The Director shall develop procedures to modify, 
suspend or revoke permits if he determines cause exists for such action 
(Sec. 233.36(a)). Such procedures shall provide opportunity for public 
comment (Sec. 233.32), coordination with the Federal review agencies 
(Sec. 233.50), and opportunity for public hearing (Sec. 233.33) 
following notification of the permittee. When permit modification is 
proposed, only the conditions subject to modification need be reopened.
    (2) Minor modification of permits. The Director may, upon the 
consent of the permittee, use abbreviated procedures to modify a permit 
to make the following corrections or allowance for changes in the 
permitted activity:
    (i) Correct typographical errors;
    (ii) Require more frequent monitoring or reporting by permittee;
    (iii) Allow for a change in ownership or operational control of a 
project or activity 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;
    (iv) Provide for minor modification of project plans that do not 
significantly change the character, scope, and/or purpose of the project 
or result in significant change in environmental impact;
    (v) Extend the term of a permit, so long as the modification does 
not extend the term of the permit beyond 5 years from its original 
effective date and does not result in any increase in the amount of 
dredged or fill material allowed to be discharged.



Sec. 233.37  Signatures on permit applications and reports.

    The application and any required reports must be signed by the 
person who desires to undertake the proposed activity or by that 
person's duly authorized agent if accompanied by a statement by that 
person designating the agent. In either case, the signature of the 
applicant or the agent will be understood to be an affirmation that he 
possesses or represents the person who possesses the requisite property 
interest to undertake the activity proposed in the application.



Sec. 233.38  Continuation of expiring permits.

    A Corps 404 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 404 Program may continue 
Corps or State-issued permits until the effective date of the new 
permits, if State law allows. Otherwise, the discharge is being 
conducted without a permit from the time of expiration of the old permit 
to the effective date of a new State-issued permit, if any.



Sec. 233.39  Electronic reporting.

    States that choose to receive electronic documents must satisfy the 
requirements of 40 CFR Part 3--(Electronic reporting) in their state 
program.

[70 FR 59888, Oct. 13, 2005]

[[Page 331]]



             Subpart E_Compliance Evaluation and Enforcement



Sec. 233.40  Requirements for compliance evaluation programs.

    (a) In order to abate violations of the permit program, the State 
shall maintain a program designed to identify persons subject to 
regulation who have failed to obtain a permit or to comply with permit 
conditions.
    (b) The Director and State officers engaged in compliance 
evaluation, upon presentation of proper identification, 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.
    (c) The State program shall provide for inspections to be conducted, 
samples to be taken and other information to be gathered in a manner 
that will produce evidence admissible in an enforcement proceeding.
    (d) The State shall maintain a program for receiving and ensuring 
proper consideration of information submitted by the public about 
violations.



Sec. 233.41  Requirements for enforcement authority.

    (a) Any State agency administering a program shall have authority:
    (1) To restrain immediately and effectively any person from engaging 
in any unauthorized activity;
    (2) To sue to enjoin any threatened or continuing violation of any 
program requirement;
    (3) To assess or sue to recover civil penalties and to seek criminal 
remedies, as follows:
    (i) The agency shall have the authority to assess or recover civil 
penalties for discharges of dredged or fill material without a required 
permit or in violation of any section 404 permit condition in an amount 
of at least $5,000 per day of such violation.
    (ii) The agency shall have the authority to seek criminal fines 
against any person who willfully or with criminal negligence discharges 
dredged or fill material without a required permit or violates any 
permit condition issued under section 404 in the amount of at least 
$10,000 per day of such violation.
    (iii) The agency shall have the authority to seek criminal fines 
against any person who knowingly makes false statements, representation, 
or certification in any application, record, report, plan, or other 
document filed or required to be maintained under the Act, these 
regulations or the approved State program, or who falsifies, tampers 
with, or knowingly renders inaccurate any monitoring device or method 
required to be maintained under the permit, in an amount of at least 
$5,000 for each instance of violation.
    (b)(1) The approved maximum civil penalty or criminal fine shall be 
assessable for each violation and, if the violation is continuous, shall 
be assessable in that 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 bear when it brings an action under the 
Act.
    (c) The civil penalty assessed, sought, or agreed upon by the 
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 may, when authorized by section 309 of the Act, commence 
separate action for penalties.

    (d)(1) The Regional Administrator may approve a State program where 
the State lacks authority to recover penalties of the levels required 
under paragraphs (a)(3)(i)-(iii) of this section only if the Regional 
Administrator determines, after evaluating a record of at least one year 
for an alternative enforcement program, that the State has an alternate, 
demonstrably effective method of ensuring compliance which has both 
punitive and deterrence effects.

[[Page 332]]

    (2) States whose programs were approved via waiver of monetary 
penalties shall keep the Regional Administrator informed of all 
enforcement actions taken under any alternative method approved pursuant 
to paragraph (d)(1) of this section. The manner of reporting will be 
established in the Memorandum of Agreement with the Regional 
Administrator (Sec. 233.13).
    (e) Any State administering a program shall provide for public 
participation in the State enforcement process by providing either:
    (1) Authority which allows intervention of right in any civil or 
administrative action to obtain remedies specified in paragraph (a)(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 State procedures;
    (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.
    (f) Provision for Tribal criminal enforcement authority. To the 
extent that an Indian Tribe does not assert or is precluded from 
asserting criminal enforcement authority (Sec. 233.41(a)(3) (ii) and 
(iii)), the Federal government will continue to exercise primary 
criminal enforcement responsibility. The Tribe, with the EPA Region and 
Corps District(s) with jurisdiction, shall develop a system where the 
Tribal agency will refer such a violation to the Regional Administrator 
or the District Engineer(s), as agreed to by the parties, in an 
appropriate and timely manner. This agreement shall be incorporated into 
joint or separate Memorandum of Agreement with the EPA Region and the 
Corps District(s), as appropriate.

[53 FR 20776, June 1, 1988, as amended at 58 FR 8183, Feb. 11, 1993]



                       Subpart F_Federal Oversight



Sec. 233.50  Review of and objection to State permits.

    (a) The Director shall promptly transmit to the Regional 
Administrator:
    (1) A copy of the public notice for any complete permit applications 
received by the Director, except those for which permit review has been 
waived under Sec. 233.51. The State shall supply the Regional 
Administrator with copies of public notices for permit applications for 
which permit review has been waived whenever requested by EPA.
    (2) A copy of a draft general permit whenever the State intends to 
issue a general permit.
    (3) Notice of every significant action taken by the State agency 
related to the consideration of any permit application except those for 
which Federal review has been waived or draft general permit.
    (4) A copy of every issued permit.
    (5) A copy of the Director's re sponse to another State's comments/ 
recommendations, if the Director does not accept these recommendations 
(Sec. 233.32(a)).
    (b) Unless review has been waived under Sec. 233.51, the Regional 
Administrator shall provide a copy of each public notice, each draft 
general permit, and other information needed for review of the 
application to the Corps, FWS, and NMFS, within 10 days of receipt. 
These agencies shall notify the Regional Administrator within 15 days of 
their receipt if they wish to comment on the public notice or draft 
general permit. Such agencies should submit their evaluation and 
comments to the Regional Administrator within 50 days of such receipt. 
The final decision to comment, object or to require permit conditions 
shall be made by the Regional Administrator. (These times may be 
shortened by mutual agreement of the affected Federal agencies and the 
State.)
    (c) If the information provided is inadequate to determine whether 
the permit application or draft general permit meets the requirements of 
the Act, these regulations, and the 404(b)(1) Guidelines, the Regional 
Administrator may, within 30 days of receipt, request

[[Page 333]]

the Director to transmit to the Regional Administrator the complete 
record of the permit proceedings before the State, or any portions of 
the record, or other information, including a supplemental application, 
that the Regional Administrator determines necessary for review.
    (d) If the Regional Administrator intends to comment upon, object 
to, or make recommendations with respect to a permit application, draft 
general permit, or the Director's failure to accept the recommendations 
of an affected State submitted pursuant to Sec. 233.31(a), he shall 
notify the Director of his intent within 30 days of receipt. If the 
Director has been so notified, the permit shall not be issued until 
after the receipt of such comments or 90 days of the Regional 
Administrator's receipt of the public notice, draft general permit or 
Director's response (Sec. 233.31(a)), whichever comes first. The 
Regional Administrator may notify the Director within 30 days of receipt 
that there is no comment but that he reserves the right to object within 
90 days of receipt, based on any new information brought out by the 
public during the comment period or at a hearing.
    (e) If the Regional Administrator has given notice to the Director 
under paragraph (d) of this section, he shall submit to the Director, 
within 90 days of receipt of the public notice, draft general permit, or 
Director's response (Sec. 233.31(a)), a written statement of his 
comments, objections, or recommendations; the reasons for the comments, 
objections, or recommendations; and the actions that must be taken by 
the Director in order to eliminate any objections. Any such objection 
shall be based on the Regional Administrator's determination that the 
proposed permit is (1) the subject of an interstate dispute under Sec. 
233.31(a) and/or (2) outside requirements of the Act, these regulations, 
or the 404(b)(1) Guidelines. The Regional Administrator shall make 
available upon request a copy of any comment, objection, or recom 
mendation on a permit application or draft general permit to the permit 
applicant or to the public.
    (f) When the Director has received an EPA objection or requirement 
for a permit condition to a permit application or draft general permit 
under this section, he shall not issue the permit unless he has taken 
the steps required by the Regional Administrator to eliminate the 
objection.
    (g) Within 90 days of receipt by the Director of an objection or 
requirement for a permit condition by the Regional Administrator, the 
State or any interested person may request that the Regional 
Administrator hold a public hearing on the objection or requirement. The 
Regional Administrator shall conduct a public hearing whenever requested 
by the State proposing to issue the permit, or if warranted by 
significant public interest based on requests received.
    (h) If a public hearing is held under paragraph (g) of this section, 
the Regional Administrator shall, following that hearing, reaffirm, 
modify or withdraw the objection or requirement for a permit condition, 
and notify the Director of this decision.
    (1) If the Regional Administrator withdraws his objection or 
requirement for a permit condition, the Director may issue the permit.
    (2) If the Regional Administrator does not withdraw the objection or 
requirement for a permit condition, the Director must issue a permit 
revised to satisfy the Regional Administrator's objection or requirement 
for a permit condition or notify EPA of its intent to deny the permit 
within 30 days of receipt of the Regional Administrator's notification.
    (i) If no public hearing is held under paragraph (g) of this 
section, the Director within 90 days of receipt of the objection or 
requirement for a permit condition shall either issue the permit revised 
to satisfy EPA's objections or notify EPA of its intent to deny the 
permit.
    (j) In the event that the Director neither satisfies EPA's 
objections or requirement for a permit condition nor denies the permit, 
the Secretary shall process the permit application.

[53 FR 20776, June 1, 1988; 53 FR 41649, Oct. 24, 1988]



Sec. 233.51  Waiver of review.

    (a) The MOA with the Regional Administrator shall specify the 
categories of discharge for which EPA will waive

[[Page 334]]

Federal review of State permit applications. After program approval, the 
MOA may be modified to reflect any additions or deletions of categories 
of discharge for which EPA will waive review. The Regional Administrator 
shall consult with the Corps, FWS, and NMFS prior to specifying or 
modifying such categories.
    (b) With the following exceptions, any category of discharge is 
eligible for consideration for waiver:
    (1) Draft general permits;
    (2) Discharges with reasonable potential for affecting endangered or 
threatened species as determined by FWS;
    (3) Discharges with reasonable potential for adverse impacts on 
waters of another State;
    (4) Discharges known or suspected to contain toxic pollutants in 
toxic amounts (section 101(a)(3) of the Act) or hazardous substances in 
reportable quantities (section 311 of the Act);
    (5) Discharges located in proximity of a public water supply intake;
    (6) Discharges within critical areas established under State or 
Federal law, including but not limited to National and State parks, fish 
and wildlife sanctuaries and refuges, National and historical monuments, 
wilderness areas and preserves, sites identified or proposed under the 
National Historic Preservation Act, and components of the National Wild 
and Scenic Rivers System.
    (c) The Regional Administrator retains the right to terminate a 
waiver as to future permit actions at any time by sending the Director 
written notice of termination.



Sec. 233.52  Program reporting.

    (a) The starting date for the annual period to be covered by reports 
shall be established in the Memorandum of Agreement with the Regional 
Administrator (Sec. 233.13.)
    (b) The Director shall submit to the Regional Administrator within 
90 days after completion of the annual period, a draft annual report 
evaluating the State's administration of its program identifying 
problems the State has encountered in the administration of its program 
and recommendations for resolving these problems. Items that shall be 
addressed in the annual report include an assessment of the cumulative 
impacts of the State's permit program on the integrity of the State 
regulated waters; identification of areas of particular concern and/or 
interest within the State; the number and nature of individual and 
general permits issued, modified, and denied; number of violations 
identified and number and nature of enforcement actions taken; number of 
suspected unauthorized activities reported and nature of action taken; 
an estimate of extent of activities regulated by general permits; and 
the number of permit applications received but not yet processed.
    (c) The State shall make the draft annual report available for 
public inspection.
    (d) Within 60 days of receipt of the draft annual report, the 
Regional Administrator will complete review of the draft report and 
transmit comments, questions, and/or requests for additional evaluation 
and/or information to the Director.
    (e) Within 30 days of receipt of the Regional Administrator's 
comments, the Director will finalize the annual report, incorporating 
and/or responding to the Regional Administrator's comments, and transmit 
the final report to the Regional Administrator.
    (f) Upon acceptance of the annual report, the Regional Administrator 
shall publish notice of availability of the final annual report.



Sec. 233.53  Withdrawal of program approval.

    (a) A State with a program approved under this part may voluntarily 
transfer program responsibilities required by Federal law to the 
Secretary 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 and the Secretary 180 
days notice of the proposed transfer. The State shall also submit a plan 
for the orderly transfer of all relevant program information not in the 
possession of the Secretary (such as permits, permit files, reports, 
permit applications) which are necessary for the Secretary to administer 
the program.

[[Page 335]]

    (2) Within 60 days of receiving the notice and transfer plan, the 
Administrator and the Secretary shall evaluate the State's transfer plan 
and shall identify for the State any additional information needed by 
the Federal government for program administration.
    (3) At least 30 days before the transfer is to occur the 
Administrator shall publish notice of transfer in the Federal Register 
and in a sufficient number 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, Corps and State mailing lists.
    (b) The Administrator may withdraw program approval when a State 
program no longer complies with the requirements of this part, and the 
State fails to take corrective action. Such circumstances include the 
following:
    (1) When the State's legal authority no longer meets 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) When 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) 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) When the State's enforcement program fails to comply with the 
requirements of this part, including:
    (i) Failure to act on violations of permits or other program 
requirements;
    (ii) Failure to seek adequate enforcement penalties or to collect 
administrative fines when imposed, or to implement alternative 
enforcement methods approved by the Administrator; or
    (iii) Failure to inspect and monitor activities subject to 
regulation.
    (4) When the State program fails to comply with the terms of the 
Memorandum of Agreement required under Sec. 233.13.
    (c) 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 the Administrator's 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 subsection (b) 
of this section. The Administrator shall respond in writing to any 
petition to commence withdrawal proceedings. He may conduct an informal 
review 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 shall fix a time and 
place for the commencement of the hearing, shall specify the allegations 
against the State which are to be considered at the hearing, and shall 
be published in the Federal Register. Within 30 days after publication 
of the Administrator's order in the Federal Register, the State shall 
admit or deny these allegations in a written answer. The party seeking 
withdrawal of the State's program shall have the burden of coming 
forward with the evidence in a hearing under this paragraph.
    (2) Definitions. For purposes of this paragraph the definition of 
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 
proceedings.
    (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

[[Page 336]]

Rules of Practice] are applicable to proceedings under this paragraph:
    (A) Section 22.02--(use of number/gender);
    (B) Section 22.04--(authorities of Presiding Officer);
    (C) Section 22.06--(filing/service of rulings and orders);
    (D) Section 22.09--(examination of filed documents);
    (E) Section 22.19 (a), (b) and (c)--(prehearing conference);
    (F) Section 22.22--(evidence);
    (G) Section 22.23--(objections/offers of proof);
    (H) Section 22.25--(filing the transcript; and
    (I) Section 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 Federal 
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 proceeding. 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 decisions 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 published in the 
Federal Register.
    (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 the adjudication of the rights of 
the original parties; (ii) the movant will be adversely affected by a 
final order; and

[[Page 337]]

(iii) the interests of the movant are not being adequately represented 
by the original parties. The intervenor shall become a full party to the 
proceeding upon the granting of leave to 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 therefore 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, 1200 Pennsylvania Ave., NW., Washington, DC 
20460;
    (iii) Upon notice to all parties the Presiding Officer may authorize 
corrections to the transcript which involve 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 such 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 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 an 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 338]]

    (A) Appear by counsel or other representative in all hearing and 
prehearing 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 
certification of the record and filing of the Presiding Officer's 
recommended 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 Act and this part, 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 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 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 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 
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. 704.
    (d) Withdrawal of authorization under this section and the Act does 
not relieve any person from complying with the requirements of State 
law, nor does it affect the validity of actions taken by the State prior 
to withdrawal.

[53 FR 20776, June 1, 1988, as amended at 57 FR 5346, Feb. 13, 1992]



                    Subpart G_Eligible Indian Tribes

    Source: 58 FR 8183, Feb. 11, 1993, unless otherwise noted.



Sec. 233.60  Requirements for eligibility.

    Section 518(e) of the CWA, 33 U.S.C. 1378(e), authorizes the 
Administrator to treat an Indian Tribe as eligible to apply for the 404 
permit program under section 404(g)(1) if it meets the following 
criteria:
    (a) The Indian Tribe is recognized by the Secretary of the Interior.
    (b) The Indian Tribe has a governing body carrying out substantial 
governmental duties and powers.
    (c) 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 Untied States in trust for the Indians, held by a 
member of an Indian Tribe if such property interest is subject to a 
trust restriction an alienation, or otherwise within the borders of the 
Indian reservation.
    (d) The Indian Tribe is reasonably expected to be capable, in the 
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,

[[Page 339]]

of an effective section 404 dredge and fill permit program.

[58 FR 8183, Feb. 11, 1993, as amended at 59 FR 64345, Dec. 14, 1994]



Sec. 233.61  Determination of Tribal eligibility.

    An Indian Tribe may apply to the Regional Administrator for a 
determination that it meets the statutory criteria which authorize EPA 
to treat the Tribe in a manner similar to that in which it treats a 
State, for purposes of the section 404 program. The application shall be 
concise and describe how the Indian Tribe will meet each of the 
requirements of Sec. 233.60. The application should 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)(1) A map or legal description of the area over which the Indian 
Tribe asserts regulatory authority pursuant to section 518(e)(2) of the 
CWA and Sec. 233.60(c);
    (2) A statement by the Tribal Attorney General (or equivalent 
official) which describes the basis for the Tribe's assertion under 
section 518(e)(2) (including the nature or subject matter of the 
asserted regulatory authority) 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;
    (d) A narrative statement describing the capability of the Indian 
Tribe to administer an effective 404 permit program. The Statement may 
include:
    (1) A description of the Indian Tribe's previous management 
experience which may include the administration of programs and services 
authorized by the Indian Self Determination & Education 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 a section 404 dredge and fill permit program or 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) A description of the technical and administrative abilities of 
the staff to administer and manage an effective, environmentally sound 
404 dredge and fill permit program.
    (e) The Administrator may, at his discretion, request further 
documentation necessary to support a Tribal application.
    (f) If the Administrator has previously determined that a Tribe has 
met the requirements for eligibility or for ``treatment as a State'' for 
programs authorized under the Safe Drinking Water Act or the Clean Water 
Act, then that Tribe need only provide additional information unique to 
the particular statute or program for

[[Page 340]]

which the Tribe is seeking additional authorization.

(Approved by the Office of Management and Budget under control number 
2040-0140)

[58 FR 8183, Feb. 11, 1993, as amended at 59 FR 64345, Dec. 14, 1994]



Sec. 233.62  Procedures for processing an Indian Tribe's application.

    (a) The Regional Administrator shall process an application of an 
Indian Tribe submitted pursuant to Sec. 233.61 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 Sec. 233.15 in processing a Tribe's request to assume the 404 dredge 
and fill permit program.

[58 FR 8183, Feb. 11, 1993, as amended at 59 FR 64346, Dec. 14, 1994]



                    Subpart H_Approved State Programs



Sec. 233.70  Michigan.

    The applicable regulatory program for discharges of dredged or fill 
material into waters of the United States in Michigan that are not 
presently used, or susceptible for use in their natural condition or by 
reasonable improvement as a means to transport interstate or foreign 
commerce shoreward to the ordinary high water mark, including wetlands 
adjacent thereto, except those on Indian lands, is the program 
administered by the Michigan Department of Natural Resources, approved 
by EPA, pursuant to section 404 of the CWA. Notice of this approval was 
published in the Federal Register on October 2, 1984; the effective date 
of this program is October 16, 1984. This program consists of the 
following elements, as submitted to EPA in the State's program 
application.
    (a) Incorporation by reference. The requirements set forth in the 
State statutes and regulations cited in this paragraph are hereby 
incorporated by reference and made a part of the applicable 404 Program 
under the CWA for the State of Michigan. This incorporation by reference 
was approved by the Director of the Federal Register on October 16, 
1984.
    (1) The Great Lakes Submerged Lands Act, MCL 322.701 et seq., 
reprinted in Michigan 1983 Natural Resources Law.
    (2) The Water Resources Commission Act, MCL 323.1 et seq., reprinted 
in Michigan 1983 Natural Resources Law.
    (3) The Goemaere-Anderson Wetland Protection Act, MCL 281.701 et 
seq., reprinted in Michigan 1983 Natural Resources Law.
    (4) The Inland Lakes and Stream Act, MCL 281.951 et seq., reprinted 
in Michigan 1983 Natural Resources Law.
    (5) The Michigan Administrative Procedures Act of 1969, MCL 24-201 
et seq.
    (6) An act concerning the Erection of Dams, MCL 281.131 et seq., 
reprinted in Michigan 1983 Natural Resources Law.
    (7) R 281.811 through R 281.819 inclusive, R 281.821, R 281.823, R 
281.824, R 281.832 through R 281.839 inclusive, and R 281.841 through R 
281.845 inclusive of the Michigan Administrative Code (1979 ed., 1982 
supp.).
    (b) Other Laws. The following statutes and regulations, although not 
incorporated by reference, also are part of the approved State-
administered program:
    (1) Administrative Procedures Act, MCLA 24.201 et seq.
    (2) Freedom of Information Act, MCLA 15.231 et seq.
    (3) Open Meetings Act, MCLA 15.261 et seq.
    (4) Michigan Environmental Protection Act, MCLA 691.1201 et seq.
    (c) Memoranda of Agreement. (1) The Memorandum of Agreement between 
EPA Region V and the Michigan Department of Natural resources, signed by 
the EPA Region V Administrator on December 9, 1983.
    (2) The Memorandum of Agreement between the U.S. Army Corps of 
Engineers and the Michigan Department of Natural Resources, signed by 
the Commander, North Central Division, on March 27, 1984.
    (d) Statement of Legal Authority. (1) ``Attorney General 
Certification section 404/State of Michigan'', signed by Attorney 
General of Michigan, as submitted with the request for approval of ``The 
State of Michigan 404 Program'', October 26, 1983.
    (e) The Program description and any other materials submitted as 
part of

[[Page 341]]

the original application or supplements thereto.

(33 U.S.C. 13344, CWA 404)

[49 FR 38948, Oct. 2, 1984. Redesignated at 53 FR 20776, June 6, 1988. 
Redesignated at 58 FR 8183, Feb. 11, 1993]



Sec. 233.71  New Jersey.

    The applicable regulatory program for discharges of dredged or fill 
material into waters of the United States in New Jersey that are not 
presently used, or susceptible for use in their natural condition or by 
reasonable improvement as a means to transport interstate or foreign 
commerce shoreward to the ordinary high water mark, including wetlands 
adjacent thereto, except those on Indian lands, is the program 
administered by the New Jersey Department of Environmental Protection 
and Energy, approved by EPA, pursuant to section 404 of the CWA. The 
program becomes effective March 2, 1994. This program consists of the 
following elements, as submitted to EPA in the State's program 
application:
    (a) Incorporation by reference. The requirements set forth in the 
State statutes and regulations cited in paragraph (b) of this section 
are hereby incorporated by reference and made a part of the applicable 
404 Program under the CWA for the State of New Jersey, for incorporation 
by reference by the Director of the Federal Register in accordance with 
552(a) and 1 CFR part 51. Material is incorporated as it exists at 1 
p.m. on March 2, 1994 and notice of any change in the material will be 
published in the Federal Register.
    (b) Copies of materials incorporated by reference may be inspected 
at the National Archives and Records Administration (NARA). For 
information on the availability of this material at NARA, call 202-741-
6030, or go to: http://www.archives.gov/federal--register/code--of--
federal--regulations/ibr--locations.html. Copies of materials 
incorporated by reference may be obtained or inspected at the EPA UST 
Docket, located at 1235 Jefferson Davis Highway, First Floor , 
Arlington, VA 22202 (telephone number: 703-603-9231), or send mail to 
Mail Code 5305G, 1200 Pennsylvania Ave., NW., Washington, DC 20460, and 
at the Library of the Region 2 Regional Office, Federal Office Building, 
26 Federal Plaza, New York, NY 10278.
    (1) New Jersey Statutory Requirements Applicable to the Freshwater 
Wetlands Program, 1994.
    (2) New Jersey Regulatory Requirements Applicable to the Freshwater 
Wetlands Program, 1994.
    (c) Other laws. The following statutes and regulations, although not 
incorporated by reference, also are part of the approved State-
administered program:
    (1) Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq.
    (2) New Jersey Uniform Administrative Procedure Rules, N.J.A.C. 1:1-
1.1 et seq.
    (3) Open Public Meetings Act, N.J.S.A. 10:4-6 et seq.
    (4) Examination and Copies of Public Records, N.J.S.A. 47:1A-1 et 
seq.
    (5) Environmental Rights Act, N.J.S.A. 2A:35A-1 et seq.
    (6) Department of Environmental Protection (and Energy), N.J.S.A. 
13:1D-1 et seq.
    (7) Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq.
    (d) Memoranda of agreement. The following memoranda of agreement, 
although not incorporated by reference also are part of the approved 
State administered program:
    (1) The Memorandum of Agreement between EPA Region II and the New 
Jersey Department of Environmental Protection and Energy, signed by the 
EPA Region II Acting Regional Administrator on June 15, 1993.
    (2) The Memorandum of Agreement between the U.S. Army Corps of 
Engineers and the New Jersey Department of Environmental Protection and 
Energy, signed by the Division Engineer on March 4, 1993.
    (3) The Memorandum of Agreement between EPA Region II, the New 
Jersey Department of Environmental Protection and Energy, and the U.S. 
Fish and Wildlife Service, signed by all parties on December 22, 1993.
    (e) Statement of legal authority. The following documents, although 
not incorporated by reference, also are part of the approved State 
administered program:

[[Page 342]]

    (1) Attorney General's Statement, signed by the Attorney General of 
New Jersey, as submitted with the request for approval of The State of 
New Jersey's 404 Program.
    (2) The program description and any other materials submitted as 
part of the original application or supplements thereto.

[59 FR 9933, Mar. 2, 1994, as amended at 65 FR 47325, Aug. 2, 2000; 69 
FR 18801, Apr. 9, 2004]



PART 238_DEGRADABLE PLASTIC RING CARRIERS--Table of Contents




                      Subpart A_General Provisions

Sec.
238.10 Purpose and applicability.
238.20 Definitions.

                          Subpart B_Requirement

238.30 Requirement.

    Authority: 42 U.S.C. 6914b-1.

    Source: 59 FR 9870, Mar. 1, 1994, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 238.10  Purpose and applicability.

    The purpose of this part is to require that plastic ring carriers be 
made of degradable materials as described in Sec. Sec. 238.20 and 
238.30. The requirements of this part apply to all processors and 
importers of plastic ring carriers in the United States as defined in 
Sec. 238.20.



Sec. 238.20  Definitions.

    For the purpose of this part:
    Percent elongation at break means the percent increase in length of 
the plastic material caused by a tensile load. Percent elongation at 
break shall be calculated by dividing the extension at the moment of 
rupture of the specimen by the initial gage length of the specimen and 
multiplying by 100.
    Processor means the persons or entities that produce ring carriers 
ready for use as beverage carriers.
    Ring carrier means any plastic ring carrier device that contains at 
least one hole greater than 1\3/4\ inches in diameter which is made, 
used, or designed for the purpose of packaging, transporting, or 
carrying multipackaged cans or bottles.



                          Subpart B_Requirement



Sec. 238.30  Requirement.

    (a) No processor or person shall manufacture or import, in bulk, 
ring carriers intended for use in the United States unless they are 
designed and manufactured so that the ring carriers degrade to the point 
of 5 percent elongation at break, when tested in accordance with ASTM D-
3826-91, ``Standard Practice for Determining Degradation End Point in 
Degradable Polyolefins Using a Tensile Test'', after the ring carrier is 
exposed to, either:
    (1) 250 light-hours of UV in accordance with ASTM D-5208-91,'' 
Standard Practice for Operating Fluorescent Ultraviolet (UV) and 
Condensation Apparatus for Exposure of Photodegradable Plastics'', using 
cycle A; or
    (2) 35 days, during June and July, to marine conditions in a 
location below the latitude 26 degrees North, in continental United 
States waters.
    (b) The incorporation by reference of ASTM D-3826-91, ``Standard 
Practice for Determining Degradation End Point in Degradable Polyolefins 
Using a Tensile Test'', and ASTM D-5208-91, ``Standard Practice for 
Operating Fluorescent Ultraviolet (UV) and Condensation Apparatus for 
Exposure of Photodegradable Plastics,'' was approved by the director of 
the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 
51. Copies are available from the American Society of Testing and 
Materials, 1916 Race Street, Philadelphia, PA 19103. Copies may be 
inspected at the Resource Conservation and Recovery Act (RCRA) Docket 
Information Center, (5305), U.S. Environmental Protection Agency 
Headquarters, 1200 Pennsylvania Ave., NW., Washington, DC 20460 or at 
the National Archives and Records Administration (NARA). For information 
on the availability of this material at NARA, call 202-741-6030, or go 
to: http://www.archives.gov/federal--register/code--of--federal--
regulations/ibr--locations.html. These materials are incorporated as 
they exist on the date of the approval and notice of any change in these 
materials will be published in the Federal Register.

[59 FR 9870, Mar. 1, 1994, as amended at 65 FR 47325, Aug. 2, 2000; 69 
FR 18803, Apr. 9, 2004]

[[Page 343]]



                        SUBCHAPTER I_SOLID WASTES



PART 239_REQUIREMENTS FOR STATE PERMIT PROGRAM DETERMINATION OF ADEQUACY--

Table of Contents




                            Subpart A_General

Sec.
239.1 Purpose.
239.2 Scope and definitions.

                   Subpart B_State Program Application

239.3 Components of program application.
239.4 Narrative description of state permit program.
239.5 State legal certification.

           Subpart C_Requirements for Adequate Permit Programs

239.6 Permitting requirements.
239.7 Requirements for compliance monitoring authority.
239.8 Requirements for enforcement authority.
239.9 Intervention in civil enforcement proceedings.

               Subpart D_Adequacy Determination Procedures

239.10 Criteria and procedures for making adequacy determinations.
239.11 Approval procedures for partial approval.
239.12 Modifications of state programs.
239.13 Criteria and procedures for withdrawal of determination of 
          adequacy.

    Authority: 42 U.S.C. 6912, 6945.

    Source: 63 FR 57040, Oct. 23, 1998, unless otherwise noted.



                            Subpart A_General



Sec. 239.1  Purpose.

    This part specifies the requirements that state permit programs must 
meet to be determined adequate by the EPA under section 4005(c)(1)(C) of 
the Resource Conservation and Recovery Act (RCRA or the Act) and the 
procedures EPA will follow in determining the adequacy of state Subtitle 
D permit programs or other systems of prior approval and conditions 
required to be adopted and implemented by states under RCRA section 
4005(c)(1)(B).



Sec. 239.2  Scope and definitions.

    (a) Scope. (1) Nothing in this part precludes a state from adopting 
or enforcing requirements that are more stringent or more extensive than 
those required under this part or from operating a permit program or 
other system of prior approval and conditions with more stringent 
requirements or a broader scope of coverage than that required under 
this part.
    (2) All states which develop and implement a Subtitle D permit 
program must submit an application for an adequacy determination for 
purposes of this part. Except as provided in Sec. 239.12, state 
Subtitle D permit programs which received full approval prior to 
November 23, 1998 need not submit new applications for approval under 
this part. Similarly, except as provided in Sec. 239.12, states that 
received partial approval of their Subtitle D permit programs prior to 
November 23, 1998 need not reapply under this part for approval for 
those program elements EPA has already determined to be adequate.
    (3) If EPA determines that a state Subtitle D permit program is 
inadequate, EPA will have the authority to enforce the Subtitle D 
federal revised criteria on the RCRA section 4010(c) regulated 
facilities under the state's jurisdiction.
    (b) Definitions. (1) For purposes of this part:
    Administrator means the Administrator of the U.S. Environmental 
Protection Agency or any authorized representative.
    Approved permit program or approved program means a state Subtitle D 
permit program or other system of prior approval and conditions required 
under section 4005(c)(1)(B) of RCRA that has been determined to be 
adequate by EPA under this part.
    Approved state means a state whose Subtitle D permit program or 
other system of prior approval and conditions required under section 
4005(c)(1)(B) of RCRA has been determined to be adequate by EPA under 
this part.

[[Page 344]]

    Guidance means policy memorandum, an application for approval under 
this Part, or other technical or policy documents that supplement state 
laws and regulations. These documents provide direction with regard to 
how state agencies should interpret their permit program requirements 
and must be consistent with state laws and regulations.
    Implementing agency means the state and/or local agency(ies) 
responsible for carrying out an approved state permit program.
    Lead state agency means the state agency which has the legal 
authority and oversight responsibilities to implement the permit program 
or other system of prior approval and conditions to ensure that 
facilities regulated under section 4010(c) of Subtitle D of RCRA comply 
with the requirements of the approved state permit program and/or has 
been designated as lead agency.
    Permit or prior approval and conditions means any authorization, 
license, or equivalent control document issued under the authority of 
the state regulating the location, design, operation, ground-water 
monitoring, closure, post-closure care, corrective action, and financial 
assurance of Subtitle D regulated facilities.
    Permit documents means permit applications, draft and final permits, 
or other documents that include applicable design and management 
conditions in accordance with the Subtitle D federal revised criteria, 
found at 40 CFR part 257, subpart B and 40 CFR part 258, and the 
technical and administrative information used to explain the basis of 
permit conditions.
    Regional Administrator means any one of the ten Regional 
Administrators of the U.S. Environmental Protection Agency or any 
authorized representative.
    State Director means the chief administrative officer of the lead 
state agency responsible for implementing the state permit program for 
Subtitle D regulated facilities.
    State program or permit program means all the authorities, 
activities, and procedures that comprise the state's system of prior 
approval and conditions for regulating the location, design, operation, 
ground-water monitoring, closure, post-closure care, corrective action, 
and financial assurance of Subtitle D regulated facilities.
    Subtitle D regulated facilities means all solid waste disposal 
facilities subject to the revised criteria promulgated by EPA under the 
authority of RCRA Section 4010(c).
    (c) The definitions in 40 CFR part 257, subpart B and 40 CFR part 
258 apply to all subparts of this part.



                   Subpart B_State Program Application



Sec. 239.3  Components of program application.

    Any state that seeks a determination of adequacy under this part 
must submit an application to the Regional Administrator in the 
appropriate EPA Region. The application must identify the scope of the 
program for which the state is seeking approval (i.e., which class of 
Subtitle D regulated facilities are covered by the application). The 
application also must demonstrate that the state's authorities and 
procedures are adequate to ensure compliance with the relevant Subtitle 
D federal revised criteria and that its permit program is uniformly 
applicable to all the relevant Subtitle D regulated facilities within 
the state's jurisdiction. The application must contain the following 
parts:
    (a) A transmittal letter, signed by the State Director, requesting 
program approval. If more than one state agency has implementation 
responsibilities, the transmittal letter must designate a lead agency 
and be jointly signed by all state agencies with implementation 
responsibilities or by the State Governor;
    (b) A narrative description of the state permit program in 
accordance with Sec. 239.4;
    (c) A legal certification in accordance with Sec. 239.5;
    (d) Copies of all applicable state statutes, regulations, and 
guidance.



Sec. 239.4  Narrative description of state permit program.

    The description of a state's program must include:
    (a) An explanation of the jurisdiction and responsibilities of all 
state agencies and local agencies implementing

[[Page 345]]

the permit program and description of the coordination and communication 
responsibilities of the lead state agency to facilitate communications 
between EPA and the state if more than one state agency has 
implementation responsibilities;
    (b) An explanation of how the state will ensure that existing and 
new facilities are permitted or otherwise approved and in compliance 
with the relevant Subtitle D federal revised criteria;
    (c) A demonstration that the state meets the requirements in 
Sec. Sec. 239.6, 239.7, 239.8, and 239.9;
    (d) The number of facilities within the state's jurisdiction that 
received waste on or after the following dates:
    (1) For municipal solid waste landfill units, October 9, 1991.
    (2) For non-municipal, non-hazardous waste disposal units that 
receive CESQG hazardous waste, January 1, 1998.
    (e) A discussion of staff resources available to carry out and 
enforce the relevant state permit program.
    (f) A description of the state's public participation procedures as 
specified in Sec. 239.6(a) through (c).



Sec. 239.5  State legal certification.

    (a) A state must submit a written certification from the state 
Attorney General that the laws, regulations, and any applicable guidance 
cited in the application are enacted at the time the certification is 
signed and are fully effective when the state permit program is 
approved. This certification may be signed by the independent legal 
counsel for the state rather than the Attorney General, provided that 
such counsel has full authority to independently represent the lead 
state agency in court on all matters pertaining to the state program.
    (b) If guidance is to be used to supplement statutes and 
regulations, the state legal certification must discuss that the state 
has the authority to use guidance to develop enforceable permits which 
will ensure compliance with relevant standards issued pursuant to RCRA 
section 4010(c) and that the guidance was duly issued in accordance with 
state law.
    (c) If any laws, regulations, or guidance are not enacted or fully 
effective when the legal certification is signed, the certification 
should specify what portion(s) of laws, regulations, or guidance are not 
yet enacted or fully effective and when they are expected to be enacted 
or fully effective.
    The Agency may make a tentative determination of adequacy using this 
legal certification. The state must submit a revised legal certification 
meeting the requirements of paragraph (a) of this section and, if 
appropriate, paragraph (b) of this section along with all the applicable 
fully enacted and effective statutes, regulations, or guidance, prior to 
the Agency making a final determination of adequacy. If the statutes, 
regulations or guidance originally submitted under Sec. 239.3(d) and 
certified to under this section are modified in a significant way, the 
Regional Administrator will publish a new tentative determination to 
ensure adequate public participation.



           Subpart C_Requirements for Adequate Permit Programs



Sec. 239.6  Permitting requirements.

    (a) State law must require that:
    (1) Documents for permit determinations are made available for 
public review and comment; and
    (2) Final determinations on permit applications are made known to 
the public.
    (b) The state shall have procedures that ensure that public comments 
on permit determinations are considered.
    (c) The state must fully describe its public participation 
procedures for permit issuance and post-permit actions in the narrative 
description required under Sec. 239.4 and include a copy of these 
procedures in its permit program application.
    (d) The state shall have the authority to collect all information 
necessary to issue permits that are adequate to ensure compliance with 
the relevant 40 CFR part 257, subpart B or 40 CFR part 258 federal 
revised criteria.
    (e) For municipal solid waste landfill units, state law must require 
that:
    (1) Prior to construction and operation, all new municipal solid 
waste

[[Page 346]]

landfill units shall have a permit incorporating the conditions 
identified in paragraph (e)(3) of this section;
    (2) All existing municipal solid waste landfill units shall have a 
permit incorporating the conditions identified in paragraph (e)(3) of 
this section by the deadlines identified in 40 CFR 258.1;
    (3) The state shall have the authority to impose requirements for 
municipal solid waste landfill units adequate to ensure compliance with 
40 CFR part 258. These requirements shall include:
    (i) General standards which achieve compliance with 40 CFR part 258, 
subpart A;
    (ii) Location restrictions for municipal solid waste landfill units 
which achieve compliance with 40 CFR part 258, subpart B;
    (iii) Operating criteria for municipal solid waste landfill units 
which achieve compliance with 40 CFR part 258, subpart C;
    (iv) Design criteria for municipal solid waste landfill units which 
achieve compliance with 40 CFR part 258, subpart D;
    (v) Ground-water monitoring and corrective action standards for 
municipal solid waste landfill units which achieve compliance with 40 
CFR part 258, subpart E;
    (vi) Closure and post-closure care standards for municipal solid 
waste landfill units which achieve compliance with 40 CFR part 258, 
subpart F; and
    (vii) Financial assurance standards for municipal solid waste 
landfill units which achieve compliance with 40 CFR part 258, subpart G.
    (f) For non-municipal, non-hazardous waste disposal units that 
receive CESQG waste, state law must require that:
    (1) Prior to construction and operation, all new non-municipal, non-
hazardous waste disposal units that receive CESQG hazardous waste shall 
have a permit incorporating the conditions identified in paragraph 
(f)(3) of this section;
    (2) All existing non-municipal, non-hazardous waste disposal units 
that receive CESQG hazardous waste shall have a permit incorporating the 
conditions identified in paragraph (f)(3) of this section by the 
deadlines identified in 40 CFR 257.5;
    (3) The state shall have the authority to impose requirements for 
non-municipal, non-hazardous waste disposal units that receive CESQG 
hazardous waste adequate to ensure compliance with 40 CFR part 257, 
subpart B. These requirements shall include:
    (i) General standards which achieve compliance with 40 CFR part 257, 
subpart B (Sec. 257.5);
    (ii) Location restrictions for non-municipal, non-hazardous waste 
disposal units which achieve compliance with 40 CFR 257.7 through 
257.13;
    (iii) Ground-water monitoring and corrective action standards for 
non-municipal, non-hazardous waste disposal units which achieve 
compliance with 40 CFR 257.21 through 257.28; and,
    (iv) Recordkeeping for non-municipal, non-hazardous waste disposal 
units which achieves compliance with 40 CFR 257.30.



Sec. 239.7  Requirements for compliance monitoring authority.

    (a) The state must have the authority to:
    (1) Obtain any and all information necessary, including records and 
reports, from an owner or operator of a Subtitle D regulated facility, 
to determine whether the owner or operator is in compliance with the 
state requirements;
    (2) Conduct monitoring or testing to ensure that owners and 
operators are in compliance with the state requirements; and
    (3) Enter any site or premise subject to the permit program or in 
which records relevant to the operation of Subtitle D regulated 
facilities or activities are kept.
    (b) A state must demonstrate that its compliance monitoring program 
provides for inspections adequate to determine compliance with the 
approved state permit program.
    (c) A state must demonstrate that its compliance monitoring program 
provides mechanisms or processes to:
    (1) Verify the accuracy of information submitted by owners or 
operators of Subtitle D regulated facilities;
    (2) Verify the adequacy of methods (including sampling) used by 
owners or

[[Page 347]]

operators in developing that information;
    (3) Produce evidence admissible in an enforcement proceeding; and
    (4) Receive and ensure proper consideration of information submitted 
by the public.



Sec. 239.8  Requirements for enforcement authority.

    Any state seeking approval must have the authority to impose the 
following remedies for violation of state program requirements:
    (a) To restrain immediately and effectively any person by 
administrative or court order or by suit in a court of competent 
jurisdiction from engaging in any activity which may endanger or cause 
damage to human health or the environment.
    (b) To sue in a court of competent jurisdiction to enjoin any 
threatened or continuing activity which violates any statute, 
regulation, order, or permit which is part of or issued pursuant to the 
state program.
    (c) To sue in a court of competent jurisdiction to recover civil 
penalties for violations of a statute or regulation which is part of the 
state program or of an order or permit which is issued pursuant to the 
state program.



Sec. 239.9  Intervention in civil enforcement proceedings.

    Any state seeking approval must provide for intervention in the 
state civil enforcement process by providing either:
    (a) Authority that allows intervention, as a right, in any civil 
action to obtain remedies specified in Sec. 239.8 by any citizen having 
an interest that is or may be adversely affected; or,
    (b) Assurance by the appropriate state agency that:
    (1) It will provide notice and opportunity for public involvement in 
all proposed settlements of civil enforcement actions (except where 
immediate action is necessary to adequately protect human health and the 
environment); and,
    (2) It will investigate and provide responses to citizen complaints 
about violations; and,
    (3) It will not oppose citizen intervention when permissive 
intervention is allowed by statute, rule, or regulation.



               Subpart D_Adequacy Determination Procedures



Sec. 239.10  Criteria and procedures for making adequacy determinations.

    (a) The State Director seeking an adequacy determination must submit 
to the appropriate Regional Administrator an application in accordance 
with Sec. 239.3.
    (b) Within 30 days of receipt of a state program application, the 
Regional Administrator will review the application and notify the state 
whether its application is administratively complete in accordance with 
the application components required in Sec. 239.3. The 180-day review 
period for final determination of adequacy, described in paragraph (d) 
of this section, begins when the Regional Administrator deems a state 
application to be administratively complete.
    (c) After receipt and review of a complete application, the Regional 
Administrator will make a tentative determination on the adequacy of the 
state program. The Regional Administrator shall publish the tentative 
determination on the adequacy of the state program in the Federal 
Register. Notice of the tentative determination must:
    (1) Specify the Regional Administrator's tentative determination;
    (2) Afford the public at least 30 days after the notice to comment 
on the state application and the Regional Administrator's tentative 
determination;
    (3) Include a specific statement of the areas of concern, if the 
Regional Administrator indicates the state program may not be adequate;
    (4) Note the availability for inspection by the public of the state 
permit program application; and
    (5) Indicate that a public hearing will be held by EPA if sufficient 
public interest is expressed during the comment period. The Regional 
Administrator may determine when such a hearing is necessary to clarify 
issues involved in the tentative adequacy determination. If held, the 
public hearing will be scheduled at least 45 days from public

[[Page 348]]

notice of such hearing. The public comment period may be continued after 
the hearing at the discretion of the Regional Administrator.
    (d) Within 180 days of determining that a state program application 
is administratively complete, the Regional Administrator will make a 
final determination of adequacy after review and consideration of all 
public comments, unless the Regional Administrator, after consultation 
with the State Director, agrees to extend the review period. The 
Regional Administrator will give notice of the final determination in 
the Federal Register. The document must include a statement of the 
reasons for the determination and a response to significant comments 
received.
    (e) For all states that do not submit an application, the 
Administrator or Regional Administrator may issue a final determination 
of inadequacy in the Federal Register declaring those state permit 
programs inadequate to ensure compliance with the relevant Subtitle D 
federal revised criteria. Such states may apply later for a 
determination of adequacy.



Sec. 239.11  Approval procedures for partial approval.

    (a) EPA may partially approve state permit programs that do not meet 
all of the requirements in Sec. 239.6(e)(3) (i.e., do not incorporate 
all of the relevant Subtitle D federal revised criteria). Such permit 
programs may be partially approved if:
    (1) The appropriate Regional Administrator determines that the 
state's permit program largely meets the technical requirements of Sec. 
239.6 and meets all other requirements of this part;
    (2) Changes to a specific part(s) of the state permit program are 
required in order for the state program to fully meet the requirements 
of Sec. 239.6; and
    (3) Provisions not included in the partially approved portions of 
the state permit program are clearly identifiable and separable subsets 
of the relevant Subtitle D federal revised criteria.
    (b) A state applying for partial approval must include in its 
application a schedule to revise the necessary laws, regulations, and/or 
guidance to obtain full approval within two years of final approval of 
the partial permit program. The Regional Administrator and the State 
Director must agree to the schedule.
    (c) The application for partial approval must fully meet the 
requirements of subparts B and C of this part.
    (d) States with partially approved permit programs are only approved 
for those relevant provisions of the Subtitle D criteria included in the 
partial approval.
    (e) Any partial approval adequacy determination made by the Regional 
Administrator pursuant to this section and Sec. 239.10 shall expire two 
years from the effective date of the final partial program adequacy 
determination unless the Regional Administrator grants an extension. 
States seeking an extension must submit a request to the appropriate 
Regional Administrator, must provide good cause for missing the 
deadline, and must supply a new schedule to revise necessary laws, 
regulations, and/or guidance to obtain full approval. The appropriate 
Regional Administrator will decide if there is good cause and if the new 
schedule is realistic. If the Regional Administrator extends the 
expiration date, the Region will publish a document in the Federal 
Register along with the new expiration date. A state with partial 
approval shall submit an amended application meeting all of the 
requirements of this part and have that application approved by the two-
year deadline or the amended date set by the Regional Administrator.
    (f) The Regional Administrator will follow the adequacy 
determination procedures in Sec. 239.10 for all initial applications 
for partial program approval and follow the adequacy determination 
procedures in Sec. 239.12(f) for any amendments for approval for 
unapproved sections of the relevant Subtitle D federal revised criteria.



Sec. 239.12  Modifications of state programs.

    (a) Approved state permit programs may be modified for various 
reasons, such as changes in federal or state statutory or regulatory 
authority.
    (b) If the federal statutory or regulatory authorities that have 
significant

[[Page 349]]

implications for state permit programs change, approved states may be 
required to revise their permit programs. These changes may necessitate 
submission of a revised application. Such a change at the federal level 
and resultant state requirements would be made known to the states 
either in a Federal Register document containing the change or through 
the appropriate EPA Regional Office.
    (c) States that modify their programs must notify the Regional 
Administrator of the modifications. Program modifications include 
changes in state statutory or regulatory authority or relevant guidance 
or shifting of responsibility for the state program within the lead 
agency or to a new or different state agency or agencies. Changes to the 
state's permit program, as described in its application which may result 
in the program becoming inadequate, must be reported to the Regional 
Administrator. In addition, changes to a state's basic statutory or 
regulatory authority or guidance which were not part of the state's 
initial application, but may have a significant impact on the adequacy 
of the state's permit program, also must be reported to the Regional 
Administrator.
    (d) States must notify the appropriate Regional Administrator of all 
permit program modifications required in paragraphs (b) and (c) of this 
section within a time-frame agreed to by the State Director and the 
Regional Administrator.
    (e) The Regional Administrator will review the modifications and 
determine whether the State Director must submit a revised application. 
If a revised application is necessary, the Regional Administrator will 
inform the State Director in writing that a revised application is 
necessary, specifying the required revisions and establishing a schedule 
for submission of the revised application.
    (f) For all revised municipal solid waste landfill permit program 
applications, and for all amended applications in the case of partially 
approved programs, the state must submit to the appropriate Regional 
Administrator an amended application that addresses those portions of 
its program that have changed or are being amended. For such revised 
programs, as well as for those from states seeking EPA approval of 
permit programs for state regulation of non-municipal, non-hazardous 
waste disposal units which receive conditionally exempt small quantity 
generator hazardous waste, the Regional Administrator will make an 
adequacy determination using the criteria found in Sec. 239.10.
    (g) For revised applications that do not incorporate permit programs 
for additional classifications of Subtitle D regulated facilities and 
for all amended applications in the case of partially approved programs, 
the appropriate Regional Administrator shall provide for public 
participation using the procedures outlined in Sec. 239.10 or, at the 
Regional Administrator's discretion, using the following procedures.
    (1) The Regional Administrator will publish an adequacy 
determination in the Federal Register summarizing the Agency's decision 
and the portion(s) of the state permit program affected and providing an 
opportunity to comment for a period of at least 60 days.
    (2) The adequacy determination will become effective 60 days 
following publication, if no adverse comments are received. If EPA 
receives comments opposing its adequacy determination, the Regional 
Administrator will review these comments and publish another Federal 
Register document responding to public comments and either affirming or 
revising the initial decision.



Sec. 239.13  Criteria and procedures for withdrawal of determination of 

adequacy.

    (a) The Regional Administrator may initiate withdrawal of a 
determination of adequacy when the Regional Administrator has reason to 
believe that:
    (1) A state no longer has an adequate permit program; or
    (2) The state no longer has adequate authority to administer and 
enforce an approved program in accordance with this part.
    (b) Upon receipt of substantive information sufficient to indicate 
that a state program may no longer be adequate, the Regional 
Administrator

[[Page 350]]

shall inform the state in writing of the information.
    (c) If, within 45 days of the state's receipt of the information in 
paragraph (b) of this section, the state demonstrates to the 
satisfaction of the Regional Administrator that the state program is 
adequate (i.e., in compliance with this part), the Regional 
Administrator shall take no further action toward withdrawal of the 
determination of adequacy and shall so notify the state and any 
person(s) who submitted information regarding the adequacy of the 
state's program and authorities.
    (d) If the State Director does not demonstrate the state's 
compliance with this part to the satisfaction of the Regional 
Administrator, the Regional Administrator shall list the deficiencies in 
the program and negotiate with the state a reasonable time for the state 
to complete such action to correct deficiencies as the Regional 
Administrator determines necessary. If these negotiations reach an 
impasse, the Regional Administrator shall establish a time period within 
which the state must correct any program deficiencies and inform the 
State Director of the time period in writing.
    (e) Within the schedule negotiated by the Regional Administrator and 
the State Director, or set by the Regional Administrator, the state 
shall take appropriate action to correct deficiencies and shall file 
with the Regional Administrator a statement certified by the State 
Director describing the steps taken to correct the deficiencies.
    (f) If the state takes appropriate action to correct deficiencies, 
the Regional Administrator shall take no further action toward 
withdrawal of determination of adequacy and shall so notify the state 
and any person(s) who submitted information regarding the adequacy of 
the state's permit program. If the state has not demonstrated its 
compliance with this part to the satisfaction of the Regional 
Administrator, the Regional Administrator shall inform the State 
Director and may initiate withdrawal of all or part of the determination 
of state program adequacy.
    (g) The Regional Administrator shall initiate withdrawal of 
determination of adequacy by publishing the tentative withdrawal of 
determination of adequacy of the state program in the Federal Register. 
Notice of the tentative determination must:
    (1) Afford the public at least 60 days after the notice to comment 
on the Regional Administrator's tentative determination;
    (2) Include a specific statement of the Regional Administrator's 
areas of concern and reason to believe the state program may no longer 
be adequate; and
    (3) Indicate that a public hearing will be held by EPA if sufficient 
public interest is expressed during the comment period or when the 
Regional Administrator determines that such a hearing might clarify 
issues involved in the tentative withdrawal determination.
    (h) If the Regional Administrator finds, after the public hearing 
(if any) and review and consideration of all public comments, that the 
state is in compliance with this part, the withdrawal proceedings shall 
be terminated and the decision shall be published in the Federal 
Register. The document must include a statement of the reasons for this 
determination and a response to significant comments received. If the 
Regional Administrator finds that the state program is not in compliance 
with this Part by the date prescribed by the Regional Administrator or 
any extension approved by the Regional Administrator, a final notice of 
inadequacy shall be published in the Federal Register declaring the 
state permit program inadequate to ensure compliance with the relevant 
Subtitle D federal revised criteria. The document will include a 
statement of the reasons for this determination and response to 
significant comments received.
    (i) States may seek a determination of adequacy at any time after a 
determination of inadequacy.

[63 FR 57040, Oct. 23, 1999, as amended at 64 FR 4315, Jan. 28, 1999]

[[Page 351]]



PART 240_GUIDELINES FOR THE THERMAL PROCESSING OF SOLID WASTES--Table of 

Contents




                      Subpart A_General Provisions

Sec.
240.100 Scope.
240.101 Definitions.

            Subpart B_Requirements and Recommended Procedures

240.200 Solid wastes accepted.
240.200-1 Requirement.
240.200-2 Recommended procedures: Design.
240.200-3 Recommended procedures: Operations.
240.201 Solid wastes excluded.
240.201-1 Requirement.
240.201-2 Recommended procedures: Design.
240.201-3 Recommended procedures: Operations.
240.202 Site selection.
240.202-1 Requirement.
240.202-2 Recommended procedures: Design.
240.202-3 Recommended procedures: Operations.
240.203 General design.
240.203-1 Requirement.
240.203-2 Recommended procedures: Design.
240.203-3 Recommended procedures: Operations.
240.204 Water quality.
240.204-1 Requirement.
240.204-2 Recommended procedures: Design.
240.204-3 Recommended procedures: Operations.
240.205 Air quality.
240.205-1 Requirement.
240.205-2 Recommended procedures: Design.
240.205-3 Recommended procedures: Operations.
240.206 Vectors.
240.206-1 Requirement.
240.206-2 Recommended procedures: Design.
240.206-3 Recommended procedures: Operations.
240.207 Aesthetics.
240.207-1 Requirement.
240.207-2 Recommended procedures: Design.
240.207-3 Recommended procedures: Operations.
240.208 Residue.
240.208-1 Requirement.
240.208-2 Recommended procedures: Design.
240.208-3 Recommended procedures: Operations.
240.209 Safety.
240.209-1 Requirement.
240.209-2 Recommended procedures: Design.
240.209-3 Recommended procedures: Operations.
240.210 General operations.
240.210-1 Requirement.
240.210-2 Recommended procedures: Design.
240.210-3 Recommended procedures: Operations.
240.211 Records.
240.211-1 Requirement.
240.211-2 Recommended procedures: Design.
240.211-3 Recommended procedures: Operations.

Appendix to Part 240--Recommended Bibliography

    Authority: Sec. 209(a), Solid Waste Disposal Act of 1965 (Pub. L. 
89-272); as amended by the Resource Recovery Act of 1970 (Pub. L. 91-
512).

    Source: 39 FR 29329, Aug. 14, 1974, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 240.100  Scope.

    (a) The prescribed guidelines are applicable to thermal processing 
facilities designed to process or which are processing 50 tons or more 
per day of municipal-type solid wastes. The application of this capacity 
criterion will be interpreted to mean any facility designed to process 
or actually processing 50/24 tons or more per hour. However, the 
guidelines do not apply to hazardous, agricultural, and mining wastes 
because of the lack of sufficient information upon which to base 
recommended procedures.
    (b) The requirement sections contained herein delineate minimum 
levels of performance required of any solid waste thermal processing 
operation. The recommended procedures sections are presented to suggest 
preferred methods by which the objectives of the requirements can be 
realized. The recommended procedures are based on the practice of 
incineration at large facilities (50 tons per day or more) processing 
municipal solid waste. If techniques other than the recommended 
procedures are used or wastes other than municipal wastes are processed, 
it is the obligation of the facility's owner and operator to demonstrate 
to the responsible agency in advance by means of engineering 
calculations, pilot plant data, etc., that the techniques employed will 
satisfy the requirements.
    (c) Thermal processing residue must be disposed of in an 
environmentally acceptable manner. Where a land disposal facility is 
employed, it must be in accordance with the Environmental

[[Page 352]]

Protection Agency's Guidelines for the Land Disposal of Solid Wastes for 
both residues from the thermal processing operation and those non-
hazardous wastes which cannot be thermally processed for reasons of 
health, safety, or technological limitation.
    (d) Pursuant to section 211 of the Solid Waste Disposal Act, as 
amended, these guidelines are mandatory for Federal agencies. In 
addition, they are recommended to State, interstate, regional, and local 
government agencies for use in their activities.
    (e) The guidelines are intended to apply equally to all solid waste 
generated by Federal agencies, regardless of whether processed or 
disposed of on or off Federal property; and solid waste generated by 
non-Federal entities, but processed or disposed of on Federal property. 
However, in the case of many Federal facilities such as Post Offices, 
military recruiting stations, and other offices, local community solid 
waste processing and disposal facilities are utilized, and processing 
and disposal is not within the management control of the Federal agency. 
Thus, implementation of the guidelines can be expected only in those 
situations where the Federal agency is able to exercise direct 
management control over the processing and disposal operations. However, 
every effort must be made by the responsible agency, where offsite 
facilities are utilized, to attain processing and disposal facilities 
that are in compliance with the guidelines. Where non-Federal generated 
solid waste is processed and disposed of on Federal land and/or 
facilities, those facilities and/or sites must be in compliance with 
these guidelines. Determination of compliance to meet the requirements 
of the guidelines rests with the responsible agency, and they have the 
authority to determine how such compliance may occur.



Sec. 240.101  Definitions.

    As used in these guidelines:
    (a) Air: Overfire air means air, under control as to quantity and 
direction, introduced above or beyond a fuel bed by induced or forced 
draft. ``Underfire air'' means any forced or induced air, under control 
as to quantity and direction, that is supplied from beneath and which 
passes through the solid wastes fuel bed.
    (b) Bottom ash means the solid material that remains on a hearth or 
falls off the grate after thermal processing is complete.
    (c) Combustibles means materials that can be ignited at a specific 
temperature in the presence of air to release heat energy.
    (d) Design capacity means the weight of solid waste of a specified 
gross calorific value that a thermal processing facility is designed to 
process in 24 hours of continuous operation; usually expressed in tons 
per day.
    (e) Discharge means water-borne pollutants released to a receiving 
stream directly or indirectly or to a sewerage system.
    (f) Emission means gas-borne pollutants released to the atmosphere.
    (g) Facility means all thermal processing equipment, buildings, and 
grounds at a specific site.
    (h) Fly ash means suspended particles, charred paper, dust, soot, 
and other partially oxidized matter carried in the products of 
combustion.
    (i) Free moisture means liquid that will drain freely by gravity 
from solid materials.
    (j) Furnace means the chambers of the combustion train where drying, 
ignition, and combustion of waste material and evolved gases occur.
    (k) Grate siftings means the materials that fall from the solid 
waste fuel bed through the grate openings.
    (l) Gross calorific value means heat liberated when waste is burned 
completely and the products of combustion are cooled to the initial 
temperature of the waste. Usually expressed in British thermal units per 
pound.
    (m) Hazardous waste means any waste or combination of wastes which 
pose a substantial present or potential hazard to human health or living 
organisms because such wastes are nondegradable or persistent in nature 
or because they can be biologically magnified, or because they can be 
lethal, or because they may otherwise cause or tend to cause detrimental 
cumulative effects.
    (n) Incineration means the controlled process which combustible 
solid, liquid, or gaseous wastes are burned and changed into 
noncombustible gases.

[[Page 353]]

    (o) Incinerator means a facility consisting of one or more furnaces 
in which wastes are burned.
    (p) Infectious waste means: (1) Equipment, instruments, utensils, 
and fomites of a disposable nature from the rooms of patients who are 
suspected to have or have been diagnosed as having a communicable 
disease and must, therefore, be isolated as required by public health 
agencies; (2) laboratory wastes such as pathological specimens (e.g., 
all tissues, specimens of blood elements, excreta, and secretions 
obtained from patients or laboratory animals) and disposable fomites 
(any substance that may harbor or trans mit pathogenic organisms) 
attendant thereto; (3) surgical operating room pathologic specimens and 
disposable fomites attendant thereto and similar disposable materials 
from outpatient areas and emergency rooms.
    (q) Municipal solid wastes means normally, residential and 
commercial solid wastes generated within a community.
    (r) Open burning means burning of solid wastes in the open, such as 
in an open dump.
    (s) Open dump means a land disposal site at which solid wastes are 
disposed of in a manner that does not protect the environment, are 
susceptible to open burning, and are exposed to the elements, vectors, 
and scavengers.
    (t) Plans means reports and drawings, including a narrative 
operating description, prepared to describe the facility and its 
proposed operation.
    (u) Residue means all the solids that remain after completion of 
thermal processing, including bottom ash, fly ash, and grate siftings.
    (v) Responsible agency means the organizational element that has the 
legal duty to ensure that owners, operators, or users of facilities 
comply with these guidelines.
    (w) Sanitary landfill means a land disposal site employing an 
engineered method of disposing of solid wastes on land in a manner that 
minimizes environmental hazards by spreading the solid wastes in thin 
layers, compacting the solid wastes to the smallest practical volume, 
and applying and compacting cover material at the end of each operating 
day.
    (x) Sludge means the accumulated semiliquid suspension of settled 
solids deposited from wastewaters or other fluids in tanks or basins. It 
does not include solids or dissolved material in domestic sewage or 
other significant pollutants in water resources, such as silt, dissolved 
or suspended solids in industrial wastewater effluents, dissolved 
materials in irrigation return flows or other common water pollutants.
    (y) Solid wastes means garbage, refuse, sludges, and other discarded 
solid materials resulting from industrial and commercial operations and 
from community activities. It does not include solids or dissolved 
material in domestic sewage or other significant pollutants in water 
resources, such as silt, dissolved or suspended solids in industrial 
wastewater effluents, dissolved materials in irrigation return flows or 
other common water pollutants.
    (z) Special wastes means nonhazardous solid wastes requiring 
handling other than that normally used for municipal solid waste.
    (aa) Thermal processing means processing of waste material by means 
of heat.
    (bb) Vector means a carrier, usually an arthropod, that is capable 
of transmitting a pathogen from one organism to another.



            Subpart B_Requirements and Recommended Procedures



Sec. 240.200  Solid wastes accepted.



Sec. 240.200-1  Requirement.

    In consultation with the responsible agencies, the owner/operator 
shall determine what wastes shall be accepted and shall identify any 
special handling required. In general, only wastes for which the 
facility has been specifically designed shall be accepted; however, 
other wastes may be accepted if it has been demonstrated to the 
responsible agency that they can be satisfactorily processed within the 
design capability of the facility or after appropriate facility 
modifications.



Sec. 240.200-2  Recommended procedures: Design.

    (a) In addition to the residential and commercial wastes normally 
processed

[[Page 354]]

at municipal-scale incinerators, certain special wastes might be 
considered for processing. These include: Certain bulky wastes (e.g., 
combustible demolition and construction debris, tree stumps, large 
timbers, furniture, and major appliances), digested and dewatered 
sludges from waste water treatment facilities, raw sewage sludges, and 
septic tank pumpings.
    (b) If the facility is designed to handle special wastes, special 
areas should be provided where appropriate for storage while they await 
processing.



Sec. 240.200-3  Recommended procedures: Operations.

    (a) Storage areas for special wastes should be clearly marked.
    (b) Facility personnel should be thoroughly trained in any unusual 
handling required by acceptance of Special Wastes.



Sec. 240.201  Solid wastes excluded.



Sec. 240.201-1  Requirement.

    Using information provided to them by the waste generator/owner, the 
responsible agency and the facility owner/operator shall jointly 
determine specific wastes to be excluded and shall identify them in the 
plans. The generator/owner of excluded wastes shall consult with the 
responsible agency in determining an alternative method of disposal for 
excluded wastes. The criteria used in considering whether a waste is 
unacceptable shall include the facility's capabilities, alternative 
methods available, the chemical and biological characteristics of the 
waste, environmental and health effects, and the safety of personnel. 
Disposal of pesticides and pesticide containers shall be consistent with 
the Federal Environmental Pesticides Control Act of 1972 (Pub. L. 92-
516) and recommended procedures promulgated thereunder.



Sec. 240.201-2  Recommended procedures: Design.

    (a) Provision for storing, handling, and removing hazardous or 
excluded wastes inadvertently left at the facility should be considered 
in design.
    (b) Examples of wastes which should be considered for exclusion from 
the facility include: Hazardous wastes, very large carcasses, automobile 
bodies, dewatered sludges from water treatment plants, and industrial 
process wastes.



Sec. 240.201-3  Recommended procedures: Operations.

    (a) Regular users of the facility should be given a list of excluded 
materials. The list should also be displayed prominently at the facility 
entrance. If a regular user persists in making unacceptable deliveries, 
he should be barred from the installation and reported to the 
responsible agency.
    (b) The operating plan should specify the procedures and precautions 
to be taken if unacceptable wastes are delivered to the facility or are 
improperly left there. Operating personnel should be thoroughly trained 
in such pro cedures.



Sec. 240.202  Site selection.



Sec. 240.202-1  Requirement.

    Site selection and utilization shall be consistent with public 
health and welfare, and air and water quality standards and adaptable to 
appropriate land-use plans.



Sec. 240.202-2  Recommended procedures: Design.

    (a) Whenever possible, thermal processing facilities should be 
located in areas zoned for industrial use and having adequate utilities 
to serve the facility.
    (b) The site should be accessible by permanent roads leading from 
the public road system.
    (c) Environmental factors, climatological conditions, and 
socioeconomic factors should be given full consideration as selection 
criteria.



Sec. 240.202-3  Recommended procedures: Operations.

    Not applicable.



Sec. 240.203  General design.



Sec. 240.203-1  Requirement.

    A plan for the design of new facilities or modifications to existing 
facilities shall be prepared or approved by a professional engineer. A 
list of major considerations and the rationale for the

[[Page 355]]

decision on each consideration shall be approved by the responsible 
agency prior to authorization for construction. This information shall 
remain available for review.



Sec. 240.203-2  Recommended procedures: Design.

    (a) The types, amounts (by weight and volume), and characteristics 
of all solid wastes expected to be processed should be determined by 
survey and analysis. The gross calorific value of the solid wastes to be 
processed should be determined to serve as a basis for design.
    (b) Resource recovery in the form of heat utilization or direct 
recovery of materials should be considered in the design.
    (c) The facility should be designed to be compatible with the 
surrounding area, easy to maintain, and consistent with the land use of 
the area.
    (d) Employee convenience facilities and plant maintenance facilities 
should be provided. Adequate lighting should be provided throughout the 
facility.
    (e) The corrosive and erosive action of once-through and 
recirculated process waters should be controlled either by treating them 
or by using materials capable of withstanding the adverse effects of the 
waters.
    (f) Facility design capacity should consider such items as waste 
quantity and characteristics, variations in waste generation, equipment 
downtime, and availability of alternate storage, processing, or disposal 
capability.
    (g) Facility systems and subsystems should be designed to assure 
standby capability in the event of breakdown. Provision for standby 
water and power should also be considered.
    (h) Instrumentation should be provided to determine such factors as: 
The weight of incoming and outgoing materials (the same scale system may 
be used for both); total combustion airflow rates; underfire and 
overfire airflows and the quantitative distribution of each; selected 
temperatures and pressures in the furnace, along gas passages, in the 
particulate collection device, and in the stack; electrical power and 
water consumption of critical units; and rate of operation. The smoke 
density, the concentration of carbon monoxide, or the concentration of 
hydrocarbons in the stack gases should be monitored. Measurement of the 
pH should be considered for effluent waters. Continuously recording 
instrumentation should be used as much as possible.
    (i) Audible signals should be provided to alert operating personnel 
of critical operating unit malfunctions.
    (j) Sampling capability should be designed into the facility so that 
each process stream can be sampled, and the utilities required to do so 
should be close at hand. The sampling sites should be so designed that 
personnel can sample safely without interfering with normal plant 
operations.
    (k) A laboratory should be included in the design, or provision 
should be made for laboratory analyses to be performed by an outside 
source acceptable to the responsible agency.



Sec. 240.203-3  Recommended procedures: Operations.

    Not applicable.



Sec. 240.204  Water quality.



Sec. 240.204-1  Requirement.

    All waters discharged from the facility shall be sufficiently 
treated to meet the most stringent of applicable water quality 
standards, established in accordance with or effective under the 
provisions of the Federal Water Pollution Control Act, as amended.



Sec. 240.204-2  Recommended procedures: Design.

    (a) Effluent waters should not be discharged indiscriminately. 
Consideration should be given to onsite treatment of process and waste 
waters before discharge.
    (b) Recirculation of process waters should be considered.



Sec. 240.204-3  Recommended procedures: Operations.

    (a) When monitoring instrumentation indicates excessive discharge 
contamination, appropriate adjustments should be made to lower the 
concentrations to acceptable levels.

[[Page 356]]

    (b) In the event of an accidental spill, the local regulatory agency 
should be notified immediately.



Sec. 240.205  Air quality.



Sec. 240.205-1  Requirement.

    Emissions shall not exceed applicable existing emission standards 
established by the U.S. Environmental Protection Agency (as published in 
parts 52, 60, 61 and 76 of this chapter) under the authority of the 
Clean Air Act, as amended, or State or local emission standards 
effective under that Act, if the latter are more stringent.



Sec. 240.205-2  Recommended procedures: Design.

    (a) These requirements should be met by using appropriate air 
pollution control technology.
    (b) All emissions, including dust from vents, should be controlled.



Sec. 240.205-3  Recommended procedures: Operations.

    When monitoring instrumentation indicates excessive emissions, 
appropriate adjustments should be made to lower the emission to 
acceptable levels.



Sec. 240.206  Vectors.



Sec. 240.206-1  Requirement.

    Conditions shall be maintained that are unfavorable for the 
harboring, feeding, and breeding of vectors.



Sec. 240.206-2  Recommended procedures: Design.

    Thermal processing facilities should be designed for ease of 
cleaning. Areas favorable for breeding of vectors should be avoided.



Sec. 240.206-3  Recommended procedures: Operations.

    (a) A housekeeping schedule should be established and maintained. As 
a minimum the schedule should provide for cleaning the tipping and 
residue areas as spillages occur, emptying the solid waste storage area 
at least weekly, and routinely cleaning the remainder of the facility.
    (b) Solid waste and residue should not be allowed to accumulate at 
the facility for more than one week.



Sec. 240.207  Aesthetics.



Sec. 240.207-1  Requirement.

    The incinerator facility shall be designed and operated at all times 
in an aesthetically acceptable manner.



Sec. 240.207-2  Recommended procedures: Design.

    The facility should be designed so that it is physically attractive. 
The tipping, residue discharge, and waste salvage areas should be 
screened from public view, and the grounds should be landscaped.



Sec. 240.207-3  Recommended procedures: Operations.

    (a) A routine housekeeping and litter removal schedule should be 
established and implemented so that the facility regularly presents a 
neat and clean appearance.
    (b) Solid wastes that cannot be processed by the facility should be 
removed from the facility at least weekly. Open burning or open dumping 
of this material should be prohibited.



Sec. 240.208  Residue.



Sec. 240.208-1  Requirement.

    Residue and other solid waste products resulting from a thermal 
process shall be disposed of in an environmentally acceptable manner. 
Where land disposal is employed, practices must be in conformance with 
the U.S. Environmental Protection Agency's Guidelines for the Land 
Disposal of Solid Wastes. Unwanted residue materials remaining after the 
recovery operation shall be disposed of in a manner which protects the 
environment. Where land disposal is employed, practices must be in 
conformance with the U.S. Environmental Protection Agency's Guidelines 
for the Land Disposal of Solid Wastes.



Sec. 240.208-2  Recommended procedures: Design.

    Thermal processing facilities should be so designed as to allow for 
removal from the site of residue or other solids

[[Page 357]]

in a manner that protects the environment.



Sec. 240.208-3  Recommended procedures: Operations.

    (a) The furnace operator should visually observe the quality of the 
bottom ash at least twice per shift and record in the operating log the 
estimated percentage of unburned combustibles.
    (b) If residue or fly ash is collected in a wet condition, it should 
be drained of free moisture. Transportation of residue and fly ash 
should be by means that prevent the loads from shifting, falling, 
leaking, or blowing from the container.



Sec. 240.209  Safety.



Sec. 240.209-1  Requirement.

    Incinerators shall be designed, operated, and maintained in a manner 
to protect the health and safety of personnel associated with the 
operation of the facility. Pertinent provisions of the Occupational 
Safety and Health Act of 1970 (Pub. L. 91-596) and regulations 
promulgated thereunder shall apply.



Sec. 240.209-2  Recommended procedures: Design.

    (a) Attention should be given to the safety of operators and 
vehicles through the provision of safety devices.
    (b) Fire control equipment should be provided.
    (c) Methods and/or equipment for removal of an injured person from 
the storage pit should be available.



Sec. 240.209-3  Recommended procedures: Operations.

    (a) Detailed procedures should be developed for operation during 
such emergency situations as power failure, air or water supply failure, 
equipment breakdowns, and fire. These procedures should be posted in 
prominent locations, implemented by the staff as required, and upgraded 
and revised periodically.
    (b) Approved respirators or self-contained breathing apparatus 
should be available at convenient locations. Their use should be 
reviewed periodically with facility personnel. Information on this type 
equipment can be obtained from the Appalachian Laboratory for 
Occupational Respiratory Disease, National Institute for Occupational 
Safety and Health, Morgantown, W. Va.
    (c) Training in first aid practices and emergency procedures should 
be given all personnel.
    (d) Personal safety devices such as hard hats, gloves, safety 
glasses, and footwear should be provided for facility employees.
    (e) If a regular user or employee persistently poses a safety hazard 
he should be barred from the facility and reported to the responsible 
agency.



Sec. 240.210  General operations.



Sec. 240.210-1  Requirement.

    The thermal processing facility shall be operated and maintained in 
a manner that assures it will meet the design requirements. An 
operations manual describing the various tasks to be performed, 
operating procedures, and safety precautions for various areas of the 
facility shall be developed and shall be readily available for reference 
by plant personnel.



Sec. 240.210-2  Recommended procedures: Design.

    Not applicable.



Sec. 240.210-3  Recommended procedures: Operations.

    (a) The facility supervisor should be experienced in the operation 
of the type of facility designed or, in the case of an innovated design, 
be adequately trained by responsible personnel in the operation of the 
facility.
    (b) Alternate and standby disposal and operating procedures should 
be established for implementation during emergencies, air pollution 
episodes, and shutdown periods.
    (c) Upon completion of facility construction, provision should be 
made for instruction of the staff in proper operation and maintenance 
procedures.
    (d) A routine maintenance schedule should be established and 
followed.
    (e) As-built engineering drawings of the facility should be provided 
at the conclusion of construction of the facility. These should be 
updated to show modifications by the owner as changes

[[Page 358]]

are made and should be readily available. A schematic showing the 
relationships of the various subsystems should also be available.
    (f) Key operational procedures should be prominently posted.
    (g) Equipment manuals, catalogs, spare parts lists, and spare parts 
should be readily available at the facility.
    (h) Training opportunities for facility operating personnel should 
be provided.



Sec. 240.211  Records.



Sec. 240.211-1  Requirement.

    The owner/operator of the thermal processing facility shall provide 
records and monitoring data as required by the responsible agency.



Sec. 240.211-2  Recommended procedures: Design.

    Continuously recording instrumentation should be used as much as 
possible.



Sec. 240.211-3  Recommended procedures: Operations.

    (a) Extensive monitoring and recordkeeping should be practiced 
during the first 12 to 18 months of operation of a new or renovated 
facility, during periods of high air pollution, and during periods of 
upset conditions at the facility.
    (b) During other periods of more normal operation of the facility, 
less extensive monitoring and record keeping may be practiced if 
approved by the responsible agency.
    (c) Operating records should be kept in a daily log and should 
include as a minimum:
    (1) The total weight and volume (truck capacities may be used for 
volume determination) of solid waste received during each shift, 
including the number of loads received, the ownership or specific 
identity of delivery vehicles, the source and nature of the solid wastes 
accepted.
    (2) Furnace and combustion chamber temperatures recorded at least 
every 60 minutes and as changes are made, including explanations for 
prolonged, abnormally high and low temperatures.
    (3) Rate of operation, such as grate speed.
    (4) Overfire and underfire air volumes and pressure and distribution 
recorded at least every 60 minutes and as changes are made.
    (5) Weights of bottom ash, grate siftings, and fly ash, individually 
or combined, recorded at intervals appropriate to normal facility 
operation.
    (6) Estimated percentages of unburned material in the bottom ash.
    (7) Water used on each shift for bottom ash quenching and scrubber 
operation. Representative samples of process waters should be collected 
and analyzed as recommended by the responsible agency.
    (8) Power produced and utilized each shift. If steam is produced, 
quality, production totals and consumption rates should be recorded.
    (9) Auxiliary fuel used each shift.
    (10) Gross calorific value of daily representative samples of bottom 
ash, grate siftings, and fly ash. (Sampling time should be varied so 
that all shifts are monitored on a weekly basis.)
    (11) Emission measurements and laboratory analyses required by the 
responsible agency.
    (12) Complete records of monitoring instruments.
    (13) Problems encountered and methods of solution.
    (d) An annual report should be prepared which includes at least the 
following information:
    (1) Minimum, average, and maximum daily volume and weight of waste 
received and processed, summarized on a monthly basis.
    (2) A summary of the laboratory analyses including at least monthly 
averages.
    (3) Number and qualifications of personnel in each job category; 
total manhours per week; number of State certified or licensed 
personnel; staffing deficiencies; and serious injuries, their cause and 
preventive measures instituted.
    (4) An identification and brief discussion of major operational 
problems and solutions.
    (5) Adequacy of operation and performance with regard to 
environmental requirements, the general level of housekeeping and 
maintenance, testing and reporting proficiency, and recommendations for 
corrective actions.

[[Page 359]]

    (6) A copy of all significant correspondence, reports, inspection 
reports, and any other communications from enforcement agencies.
    (e) Methodology for evaluating the facility's performance should be 
developed. Evaluation procedures recommended by the U.S. Environmental 
Protection Agency should be used whenever possible (see bibliography).



           Sec. Appendix to Part 240--Recommended Bibliography

    1. The Solid Waste Disposal Act as amended; Title II of Pub. L. 89-
272, 89th Cong., S. 306, Oct. 20, 1965; Pub. L. 91-512, 91st Cong., H.R. 
11833, Oct. 26, 1970. Washington, U.S. Government Printing Office, 1971. 
14 p. Reprinted 1972.
    2. Seven incinerators; evaluation, discussions, and authors' 
closure. [Washington, U.S. Environmental Protection Agency, 1971. 40 p.] 
(Includes discussions and authors' closure for ``An evaluation of seven 
incinerators'' by W. C. Achinger and L. E. Daniels.)
    3. DeMarco, J., D. J. Keller, J. Leckman, and J. L. Newton. 
Municipal-scale incinerator design and operation. Public Health Service 
Publication No. 2012. Washington, U.S. Government Printing Office, 1973. 
98 p.
    4. Occupational Safety and Health Act of 1970; Pub. L. 91-596, 91st 
Cong., S. 2193, Dec. 29, 1970. Washington, U.S. Government Printing 
Office, 1972.
    5. Control techniques for particulate air pollutants. Publication 
AP-51. U.S. Department of Health, Education, and Welfare, National Air 
Pollution Control Administration, 1969.
    6. Zausner, E. R. An accounting system for incinerator operations. 
Public Health Service Publication No. 2032. Washington, U.S. Government 
Printing Office, 1970. 17 p.
    7. Achinger, W. C., and J. J. Giar, Testing manual for solid waste 
incinerators. [Cincinnati], U.S. Environmental Protection Agency, 1973. 
[372 p., loose-leaf.] [Open-file report, restricted distribution.]
    8. Nader, J. S., W. Carter, and F. Jaye. Performance Specifications 
for Stationary Source Monitoring Systems. NTIS PB. 230 934/AS (1974).



PART 243_GUIDELINES FOR THE STORAGE AND COLLECTION OF RESIDENTIAL, COMMERCIAL, 

AND INSTITUTIONAL SOLID WASTE--Table of Contents




                      Subpart A_General Provisions

Sec.
243.100 Scope.
243.101 Definitions.

            Subpart B_Requirements and Recommended Procedures

243.200 Storage.
243.200-1 Requirement.
243.200-2 Recommended procedures: Design.
243.201 Safety.
243.201-1 Requirement.
243.201-2 Recommended procedures: Operations.
243.202 Collection equipment.
243.202-1 Requirement.
243.202-2 Recommended procedures: Design.
243.202-3 Recommended procedures: Operations.
243.203 Collection frequency.
243.203-1 Requirement.
243.203-2 Recommended procedures: Operations.
243.204 Collection management.
243.204-1 Requirement.
243.204-2 Recommended procedures: Operations.

Appendix to Part 243--Recommended Bibliography

    Authority: 42 U.S.C. 6907(a)(3), 6912(a)(1), and 6944(a).

    Source: 41 FR 6769, Feb. 13, 1976, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 243.100  Scope.

    (a) These guidelines are promulgated in partial fulfillment of 
section 209(a) of the Solid Waste Disposal Act, as amended (Pub. L. 89-
272).
    (b) The guidelines apply to the collection of residential, 
commercial, and institutional solid wastes and street wastes. Explicitly 
excluded are mining, agricultural, and industrial solid wastes; 
hazardous wastes; sludges; construction and demolition wastes; and 
infectious wastes.
    (c) The ``Requirement'' sections contained herein delineate minimum 
levels of performance required of solid waste collection operations. 
Under section 211 of the Solid Waste Disposal Act, as amended, and 
Executive Order 12088, the ``Requirement'' sections of these guidelines 
are mandatory for Federal agencies. In addition, they are recommended to 
State, interstate, regional, and local governments for use in their 
activities.
    (d) The ``Recommended procedures'' sections are presented to suggest 
additional actions or preferred methods by

[[Page 360]]

which the objectives of the requirements can be realized. The 
``Recommended procedures'' are not mandatory for Federal agencies.
    (e) The guidelines apply equally to Federal agencies generating 
solid waste whether the solid waste is actually collected by a Federally 
operated or non-Federally operated collection system, except in the case 
of isolated Federal facilities such as post offices, military recruiting 
stations, and other offices where local community solid waste collection 
systems are utilized, which are not within the managerial control of the 
Federal agency.
    (f) The guidelines shall be implemented in those situations where 
the Federal agency is able to exercise direct managerial control over 
the collection system through operation of the system or by contracting 
for collection service. Where non-Federal collection systems are 
utilized, service contracts should require conformance with the 
guidelines requirements unless service meeting such requirements is not 
reasonably available. It is left to the head of the responsible agency 
to decide how the requirements of the guidelines will be met.
    (g) The Environmental Protection Agency will give technical 
assistance and other guidance to Federal agencies when requested to do 
so under section 3(D)1 of Executive Order 12088.
    (h) Within 1 year after the final promulgation of these guidelines, 
Federal agencies shall decide what actions shall be taken to adopt the 
requirements of these guidelines and shall, within 60 days of this 
decision, submit to the Administrator a schedule of such actions.
    (i) Federal agencies that decide not to adopt the requirements 
contained herein, for whatever reason, shall make available to the 
Administrator a report of the analysis and rationale used in making that 
decision. The Administrator shall publish notice of availability of this 
report in the Federal Register. EPA considers the following reasons to 
be valid for purposes of non-compliance: costs so high as to render 
compliance economically impracticable, and the technical inhibitions to 
compliance specifically described in the guidelines.
    (1) The following points are to be covered in the report.
    (i) A description of the proposed or on-going practices which will 
not be in compliance with these guidelines. This statement should 
identify all agency facilities which will be affected by noncompliance 
including a brief description of how such facilities will be affected.
    (ii) A description of the alternative actions considered with 
emphasis on those alternatives which, if taken, would be in compliance 
with these guidelines.
    (iii) The rationale for the action chosen by the agency including 
technical data and policy considerations used in arriving at this 
decision.

In covering these points, agencies should make every effort to present 
the information succinctly in a form easily understood, but in 
sufficient detail so that the Administrator and the public may 
understand the factors influencing the decision not to adopt the 
requirements of these guidelines.
    (2) The report shall be submitted to the Administrator as soon as 
possible after a final agency decision has been made not to adopt the 
requirements of these guidelines, but in no case later than 60 days 
after the final decision. The Administrator will indicate to the agency 
his concurrence/nonconcurrence with the agency's decision, including his 
reasons.
    (3) Implementation of actions not in compliance with these 
guidelines shall be deferred, where feasible, in order to give the 
Administrator time to receive, analyze, and seek clarification of the 
required report.
    (4) It is recommended that where the report on non-compliance 
concerns an action for which an Environmental Impact Statement (EIS) is 
required by the National Environmental Policy Act, that the report be 
circulated simultaneously with the EIS, since much of the information to 
satisfy the requirements of the report will be useful in the preparation 
of the EIS.

[41 FR 6769, Feb. 13, 1976, as amended at 64 FR 70606, Dec. 17, 1999]



Sec. 243.101  Definitions.

    As used in these guidelines:

[[Page 361]]

    (a) Alley collection means the collection of solid waste from 
containers placed adjacent to or in an alley.
    (b) Agricultural solid waste means the solid waste that is generated 
by the rearing of animals, and the producing and harvesting of crops or 
trees.
    (c) Bulky waste means large items of solid waste such as household 
appliances, furniture, large auto parts, trees, branches, stumps, and 
other oversize wastes whose large size precludes or complicates their 
handling by normal solid wastes collection, processing, or disposal 
methods.
    (d) Carryout collection means collection of solid waste from a 
storage area proximate to the dwelling unit(s) or establishment.
    (e) Collection means the act of removing solid waste (or materials 
which have been separated for the purpose of recycling) from a central 
storage point.
    (f) Collection frequency means the number of times collection is 
provided in a given period of time.
    (g) Commercial solid waste means all types of solid wastes generated 
by stores, offices, restaurants, warehouses, and other non-manufacturing 
activities, excluding residential and industrial wastes.
    (h) Compactor collection vehicle means a vehicle with an enclosed 
body containing mechanical devices that convey solid waste into the main 
compartment of the body and compress it into a smaller volume of greater 
density.
    (i) Construction and demolition waste means the waste building 
materials, packaging, and rubble resulting from construction, 
remodeling, repair, and demolition operations on pavements, houses, 
commercial buildings, and other structures.
    (j) Curb collection means collection of solid waste placed adjacent 
to a street.
    (k) Federal facility means any building, installation, structure, 
land, or public work owned by or leased to the Federal Government. Ships 
at sea, aircraft in the air, land forces on maneuvers, and other mobile 
facilities are not considered ``Federal facilities'' for the purpose of 
these guidelines. United States Government installations located on 
foreign soil or on land outside the jurisdiction of the United States 
Government are not considered ``Federal facilities'' for the purpose of 
these guidelines.
    (l) Food waste means the organic residues generated by the handling, 
storage, sale, preparation, cooking, and serving of foods, commonly 
called garbage.
    (m) Generation means the act or process of producing solid waste.
    (n) Hazardous waste means a waste or combination of wastes of a 
solid, liquid, contained gaseous, or semisolid form which may cause, or 
contribute to, an increase in mortality or an increase in serious 
irreversible, or incapacitating reversible illness, taking into account 
the toxicity of such waste, its persistence and degradability in nature, 
its potential for accumulation or concentration in tissue, and other 
factors that may otherwise cause or contribute to adverse acute or 
chronic effects on the health of persons or other organisms.
    (o) Industrial solid waste means the solid waste generated by 
industrial processes and manufacturing.
    (p) Infectious waste means: (1) Equipment, instruments, utensils, 
and formites of a disposable nature from the rooms of patients who are 
suspected to have or have been diagnosed as having a communicable 
disease and must, therefore, be isolated as required by public health 
agencies; (2) laboratory wastes, such as pathological specimens (e.g., 
all tissues, specimens of blood elements, excreta, and secretions 
obtained from patients or laboratory animals) and disposable fomites 
(any substance that may harbor or transmit pathogenic organisms) 
attendant thereto; (3) surgical operating room pathologic specimens and 
disposable fomites attendant thereto, and similar disposable materials 
from outpatient areas and emergency rooms.
    (q) Institutional solid waste means solid wastes generated by 
educational, health care, correctional, and other institutional 
facilities.
    (r) Mining wastes means residues which result from the extraction of 
raw materials from the earth.
    (s) Residential solid waste means the wastes generated by the normal 
activities of households, including, but not limited to, food wastes, 
rubbish, ashes, and bulky wastes.

[[Page 362]]

    (t) Responsible agency means the organizational element that has the 
legal duty to ensure compliance with these guidelines.
    (u) Rubbish means a general term for solid waste, excluding food 
wastes and ashes, taken from residences, commercial establishments, and 
institutions.
    (v) Satellite vehicle means a small collection vehicle that 
transfers its load into a larger vehicle operating in conjunction with 
it.
    (w) Scavenging means the uncontrolled and unauthorized removal of 
materials at any point in the solid waste management system.
    (x) Sludge means the accumulated semiliquid suspension of settled 
solids deposited from wastewaters or other fluids in tanks or basins. It 
does not include solids or dissolved material in domestic sewage or 
other significant pollutants in water resources, such as silt, dissolved 
materials in irrigation return flows or other common water pollutants.
    (y) Solid waste means garbage, refuse, sludges, and other discarded 
solid materials, including solid waste materials resulting from 
industrial, commercial, and agricultural operations, and from community 
activities, but does not include solid or dissolved materials in 
domestic sewage or other significant pollutants in water resources, such 
as silt, dissolved or suspended solids in industrial wastewater 
effluents, dissolved materials in irrigation return flows or other 
common water pollutants. Unless specifically noted otherwise, the term 
``solid waste'' as used in these guidelines shall not include mining, 
agricultural, and industrial solid wastes; hazardous wastes; sludges; 
construction and demolition wastes; and infectious wastes.
    (z) Stationary compactor means a powered machine which is designed 
to compact solid waste or recyclable materials, and which remains 
stationary when in operation.
    (aa) Storage means the interim containment of solid waste after 
generation and prior to collection for ultimate recovery or disposal.
    (bb) Solid waste storage container means a receptacle used for the 
temporary storage of solid waste while awaiting collection.
    (cc) Street wastes means materials picked up by manual or mechanical 
sweepings of alleys, streets, and sidewalks; wastes from public waste 
receptacles; and material removed from catch basins.
    (dd) Transfer station means a site at which solid wastes are 
concentrated for transport to a processing facility or land disposal 
site. A transfer station may be fixed or mobile.
    (ee) Vector means a carrier that is capable of transmitting a 
pathogen from one organism to another.



            Subpart B_Requirements and Recommended Procedures



Sec. 243.200  Storage.



Sec. 243.200-1  Requirement.

    (a) All solid wastes (or materials which have been separated for the 
purpose of recycling) shall be stored in such a manner that they do not 
constitute a fire, health, or safety hazard or provide food or harborage 
for vectors, and shall be contained or bundled so as not to result in 
spillage. All solid waste containing food wastes shall be securely 
stored in covered or closed containers which are nonabsorbent, 
leakproof, durable, easily cleanable (if reusable), and designed for 
safe handling. Containers shall be of an adequate size and in sufficient 
numbers to contain all food wastes, rubbish, and ashes that a residence 
or other establishment generates in the period of time between 
collections. Containers shall be maintained in a clean condition so that 
they do not constitute a nuisance, and to retard the harborage, feeding, 
and breeding of vectors. When serviced, storage containers should be 
emptied completely of all solid waste.
    (b) Storage of bulky wastes shall include, but is not limited to, 
removing all doors from large household appliances and covering the 
item(s) to reduce the problems of an attractive nuisance, and the 
accumulation of solid waste and water in and around the bulky items.
    (c) Reusable waste containers which are emptied manually shall not 
exceed 75 pounds (34.05 kg) when filled, and

[[Page 363]]

shall be capable of being serviced without the collector coming into 
physical contact with the solid waste.
    (d) In the design of all buildings or other facilities which are 
constructed, modified, or leased after the effective date of these 
guidelines, there shall be provisions for storage in accordance with 
these guidelines which will accommodate the volume of solid waste 
anticipated, which may be easily cleaned and maintained, and which will 
allow for efficient, safe collection.
    (e) Waste containers used for the storage of solid waste (or 
materials which have been separated for recycling) must meet the 
standards established by the American National Standards Institute 
(ANSI) for waste containers as follows: Waste Containers--Safety 
Requirements, 1994, American National Standards Institute, ANSI Z245.30-
1994; and Waste Containers--Compatibility Dimensions, 1996, American 
National Standards Institute, ANSI Z245.60-1996.
    (1) The Director of the Federal Register approves this incorporation 
by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
    (2) You may obtain a copy from American National Standards 
Institute, 11 W. 42nd Street, New York, NY 10036. You may inspect a copy 
at the Environmental Protection Agency's RCRA Information Center, 1235 
Jefferson Davis Highway, Arlington, VA or at the National Archives and 
Records Administration (NARA). For information on the availability of 
this material at NARA, call 202-741-6030, or go to: http://
www.archives.gov/federal--register/code--of--federal--regulations/ibr--
locations.html.

[41 FR 6769, Feb. 13, 1976, as amended at 64 FR 70606, Dec. 17, 1999; 69 
FR 18803, Apr. 9, 2004]



Sec. 243.200-2  Recommended procedures: Design.

    (a) Reusable waste containers should be constructed of corrosion 
resistant metal or other material which will not absorb water, grease, 
or oil. The containers should be leakproof, including sides, seams, and 
bottoms, and be durable enough to withstand anticipated usage without 
rusting, cracking, or deforming in a manner that would impair 
serviceability. The interior of the container should be smooth without 
interior projections or rough seams which would make it difficult to 
clean or interfere with its emptying. The exterior of the container 
should be safe for handling with no cracks, holes, or jagged edges. 
Containers should be stored on a firm, level, well-drained surface which 
is large enough to accommodate all of the containers and which is 
maintained in a clean, spillage-free condition.
    (1) Reusable waste containers which are emptied manually should have 
a capacity of no more than 35 gallons (132.51) in volume, unless they 
are mounted on casters and can be serviced by being rolled to the 
collection vehicle and tilted for emptying. The containers should be 
constructed with rounded edges and tapered sides with the larger 
diameter at the top of the container to facilitate discharge of the 
solid waste by gravity. Containers should have two handles or bails 
located directly opposite one another on the sides of the container. 
Containers should have covers which are tight-fitting to resist the 
intrusion of water and vectors, and should be equipped with a suitable 
handle. Containers should be designed so that they cannot be tipped over 
easily.
    (2) Reusable waste containers which are emptied mechanically should 
be designed or equipped to prevent spillage or leakage during on-site 
storage, collection, or transport. The container should be easily 
cleanable and designed to allow easy access for depositing the waste and 
removing it by gravity or by mechanical means. The containers should be 
easily accessible to the collection vehicle in an area which can safely 
accommodate the dimensions and weight of the vehicle.
    (b) Single-use plastic and paper bags should meet the National 
Sanitation Foundation Standard No. 31 for polyethylene refuse bags and 
Standard No. 32 for paper refuse bags, respectively. However, such bags 
do not need to have been certified by the National Sanitation 
Foundation. Single-use bags containing food wastes should be stored 
within the confines of a building or container between collection 
periods.

[[Page 364]]



Sec. 243.201  Safety.



Sec. 243.201-1  Requirement.

    Collection systems shall be operated in such a manner as to protect 
the health and safety of personnel associated with the operation.



Sec. 243.201-2  Recommended procedures: Operations.

    (a) All solid waste collection personnel should receive instructions 
and training in safe container and waste handling techniques, and in the 
proper operation of collection equipment, such as those presented in 
Operation Responsible: Safe Refuse Collection.
    (b) Personal protective equipment such as gloves, safety glasses, 
respirators, and footwear should be used by collection employees, as 
appropriate. This equipment should meet the applicable provisions of the 
Occupational Safety and Health Administration Standards for Subpart I--
Personal Protective Equipment (29 CFR 1910.132 through 1910.137).
    (c) Scavenging should be prohibited at all times to avoid injury and 
to prevent interference with collection operations.
    (d) When conducting carryout collection, a leakproof and puncture-
proof carrying container should be used to minimize the potential for 
physical contact between the collector and the solid waste or the 
liquids which may derive from it.



Sec. 243.202  Collection equipment.



Sec. 243.202-1  Requirement.

    (a) All vehicles used for the collection and transportation of solid 
waste (or materials which have been separated for the purpose of 
recycling) which are considered to be operating in interstate or foreign 
commerce shall meet all applicable standards established by the Federal 
Government, including, but not limited to, Motor Carrier Safety 
Standards (49 CFR parts 390 through 396) and Noise Emission Standards 
for Motor Carriers Engaged in Interstate Commerce (40 CFR part 202). 
Federally owned collection vehicles shall be operated in compliance with 
Federal Motor Vehicle Safety Standards (49 CFR parts 500 through 580).
    (b) All vehicles used for the collection and transportation of solid 
waste (or materials which have been separated for the purpose of 
recycling) shall be enclosed or adequate provisions shall be made for 
suitable cover, so that while in transit there can be no spillage.
    (c) The equipment used in the compaction, collection, and 
transportation of solid waste (or materials which have been separated 
for the purpose of recycling) shall be constructed, operated, and 
maintained in such a manner as to minimize health and safety hazards to 
solid waste management personnel and the public. This equipment shall be 
maintained in good condition and kept clean to prevent the propagation 
or attraction of vectors and the creation of nuisances.
    (d) Collection equipment used for the collection, storage, and 
transportation of solid waste (or materials which have been separated 
for recycling) must meet the standards established by the American 
National Standards Institute as follows: Mobile Refuse Collection and 
Compaction Equipment--Safety Requirements, 1992, American National 
Standards Institute, ANSI Z245.1-1992; and Stationary Compactors--Safety 
Requirements, 1997, American National Standards Institute, ANSI Z245.2-
1997.
    (1) The Director of the Federal Register approves this incorporation 
by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
    (2) You may obtain a copy from American National Standards 
Institute, 11 W. 42nd Street, New York, NY 10036. You may inspect a copy 
at the Environmental Protection Agency's RCRA Information Center, 1235 
Jefferson Davis Highway, Arlington, VA or at the National Archives and 
Records Administration (NARA). For information on the availability of 
this material at NARA, call 202-741-6030, or go to: http://
www.archives.gov/federal--register/code--of--federal--regulations/ibr--
locations.html.

In the procurement of new collection equipment before the effective 
dates of ANSI Z245.1, equipment which meets

[[Page 365]]

the standards shall be obtained if available.

[41 FR 6769, Feb. 13, 1976, as amended at 64 FR 70606, Dec. 17, 1999; 69 
FR 18803, Apr. 9, 2004]



Sec. 243.202-2  Recommended procedures: Design.

    (a) Whenever possible, enclosed, metal, leak-resistant compactor 
vehicles should be used for the collection of solid wastes.
    (b) Safety devices, including, but not limited to, the following 
should be provided on all collection vehicles:
    (1) Exterior rear-view mirrors.
    (2) Back-up lights.
    (3) Four-way emergency flashers.
    (4) Easily accessible first aid equipment.
    (5) Easily accessible fire extinguisher.
    (6) Audible reverse warning device.
    (c) If crew members ride outside the cab of the collection vehicle 
for short trips the vehicle should be equipped with handholds and 
platforms big enough to safeguard against slipping.
    (d) Vehicle size should take into consideration: Local weight and 
height limits for all roads over which the vehicle will travel; turning 
radius; and loading height in the unloading position to insure overhead 
clearance in transfer stations, service buildings, incinerators, or 
other facilities.
    (e) Engines which conserve fuel and minimize pollution should be 
used in collection vehicles to reduce fuel consumption and air 
pollution.



Sec. 243.202-3  Recommended procedures: Operations.

    (a) Collection vehicles should be maintained and serviced according 
to manufacturers' recommendations, and receive periodic vehicle safety 
checks, including, but not limited to, inspection of brakes, windshield 
wipers, taillights, backup lights, audible reverse warning devices, 
tires, and hydraulic systems. Any irregularities should be repaired 
before the vehicle is used. Vehicles should also be cleaned thoroughly 
at least once a week.
    (b) Solid waste should not be allowed to remain in collection 
vehicles over 24 hours and should only be left in a vehicle overnight 
when this practice does not constitute a fire, health, or safety hazard.



Sec. 243.203  Collection frequency.



Sec. 243.203-1  Requirement.

    Solid wastes (or materials which have been separated for the purpose 
of recycling) shall be collected with frequency sufficient to inhibit 
the propagation or attraction of vectors and the creation of nuisances. 
Solid wastes which contain food wastes shall be collected at a minimum 
of once during each week. Bulky wastes shall be collected at a minimum 
of once every 3 months.



Sec. 243.203-2  Recommended procedures: Operations.

    (a) The minimum collection frequency consistent with public health 
and safety should be adopted to minimize collection costs and fuel 
consumption. In establishing collection frequencies, generation rates, 
waste composition, and storage capacity should be taken into 
consideration.
    (b) When solid wastes are separated at the point of storage into 
various categories for the purpose of resource recovery, a collection 
frequency should be designated for each waste category.



Sec. 243.204  Collection management.



Sec. 243.204-1  Requirement.

    The collection of solid wastes (or materials which have been 
separated for the purpose of recycling) shall be conducted in a safe, 
efficient manner, strictly obeying all applicable traffic and other 
laws. The collection vehicle operator shall be responsible for 
immediately cleaning up all spillage caused by his operations, for 
protecting private and public property from damage resulting from his 
operations, and for creating no undue disturbance of the peace and quiet 
in residential areas in and through which he operates.



Sec. 243.204-2  Recommended procedures: Operations.

    (a) Records should be maintained detailing all costs (capital, 
operating, and maintenance) associated with the collection system. These 
records

[[Page 366]]

should be used for scheduling maintenance and replacement, for 
budgeting, and for system evaluation and comparison.
    (b) The collection system should be reviewed on a regular schedule 
to assure that environmentally adequate, economical, and efficient 
service is maintained.
    (c) Solid waste collection systems should be operated in a manner 
designed to minimize fuel consumption, including, but not limited to, 
the following procedures.
    (1) Collection vehicle routes should be designed to minimize driving 
distances and delays.
    (2) Collection vehicles should receive regular tuneups, tires should 
be maintained at recommended pressures, and compaction equipment should 
be serviced regularly to achieve the most efficient compaction.
    (3) Compactor trucks should be used to reduce the number of trips to 
the disposal site.
    (4) When the distance or travel time from collection routes to 
disposal sites is great, transfer stations should be used when cost 
effective.
    (5) Residential solid waste containers which are serviced manually 
should be placed at the curb or alley for collection.
    (6) For commercial wastes which do not contain food wastes, storage 
capacity should be increased in lieu of more frequent collection.



           Sec. Appendix to Part 243--Recommended Bibliography

    1. American National Standard Z245.1. Safety standard for refuse 
collection equipment. New York. The American National Standards 
Institute.
    2. Decision-Makers guide in solid waste management. Environmental 
Protection Publication SW-127. Washington, U.S. Government Printing 
Office, 1974.
    3. Grupenhoff, B. L., and K. A. Shuster. Paper and plastic solid 
waste sacks; a summary of available information; a Division of Technical 
Operations open-file report (TO 18.1.03.1). [Cincinnati], U.S. 
Environmental Protection Agency, 1971. 17 p. [Restricted distribution].
    4. Hegdahl, T. A., Solid waste transfer stations; a state-of-the-art 
report on systems incorporating highway transportation, U.S. 
Environmental Protection Agency, 1972, 160 p. (Distributed by National 
Technical Information Service, Springfield, Virginia, as PB 213 511).
    5. National Sanitation Foundation standard no. 31 for polyethylene 
refuse bags. Ann Arbor, The National Sanitation Foundation, May 22, 
1970. 6 p.
    6. National Sanitation Foundation standard no. 32 for paper refuse 
sacks. Ann Arbor, The National Sanitation Foundation, Nov. 13, 1970. 6 
p.
    7. National Sanitation Foundation standard no. 13 for refuse 
compactors and compactor systems. Ann Arbor, The National Sanitation 
Foundation, March 1973. 12 p.
    8. Operation responsible (a safety training manual for S.W. 
Collection): Safe refuse collection: instructor's manual with slides, 
training manual with slides, and 16 mm film. Available from the National 
Audiovisual Center, General Services Administration, Washington, DC 
20409.
    9. Ralph Stone and Company, Inc. The use of bags for solid waste 
storage and collection. Environmental Protection Publication SW-42d. 
U.S. Environmental Protection Agency, 1972. 264 p. (Distributed by 
National Technical Information Service, Springfield, Virginia, as PB 212 
590).
    10. Shuster, K. A., and D. A. Schur. Heuristic routing for solid 
waste collection vehicles. Environmental Protection Publication SW-113. 
Washington, U.S. Government Printing Office, 1974. 45 p.
    11. Shuster, K. (Office of Solid Waste Management Programs.) 
Analysis of fuel consumption for solid waste management. Unpublished 
data, January 1974.
    12. U.S. Environmental Protection Agency. Pesticides and pesticides 
containers; regulations for acceptance and recommended procedures for 
disposal and storage. Federal Register, 39 (85): 15235-15241, May 1, 
1974.
    13. U.S. Environmental Protection Agency. Pesticides and pesticides 
containers; proposed regulations for prohibition of certain acts 
regarding disposal and storage. Federal Register, 39 (200): 36847-36950, 
October 15, 1974.



PART 246_SOURCE SEPARATION FOR MATERIALS RECOVERY GUIDELINES--Table of 

Contents




                      Subpart A_General Provisions

Sec.
246.100 Scope.
246.101 Definitions.

            Subpart B_Requirements and Recommended Procedures

246.200 High-grade paper recovery.
246.200-1 Requirements.
246.200-2 Recommended procedures: High-grade paper recovery from smaller 
          offices.

[[Page 367]]

246.200-3 Recommended procedures: Market study.
246.200-4 Recommended procedures: Levels of separation.
246.200-5 Recommended procedures: Methods of separation and collection.
246.200-6 Recommended procedures: Storage.
246.200-7 Recommended procedures: Transportation.
246.200-8 Recommended procedures: Cost analysis.
246.200-9 Recommended procedures: Contracts.
246.200-10 Recommended procedures: Public information and education.
246.201 Residential materials recovery.
246.201-1 Requirement.
246.201-2 Recommended procedures: Newsprint recovery from smaller 
          residential facilities.
246.201-3 Recommended procedures: Glass, can, and mixed paper 
          separation.
246.201-4 Recommended procedures: Market study.
246.201-5 Recommended procedures: Methods of separation and collection.
246.201-6 Recommended procedures: Transportation to market.
246.201-7 Recommended procedures: Cost analysis.
246.201-8 Recommended procedures: Contracts.
246.201-9 Recommended procedures: Public information and education.
246.202 Corrugated container recovery.
246.202-1 Requirement.
246.202-2 Recommended procedures: Corrugated container recovery from 
          smaller commercial facilities.
246.202-3 Recommended procedures: Market study.
246.202-4 Recommended procedures: Methods of separation and storage.
246.202-5 Recommended procedures: Transportation.
246.202-6 Recommended procedures: Cost analysis.
246.202-7 Recommended procedures: Establishment of purchase contract.
246.203 Reevaluation.

Appendix to Part 246--Recommended Bibliography

    Authority: Secs. 1008 and 6004 of the Solid Waste Disposal Act, as 
amended by the Resource Conservation and Recovery Act of 1976, as 
amended (42 U.S.C. 6907, 6964).

    Source: 41 FR 16952, Apr. 23, 1976, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 246.100  Scope.

    (a) These guidelines are applicable to the source separation of 
residential, commercial, and institutional solid wastes. Explicitly 
excluded are mining, agricultural, and industrial solid wastes; 
hazardous wastes; sludges; construction and demolition wastes; 
infectious wastes; classified waste.
    (b) The ``Requirement'' sections contained herein delineate minimum 
actions for Federal agencies for the recovery of resources from solid 
waste through source separation. Pursuant to section 211 of the Solid 
Waste Disposal Act, as amended, and Executive Order 11752 section 4(a), 
the ``Requirement'' sections of these guidelines are mandatory for all 
Federal agencies that generate solid waste. In addition, they are 
recommended to State, interstate, regional, and local governments for 
use in their activities.
    (c) The ``Recommended Procedures'' sections are presented to suggest 
actions or preferred methods by which the objectives of the requirements 
can be realized. The ``Recommended Procedures'' are not mandatory for 
Federal agencies.
    (d) The Environmental Protection Agency will render technical 
assistance in the form of sample cost analysis formats, sample bid 
specifications, implementation guidance documents and other guidance to 
Federal agencies when requested to do so, pursuant to section 3(d)1 of 
Executive Order 11752.
    (e) Within one year after the effective date of these guidelines, 
agencies shall make a final determination as to what actions shall be 
taken to adopt the requirements of these guidelines and shall, within 
two months of such determination, submit to the Administrator a schedule 
of such actions.
    (f) Federal agencies that make the determination not to source 
separate as described in Sec. Sec. 246.200-1, 246.201-1, and 246.202-1, 
for whatever reason, shall make available to the Administrator the 
analysis and rationale used in making that determination. The 
Administrator shall publish notice of the availability of this report to 
the general public in the Federal Register. The following are considered 
to be valid reasons for not source separating under individual facts and 
circumstances: inability to sell the recovered materials due to lack of 
market, and costs so unreasonably high as to render source

[[Page 368]]

separation for materials recovery economically impracticable.
    (1) The following points are to be covered in the report:
    (i) A description of alternative actions considered with emphasis on 
those alternatives which involve source separation for materials 
recovery.
    (ii) A description of ongoing actions which will be continued and 
new actions taken or proposed. This statement should identify all agency 
facilities which will be affected by these actions including a brief 
description of how such facilities will be affected.
    (iii) An analysis in support of the action chosen by the agency 
including technical data, market studies, and policy considerations used 
in arriving at such a determination.

In covering the points above, agencies should make every effort to 
present information succinctly in a form easily understood, but in 
sufficient detail so that the factors influencing the decision not to 
source separate for materials recovery are clear.
    (2) The above report shall be submitted to the Administrator as soon 
as possible after a final agency determination has been made not to 
adopt the requirements of these guidelines, but in no case later than 
sixty days after such final determination. The Administrator will 
indicate to the agency his concurrence/nonconcurrence with the agency's 
decision, including his reason therefor.
    (3) Implementation of actions that would preclude source separation 
for materials recovery shall be deferred, for sixty days where feasible, 
in order to give the Administrator an opportunity to receive, analyze 
and seek clarification of the above required report.
    (4) It is recommended that where the report required by Sec. 
246.100(f) concerns an action for which an Environmental Impact 
Statement (EIS) is required by the National Environmental Policy Act, 
that the report be circulated together with the EIS.
    (g) The report required under Sec. 246.100(e) and (f) shall be made 
on forms to be prescribed by the Administrator by notice in the Federal 
Register.

[41 FR 16952, Apr. 23, 1976, as amended at 47 FR 36603, Aug. 20, 1982]



Sec. 246.101  Definitions.

    As used in these guidelines:
    (a) Agricultural solid waste means the solid waste that is generated 
by the rearing of animals, and the producing and harvesting of crops or 
trees.
    (b) Baler means a machine used to compress solid wastes, primary 
materials, or recoverable materials, with or without binding, to a 
density or from which will support handling and transportation as a 
material unit rather than requiring a disposable or reuseable container. 
This specifically excludes briquetters and stationary compaction 
equipment which is used to compact materials into disposable or 
reuseable containers.
    (c) Bulk container means a large container that can either be pulled 
or lifted mechanically onto a service vehicle or emptied mechanically 
into a service vehicle.
    (d) Classified Waste means waste material that has been given 
security classification in accordance with 50 U.S.C. 401 and Executive 
Order 11652.
    (e) Collection means the act of removing solid waste (or materials 
which have been separated for the purpose of recycling) from a central 
storage point.
    (f) Commercial establishment means stores, offices, restaurants, 
warehouses and other non-manufacturing activities.
    (g) Commercial solid waste means all types of solid wastes generated 
by stores, offices, restaurants, warehouses and other non-manufacturing 
activities, and non-processing wastes such as office and packing wastes 
generated at industrial facilities.
    (h) Construction and demolition waste means the waste building 
materials, packaging, and rubble resulting from construction, 
remodeling, repair, and demolition operations on pavements, houses, 
commercial buildings and other structures.
    (i) Compartmentalized vehicle means a collection vehicle which has 
two or more compartments for placement of solid wastes or recyclable 
materials. The compartments may be within the

[[Page 369]]

main truck body or on the outside of that body as in the form of metal 
racks.
    (j) Corrugated container waste means discarded corrugated boxes.
    (k) Corrugated box means a container for goods which is composed of 
an inner fluting of material (corrugating medium) and one or two outer 
liners of material (linerboard).
    (l) Federal facility means any building, installation, structure, 
land, or public work owned by or leased to the Federal Government. Ships 
at sea, aircraft in the air, land forces on maneuvers, and other mobile 
facilities are not considered Federal facilities for the purpose of 
these guidelines. United States Government installations located on 
foreign soil or on land outside the jurisdiction of the United States 
Government are not considered Federal facilities for the purpose of 
these guidelines.
    (m) Food waste means the organic residues generated by the handling, 
storage, sale, preparation, cooking, and serving of foods; commonly 
called garbage.
    (n) Generation means the act or process of producing solid waste.
    (o) High-grade paper means letterhead, dry copy papers, 
miscellaneous business forms, stationery, typing paper, tablet sheets, 
and computer printout paper and cards, commonly sold as ``white 
ledger,'' ``computer printout'' and ``tab card'' grade by the wastepaper 
industry.
    (p) Industrial solid waste means the solid waste generated by 
industrial processes and manufacturing.
    (q) Infectious waste means: (1) Equipment, instruments, utensils, 
and fomites (any substance that may harbor or transmit pathogenic 
organisms) of a disposable nature from the rooms of patients who are 
suspected to have or have been diagnosed as having a communicable 
disease and must, therefore, be isolated as required by public health 
agencies; (2) laboratory wastes, such as pathological specimens (e.g. 
all tissues, specimens of blood elements, excreta, and secretions 
obtained from patients or laboratory animals) and disposable fomites 
attendant thereto; (3) surgical operating room pathologic specimens and 
disposable fomites attendant thereto and similar disposable materials 
from outpatient areas and emergency rooms.
    (r) Institutional solid waste means solid wastes generated by 
educational, health care, correctional and other institutional 
facilities.
    (s) Mining wastes means residues which result from the extraction of 
raw materials from the earth.
    (t) Post-consumer waste (PCW) means a material or product that has 
served its intended use and has been discarded for disposal or recovery 
after passing through the hands of a final consumer.
    (u) Recoverable resources means materials that still have useful 
physical, chemical, or biological properties after serving their 
original purpose and can, therefore, be reused or recycled for the same 
or other purposes.
    (v) Recovery means the process of obtaining materials or energy 
resources from solid waste.
    (w) Recycled material means a material that is used in place of a 
primary, raw or virgin material in manufacturing a product.
    (x) Recycling means the process by which recovered materials are 
transformed into new products.
    (y) Residential solid waste means the wastes generated by the normal 
activities of households, including but not limited to, food wastes, 
rubbish, ashes, and bulky wastes.
    (z) Separate collection means collecting recyclable materials which 
have been separated at the point of generation and keeping those 
materials separate from other collected solid waste in separate 
compartments of a single collection vehicle or through the use of 
separate collection vehicles.
    (aa) Sludge means the accumulated semiliquid suspension of settled 
solids deposited from wastewaters or other fluids in tanks or basins. It 
does not include solid or dissolved material in domestic sewage or other 
significant pollutants in water resources, such as silt, dissolved 
material in irrigation return flows or other common water pollutants.
    (bb) Solid waste means garbage, refuse, sludge, and other discarded 
solid materials, including solid waste materials resulting from 
industrial,

[[Page 370]]

commercial, and agricultural operations, and from community activities, 
but does not include solids or dissolved materials in domestic sewage or 
other significant pollutants in water resources, such as silt, dissolved 
or suspended solids in industrial wastewater effluents, dissolved 
materials in irrigation return flows or other common water pollutants. 
Unless specifically noted otherwise, the term ``solid waste'' as used in 
these guidelines shall not include mining, agricultural, and industrial 
solid wastes; hazardous wastes; sludges; construction and demolition 
wastes; and infectious wastes.
    (cc) Source separation means the setting aside of recyclable 
materials at their point of generation by the generator.
    (dd) Specification means a clear and accurate description of the 
technical requirements for materials, products or services, identifying 
the minimum requirements for quality and construction of materials and 
equipment necessary for an acceptable product. In general, 
specifications are in the form of written descriptions, drawings, 
prints, commercial designations, industry standards, and other 
descriptive references.
    (ee) Stationary compactor means a powered machine which is designed 
to compact solid waste or recyclable materials, and which remains 
stationary when in operation.
    (ff) Storage means the interim containment of solid waste after 
generation and prior to collection for ultimate recovery or disposal.
    (gg) Virgin material means a raw material used in manufacturing that 
has been mined or harvested and has not as yet become a product.



            Subpart B_Requirements and Recommended Procedures



Sec. 246.200  High-grade paper recovery.



Sec. 246.200-1  Requirements.

    High-grade paper generated by office facilities of over 100 office 
workers shall be separated at the source of generation, separately 
collected, and sold for the purpose of recycling.



Sec. 246.200-2  Recommended procedures: High-grade paper recovery from smaller 

offices.

    The recovery of high-grade paper generated by office facilities of 
less than 100 office workers should be investigated in conformance with 
the following recommended procedures and implemented where feasible.



Sec. 246.200-3  Recommended procedures: Market study.

    An investigation of markets should be made by the organization 
responsible for the sale of recyclable materials in each Federal agency 
and should include at a minimum:
    (a) Identifying potential purchasers of the recovered paper through 
standard market research techniques;
    (b) Directly contacting buyers, and determining the buyers' quality 
specifications, the exact types of paper to be recycled, potential 
transportation agreements and any minimum quantity criteria; and
    (c) Determining the price that the buyer will pay for the recovered 
paper and the willingness of the buyer to sign a contract for purchase 
of the paper at a guaranteed minimum price.



Sec. 246.200-4  Recommended procedures: Levels of separation.

    A two-level separation is recommended for most facilities. This 
separation should consist of (a) high-grade wastepaper and (b) all other 
waste. Facilities that produce large enough quantities of waste computer 
paper and cards to make their separation into a separate category cost 
effective may choose to implement three levels of separation: (1) 
Computer papers, (2) other high-grade papers, (3) all other wastes.



Sec. 246.200-5  Recommended procedures: Methods of separation and collection.

    (a) Systems designed to recover high grades of office paper at the 
source of generation, i.e., the desk, are the desktop system, the two-
wastebasket system, and the office centralized container system.
    (b) With the desk-top system, recyclable paper is placed by the 
generator in a container on his desk, while other

[[Page 371]]

waste is placed in a wastebasket. With the two-wastebasket system, 
recyclable paper is placed by the generator in one desk-side 
wastebasket, and all other waste is placed in another. In the 
centralized container system, large containers for the collection of 
recyclables are placed in centralized locations within the office areas 
of the building. Nonrecyclable waste is placed in desk-side 
wastebaskets.
    (c) The recommended system is the desk-top system because it is 
designed to maximize recovery of high value material in an economically 
feasible manner. While the two-wastebasket system and centralized 
container system have been implemented with success in isolated 
instances, data indicate that, on the whole, these systems have 
experienced high levels of contamination, low levels of participation, 
and low revenues. The desk-top system has been designed to minimize 
these problems.
    (d) The precise method of separation and collection used to 
implement the desk-top system will depend upon such things as the 
physical layout of the individual facility, the ease of collection, and 
the projected cost effectiveness of using various methods. The 
recommended desk-top system is carried out in the following manner:
    (1) Workers are to deposit high-grade paper into a desk-top tray or 
other small desk-top holder to be supplied by the agency. This holder 
should be designed in such a way as to prevent it holding contaminants, 
such as food or beverage containers.
    (2) At the office worker's convenience or when the tray is filled, 
the worker carries the paper to a conveniently located bulk container 
within the office area. This large container should be located in an 
area the worker frequents in the normal course of business.
    (3) In locations where computer cards and printouts are to be 
collected separately, the receptacle for these wastes should be near the 
computer terminal or in some other logical, centrally located place.
    (4) Collection of the high-grade paper from the bulk containers in 
the office area should be performed by the janitorial or general 
maintenance service.

The number of locations and the frequency of collection of these 
containers will be determined by office size and maintenance staff 
capacity.
    (e) Mixed paper and some high-grade office papers have also been 
recovered for recycling by hand-picking in an individual building's 
trash room or at a centralized facility serving several buildings. With 
these hand-picking systems, recyclable waste is not separated at the 
source of generation, but is mixed with other waste in the usual manner 
and removed to a centralized location where recyclable paper is picked 
out of the mixed waste by hand. Facilities may choose to use this method 
of high-grade paper recovery if it is shown by analysis to be 
economically preferable to source separation.



Sec. 246.200-6  Recommended procedures: Storage.

    Among the alternatives for paper storage are on-site bailing, the 
use of stationary compactors, or storage in corrugated boxes or normal 
waste containers. Stored paper should be protected from fire, inclement 
weather, theft, and vandalism.



Sec. 246.200-7  Recommended procedures: Transportation.

    Transportation to market may be supplied by the facility, by a 
private hauler, or by the purchaser. Collection of the recyclable paper 
should be on a regular, established schedule.



Sec. 246.200-8  Recommended procedures: Cost analysis.

    After potential markets have been located (but prior to initiation 
of formal bidding procedures), preliminary determinations of various 
separation methods, storage, and transportation costs have been made, 
and estimated tonnages of both recoverable high-grade paper and residual 
solid waste have been established, an analysis should be conducted which 
compares the costs of the present waste collection and disposal system 
with the proposed segregated systems. At a minimum, the study should 
include all capital, operating and overhead costs and take into account 
credits for revenue from paper sales and savings from diverting recycled 
materials from disposal. Potential

[[Page 372]]

costs to upgrade collection and disposal practices to comply with EPA's 
Guidelines for the Storage and Collection of Residential, Commercial and 
Institutional Solid Wastes (40 CFR part 243) and Thermal Processing and 
Land Disposal Guidelines (40 CFR parts 240 and 241) should be included 
in the analysis. In formulating a separation system and evaluating its 
costs, every effort should be made to use janitorial and waste 
collection resources efficiently. This cost analysis should enable the 
facility to determine the most cost effective method of implementing the 
requirement of this part.



Sec. 246.200-9  Recommended procedures: Contracts.

    Formal bids should be requested for purchase of the recovered 
materials, such bids being solicited in conformance with bidding 
procedures established for the responsible agency. Contracts should 
include the buyer's quality specifications, quantity and transportation 
agreements, a guarantee that the material will be accepted for one year 
or more, and a guaranteed minimum purchase price.



Sec. 246.200-10  Recommended procedures: Public information and education.

    A well-organized and well-executed public information and education 
program explaining the justification, goals, methods and level of 
separation should be conducted to inform and motivate office personnel 
and secure their cooperation in separating their waste. This public 
information and education program should precede the program and 
continue on a regular basis for its duration.



Sec. 246.201  Residential materials recovery.



Sec. 246.201-1  Requirement.

    Separation of used newspapers at the source of residential 
generation in conjunction with separate collection shall be carried out 
at all facilities in which more than 500 families reside, and the 
newspapers shall be sold for the purpose of recycling.



Sec. 246.201-2  Recommended procedures: Newsprint recovery from smaller 

residential facilities.

    The recovery of newsprint generated by residential facilities of 
less than 500 families should be investigated in conformance with the 
following recom mended procedures and imple mented where feasible.



Sec. 246.201-3  Recommended procedures: Glass, can, and mixed paper separation.

    In areas where markets are available, it is recommended that glass, 
cans, and mixed paper be separated at the source of generation and 
separately collected for the purpose of recycling.



Sec. 246.201-4  Recommended procedures: Market study.

    An investigation of markets should be made for each material by the 
organization responsible for sale of recyclable materials in each agency 
and should include at a minimum:
    (a) Identifying potential purchasers of the recovered material 
through standard market research techniques.
    (b) Directly contacting buyers and determining the buyers' quality 
specifications, potential transportation agreements and any minimum 
quantity criteria.
    (c) Determining the prices that the buyer will pay for the recovered 
material and the willingness of the buyer to sign a contract for the 
purchase of the material at guaranteed minimum prices.



Sec. 246.201-5  Recommended procedures: Methods of separation and collection.

    Following separation within the home, any of the following methods 
of collection may be used:
    (a) Materials may be placed at the curbside by the resident and may 
be collected from each household using separate trucks or 
compartmentalized vehicles.
    (b) For multi-family dwellings, separated materials may be placed in 
bulk containers located outside of the building and collected by trucks 
dispatched to collect recyclables.

[[Page 373]]

    (c) Collection stations may be set up at convenient locations to 
which residents bring recyclables. These stations should provide 
separate bulk containers for each item to be recycled. The size and type 
of container will depend on the volume and type of material collected, 
the method of transportation to be used in hauling the materials to 
market and the frequency of removal.



Sec. 246.201-6  Recommended procedures: Transportation to market.

    Transportation to market may be supplied by the facility or the 
community generating the waste, by a private hauler, or by the 
purchaser.



Sec. 246.201-7  Recommended procedures: Cost analysis.

    After potential markets have been located (but prior to initiation 
of formal bidding procedures), preliminary determinations of various 
separation methods, storage and transportation costs have been made, and 
estimated tonnages of both recoverable materials and residual solid 
waste have been established, an analysis should be conducted which 
compares the costs of the present waste collection and disposal system 
with the proposed segregated systems. At a minimum this study should 
include all capital, operating and overhead costs and take into account 
credits for revenue from paper sales and savings from diverting recycled 
materials from disposal. Potential costs to upgrade collection and 
disposal practices to comply with EPA's Guidelines for the Storage and 
Collection of Residential, Commercial and Institutional Solid Wastes (40 
CFR part 243) and Thermal Processing and Land Disposal Guidelines (40 
CFR parts 240 and 241) should be included in the analysis. In 
formulating a separate collection system and evaluating its costs, every 
effort should be made to use idle equipment and underutilized collection 
manpower to reduce separate collection costs. This cost analysis should 
enable the facility to determine the most cost effective method if 
implementing the requirements of this part.



Sec. 246.201-8  Recommended procedures: Contracts.

    Formal bids should be requested for purchase of the recovered 
materials, such bids being solicited in conformance with bidding 
procedures established for the responsible jurisdiction. Contracts 
should include the buyer's quality specifications, quantity and 
transportation agreements, a guarantee that the material will be 
accepted for one year or more and a guaranteed minimum purchase price.



Sec. 246.201-9  Recommended procedures: Public information and education.

    A well organized and well executed public information and education 
program explaining the justification, goals, methods and level of 
separation should be conducted to inform and motivate householders and 
to secure their cooperation in separating their waste. This public 
information and education program should precede the program and 
continue on a regular basis for its duration.



Sec. 246.202  Corrugated container recovery.



Sec. 246.202-1  Requirement.

    Any commercial establishment generating 10 or more tons of waste 
corrugated containers per month shall separately collect and sell this 
material for the purpose of recycling.



Sec. 246.202-2  Recommended procedures: Corrugated container recovery from 

smaller commercial facilities.

    The recovery of corrugated containers from commercial facilities 
generating less than 10 tons per month should be investigated in 
conformance with the following recommended procedures and implemented 
where feasible.



Sec. 246.202-3  Recommended procedures: Market study.

    An investigation of markets should be made by the organization 
responsible for sale of recyclable material in each Federal agency and 
should include at a minimum:
    (a) Identifying potential purchasers of the recovered corrugated 
through standard market research techniques.

[[Page 374]]

    (b) Directly contacting buyers and determining the buyers' quality 
specifications, potential transportation agreements and any minimum 
quantity criteria.
    (c) Determining the price that the buyer will pay for the recovered 
corrugated and the willingness of the buyer to sign a contract for 
purchase of the paper at a guaranteed minimum price.



Sec. 246.202-4  Recommended procedures: Methods of separation and storage.

    The method selected will depend upon such variables as the physical 
layout of the individual generating facility, the rate at which the 
corrugated accumulates, the storage capacity of the facility, and the 
projected cost-effectiveness of using the various methods. All of the 
following suggested modes of separation and storage presuppose that the 
corrugated boxes will be accumulated at a central location in the 
facility after their contents are removed and that the boxes are 
flattened.
    (a) Balers of various sizes: Corrugated boxes are placed in balers 
and compacted into bales. These bales may be stored inside or outside of 
the facility. The bales should be protected from fire, inclement 
weather, theft, and vandalism.
    (b) Stationary compactors or bulk containers: Corrugated boxes are 
placed in a stationary compactor or bulk containers outside of the 
facility. The containers should be protected from fire, inclement 
weather, theft and vandalism.



Sec. 246.202-5  Recommended procedures: Transportation.

    Transportation to market may be supplied by either the facility, a 
private hauler or the purchaser. In facilities to which goods are 
delivered from a central warehouse, corrugated may be backhauled by 
delivery trucks to the central facility and baled there for delivery to 
a user.



Sec. 246.202-6  Recommended procedures: Cost analysis.

    After potential markets have been identified (but prior to 
initiation of formal bidding), preliminary determinations of various 
separation methods, storage and transportation costs have been made, and 
estimated tonnages of both recoverable material and residual solid waste 
have been established, an analysis should be conducted which compares 
the costs of the present waste collection and disposal system with the 
proposed segregated systems. At a minimum, the study should include all 
capital, operating and overhead costs and take into account credits for 
revenue from paper sales and savings from diverting recycled materials 
from disposal. Potential costs to upgrade collection and disposal 
practices to comply with EPA's Guidelines for the Storage and Collection 
of Residential, Commercial and Institutional Solid Wastes (40 CFR part 
243) and Thermal Processing and Land Disposal Guidelines (40 CFR parts 
240 and 241) should be included in the analysis. This cost analysis 
should enable the facility to determine the most cost effective method 
of implementing these guidelines.



Sec. 246.202-7  Recommended procedures: Establishment of purchase contract.

    Formal bids should be requested for purchase of the recovered 
materials, such bids being solicited in con formance with bidding 
procedures established for the responsible agency. Contracts should 
include the buyer's quality specifications, transportation agreements, a 
guarantee that the material will be accepted for one year or more and a 
guaranteed minimum purchase price.



Sec. 246.203  Reevaluation.



           Sec. Appendix to Part 246--Recommended Bibliography

Belknap, M. Paper recycling: a business perspective. Subcommittee on 
Solid Waste, New York Chamber of Commerce Publication, September 1972.
Dane, S. The national buyer's guide to recycled paper. Environmental 
Educators, Inc. Publication. Washington, 1973. 208 p.
Davis, R. H., and P. Hansen. A new look at the economics of separate 
refuse collection. SCS Engineers, Inc. report. Long Beach, California, 
April 1974. 22 p.
Hansen, P. Residential paper recovery--a municipal implementation guide. 
Environmental Protection Publication SW-155.

[[Page 375]]

Washington, U.S. Government Printing Office, 1975. 26 p.
Hansen, P. Solid waste recycling projects--a national directory. 
Environmental Protection Publication SW-45. Washington, U.S. Government 
Printing Office, 1973. 284 p.
Lingle, S. A. Paper recycling in the United States. Washington, U.S. 
Environmental Protection Publication, August 1974. 22 p.
Lingle, S. A. Separating paper at the waste source for recycling. 
Environmental Protection Publication SW-128. Washington, U.S. Government 
Printing Office, 1974. 16 p.
Office of Solid Waste Management Programs. Third report to Congress; 
resource recovery and waste reduction. Environmental Protection 
Publication SW-161. Washington, U.S. Government Printing Office, 1975. 
96 p.
Paper Stock Conservation Committee. Wastepaper recycling. American Paper 
Institute, Inc. Publication. New York, New York. 12 p.
SCS Engineers, Inc. Analysis of source separate collection of recyclable 
solid waste collection center studies. Environmental Protection 
Publication SW-95c.2. U.S. Environmental Protection Agency, 1974. 70 p. 
(Distributed by National Technical Information Service, Springfield, 
Virginia, as PB-239 776.)
SCS Engineers, Inc. Analysis of source separate collection of recyclable 
solid waste; office buildings. U.S. Environmental Protection Agency, 
1976. (To be distributed by National Technical Information Service, 
Springfield, Virginia.)
SCS Engineers, Inc. Analysis of source separate collection of recyclable 
solid waste; separate collection studies. Environmental Protection 
Publication SW-95c.i. U.S. Environmental Protection Agency, 1974. 157 p. 
(Distributed by National Technical Information Service, Springfield, 
Virginia, as PB-239 775.)
Smith, F. L. An analysis of wastepaper exports. Washington, U.S. 
Environmental Protection Publication SW-132, 1974. 17 p.



PART 247_COMPREHENSIVE PROCUREMENT GUIDELINE FOR PRODUCTS CONTAINING RECOVERED 

MATERIALS--Table of Contents




                            Subpart A_General

Sec.
247.1 Purpose and scope.
247.2 Applicability.
247.3 Definitions.
247.4 Contracting officer requirements.
247.5 Specifications.
247.6 Affirmative procurement programs.
247.7 Effective date.

                       Subpart B_Item Designations

247.10 Paper and paper products.
247.11 Vehicular products.
247.12 Construction products.
247.13 Transportation products.
247.14 Park and recreation products.
247.15 Landscaping products.
247.16 Non-paper office products.
247.17 Miscellaneous products.

    Authority: 42 U.S.C. 6912(a) and 6962; E.O. 13101, 63 FR 49643, 3 
CFR, 1998 Comp., p. 210.

    Effective Date Note: At 72 FR 52488, Sept. 14, 2007, the authority 
citation was revised, effective Sept. 15, 2008. For the convenience of 
the user, the revised text is set forth as follows:
    Authority: 42 U.S.C. 6912(a) and 6962; EO 13423, 72 FR 3919, 3 CFR, 
1998 Comp., p. 210.

    Source: 60 FR 21381, May 1, 1995, unless otherwise noted.



                            Subpart A_General



Sec. 247.1  Purpose and scope.

    (a) The purpose of this guideline is to assist procuring agencies in 
complying with the requirements of section 6002 of the Solid Waste 
Disposal Act, as amended by the Resource Conservation and Recovery Act 
of 1976 (RCRA), as amended, 42 U.S.C. 6962, and Executive Order 12873, 
as they apply to the procurement of the items designated in subpart B of 
this part.
    (b) This guideline designates items that are or can be made with 
recovered materials and whose procurement by procuring agencies will 
carry out the objectives of section 6002 of RCRA. EPA's recommended 
practices with respect to the procurement of specific designated items 
are found in the companion Recovered Materials Advisory Notice(s).
    (c) EPA believes that adherence to the recommendations in the 
Recovered Materials Advisory Notice(s) constitutes compliance with RCRA 
section 6002. However, procuring agencies may adopt other types of 
procurement programs consistent with RCRA section 6002.



Sec. 247.2  Applicability.

    (a)(1) This guideline applies to all procuring agencies and to all 
procurement actions involving items designated by EPA in this part, 
where the procuring agency purchases $10,000 or

[[Page 376]]

more worth of one of these items during the course of a fiscal year, or 
where the cost of such items or of functionally equivalent items 
purchased during the preceding fiscal year was $10,000 or more.
    (2) This guideline applies to Federal agencies, to State and local 
agencies using appropriated Federal funds to procure designated items, 
and to persons contracting with any such agencies with respect to work 
performed under such contracts. Federal procuring agencies should note 
that the requirements of RCRA section 6002 apply to them whether or not 
appropriated Federal funds are used for procurement of designated items.
    (3) The $10,000 threshold applies to procuring agencies as a whole 
rather than to agency subgroups such as regional offices or subagencies 
of a larger department or agency.
    (b) The term procurement actions includes:
    (1) Purchases made directly by a procuring agency and purchases made 
directly by any person (e.g., a contractor) in support of work being 
performed for a procuring agency, and
    (2) Any purchases of designated items made ``indirectly'' by a 
procuring agency, as in the case of procurements resulting from grants, 
loans, funds, and similar forms of disbursements of monies.
    (c)(1) This guideline does not apply to purchases of designated 
items which are unrelated to or incidental to Federal funding, i.e., not 
the direct result of a contract or agreement with, or a grant, loan, or 
funds disbursement to, a procuring agency.
    (2) This guideline also does not apply to purchases made by private 
party recipients (e.g., individuals, non-profit organizations) of 
Federal funds pursuant to grants, loans, cooperative agreements, and 
other funds disbursements.
    (d) RCRA section 6002(c)(1) requires procuring agencies to procure 
designated items composed of the highest percentage of recovered 
materials practicable, consistent with maintaining a satisfactory level 
of competition, considering such guidelines. Procuring agencies may 
decide not to procure such items if they are not reasonably available in 
a reasonable period of time; fail to meet reasonable performance 
standards; or are only available at an unreasonable price.

[60 FR 21381, May 1, 1995, as amended at 62 FR 60973, Nov. 13, 1997]



Sec. 247.3  Definitions.

    As used in this procurement guideline and the related Recovered 
Materials Advisory Notice(s):
    Act or RCRA means the Solid Waste Disposal Act, as amended by the 
Resource Conservation and Recovery Act, as amended, 42 U.S.C 6901 et 
seq;
    Awards and plaques refers to free-standing statues and boardlike 
products generally used as wall-hangings.
    Bike racks are free-standing or anchored units that provide a method 
for cyclists to secure their bicycles safely.
    Blanket insulation means relatively flat and flexible insulation in 
coherent sheet form, furnished in units of substantial area. Batt 
insulation is included in this term;
    Blasting grit is a type of industrial abrasive used to shape, cut, 
sharpen, polish, or finish surfaces and materials.
    Board insulation means semi-rigid insulation preformed into 
rectangular units having a degree of suppleness, particularly related to 
their geometrical dimensions;
    Building insulation means a material, primarily designed to resist 
heat flow, which is installed between the conditioned volume of a 
building and adjacent unconditioned volumes or the outside. This term 
includes but is not limited to insulation products such as blanket, 
board, spray-in-place, and loose-fill that are used as ceiling, floor, 
foundation, and wall insulation;
    Carpet cushion, also known as carpet underlay, is padding placed 
beneath carpet to reduce carpet wear caused by foot traffic or furniture 
indentation, enhance comfort, and prolong appearance.
    Cellulose fiber loose-fill means a basic material of recycled wood-
based cellulosic fiber made from selected paper, paperboard stock, or 
ground wood stock, excluding contaminated materials which may reasonably 
be expected to be retained in the finished product, with suitable 
chemicals introduced to

[[Page 377]]

provide properties such as flame resistance, processing and handling 
characteristics. The basic cellulosic material may be processed into a 
form suitable for installation by pneumatic or pouring methods;
    Cenospheres, a naturally-occurring waste component of coal fly ash, 
are very small, inert, lightweight, hollow, ``glass'' spheres composed 
of silica and alumina and filled with air or other gases.
    Channelizers means highly visible barrels or drums that can be 
positioned to direct traffic through detours;
    Compost made from yard trimmings, leaves, grass clippings, and/or 
food wastes is a thermophilic converted product with high humus content. 
Compost can be used as a soil amendment and can also be used to prevent 
or remediate pollutants in soil, air, and storm water run-off.
    Delineator means a highly visible pavement marker that can be 
positioned to direct traffic or define boundaries;
    Engine lubricating oils means petroleum-based oils used for reducing 
friction in engine parts;
    Federal agency means any department, agency, or other 
instrumentality of the Federal government; any independent agency or 
establishment of the Federal government including any government 
corporation; and the Government Printing Office;
    Fiberglass insulation means insulation which is composed principally 
of glass fibers, with or without binders;
    Flexible delineator means a highly visible marker that can be 
positioned to direct traffic or define boundaries and that will flex if 
struck by a vehicle to prevent damage to the vehicle or the delineator;
    Flowable fill is a low strength material that is mixed to a wet, 
flowable slurry and used as an economical fill or backfill material in 
place of concrete, compacted soils, or sand.
    Foam-in-place insulation is rigid cellular foam produced by 
catalyzed chemical reactions that hardens at the site of the work. The 
term includes spray-applied and injected applications such as spray-in-
place foam and pour-in-place;
    Garden hose means a flexible tubing that conducts water to a 
specific location;
    Gear oils means petroleum-based oils used for lubricating machinery 
gears;
    Hydraulic fluids means petroleum-based hydraulic fluids;
    Hydraulic mulch means a mulch that is a cellulose-based (paper or 
wood) protective covering that is mixed with water and applied through 
mechanical spraying in order to aid the germination of seeds and to 
prevent soil erosion;
    Hydroseeding means the process of spraying seeds mixed with water 
through a mechanical sprayer (hydroseeder). Hydraulic mulch, fertilizer, 
a tacking agent, or a wetting agent can also be added to the water/seed 
mix for enhanced performance;
    Industrial drums are cylindrical containers used for shipping and 
storing liquid or solid materials.
    Laminated paperboard means board made from one or more plies of 
kraft paper bonded together, with or without facers, that is used for 
decorative, structural, or insulating purposes;
    Latex paint means a water-based decorative or protective covering 
having a latex binder;
    Lawn edging means a barrier used between lawns and landscaped areas 
or garden beds to prevent grass roots or weeds from spreading to the 
landscaped areas;
    Loose-fill insulation means insulation in granular, nodular, 
fibrous, powdery, or similar form, designed to be installed by pouring, 
blowing or hand placement;
    Manual-grade strapping refers to straps of material used with 
transport packaging to hold products in place on pallets or in other 
methods of commercial, bulk shipment. Strapping can also prevent 
tampering and pilferage during shipping.
    Mats are temporary or semipermanent protective floor coverings used 
for numerous applications, including home and office carpet protection, 
car and truck floor board protection, traction on slippery surfaces, 
cushion from floor hardness, and reduction of injury risk during 
athletic events.

[[Page 378]]

    Mineral fiber insulation means insulation (rock wool or fiberglass) 
which is composed principally of fibers manufactured from rock, slag or 
glass, with or without binders;
    Modular threshold ramps are ramps used to modify existing door 
thresholds and other small rises to remove access barriers created by 
differentials in landing levels.
    Nonpressure pipe is pipe used to drain waste and wastewater, to vent 
gases, and to channel cable and conduit in various applications.
    Office furniture is furniture typically used in offices, including 
seating, desks, storage units, file cabinets, tables, and systems 
furniture (or ``cubicles'').
    Pallet means a portable platform for storing or moving cargo or 
freight;
    Paper means one of two broad subdivisions of paper products, the 
other being paperboard. Paper is generally lighter in basis weight, 
thinner, and more flexible than paperboard. Sheets 0.012 inch or less in 
thickness are generally classified as paper. Its primary uses are for 
printing, writing, wrapping, and sanitary purposes. However, in this 
guideline, the term paper is also used as a generic term that includes 
both paper and paperboard.
    Paper product means any item manufactured from paper or paperboard. 
The term paper product is used in this guideline to distinguish such 
items as boxes, doilies, and paper towels from printing and writing 
papers.
    Park benches and picnic tables are recreational furniture found in 
parks, outdoor recreational facilities, and the grounds of office 
buildings and other facilities.
    Parking stop means a barrier used to mark parking spaces and keep 
parked vehicles from rolling beyond a designated parking area;
    Perlite composite board means insulation board composed of expanded 
perlite and fibers formed into rigid, flat, rectangular units with a 
suitable sizing material incorporated in the product. It may have on one 
or both surfaces a facing or coating to prevent excessive hot bitumen 
strike-in during roofing installation;
    Person means an individual, trust, firm, joint stock company, 
corporation (including a government corporation), partnership, 
association, Federal agency, State, municipality, commission, political 
subdivision of a State, or any interstate body;
    Phenolic insulation means insulation made with phenolic plastics 
which are plastics based on resins made by the condensation of phenols, 
such as phenol or cresol, with aldehydes;
    Plastic fencing means a barrier with an open-weave pattern that can 
be used to control drifting snow or sand by restricting the force of 
wind and to provide a warning or barrier in construction and other 
areas;
    Plastic lumber landscaping timbers and posts are used to enhance the 
appearance of and control erosion in parks, highways, housing 
developments, urban plazas, zoos, and the exteriors of office buildings, 
military facilities, schools, and other public use areas.
    Playground equipment includes many components, like slides, merry-
go-rounds, hand rails, etc., and is found in parks, schools, child care 
facilities, institutions, multiple family dwellings, restaurants, resort 
and recreational developments, and other public use areas.
    Polyisocyanurate insulation means insulation produced principally by 
the polymerization of polymeric polyisocyanates, usually in the presence 
of polyhydroxyl compounds with the addition of cell stabilizers, blowing 
agents, and appropriate catalyst to produce a polyisocyanurate chemical 
structure;
    Polystyrene insulation means an organic foam composed principally of 
polymerized styrene resin processed to form a homogenous rigid mass of 
cells;
    Polyurethane insulation means insulation composed principally of the 
catalyzed reaction product of polyisocyanates and polyhydroxyl 
compounds, processed usually with a blowing agent to form a rigid foam 
having a predominantly closed cell structure;
    Postconsumer material means a material or finished product that has 
served its intended use and has been diverted or recovered from waste 
destined for disposal, having completed its life as a consumer item. 
Postconsumer material is a part of the broader category of recovered 
materials.
    Postconsumer recovered paper means:

[[Page 379]]

    (1) Paper, paperboard and fibrous wastes from retail stores, office 
buildings, homes and so forth, after they have passed through their end-
usage as a consumer item including: Used corrugated boxes; old 
newspapers; old magazines; mixed waste paper; tabulating cards and used 
cordage; and
    (2) All paper, paperboard and fibrous wastes that enter and are 
collected from municipal solid waste;
    Practicable means capable of being used consistent with: Performance 
in accordance with applicable specifications, availability at a 
reasonable price, availability within a reasonable period of time, and 
maintenance of a satisfactory level of competition;
    Printer ribbon means a nylon fabric designed to hold ink and used in 
dot matrix and other types of impact printers;
    Procurement item means any device, good, substance, material, 
product, or other item, whether real or personal property, which is the 
subject of any purchase, barter, or other exchange made to procure such 
item;
    Procuring agency means any Federal agency, or any State agency or 
agency of a political subdivision of a State, which is using 
appropriated Federal funds for such procurement, or any person 
contracting with any such agency with respect to work performed under 
such contract;
    Purchasing means the act of and the function of responsibility for 
the acquisition of equipment, materials, supplies, and services, 
including: Buying, determining the need, selecting the supplier, 
arriving at a fair and reasonable price and terms and conditions, 
preparing the contract or purchase order, and follow-up;
    Railroad grade crossing surfaces are materials placed between 
railroad tracks, and between the track and the road at highway and 
street railroad crossings, to enhance automobile and pedestrian safety.
    Rebuilt vehicular parts are vehicular parts that have been 
remanufactured, reusing parts in their original form.
    Recovered materials means waste materials and byproducts which have 
been recovered or diverted from solid waste, but such term does not 
include those materials and byproducts generated from, and commonly 
reused within, an original manufacturing process;
    Recovered materials, for purposes of purchasing paper and paper 
products, means waste material and byproducts that have been recovered 
or diverted from solid waste, but such term does not include those 
materials and byproducts generated from, and commonly reused within, an 
original manufacturing process. In the case of paper and paper products, 
the term recovered materials includes:
    (1) Postconsumer materials such as--
    (i) Paper, paperboard, and fibrous wastes from retail stores, office 
buildings, homes, and so forth, after they have passed through their 
end-usage as a consumer item, including: Used corrugated boxes; old 
newspapers; old magazines; mixed waste paper; tabulating cards; and used 
cordage; and
    (ii) All paper, paperboard, and fibrous wastes that enter and are 
collected from municipal solid waste, and
    (2) Manufacturing, forest residues, and other wastes such as--
    (i) Dry paper and paperboard waste generated after completion of the 
papermaking process (that is, those manufacturing operations up to and 
including the cutting and trimming of the paper machine reel in smaller 
rolls of rough sheets) including: Envelope cuttings, bindery trimmings, 
and other paper and paperboard waste, resulting from printing, cutting, 
forming, and other converting operations; bag, box, and carton 
manufacturing wastes; and butt rolls, mill wrappers, and rejected unused 
stock; and
    (ii) Finished paper and paperboard from obsolete inventories of 
paper and paperboard manufacturers, merchants, wholesalers, dealers, 
printers, converters, or others;
    (iii) Fibrous byproducts of harvesting, manufacturing, extractive, 
or wood-cutting processes, flax, straw, linters, bagasse, slash, and 
other forest residues;
    (iv) Wastes generated by the conversion of goods made from fibrous 
material (that is, waste rope from cordage manufacture, textile mill 
waste, and cuttings); and
    (v) Fibers recovered from waste water which otherwise would enter 
the waste stream.

[[Page 380]]

    Re-refined oils means used oils from which the physical and chemical 
contaminants acquired through previous use have been removed through a 
refining process;
    Restroom divider/partition means a barrier used to provide privacy 
in public restroom facilities;
    Retread tire means a worn automobile, truck, or other motor vehicle 
tire whose tread has been replaced;
    Rock wool insulation means insulation which is composed principally 
from fibers manufactured from slag or natural rock, with or without 
binders;
    Roofing materials are materials used to construct a protective cover 
over a structure to shield its interior from the natural elements.
    Shower divider/partition means a water-proof barrier used to provide 
privacy in public shower facilities;
    Signage (including sign posts and supports) is used for 
identification and directional purposes for public roads and highways, 
and inside and outside office buildings, museums, parks, and other 
public places.
    Silica fume is a waste byproduct of alloyed metal production.
    Soaker hose means a perforated flexible tubing that is used to 
deliver gentle irrigation to plants;
    Sorbents (i.e., absorbents and adsorbents) are materials used to 
retain liquids and gases in a diverse number of environmental, 
industrial, agricultural, medical, and scientific applications. 
Absorbents incorporate a substance while adsorbents gather substances on 
their surfaces.
    Specification means a description of the technical requirements for 
a material, product, or service that includes the criteria for 
determining whether these requirements are met. In general, 
specifications are in the form of written commercial designations, 
industry standards, and other descriptive references;
    Spray-in-place insulation means insulation material that is sprayed 
onto a surface or into cavities and includes cellulose fiber spray-on as 
well as plastic rigid foam products;
    Spray-in-place foam is rigid cellular polyurethane or 
polyisocyanurate foam produced by catalyzed chemical reactions that 
hardens at the site of the work. The term includes spray-applied and 
injected applications;
    State means any of the several states, the District of Columbia, the 
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, 
and the Commonwealth of the Northern Mariana Islands;
    Structural fiberboard means a fibrous-felted, homogenous panel made 
from lignocellulosic fibers (usually wood, cane, or paper) and having a 
density of less than 31 lbs/ft\3\ but more than 10 lbs/ft\3\. It is 
characterized by an integral bond which is produced by interfelting of 
the fibers, but which has not been consolidated under heat or pressure 
as a separate stage of manufacture;
    Tire means the following types of tires: Passenger car tires, light- 
and heavy-duty truck tires, high-speed industrial tires, bus tires, and 
special service tires (including military, agricultural, off-the-road, 
and slow-speed industrial);

[60 FR 21381, May 1, 1995, as amended at 62 FR 60973, Nov. 13, 1997; 65 
FR 3080, Jan. 19, 2000; 69 FR 24038, Apr. 30, 2004]

    Effective Date Note: At 72 FR 52488, Sept. 14, 2007, Sec. 247.3 was 
amended by revising the definition of ``compost'' and adding a 
definition in alphabetical order for ``fertilizer made from recovered 
organic materials'', effective Sept. 15, 2008. For the convenience of 
the user, the added and revised text is set forth as follows:



Sec. 247.3  Definitions.

                                * * * * *

    Compost is a thermophilic converted product with high humus content. 
Compost can be used as a soil amendment and can also be used to prevent 
or remediate pollutants in soil, air, and storm water run-off.

                                * * * * *

    Fertilizer made from recovered organic materials is a single or 
blended substance, made from organic matter such as plant and animal by-
products, manure-based or biosolid products, and rock and mineral 
powders, that contains one or more recognized plant nutrient(s) and is 
used primarily for its plant nutrient content and is designed for use or 
claimed to have value in promoting plant growth.

                                * * * * *

[[Page 381]]



Sec. 247.4  Contracting officer requirements.

    Within one year after the effective date of each item designation, 
contracting officers shall require that vendors:
    (a) Certify that the percentage of recovered materials to be used in 
the performance of the contract will be at least the amount required by 
applicable specifications or other contractual requirements, and
    (b) Estimate the percentage of total material utilized for the 
performance of the contract which is recovered materials.



Sec. 247.5  Specifications.

    (a) RCRA section 6002(d)(1) required Federal agencies that have the 
responsibility for drafting or reviewing specifications for procurement 
items procured by Federal agencies to revise their specifications by May 
8, 1986, to eliminate any exclusion of recovered materials and any 
requirement that items be manufactured from virgin materials.
    (b) RCRA section 6002(d)(2) requires that within one year after the 
publication date of each item designation by the EPA, each procuring 
agency must assure that its specifications for these items require the 
use of recovered materials to the maximum extent possible without 
jeopardizing the intended end use of these items.



Sec. 247.6  Affirmative procurement programs.

    RCRA section 6002(i) provides that each procuring agency which 
purchases items designated by EPA must establish an affirmative 
procurement program, containing the four elements listed below, for 
procuring such items containing recovered materials to the maximum 
extent practicable:
    (a) Preference program for purchasing the designated items;
    (b) Promotion program;
    (c) Procedures for obtaining estimates and certifications of 
recovered materials content and for verifying the estimates and 
certifications; and
    (d) Annual review and monitoring of the effectiveness of the 
program.



Sec. 247.7  Effective date.

    Within one year after the date of publication of any item 
designation, procuring agencies which purchase that designated item must 
comply with the following requirements of RCRA: affirmative procurement 
of the designated item (6002(c)(1) and (i)), specifications revision 
(6002(d)(2)), vendor certification and estimation of recovered materials 
content of the item (6002(c)(3) and (i)(2)(C)), and verification of 
vendor estimates and certifications (6002(i)(2)C)).



                       Subpart B_Item Designations



Sec. 247.10  Paper and paper products.

    Paper and paper products, excluding building and construction paper 
grades.



Sec. 247.11  Vehicular products.

    (a) Lubricating oils containing re-refined oil, including engine 
lubricating oils, hydraulic fluids, and gear oils, excluding marine and 
aviation oils.
    (b) Tires, excluding airplane tires.
    (c) Reclaimed engine coolants, excluding coolants used in non-
vehicular applications.
    (d) Rebuilt vehicular parts.

[60 FR 21381, May 1, 1995, as amended at 69 FR 24038, Apr. 30, 2004]



Sec. 247.12  Construction products.

    (a) Building insulation products, including the following items:
    (1) Loose-fill insulation, including but not limited to cellulose 
fiber, mineral fibers (fiberglass and rock wool), vermiculite, and 
perlite;
    (2) Blanket and batt insulation, including but not limited to 
mineral fibers (fiberglass and rock wool);
    (3) Board (sheathing, roof decking, wall panel) insulation, 
including but not limited to structural fiberboard and laminated 
paperboard products, perlite composite board, polyurethane, 
polyisocyanurate, polystyrene, phenolics, and composites; and
    (4) Spray-in-place insulation, including but not limited to foam-in-
place polyurethane and polyisocyanurate, and spray-on cellulose.
    (b) Structural fiberboard and laminated paperboard products for 
applications other than building insulation,

[[Page 382]]

including building board, sheathing, shingle backer, sound deadening 
board, roof insulating board, insulating wallboard, acoustical and non-
acoustical ceiling tile, acoustical and non-acoustical lay-in panels, 
floor underlayments, and roof overlay (coverboard).
    (c) Cement and concrete, including concrete products such as pipe 
and block containing:
    (1) Coal fly ash;
    (2) Ground granulated blast furnace slag (GGBF);
    (3) Cenospheres; or
    (4) Silica fume from silicon and ferrosilicon metal production.
    (d) Carpet made from polyester fiber made from recovered materials 
for use in moderate-wear applications such as single-family housing and 
similar wear applications.
    (e) Floor tiles and patio blocks containing recovered rubber or 
plastic.
    (f) Shower and restroom dividers/partitions containing recovered 
plastic or steel.
    (g)(1) Consolidated latex paint used for covering graffiti; and
    (2) Reprocessed latex paint used for interior and exterior 
architectural applications such as wallboard, ceilings, and trim; gutter 
boards; and concrete, stucco, masonry, wood, and metal surfaces.
    (h) Carpet cushion made from bonded polyurethane, jute, synthetic 
fibers, or rubber containing recovered materials.
    (i) Flowable fill containing coal fly ash and/or ferrous foundry 
sands.
    (j) Railroad grade crossing surfaces made from cement and concrete 
containing fly ash, recovered rubber, recovered steel, recovered wood, 
or recovered plastic.
    (k) Modular threshold ramps containing recovered steel, rubber, or 
aluminum.
    (l) Nonpressure pipe containing recovered steel, plastic, or cement.
    (m) Roofing materials containing recovered steel, aluminum, fiber, 
rubber, plastic or plastic composites, or cement.

[60 FR 21381, May 1, 1995, as amended at 62 FR 60974, Nov. 13, 1997; 65 
FR 3081, Jan. 19, 2000; 69 FR 24038, Apr. 30, 2004]



Sec. 247.13  Transportation products.

    (a) Traffic barricades and traffic cones used in controlling or 
restricting vehicular traffic.
    (b) Parking stops made from concrete or containing recovered plastic 
or rubber.
    (c) Channelizers containing recovered plastic or rubber.
    (d) Delineators containing recovered plastic, rubber, or steel.
    (e) Flexible delineators containing recovered plastic.

[60 FR 21381, May 1, 1995, as amended at 62 FR 60974, Nov. 13, 1997]



Sec. 247.14  Park and recreation products.

    (a) Playground surfaces and running tracks containing recovered 
rubber or plastic.
    (b) Plastic fencing containing recovered plastic for use in 
controlling snow or sand drifting and as a warning/safety barrier in 
construction or other applications.
    (c) Park benches and picnic tables containing recovered steel, 
aluminum, plastic, or concrete.
    (d) Playground equipment containing recovered plastic, steel, or 
aluminum.

[60 FR 21381, May 1, 1995, as amended at 62 FR 60974, Nov. 13, 1997; 65 
FR 3081, Jan. 19, 2000]



Sec. 247.15  Landscaping products.

    (a) Hydraulic mulch products containing recovered paper or recovered 
wood used for hydroseeding and as an over-spray for straw mulch in 
landscaping, erosion control, and soil reclamation.
    (b) Compost made from yard trimmings, leaves, grass clippings, and/
or food waste for use in landscaping, seeding of grass or other plants 
on roadsides and embankments, as a nutritious mulch under trees and 
shrubs, and in erosion control and soil reclamation.
    (c) Garden and soaker hoses containing recovered plastic or rubber.
    (d) Lawn and garden edging containing recovered plastic or rubber.

[[Page 383]]

    (e) Plastic lumber landscaping timbers and posts containing 
recovered materials.

[60 FR 21381, May 1, 1995, as amended at 62 FR 60974, Nov. 13, 1997; 65 
FR 3081, Jan. 19, 2000]

    Effective Date Note: At 72 FR 52488, Sept. 14, 2007, Sec. 247.15 
was amended by revising paragraph (b) and adding paragraph (f), 
effective Sept. 15, 2008. For the convenience of the user, the added and 
revised text is set forth as follows:



Sec. 247.15  Landscaping products.

                                * * * * *

    (b) Compost made from recovered organic materials.

                                * * * * *

    (f) Fertilizer made from recovered organic materials.



Sec. 247.16  Non-paper office products.

    (a) Office recycling containers and office waste receptacles.
    (b) Plastic desktop accessories.
    (c) Toner cartridges.
    (d) Plastic-covered binders containing recovered plastic; chipboard 
and pressboard binders containing recovered paper; and solid plastic 
binders containing recovered plastic.
    (e) Plastic trash bags.
    (f) Printer ribbons.
    (g) Plastic envelopes.
    (h) Plastic clipboards containing recovered plastic.
    (i) Plastic file folders containing recovered plastic.
    (j) Plastic clip portfolios containing recovered plastic.
    (k) Plastic presentation folders containing recovered plastic.
    (1) Office furniture containing recovered steel, aluminum, wood, 
agricultural fiber, or plastic.

[60 FR 21381, May 1, 1995, as amended at 62 FR 60974, Nov. 13, 1997; 65 
FR 3081, Jan. 19, 2000; 69 FR 24038, Apr. 30, 2004]



Sec. 247.17  Miscellaneous products.

    (a) Pallets containing recovered wood, plastic, or paperboard.
    (b) Sorbents containing recovered materials for use in oil and 
solvent clean-ups and as animal bedding.
    (c) Industrial drums containing recovered steel, plastic, or paper.
    (d) Awards and plaques containing recovered glass, wood, paper, or 
plastic.
    (e) Mats containing recovered rubber and/or plastic.
    (f)(1) Non-road signs containing recovered plastic or aluminum and 
road signs containing recovered aluminum.
    (2) Sign supports and posts containing recovered plastic or steel.
    (g) Manual-grade strapping containing recovered steel or plastic.
    (h) Bike racks containing recovered steel or plastic.
    (i) Blasting grit containing recovered steel, coal and metal slag, 
bottom ash, glass, plastic, fused alumina oxide, or walnut shells.

[62 FR 60974, Nov. 13, 1997, as amended at 65 FR 3081, Jan. 19, 2000; 69 
FR 24038, Apr. 30, 2004]



PART 254_PRIOR NOTICE OF CITIZEN SUITS--Table of Contents




Sec.
254.1 Purpose.
254.2 Service of notice.
254.3 Contents of notice.

    Authority: Sec. 7002, Pub. L. 94-580, 90 Stat. 2825 (42 U.S.C. 
6972).

    Source: 42 FR 56114, Oct. 21, 1977, unless otherwise noted.



Sec. 254.1  Purpose.

    Section 7002 of the Solid Waste Disposal Act, as amended by the 
Resource Conservation and Recovery Act of 1976, authorizes suit by any 
person to enforce the Act. These suits may be brought where there is 
alleged to be a violation by any person (including (a) the United 
States, and (b) any other governmental instrumentality or agency, to the 
extent permitted by the eleventh amendment to the Constitution) of any 
permit, standard, regulation, condition, requirement, or order which has 
become effective under the Act, or a failure of the Administrator to 
perform any act or duty under the Act, which is not discretionary with 
the Administrator. These actions are to be filed in accordance with the 
rules of the district court in which the action is instituted. The 
purpose of this part is to prescribe procedures governing the notice 
requirements of subsections

[[Page 384]]

(b) and (c) of section 7002 as a prerequisite to the commencement of 
such actions.



Sec. 254.2  Service of notice.

    (a) Notice of intent to file suit under subsection 7002(a)(1) of the 
Act shall be served upon an alleged violator of any permit, standard, 
regulation, condition, requirement, or order which has become effective 
under this Act in the following manner:
    (1) If the alleged violator is a private individual or corporation, 
service of notice shall be accomplished by registered mail, return 
receipt requested, addressed to, or by personal service upon, the owner 
or site manager of the building, plant, installation, or facility 
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 the violation is alleged to have occurred, and the chief 
administrative officer of the solid waste management agency 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 mailed to 
the registered agent, if any, of that 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 registered mail, return receipt 
requested, addressed to, or by personal service upon, the head of that 
agency. A copy of the notice shall be mailed to the chief administrator 
of the solid waste management 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 the violation is 
alleged to have occurred.
    (3) If the alleged violator is a Federal agency, service of notice 
shall be accomplished by registered mail, return receipt requested, 
addressed to, or by personal service upon, the head of the agency. 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 the violation is 
alleged to have occurred, the Attorney General of the United States, and 
the chief administrative officer of the solid waste management agency 
for the State in which the violation is alleged to have occurred.
    (b) Service of notice of intent to file suit under subsection 
7002(a)(2) of the Act shall be accomplished by registered mail, return 
receipt requested, addressed to, or by personal service upon, the 
Administrator, Environmental Protection Agency, Washington, DC 20460. A 
copy of the notice shall be mailed to the Attorney General of the United 
States.
    (c) Notice given in accordance with the provisions of this part 
shall be considered to have been served on the date of receipt. If 
service was acomplished by mail, the date of receipt will be considered 
to be the date noted on the return receipt card.



Sec. 254.3  Contents of notice.

    (a) Violation of permit, standard, regulation, condition, 
requirement, or order. Notice regarding an alleged violation of a 
permit, standard, regulation, condition, requirement, or order which has 
become effective under this Act shall include sufficient information to 
permit the recipient to identify the specific permit, standard, 
regulation, condition, requirement, or order which has allegedly been 
violated, the activity alleged to constitute a violation, the person or 
persons responsible for the alleged violation, the date or dates of the 
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 an act or duty which is not discretionary under 
the Act shall identify the provisions of the Act which require such act 
or create such duty, shall describe with reasonable specificity the 
action taken or not taken by the Administrator which is claimed to 
constitute a failure to perform the 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

[[Page 385]]

telephone number of the legal counsel, if any, representing the person 
giving the notice.



PART 255_IDENTIFICATION OF REGIONS AND AGENCIES FOR SOLID WASTE MANAGEMENT--

Table of Contents




                      Subpart A_General Provisions

Sec.
255.1 Scope and purpose.
255.2 Definitions.

         Subpart B_Criteria for Identifying Regions and Agencies

255.10 Criteria for identifying regions.
255.11 Criteria for identifying agencies.

        Subpart C_Procedures for Identifying Regions and Agencies

255.20 Preliminary identification of regions.
255.21 Local consultation on boundaries.
255.22 Establishing regional boundaries.
255.23 Joint identification of agencies.
255.24 Procedure for identifying interstate regions.
255.25 Public participation.

 Subpart D_Responsibilities of Identified Agencies and Relationship to 
                             Other Programs

255.30 Responsibilities established.
255.31 Integration with other acts.
255.32 Coordination with other programs.
255.33 Inclusion of Federal facilities and Native American Reservations.

          Subpart E_Submission and Revision of Identifications

255.40 Notification of status.
255.41 Procedure for revision.

    Authority: Sec. 2002(a)(1), Pub. L. 94-580, 90 Stat. 2795 (42 U.S.C. 
6912(a)(1)). Also issued under sec. 4006(b), Pub. L. 94-580, 90 Stat. 
2795 (42 U.S.C. 6946(b)).

    Source: 42 FR 24927, May 16, 1977, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 255.1  Scope and purpose.

    (a) These guidelines are applicable to policies, procedures, and 
criteria for the identification of those areas which have common solid 
waste management problems and which are appropriate units for planning 
regional solid waste management services pursuant to section 4002(a) of 
the Solid Waste Disposal Act, as amended by the Resource Conservation 
and Recovery Act of 1976 (the Act). The guidelines also define and guide 
the identification of which functions will be carried out by which 
agencies pursuant to section 4006 of the Act.
    (b) The purposes of these guidelines are to (1) provide useful 
criteria for selecting the regions and agencies to be identified 
pursuant to section 4006 of the Act and (2) provide guidance for 
conducting the process which will result in formal identification of 
those regions and agencies.
    (c) Identifications made pursuant to these guidelines should be 
consistent with State solid waste management plans and strategies. A 
State strategy establishes: Goals for prevention of adverse effects on 
the environment resulting from improper solid waste disposal including 
protection of surface and ground water quality, air quality and the 
land; priorities among waste types; priorities among disposal practices; 
and the roles of existing agencies with responsibilities in solid waste 
management. The identification process should cover all waste types 
(residential and commercial solid waste, hazardous wastes, industrial 
sludges and pretreatment residues, municipal sewage sludge, air 
pollution control residue, septage, mining and agricultural waste, other 
industrial waste, and solid waste from community activities), all 
disposal practices (impoundments, pits, ponds, lagoons, landfills, 
dumps, land-spreading, and industrial leaching fields) and all 
technological approaches (conservation, recovery, incineration, 
disposal).

(Also sec. 4002(a), Pub. L. 94-580, 90 Stat. 2795 (42 U.S.C. 6942))



Sec. 255.2  Definitions.

    The Act contains an extensive list of definitions in section 1004 
which are applicable here. There are further definitions of terms in 40 
CFR part 29 of this chapter which apply unless the context herein 
requires otherwise.

[42 FR 24927, May 16, 1977, as amended at 48 FR 29302, June 24, 1983]

[[Page 386]]



         Subpart B_Criteria for Identifying Regions and Agencies



Sec. 255.10  Criteria for identifying regions.

    The following criteria are to assist in identifying regions pursuant 
to section 4006(a) of the Act.
    (a) Geographic areas which have a history of cooperating to solve 
problems in environmental or other related matters should be considered.
    (1) Regions encompassing existing regional, including countywide, 
systems or institutions, including those of the private sector, should 
be evaluated. Changes in their boundaries may be needed for economic 
viability or other reasons in keeping with the State plan.
    (2) Boundary selection which would require the creation of new 
agencies should be considered only where necessary. The relationship 
among established agencies should be considered. Where institutional 
gaps or inadequacies are found, regions should be identified keeping in 
mind which agencies would be able to fill those needs.
    (b) The size and location of regions should permit resource recovery 
and conservation in accordance with the objectives in section 4001 of 
the Act.
    (1) A region's size and configuration should be considered, weighing 
transportation costs against economies of scale.
    (2) Left-over regions having inadequate resources or volumes of 
waste should be avoided.
    (3) Location should be considered relative to available 
transportation and to markets for recovered resources.
    (c) The volume of wastes within a region will influence the 
technology choices for recovery and disposal, determine economies of 
scale, and affect marketability of resources recovered. A region should 
include sufficient volume of waste to support the goals and objectives 
of the State plan, including materials or energy recovery as 
appropriate.
    (d) Waste type should be considered since it also affects management 
options. Industrial or hazardous waste streams may warrant special 
consideration or special boundaries.
    (e) The effect of geologic and hydrologic conditions, such as soil 
suitability, land availability, natural barriers (rivers and mountains), 
the quantity and availability of water resources, and the susceptibility 
of ground water to contamination should be considered. Aquifer 
protection in accordance with State water quality management plans and 
policies could influence boundary selection.
    (f) Coordination with ongoing planning for other purposes may be an 
influence in selecting boundaries.
    (1) The local and regional planning process should be integrated 
into the State planning process.
    (2) Use of a common data base should be encouraged among 
transportation, land use, and other planning areas.
    (3) To the extent practicable, coterminous planning regions should 
be encouraged, and larger regions should be multiples of whole smaller 
regions.
    (4) Coordination should be provided with those agencies designated 
for water quality management planning under section 208 of the Federal 
Water Pollution Control Act, with underground injection control agencies 
designated in accordance with the Safe Drinking Water Act, and with air 
quality planning agencies designated under the Clean Air Act.

(Sec. 4002(a), Pub. L. 94-580, 90 Stat. 2795 (42 U.S.C. 6942))



Sec. 255.11  Criteria for identifying agencies.

    The following criteria are intended to assist in the process of 
agency selection pursuant to section 4006(b) of the Act. They may also 
be useful in pointing out needed improvements in the qualifications of 
the selected agencies.
    (a) Existing agencies with demonstrated satisfactory ability to 
plan, manage, or operate solid waste management services should be 
considered for planning and implementation responsibilities. Agencies 
which have completed planning that resulted in successful implementation 
of solid waste management facilities or services should be given 
priority consideration for future planning responsibilities when they 
otherwise meet these criteria.
    (b) An agency to be identified as responsible for conducting 
regional solid waste management planning should:

[[Page 387]]

    (1) Be a representative organization composed of, or whose 
membership is composed of, individuals at least a majority of whom are 
elected officials of local governments or their designees having 
jurisdiction in the planning region.
    (2) Have planning jurisdiction in the entire planning region.
    (3) Be capable of having the planning process fully underway within 
1 year after identification.
    (4) Have established procedures for adoption, review, and revision 
of plans and resolution of major issues, including procedures for public 
participation in the planning process.
    (5) Have appropriate experience and skills to perform all of its 
assigned responsibilities, including expertise for the particular waste 
type, processing or disposal technology, and functional area. (Attention 
is directed to OMB Circular No. A-95, paragraph 1.e., part IV of 
Attachment A which encourages the designation of established substate 
district comprehensive planning agencies as the agencies to carry out 
areawide planning assisted or required under any Federal program).
    (c) In identifying agencies for solid waste management planning and 
implementation under section 4006 of the Act, the State should review 
the solid waste activities being conducted by water quality management 
planning agencies designated under section 208 of the Federal Water 
Pollution Control Act. Where feasible, identification of such agencies 
should be considered in the joint identification processes of subpart C 
of this part. There should be a formal means of coordination established 
with the State water quality management agencies.
    (d) Planning objectives will influence agency selection. 
Distinctions may be made between policy planning and facility planning 
and between planning a single solid waste management system and 
comprehensive planning which addresses trade-offs among various media.
    (e) For coordinating planning and implementation under the State 
plan, as required in section 4003(1)(c), consideration should be given 
to identifying one agency for both functions. Where separate planning 
and implementation agencies are selected, there should be some means to 
ensure implementation, such as State legislation or an interagency 
agreement that all constituent jurisdictions will abide by the plan. 
Furthermore, strong coordination should be established between the 
planning agency and the implementing agency. During the planning period, 
the implementation agency should have continual access to plan 
development processes. There should be an administrative procedure to 
resolve conflicts between planners and implementers.
    (f) The agency responsible for carrying out the regional plan should 
be constituted with authority to implement the plan in its constituent 
jurisdictions.
    (g) The need for a reliable volume of waste to supply disposal or 
recovery facilities should be addressed. The Agency providing such 
facilities whose member jurisdictions could choose whether or not to 
utilize the facility should analyze that need and consider methods such 
as franchising or public utility controls to assure an adequate supply.



        Subpart C_Procedures for Identifying Regions and Agencies

    Note: The following procedures are provided to assist in 
establishing consultation and joint identification processes to be used 
for identifying regions and agencies pursuant to section 4006. Any 
process which meets the substantive intent of these guidelines may be 
submitted to the EPA Regional Administrator for purposes of determining 
grant eligibility under section 4007, especially if such process has 
been mandated or funded by State legislation.



Sec. 255.20  Preliminary identification of regions.

    Preliminary identification of regions should be made by the Governor 
or his representative after consultation with regional and areawide 
planning agencies, water quality and solid waste management planning 
agencies, cities, and counties and other appropriate units of general 
purpose local government. The Governor should notify the concerned 
agencies of his recommendations concerning boundaries. Where the 
regional identification has already

[[Page 388]]

been established by State legislation or other method in keeping with 
these guidelines, this notification need only request comments on the 
existing arrangement.

[42 FR 24927, May 16, 1977, as amended at 48 FR 29303, June 24, 1983]



Sec. 255.21  Local consultation on boundaries.

    Any chief executive of a general purpose government within the State 
may comment on the Governor's recommendation concerning the boundaries.
    (a) The purposes of these comments are to assure that the experience 
of local agencies is used to fullest advantage in boundary decisions, 
that incompatible institutional arrangements are not forced, and that 
significant local considerations are not overlooked.
    (b) When the objectives of the Act concerning local consultation can 
be met by an equivalent or existing process established under State 
administrative procedures acts or other State procedural guidance, the 
Governor may request that the EPA accept that process in fulfillment of 
the grant eligibility criteria under section 4007 of the Act.



Sec. 255.22  Establishing regional boundaries.

    Under section 4006(a) of the Act the formal means for identifying 
regional boundaries are to be regulations promulgated by the Governor. 
Where the identification of areas has already been made by State 
legislation or other means which have legal stature equivalent to the 
required regulations, and where notification and consultation have 
occurred pursuant to Sec. Sec. 255.20 and 255.21 of this part, such 
legislation may be used in lieu of those regulations. Where substantial 
disagreement persists between the Governor and local officials, normal 
State administrative and judicial appeals procedures are available to 
resolve such conflict.



Sec. 255.23  Joint identification of agencies.

    (a) The Governor should designate a lead agency to manage the 
identification process. That agency should review established 
notification procedures to determine that at least all general purpose 
local governments within the State, all units of regional governance, 
all existing solid waste and water quality management planning agencies, 
and all areawide agencies and the state process under Executive Order 
12372 will be notified. If necessary, a supplemental distribution list 
should be prepared. Consideration should be given to addressing 
individual offices within those agencies.
    (b) The Governor should, by correspondence or State notification 
procedures, notify the agencies on the distribution list (paragraph (a) 
of this section) of the purpose and schedule of the joint identification 
process. This may be coincident with the notification in Sec. 255.20.
    (c) The Governor, an appropriate legislative committee, and 
appropriate local elected officials may submit nominations of agencies 
and functions to the lead agency appointed by the Governor. This lead 
agency should make such nominations public.
    (d) Chief executives of agencies on the distribution list may 
comment by letter on the nominations.
    (e) If a disagreement exists which cannot be settled by 
correspondence or a meeting with the Governor's representative, a public 
hearing should be held and all elected officials of local general 
purpose governments within the region should be invited. The purpose of 
this meeting will be for the local officials to reach a consensus 
regarding the agency(ies) to be formally identified.
    (f) When a consensus is reached among local elected officials a 
formal agreement should be made in conformance with State administrative 
procedures. It should be binding until revised in accordance with this 
subpart.
    (g) When the local consensus is in agreement with the State opinion, 
the State should confirm that agreed arrangement, formally establishing 
the duties and responsibilities of the identified agencies by 
legislative resolution or executive order.
    (h) In the event that a consensus cannot be reached before 270 days 
after promulgation of regulations pursuant to Sec. 255.22 the Governor 
should designate a State agency to develop and

[[Page 389]]

implement the plan for the concerned region.

[42 FR 24927, May 16, 1977, as amended at 48 FR 29303, June 24, 1983]



Sec. 255.24  Procedure for identifying interstate regions.

    If the Governor's recommendation, the local consensus, or a 
neighboring Governor's recommendation is that an interstate region be 
identified, the procedures described in this subpart should be extended 
to include notification and comment of all concerned officials in the 
entire recommended region.
    (a) Section 4006(c) of the Act establishes specific procedures for 
the conduct of interstate identification processes.
    (b) Recommendations, nominations, and comments resulting from 
processes described in Sec. Sec. 255.20 and 255.21 that concern 
interstate regions should be brought to the attention of the appropriate 
EPA Regional Administrator.
    (c) The Governor should evaluate the use of interstate metropolitan 
area (Standard Metropolitan Statistical Area) boundaries for planning 
and management purposes, and consider nominating such areas where 
appropriate.

(Also sec. 4006(c), Pub. L. 94-580, 90 Stat. 2795 (42 U.S.C. 6946(c)))



Sec. 255.25  Public participation.

    Public participation in the process of identifying regions and 
agencies should be provided for, encouraged, and assisted by the State 
and local officials.



 Subpart D_Responsibilities of Identified Agencies and Relationship to 
                             Other Programs



Sec. 255.30  Responsibilities established.

    The following duties and responsibilities should be assigned for all 
appropriate areas pursuant to section 4006.
    (a) Disposal of municipal solid waste should be an identified 
responsibility throughout the State. In the event that no local or 
regional agency is held responsible for disposal for a region, a State 
agency should be identified and held accountable.
    (b) Where the State plan identifies municipal sewage sludge 
disposal, hazardous waste disposal or other functions needing attention 
in a region, an agency should be identified as being responsible for 
that function in that region.
    (c) These responsibilities may be assigned with the intent that 
private industry be the actual purveyor of service.



Sec. 255.31  Integration with other acts.

    The Governor shall integrate the provisions of these guidelines for 
purposes of administration and enforcement, and should avoid duplication 
to the maximum extent practicable, with the appropriate regional 
identification provisions of the Clean Air Act (42 U.S.C. 1857 et seq.), 
the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), the 
Safe Drinking Water Act (42 U.S.C. 300f et seq.), the Toxic Substances 
Control Act (15 U.S.C. 2601 et seq.), the Marine Protection, Research 
and Sanctuaries Act of 1972 (33 U.S.C. 1401 et seq.) and other 
appropriate Acts of Congress.

(Sec. 1006(b), Pub. L. 94-580, 90 Stat. 2795 (42 U.S.C. 6905(b)))



Sec. 255.32  Coordination with other programs.

    The region and agency identification criteria (Sec. 255.11) specify 
review of solid waste activities being conducted by water quality 
management planning agencies, underground injection control agencies, 
and air quality management agencies. There should be a formal means of 
coordination established between any agencies established under section 
4006 which are not identical with these agencies. Coordination should be 
established so that permittees under the National Pollutant Discharge 
Elimination System of the Federal Water Pollution Control Act will be 
consulted concerning disposal of residual sludges.



Sec. 255.33  Inclusion of Federal facilities and Native American Reservations.

    Major Federal facilities and Native American Reservations should be 
treated for the purposes of these guidelines as though they are 
incorporated

[[Page 390]]

municipalities, and the facility director or administrator should be 
considered the same as a locally elected official.

(Sec. 6001, Pub. L. 94-580, 90 Stat. 2795 (42 U.S.C. 6961))



          Subpart E_Submission and Revision of Identifications



Sec. 255.40  Notification of status.

    This subpart describes procedures which may ultimately be required 
by EPA when it publishes regulations governing application and 
eligibility for grants under section 4007. Under these regulations the 
appropriate EPA Regional Administrator will consider the identifications 
made under section 4006 as one of the conditions of grant eligibility.
    The Regional Administrator may accept, in State grant applications, 
notification of the status of these identifications to ensure that 
premature decisions on State plan development will not be forced by the 
timing of the identifications specified in the Act. Procedures are 
outlined here to advise the States of what EPA expects to require in 
such notification.
    (a) The notification should specify those regional boundaries and 
agencies which are uncontested at the time of submission, and specify a 
schedule of hearings and determinations of subsequent identification of 
regions and agencies as consensus is reached.
    (b) The appropriate level of detail and the timing of the 
identifications to be made should be established for each planning 
region after agreement between the State and the appropriate EPA 
Regional Administrator. The timing should depend upon how well the State 
plan is developed, the environmental and economic decisions to be made, 
and the existing management approaches to their resolution.
    (c) The notification should list the major known interested agencies 
and private operators within each planning region and describe how they 
will be included in the process. Where appropriate, it should include an 
expression of their interest and a definition of the extent and limits 
of their role in solid waste management planning.
    (d) The notification should provide a schedule for phasing of plan 
development with the identification of agencies to carry out those 
plans, showing the projected maturation of management agencies and the 
milestones for those agencies in taking over the plan implementation 
process.
    (e) This notification should include establishment of State agencies 
where regional planning and implementation agencies have not been 
identified within 270 days of the Governor's promulgation of regulations 
identifying regional boundaries.

(See sec. 4006(b)(2))



Sec. 255.41  Procedure for revision.

    The procedure for revising regional identifications or agency 
responsibilities should be specified by the notification.
    (a) The State should review and, if appropriate, revise or modify 
the identification of regions and the responsibilities of local and 
regional agencies at intervals of less than 3 years. Review and 
modification should include, but not be limited to, the following areas:
    (1) Whether new regions should be identified, or whether present 
boundaries should be modified.
    (2) Whether responsibilities of an agency should be expanded or 
reduced due to changes in the needs for solid waste functions in the 
region.
    (b) Revisions or adjustments to the State plan may require minor 
boundary or agency changes from time to time. The appropriate EPA 
Regional Administrator should be notified of such revisions by the State 
solid waste agency.
    (c) Major revisions or adjustments in agencies or boundaries should 
be made in consultation with local officials and be subject to the same 
procedures used in the original identification process. Notification of 
such revisions should be submitted with State plan updates.

[[Page 391]]



PART 256_GUIDELINES FOR DEVELOPMENT AND IMPLEMENTATION OF STATE SOLID WASTE 

MANAGEMENT PLANS--Table of Contents




          Subpart A_Purpose, General Requirements, Definitions

Sec.
256.01 Purpose and scope of the guidelines.
256.02 Scope of the State solid waste management plan.
256.03 State plan submission, adoption, and revision.
256.04 State plan approval, financial assistance.
256.05 Annual work program.
256.06 Definitions.

  Subpart B_Identification of Responsibilities; Distribution of Funding

256.10 Requirements.
256.11 Recommendations.

                 Subpart C_Solid Waste Disposal Programs

256.20 Requirements for State legal authority.
256.21 Requirements for State regulatory powers.
256.22 Recommendations for State regulatory powers.
256.23 Requirements for closing or upgrading open dumps.
256.24 Recommendations for closing or upgrading open dumps.
256.25 Recommendation for inactive facilities.
256.26 Requirement for schedules leading to compliance with the 
          prohibition of open dumping.
256.27 Recommendation for schedules leading to compliance with the 
          prohibition of open dumping.

     Subpart D_Resource Conservation and Resource Recovery Programs

256.30 Requirements.
256.31 Recommendations for developing and implementing resource 
          conservation and recovery programs.

             Subpart E_Facility Planning and Implementation

256.40 Requirements.
256.41 Recommendations for assessing the need for facilities.
256.42 Recommendations for assuring facility development.

               Subpart F_Coordination With Other Programs

256.50 Requirements.

                     Subpart G_Public Participation

256.60 Requirements for public participation in State and substate 
          plans.
256.61 Requirements for public participation in the annual State work 
          program.
256.62 Requirements for public participation in State regulatory 
          development.
256.63 Requirements for public participation in the permitting of 
          facilities.
256.64 Requirements for public participation in the open dump inventory.
256.65 Recommendations for public participation.

    Authority: Sec. 4002(b), Pub. L. 94-580, 90 Stat. 2813(b) (42 U.S.C. 
6942(b)).

    Source: 44 FR 45079, July 31, 1979, unless otherwise noted.

    Editorial Note: For approval of State solid waste management plans 
see the List of CFR Sections Affected in the Finding Aids section of 
this volume.



          Subpart A_Purpose, General Requirements, Definitions



Sec. 256.01  Purpose and scope of the guidelines.

    (a) The purpose of these guidelines is to assist in the development 
and implementation of State solid waste management plans, in accordance 
with section 4002(b) of the Solid Waste Disposal Act, as amended by the 
Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6942(b)) (the 
``Act''). These guidelines contain methods for achieving the objectives 
of environmentally sound management and disposal of solid and hazardous 
waste, resource conservation, and maximum utilization of valuable 
resources.
    (b) These guidelines address the minimum requirements for approval 
of State plans as set forth in section 4003 of the Act. These are:
    (1) The plan shall identify, in accordance with section 4006(b), (i) 
the responsibilities of State, local, and regional authorities in the 
implementation of the State plan, (ii) the distribution of Federal funds 
to the authorities responsible for development and implementation of the 
State plan, and (iii) the means for coordinating regional

[[Page 392]]

planning and implementation under the State plan.
    (2) The plan shall, in accordance with section 4005(c), prohibit the 
establishment of new open dumps within the State, and contain 
requirements that all solid waste (including solid waste originating in 
other States, but not including hazardous waste) shall be (i) utilized 
for resource recovery or (ii) disposed of in sanitary landfills (within 
the meaning of section 4004(a)) or otherwise disposed of in an 
environmentally sound manner.
    (3) The plan shall provide for the closing or upgrading of all 
existing open dumps within the State pursuant to the requirements of 
section 4005.
    (4) The plan shall provide for the establishment of such State 
regulatory powers as may be necessary to implement the plan.
    (5) The plan shall provide that no local government within the State 
shall be prohibited under State or local law from entering into long-
term contracts for the supply of solid waste to resource recovery 
facilities.
    (6) The plan shall provide for resource conservation or recovery and 
for the disposal of solid waste in sanitary landfills or for any 
combination of practices so as may be necessary to use or dispose of 
such waste in a manner that is environmentally sound.
    (c) These guidelines address the requirement of section 4005(c) that 
a State plan:

    Shall establish, for any entity which demonstrates that it has 
considered other public or private alternatives for solid waste 
management to comply with the prohibition on open dumping and is unable 
to utilize such alternatives to so comply, a timetable or schedule of 
compliance for such practice or disposal of solid waste which specifies 
a schedule of remedial measures, including an enforceable sequence of 
actions or operations leading to compliance with the prohibition on open 
dumping of solid waste within a reasonable time (not to exceed five 
years from the date of publication of the inventory).



Sec. 256.02  Scope of the State solid waste management plan.

    (a)(1) The State plan shall address all solid waste in the State 
that poses potential adverse effects on health or the environment or 
provides opportunity for resource conservation or resource recovery. The 
plan shall consider:
    (i) Hazardous wastes;
    (ii) Residential, commercial and institutional solid waste;
    (iii) Wastewater treatment sludge;
    (iv) Pollution control residuals;
    (v) Industrial wastes;
    (vi) Mining wastes;
    (vii) Agricultural wastes;
    (viii) Water treatment sludge; and
    (ix) Septic tank pumpings.
    (2) The State plan shall consider the following aspects of solid 
waste management:
    (i) Resource conservation;
    (ii) Source separation;
    (iii) Collection;
    (iv) Transportation;
    (v) Storage;
    (vi) Transfer;
    (vii) Processing (including resource recovery);
    (viii) Treatment; and
    (ix) Disposal.
    (b) The State Plan shall establish and justify priorities and timing 
for actions. These priorities shall be based on the current level of 
solid waste management planning and implementation within the State, the 
extent of the solid waste management problem, the health, environmental 
and economic impacts of the problem, and the resources and management 
approaches available.
    (c) The State plan shall set forth an orderly and manageable process 
for achieving the objectives of the Act and meeting the requirements of 
these quidelines. This process shall describe as specifically as 
possible the activities to be undertaken, including detailed schedules 
and milestones.
    (d) The State plan shall cover a minimum of a five year time period 
from the date submitted to EPA for approval.
    (e) The State plan shall identify existing State legal authority for 
solid waste management and shall identify modifications to regulations 
necessary to meet the requirements of these guidelines.



Sec. 256.03  State plan submission, adoption, and revision.

    (a) To be considered for approval, the State plan shall be submitted 
to EPA

[[Page 393]]

within a reasonable time after final promulgation of these guidelines.
    (b) Prior to submission to EPA, the plan shall be adopted by the 
State pursuant to State administrative procedures.
    (c) The plan shall be developed in accord with public participation 
procedures required by Subpart G of this part.
    (d) The plan shall contain procedures for revision. The State plan 
shall be revised by the State, after notice and public hearings, when 
the Administrator, by regulation, or the State determines, that:
    (1) The State plan is not in compliance with the requirements of 
these guidelines;
    (2) Information has become available which demonstrates the 
inadequacy of the plan; or
    (3) Such revision is otherwise necessary.
    (e) The State plan shall be reviewed by the State and, where 
necessary, revised and readopted not less frequently than every three 
years.
    (f) States which are developing a complete State plan may submit the 
portion of the plan designed to satisfy the requirements of Sec. 256.26 
prior to submission of the complete plan.

[44 FR 45079, July 31, 1979, as amended at 46 FR 47051, Sept. 23, 1981]



Sec. 256.04  State plan approval, financial assistance.

    (a) The Administrator shall, within six months after a State plan 
has been submitted for approval, approve or disapprove the plan. The 
Administrator shall approve a plan if he determines that:
    (1) It meets the requirements of these guidelines which address 
sections 4003(1), (2), (3), and (5), and
    (2) It contains provisions for revision pursuant to Sec. 256.03.
    (b) The Administrator shall review approved plans from time to time, 
and if he determines that revisions or corrections are necessary to 
bring such plan into compliance with all of the requirements of these 
guidelines, including the requirements which address sections 4003(4) 
and (6) and any new or revised requirement established by amendment to 
this part, he shall notify the State and provide an opportunity for such 
revisions and corrections and for an appeal and public hearing. If the 
plan continues to remain out of compliance, he shall withdraw his 
approval of such plan.
    (c) Such withdrawal of approval shall cease to be effective upon the 
Administrator's determination that the State plan complies with the 
requirements of these guidelines.
    (d) The Administrator shall approve a State application for 
financial assistance under subtitle D of the Act, and make grants to 
such State, if the Administrator determines that the State plan 
continues to be eligible for approval and is being implemented by the 
State.
    (e) Upon withdrawal of approval of a State plan, the Administrator 
shall withhold Federal financial and technical assistance under subtitle 
D (other than such technical assistance as may be necessary to assist in 
obtaining reinstatement of approval) until such time as approval is 
reinstated. (Procedures for termination of financial assistance and for 
settlement of disputes are contained in 40 CFR part 30, appendix A, 
articles 7 and 8.)
    (f) If a State submits to EPA the portion of the plan by which 
entities may, pursuant to Sec. 256.26, obtain timetables or schedules 
of compliance for complying with the open dumping prohibition, the 
Administrator shall approve such portion of the plan if he determines 
that:
    (1) The portion submitted satisfies the requirements of Sec. 
256.26;
    (2) The State has the general legal authority to issue and enforce 
compliance schedules; and
    (3) The remainder of the plan is being developed in conformity with 
these guidelines and will be completed within a reasonable period of 
time.

In giving partial plan approval, the Administrator shall specify in 
writing the timetable for completion of the final plan as required in 
paragraph (f)(3) of this section.

[44 FR 45079, July 31, 1979, as amended at 46 FR 47051, Sept. 23, 1981]



Sec. 256.05  Annual work program.

    (a) The annual work program submitted for financial assistance under

[[Page 394]]

section 4008(a)(1) and described in the grant regulations (40 CFR part 
35) shall be reviewed by the Administrator in order to determine whether 
the State plan is being implemented by the State.
    (b) The Administrator and the State shall agree on the contents of 
the annual work program. The Administrator will consider State 
initiatives and priorities, in light of the goals of the Act, in 
determining annual work programs for each State. The annual work program 
represents a State's obligation incurred by acceptance of financial 
assistance.
    (c) Annual guidance for the development of State work programs will 
be issued by EPA. While this guidance will establish annual national 
priorities, flexibility will be provided in order to accommodate 
differing State priorities.
    (d) The following documents developed under the State plan shall be 
included by reference in the annual work program:
    (1) Substate solid waste management plans,
    (2) Plans for the development of facilities and services, including 
hazardous waste management facilities and services, and
    (3) Evidence of actions or steps taken to close or upgrade open 
dumps.
    (e) The annual work program shall allocate the distribution of 
Federal funds to agencies responsible for the development and 
implementation of the State plan.



Sec. 256.06  Definitions.

    Terms not defined below have the meanings assigned them by section 
1004 of the Act.
    The Act means the Solid Waste Disposal Act, as amended by the 
Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901 et seq.).
    Criteria means the ``Criteria for Classification of Solid Waste 
Disposal Facilities'', 40 CFR Part 257, promulgated under section 
4004(a) of the Act.
    Facility refers to any resource recovery system or component 
thereof, any system, program or facility for resource conservation, and 
any facility for collection, source separation, storage, transportation, 
transfer, processing, treatment or disposal of solid waste, including 
hazardous waste, whether such facility is associated with facilities 
generating such wastes or not.
    Implementation means putting the plan into practice by carrying out 
planned activities, including compliance and enforcement activities, or 
ensuring such activities are carried out.
    Inactive facility means a facility which no longer receives solid 
waste.
    Inventory of open dumps means the inventory required under section 
4005(b) and is defined as the list published by EPA of those disposal 
facilities which do not meet the criteria.
    Operator includes facility owners and operators.
    A permit is an entitlement to commence and continue operation of a 
facility as long as both procedural and performance standards are met. 
The term ``permit'' includes any functional equivalent such as a 
registration or license.
    Planning includes identifying problems, defining objectives, 
collecting information, analyzing alternatives and determining necessary 
activities and courses of action.
    Provide for in the phrase ``the plan shall (should) provide for'' 
means explain, establish or set forth steps or courses of action.
    The term shall denotes requirements for the development and 
implementation of the State plan.
    The term should denotes recommendations for the development and 
implementation of the State plan.
    Substate refers to any public regional, local, county, municipal, or 
intermunicipal agency, or regional or local public (including 
interstate) solid or hazardous waste management authority, or other 
public agency below the State level.



  Subpart B_Identification of Responsibilities; Distribution of Funding



Sec. 256.10  Requirements.

    (a) In accordance with sections 4003(1) and 4006 and the interim 
guidelines for identification of regions and agencies for solid waste 
management

[[Page 395]]

(40 CFR part 255), the State plan shall provide for:
    (1) The identification of the responsibilities of State and substate 
(regional, local and interstate) authorities in the development and 
implementation of the State plan;
    (2) The means of distribution of Federal funds to the authorities 
responsible for development and implementation of the State plan; and
    (3) The means for coordinating substate planning and implementation.
    (b) Responsibilities shall be identified for the classification of 
disposal facilities for the inventory of open dumps.
    (c) Responsibilities shall be identified for development and 
implementation of the State regulatory program described in subpart C of 
this part.
    (d) Responsibilities shall be identified for the development and 
implementation of the State resource conservation and resource recovery 
program described in subpart D of this part.
    (e) State, substate and private sector responsibilities shall be 
identified for the planning and implementation of solid and hazardous 
waste management facilities and services.
    (f) Financial assistance under sections 4008(a) (1) and (2) shall be 
allocated by the State to State and substate authorities carrying out 
development and implementation of the State plan. Such allocation shall 
be based on the responsibilities of the respective parties as determined 
under section 4006(b).



Sec. 256.11  Recommendations.

    (a) Responsibilities should be identified for each of the solid 
waste types listed in Sec. 256.02(a)(1).
    (b) Responsibilities should be identified for each of the aspects of 
solid waste management listed in Sec. 256.02(a)(2).
    (c) Responsibilities should be identified for planning and 
designating ground water use with respect to design and operation of 
solid waste disposal facilities.
    (d) Responsibilities should be identified for the development and 
implementation of the authorized State hazardous waste management 
program under subtitle C of the Act.
    (e) The State plan should include a schedule and procedure for the 
continuing review, reassessment and reassignment of responsibilities.



                 Subpart C_Solid Waste Disposal Programs



Sec. 256.20  Requirements for State legal authority.

    In order to comply with sections 4003 (2) and (3), the State plan 
shall assure that the State has adequate legal authority to prohibit the 
establishment of new open dumps and to close or upgrade existing open 
dumps. The prohibition of the establishment of new open dumps shall take 
effect no later than six months after the date of promulgation of the 
criteria or on the date of approval of the State plan, whichever is 
later.



Sec. 256.21  Requirements for State regulatory powers.

    In order to comply with section 4003(4), the State plan shall 
provide for the establishment of State regulatory powers. These powers:
    (a) Shall be adequate to enforce solid waste disposal standards 
which are equivalent to or more stringent than the criteria for 
classification of solid waste disposal facilities (40 CFR part 257). 
Such authority shall be as definitive as possible and clearly establish 
the means for compliance.
    (b) Shall include surveillance capabilities necessary to detect 
adverse environmental effects from solid waste disposal facilities. Such 
capabilities shall include access for inspection and monitoring by 
regulatory officials and the authority to establish operator monitoring 
and reporting requirements.
    (c) Shall make use of a permit program which ensures that the 
establishment of new open dumps is prohibited.
    (d) Shall have administrative and judicial enforcement capabilities, 
including enforceable orders, fines or other administrative procedures, 
as necessary to ensure compliance.

[[Page 396]]



Sec. 256.22  Recommendations for State regulatory powers.

    In order to assist compliance with section 4003(4), the following 
are recommendations for State regulatory powers as may be necessary to 
prohibit new open dumps and close or upgrade all existing open dumps.
    (a) Solid waste disposal standards:
    (1) Should be based on the health and environmental impacts of 
disposal facilities.
    (2) Should specify design and operational standards.
    (3) Should take into account the climatic, geologic, and other 
relevant characteristics of the State.
    (b) Surveillance systems should establish monitoring requirements 
for facilities.
    (1) Every facility should be evaluated for potential adverse health 
and environmental effects. Based on this evaluation, instrumentation, 
sampling, monitoring, and inspection requirements should be established.
    (2) Every facility which produces leachate in quantities and 
concentrations that could contaminate ground water in an aquifer should 
be required to monitor to detect and predict contamination.
    (3) Inspectors should be trained and provided detailed instructions 
for checking on the procedures and conditions that are specified in the 
engineering plan and site permit. Provisions should be made to ensure 
chain of custody for evidence.
    (c) Facility assessment and prescription of remedial measures should 
be carried out by adequately trained or experienced professional staff, 
including engineers and geologists.
    (d) The State permit system should provide the administrative 
control to prohibit the establishment of new open dumps and to assist in 
meeting the requirement that all wastes be used or disposed in an 
environmentally sound manner.
    (1) Permitting procedures for new facilities should require 
applicants to demonstrate that the facility will comply with the 
criteria.
    (2) The permit system should specify, for the facility operator, the 
location, design, construction, operational, monitoring, reporting, 
completion and maintenance requirements.
    (3) Permit procedures should include provisions to ensure that 
future use of the property on which the facility is located is 
compatible with that property's use as a solid waste disposal facility. 
These procedures should include identification of future land use or the 
inclusion of a stipulation in the property deed which notifies future 
purchasers of precautions necessitated by the use of the property as a 
solid waste disposal facility.
    (4) Permits should only be issued to facilities that are consistent 
with the State plan, or with substate plans developed under the State 
plan.
    (e) The enforcement system should be designed to include both 
administrative procedures and judicial remedies to enforce the 
compliance schedules and closure procedures for open dumps.
    (1) Permits, surveillance, and enforcement system capabilities 
should be designed for supporting court action.
    (2) Detection capabilities and penalties for false reporting should 
be provided for.



Sec. 256.23  Requirements for closing or upgrading open dumps.

    In meeting the requirement of section 4003(3) for closing or 
upgrading open dumps:
    (a) The State plan shall provide for the classification of existing 
solid waste disposal facilities according to the criteria. This 
classification shall be submitted to EPA, and facilities classified as 
open dumps shall be published in the inventory of open dumps.
    (b) The State plan shall provide for an orderly time-phasing of the 
disposal facility classifications described in paragraph (a) of this 
section. The determination of priorities for the classification of 
disposal facilities shall be based upon:
    (1) The potential health and environmental impact of the solid waste 
disposal facility;
    (2) The availability of State regulatory and enforcement powers; and
    (3) The availability of Federal and State resources for this 
purpose.
    (c) For each facility classified as an open dump the State shall 
take steps

[[Page 397]]

to close or upgrade the facility. Evidence of that action shall be 
incorporated by reference into the annual work program and be made 
publicly available. When the State's actions concerning open dumps are 
modified, the changes shall be referenced in subsequent annual work 
programs.
    (d) In providing for the closure of open dumps the State shall take 
steps necessary to eliminate health hazards and minimize potential 
health hazards. These steps shall include requirements for long-term 
monitoring or contingency plans where necessary.



Sec. 256.24  Recommendations for closing or upgrading open dumps.

    (a) All sources of information available to the State should be used 
to aid in the classification of facilities. Records of previous 
inspections and monitoring, as well as new inspections and new 
monitoring, should be considered.
    (b) The steps to close or upgrade open dumps established under Sec. 
256.23(c) should be coordinated with the facility needs assessment 
described in Sec. 256.41.
    (c) A determination should be made of the feasibility of resource 
recovery or resource conservation to reduce the solid waste volume 
entering a facility classified as an open dump; and feasible measures to 
achieve that reduction should be implemented.
    (d) At the time of classification of existing solid waste disposal 
facilities pursuant to Sec. 256.23, the State should consider 
developing appropriate timetables or schedules by which any responsible 
party can be brought into compliance with the open dumping prohibition 
pursuant to Sec. Sec. 256.26 and 256.27.

[44 FR 45079, July 31, 1979, as amended at 46 FR 47051, Sept. 23, 1981]



Sec. 256.25  Recommendation for inactive facilities.

    Inactive facilities that continue to produce adverse health or 
environmental effects should be evaluated according to the criteria. The 
State plan should provide for measures to ensure that adverse health or 
environmental effects from inactive facilities are minimized or 
eliminated. Such measures may include actions by disposal facility 
owners and operators, notification of the general public, adjacent 
residents and other affected parties and notification of agencies 
responsible for public health and safety.



Sec. 256.26  Requirement for schedules leading to compliance with the 

prohibition of open dumping.

    In implementing the section 4005(c) prohibition on open dumping, the 
State plan shall provide that any entity which demonstrates that it has 
considered other public or private alternatives to comply with the 
prohibition on open dumping and is unable to utilize such alternatives 
to so comply, may obtain a timetable or schedule for compliance which 
specifies a schedule of remedial measures, and an enforceable sequence 
of actions, leading to compliance within a reasonable time (not to 
exceed 5 years from the date of publication of the inventory).



Sec. 256.27  Recommendation for schedules leading to compliance with the 

prohibition of open dumping.

    In reviewing applications for compliance schedules under Sec. 
256.26, the State should consider the availability of processing and 
disposal facilities, the likelihood of environmental damage from 
disposal at available facilities, the existence of State or substate 
requirements (including other compliance schedules) applicable to 
available facilities, cost constraints, existing contractual agreements 
and other pertinent factors.



     Subpart D_Resource Conservation and Resource Recovery Programs



Sec. 256.30  Requirements.

    (a) In order to comply with sections 4003(2) and (6) as they pertain 
to resource conservation and recovery, the State plan shall provide for 
a policy and strategy for encouragement of resource recovery and 
conservation activities.
    (b) In order to comply with section 4003(5), the State plan shall 
provide that no local government within the State is prohibited under 
State or local law from entering into long-term contracts for the supply 
of solid waste to resource recovery facilities.

[[Page 398]]



Sec. 256.31  Recommendations for developing and implementing resource 

conservation and recovery programs.

    (a) In order to encourage resource recovery and conservation, the 
State plan should provide for technical assistance, training, 
information development and dissemination, financial support programs, 
market studies and market development programs.
    (b) In order to comply with the requirement of Sec. 256.30(b) 
regarding long-term contract prohibitions, the State plan should provide 
for:
    (1) Review of existing State and local laws and regulations 
pertinent to contracting for resource recovery services or facilities.
    (2) Reporting of all laws and regulations found to be in violation 
of this requirement to the executive officer of the administrative 
agency responsible for the statute.
    (3) Development of an administrative order or a revised law or 
regulation or any other preliminary step for the removal or amending of 
a law or regulation in violation of this requirement.
    (4) Development of a strategy for the consideration of the 
legislature to prohibit and/or remove from State or local law provisions 
in violation of this requirement.
    (c) The State plan should aid and encourage State procurement of 
products containing recovered materials in accord with section 6002 of 
the Act. To assist this effort, the State plan should provide for:
    (1) The development of a policy statement encouraging the 
procurement of recovered materials, wherever feasible;
    (2) The identification of the key purchasing agencies of the State, 
along with potential uses of recovered materials by these agencies; and,
    (3) The development of a plan of action to promote the use of 
recovered materials through executive order, legislative initiative, or 
other action that the State deems necessary.
    (d) In order to encourage resource recovery and conservation, the 
State plan should provide for the elimination, to the extent possible, 
of restrictions on the purchase of goods or services, especially 
negotiated procurements, for resource recovery facilities. This should 
include:
    (1) Review of existing State and local laws pertinent to the 
procurement of equipment and services for the design, construction and 
operation of resource recovery facilities;
    (2) Listing of all laws that limit the ability of localities to 
negotiate for the procurement of the design, construction, or operation 
of resource recovery facilities;
    (3) Development of administrative orders or legislation or other 
action that would eliminate these restrictions; and
    (4) Development of a strategy and plan of action for the 
consideration of the legislature for execution of administrative orders 
or other action that would eliminate these restrictions.
    (e) The State plan should encourage the development of resource 
recovery and resource conservation facilities and practices as the 
preferred means of solid waste management whenever technically and 
economically feasible. The State plan should provide for the following 
activities:
    (1) The composition of wastes should be analyzed with particular 
emphasis on recovery potential for material and energy, including fuel 
value, percentages of recoverable industrial wastes, grades of 
wastepaper, glass, and non-ferrous and ferrous metals.
    (2) Available and potential markets for recovered materials and 
energy should be identified, including markets for recoverable 
industrial wastes; wastepapers; ferrous and non-ferrous metals; glass; 
solid, liquid, or gaseous fuels; sludges; and tires. The following 
should be evaluated: location and transportation requirements, materials 
and energy specifications of user industries, minimum quantity 
requirements, pricing mechanisms and long-term contract availability.
    (3) Resource recovery feasibility studies should be conducted in 
regions of the State in which uses or markets for recovered materials or 
energy are identified. These studies should review various technological 
approaches, environmental considerations, institutional and financial 
constraints, and economic feasibility.

[[Page 399]]

    (4) Source separation, recycling and resource conservation should be 
utilized whenever technically and economically feasible.
    (5) Mixed waste processing facilities for the recovery of energy and 
materials should be utilized whenever technically and economically 
feasible.
    (6) Source separation, resource conservation and mixed waste 
processing capacity should be combined to achieve the most effective 
resource conservation and economic balance.



             Subpart E_Facility Planning and Implementation



Sec. 256.40  Requirements.

    In order to comply with section 4003(6), the State plan shall 
provide for adequate resource conservation, recovery, storage, treatment 
and disposal facilities and practices necessary to use or dispose of 
solid and hazardous waste in an environmentally sound manner.



Sec. 256.41  Recommendations for assessing the need for facilities.

    (a) In meeting the requirement for adequate resource conservation, 
recovery, storage, treatment and disposal facilities and practices, the 
State plan should provide for an assessment of the adequacy of existing 
facilities and practices and the need for new or expanded facilities and 
practices.
    (1) The needs assessment should be based on current and projected 
waste generation rates and on the capacities of presently operating and 
planned facilities.
    (2) Existing and planned resource conservation and recovery 
practices and their impact on facility needs should be assessed.
    (3) Current and projected movement of solid and hazardous waste 
across State and local boundaries should be assessed.
    (4) Special handling needs should be determined for all solid waste 
categories.
    (5) Impact on facility capacities due to predictable changes in 
waste quantities and characteristics should be estimated.
    (6) Environmental, economic, and other constraints on continued 
operation of facilities should be assessed.
    (7) Diversion of wastes due to closure of open dumps should be 
anticipated.
    (8) Facilities and practices planned or provided for by the private 
sector should be assessed.
    (b) The State plan should provide for the identification of areas 
which require new capacity development, based on the needs assessment.



Sec. 256.42  Recommendations for assuring facility development.

    (a) The State plan should address facility planning and acquisition 
for all areas which are determined to have insufficient recovery, 
storage, treatment and disposal capacity in the assessment of facility 
needs.
    (b) Where facilities and practices are found to be inadequate, the 
State plan should provide for the necessary facilities and practices to 
be developed by responsible State and substate agencies or by the 
private sector.
    (c) For all areas found to have five or fewer years of capacity 
remaining, the State plan should provide for:
    (1) The development of estimates of waste generation by type and 
characteristic,
    (2) The evaluation and selection of resource recovery, conservation 
or disposal methods,
    (3) Selection of sites for facilities, and
    (4) Development of schedules of implementation.
    (d) The State plan should encourage private sector initiatives in 
order to meet the identified facility needs.
    (e) In any area having fewer than 2 years of projected capacity, the 
State plan should provide for the State to take action such as acquiring 
facilities or causing facilities to be acquired.
    (f) The State plan should provide for the initiation and development 
of environmentally sound facilities as soon as practicable to replace 
all open dumps.
    (g) The State plan should provide for the State, in cooperation with 
substate agencies, to establish procedures for choosing which facilities 
will get priority for technical or financial assistance or other 
emphasis. Highest priority should be given to facilities developed to 
replace or upgrade open dumps.

[[Page 400]]

    (h) The State plan should provide for substate cooperation and 
policies for free and unrestricted movement of solid and hazardous waste 
across State and local boundaries.



               Subpart F_Coordination With Other Programs



Sec. 256.50  Requirements.

    Section 4003(1) requires the State solid waste managment plan to 
idenifty means for coordinating regional planning and implementation 
under the State plan. Section 1006 requires the Administrator to 
integrate all provisions of this Act (including approval of State plans) 
with other Acts that grant regulatory authority to the Administrator in 
order to prevent duplication of administrative and enforcement efforts. 
In order to meet these requirements:
    (a) The State solid waste management plan shall be developed in 
coordination with Federal, State, and substate programs for air quality, 
water quality, water supply, waste water treatment, pesticides, ocean 
protection, toxic substances control, noise control, and radiation 
control.
    (b) The State plan shall provide for coordination with programs 
under section 208 of the Clean Water Act, as amended (33 U.S.C. 1288). 
In identifying agencies for solid waste management planning and 
implementation, the State shall review the solid waste management 
activities being conducted by water quality planning and management 
agencies designated under section 208 of the Clean Water Act. Where 
feasible, identification of such agencies should be considered during 
the identification of responsibilities under subpart B of this part. 
Where solid waste management and water quality agencies are separate 
entities, necessary coordination procedures shall be established.
    (c) The State plan shall provide for coordination with the National 
Pollutant Discharge Elimination System (NPDES) established under section 
402 of the Clean Water Act, as amended (33 U.S.C. 1342). The issuance of 
State facility permits and actions taken to close or upgrade open dumps 
shall be timed, where practicable, to coordinate closely with the 
issuance of a new or revised NPDES permit for such facility.
    (d) The State plan shall provide for coordination with activities 
for municipal sewage sludge disposal and utilization conducted under the 
authority of section 405 of the Clean Water Act, as amended (33 U.S.C. 
1345), and with the program for construction grants for publicly owned 
treatment works under section 201 of the Clean Water Act, as amended (33 
U.S.C. 1281).
    (e) The State plan shall provide for coordination with State 
pretreatment activities under section 307 of the Clean Water Act, as 
amended (33 U.S.C. 1317).
    (f) The State plan shall provide for coordination with agencies 
conducting assessments of the impact of surface impoundments on 
underground sources of drinking water under the authority of section 
1442(a)(8)(C) of the Safe Drinking Water Act (42 U.S.C. 300j-1).
    (g) The State plan shall provide for coordination with State 
underground injection control programs (40 CFR Parts 122, 123, 124, and 
146) carried out under the authority of the Safe Drinking Water Act (42 
U.S.C. 300f et seq.) and with the designation of sole source aquifers 
under section 1424 of that Act.
    (h) The State plan shall provide for coordination with State 
implementation plans developed under the Clean Air Act (42 U.S.C. 7401 
et seq.; incineration and open burning limitations; and, State 
implementation plan requirements impacting resource recovery systems).
    (i) The State plan shall provide for coordination with the Army 
Corps of Engineers permit program (or authorized State program) under 
section 404 of the Clean Water Act, as amended (33 U.S.C. 1344) for 
dredge and fill activities in waters of the United States.
    (j) The State plan shall provide for coordination with the Office of 
Endangered Species, Department of the Interior, to ensure that solid 
waste management activities, especially the siting of disposal 
facilities, do not jeopardize the continued existence of an endangered 
or threated species nor result in the destruction or adverse 
modification of a critical habitat.

[[Page 401]]

    (k) The State plan shall provide for coordination, where 
practicable, with programs under:
    (1) The Toxic Substances Control Act (15 U.S.C. 2601 et seq.; 
disposal of chemical substances and mixtures).
    (2) The Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. 
1362 et seq.; disposal and storage of pesticides and pesticide 
containers).
    (3) The Marine Protection, Research and Sanctuaries Act (33 U.S.C. 
1420 et seq.; disposal in ocean waters).
    (l) The State plan shall provide for coordination, where 
practicable, with programs of other Federal agencies, including:
    (1) Department of the Interior.
    (i) Fish and Wildlife Service (wetlands),
    (ii) Bureau of Mines and Office of Surface Mining (mining waste 
disposal and use of sludge in reclamation),
    (iii) U.S. Geological Survey (wetlands, floodplains, ground water);
    (2) Department of Commerce, National Oceanic and Atmospheric 
Administration (coastal zone management plans);
    (3) Water Resources Council (flood plains, surface and ground 
waters);
    (4) Department of Agriculture, including Soil Conservation Service 
(land spreading solid waste on food chain croplands);
    (5) Federal Aviation Administration (locating disposal facilities on 
or near airport property);
    (6) Department of Housing and Urban Development (701 comprehensive 
planning program, flood plains mapping);
    (7) Department of Defense (development and implementation of State 
and substate plans with regard to resource recovery and solid waste 
disposal programs at various installations);
    (8) Department of Energy (State energy conservation plans under the 
Energy Policy and Conservation Act (42 U.S.C. 6321)); and
    (9) Other programs.
    (m) The State plan shall provide for coordination, where 
practicable, with solid waste management plans in neighboring States and 
with plans for Indian reservations in the State.



                     Subpart G_Public Participation



Sec. 256.60  Requirements for public participation in State and substate 

plans.

    (a) State and substate planning agencies shall:
    (1) Maintain a current list of agencies, organizations, and 
individuals affected by or interested in the plan, which shall include 
any parties that request to be on the list, the owner or operator of 
each facility classified as an open dump and any other parties which the 
State determines to be affected by or interested in the plan;
    (2) Provide depositories of relevant information in one or more 
convenient locations; and
    (3) Prepare a responsiveness summary, in accord with 40 CFR 25.8, 
where required by this subpart or by an approved public participation 
work plan, which describes matters on which the public was consulted, 
summarizes the public's views, and sets forth the agency's response to 
the public input.
    (b) State and substate planning agencies shall provide information 
and consult with the public on plan development and implementation. 
Provision of information and consultation shall occur both early in the 
planning process (including the preparation and distribution of a 
summary of the proposed plan) and on major policy decisions made during 
the course of plan development, revision and implementation. To meet 
this requirement, planning agencies shall:
    (1) Publicize information in news media having broad audiences in 
the geographic area;
    (2) Place information in depositories maintained under paragraph 
(a)(2) of this section;
    (3) Send information directly to agencies, organizations and 
individuals on the list maintained under paragraph (a)(1) of this 
section; and
    (4) Prepare and make available to the public a responsiveness 
summary in accord with 40 CFR 25.8.
    (c) State and substate planning agencies shall conduct public 
hearings (and public meetings, where the agency determines there is 
sufficient interest) in accord with 40 CFR 25.5 and 25.6. The purpose of 
the hearings and meetings is

[[Page 402]]

to solicit reactions and recommendations from interested or affected 
parties and to explain major issues within the proposed plan. Following 
the public hearings, a responsiveness summary shall be prepared and made 
available to the public in accord with 40 CFR 25.8.

[44 FR 45079, July 31, 1979, as amended at 46 FR 47051, Sept. 23, 1981]



Sec. 256.61  Requirements for public participation in the annual State work 

program.

    (a) A public participation work plan in accord with 40 CFR 25.11 
shall be included in the annual State work program.
    (b) The State shall consult with the public in the development of 
the annual work program. One month prior to submission of the draft work 
program to the Regional Administrator, as required by 40 CFR part 35, 
the draft work program shall be made available to the public at the 
State information depositories maintained under Sec. 256.60(a)(2). The 
public shall be notified of the availability of the draft work program, 
and a public meeting shall be held if the planning agency determines 
there is sufficient interest.
    (c) The State shall comply with the requirements of Office of 
Management and Budget Circular No. A-95.
    (d) Copies of the final work program shall be placed in the State 
information depositories maintained under Sec. 256.60(a)(2).



Sec. 256.62  Requirements for public participation in State regulatory 

development.

    (a) The State shall conduct public hearings (and public meetings 
where the State determines there is sufficient interest) on State 
legislation and regulations, in accord with the State administrative 
procedures act, to solicit reactions and recommendations. Following the 
public hearings, a responsiveness summary shall be prepared and made 
available to the public in accord with 40 CFR 25.8.
    (b) In advance of the hearings and meetings required by paragraph 
(a) of this section, the State shall prepare a fact sheet on proposed 
regulations or legislation, mail the fact sheet to agencies, 
organizations and individuals on the list maintained under Sec. 
256.60(a)(1) and place the fact sheet in the State information 
depositories maintained under Sec. 256.60(a)(2).



Sec. 256.63  Requirements for public participation in the permitting of 

facilities.

    (a) Before approving a permit application (or renewal of a permit) 
for a resource recovery or solid waste disposal facility the State shall 
hold a public hearing to solicit public reaction and recommendations on 
the proposed permit application if the State determines there is a 
significant degree of public interest in the proposed permit.
    (b) This hearing shall be held in accord with 40 CFR 25.5.



Sec. 256.64  Requirements for public participation in the open dump inventory.

    (a) The State shall provide an opportunity for public participation 
prior to submission of any classification of a facility as an open dump 
to the Federal Government. The State shall accomplish this by providing 
notice as specified in Sec. 256.64(b) or by using other State 
administrative procedures which provide equivalent public participation.
    (b) The State may satisfy the requirement of Sec. 256.64(a) by 
providing written notice of the availability of the results of its 
classifications to all parties on the list required under Sec. 
256.60(a)(1) at least 30 days before initial submission of these 
classifications to the Federal Government. For those parties on the list 
required under Sec. 256.60(a)(1) who are owners or operators of 
facilities classified as open dumps, such notice shall indicate that the 
facility has been so classified.

[46 FR 47052, Sept. 23, 1981]



Sec. 256.65  Recommendations for public participation.

    (a) State and substate planning agencies should establish an 
advisory group, or utilize an existing group, to provide recommendations 
on major policy and program decisions. The advisory group's membership 
should reflect a balanced viewpoint in accord with 40 CFR 25.7(c).

[[Page 403]]

    (b) State and substate planning agencies should develop public 
education programs designed to encourage informed public participation 
in the development and implementation of solid waste management plans.

[44 FR 45079, July 31, 1979. Redesignated and amended at 46 FR 47052, 
Sept. 23, 1981]



PART 257_CRITERIA FOR CLASSIFICATION OF SOLID WASTE DISPOSAL FACILITIES AND 

PRACTICES--Table of Contents




    Subpart A_Classification of Solid Waste Disposal Facilities and 
                                Practices

Sec.
257.1 Scope and purpose.
257.2 Definitions.
257.3 Criteria for classification of solid waste disposal facilities and 
          practices.
257.3-1 Floodplains.
257.3-2 Endangered species.
257.3-3 Surface water.
257.3-4 Ground water.
257.3-5 Application to land used for the production of food-chain crops 
          (interim final).
257.3-6 Disease.
257.3-7 Air.
257.3-8 Safety.
257.4 Effective date.

  Subpart B_Disposal Standards for the Receipt of Conditionally Exempt 
 Small Quantity Generator (CESQG) Wastes at Non-Municipal Non-Hazardous 
                          Waste Disposal Units

257.5 Disposal standards for owners/operators of non-municipal non-
          hazardous waste disposal units that receive Conditionally 
          Exempt Small Quantity Generator (CESQG) waste.

                          Location Restrictions

257.7 [Reserved]
257.8 Floodplains.
257.9 Wetlands.
257.10-257.12 [Reserved]
257.13 Deadline for making demonstrations.

              Ground-Water Monitoring and Corrective Action

257.21 Applicability.
257.22 Ground-water monitoring systems.
257.23 Ground-water sampling and analysis requirements.
257.24 Detection monitoring program.
257.25 Assessment monitoring program.
257.26 Assessment of corrective measures.
257.27 Selection of remedy.
257.28 Implementation of the corrective action program.
257.29 [Reserved]

                       Recordkeeping Requirements

257.30 Recordkeeping requirements.

Appendix I to Part 257--Maximum Contaminant Levels (MCLs)
Appendix II to Part 257

    Authority: 42 U.S.C. 6907(a)(3), 6912(a)(1), 6944(a), and 6949a(c); 
33 U.S.C. 1345(d) and (e).

    Source: 44 FR 53460, Sept. 13, 1979, unless otherwise noted.



    Subpart A_Classification of Solid Waste Disposal Facilities and 
                                Practices



Sec. 257.1  Scope and purpose.

    (a) Unless otherwise provided, the criteria in Sec. Sec. 257.1 
through 257.4 are adopted for determining which solid waste disposal 
facilities and practices pose a reasonable probability of adverse 
effects on health or the environment under sections 1008(a)(3) and 
4004(a) of the Resource Conservation and Recovery Act (The Act). Unless 
otherwise provided, the criteria in Sec. Sec. 257.5 through 257.30 are 
adopted for purposes of ensuring that non-municipal non-hazardous waste 
disposal units that receive conditionally exempt small quantity 
geterator (CESQG) waste do not present risks to human health and the 
environment taking into account the practicable capability of such units 
in accordance with section 4010(c) of the Act.
    (1) Facilities failing to satisfy either the criteria in Sec. Sec. 
257.1 through 257.4 or Sec. Sec. 257.5 through 257.30 are considered 
open dumps, which are prohibited under section 4005 of the Act.
    (2) Practices failing to satisfy either the criteria in Sec. Sec. 
257.1 through 257.4 or Sec. Sec. 257.5 through 257.30 constitute open 
dumping, which is prohibited under sction 4005 of the Act.
    (b) These criteria also provide guidelines for the disposal of 
sewage sludge on the land when the sewage sludge is not used or disposed 
through a practice regulated in 40 CFR part 503.
    (c) These criteria apply to all solid waste disposal facilities and 
practices with the following exceptions:
    (1) The criteria do not apply to agricultural wastes, including 
manures and

[[Page 404]]

crop residues, returned to the soil as fertilizers or soil conditioners.
    (2) The criteria do not apply to overburden resulting from mining 
operations intended for return to the mine site.
    (3) The criteria do not apply to the land application of domestic 
sewage or treated domestic sewage.
    (4) The criteria do not apply to the location and operation of 
septic tanks. The criteria do, however, apply to the disposal of septic 
tank pumpings.
    (5) The criteria do not apply to solid or dissolved materials in 
irrigation return flows.
    (6) The criteria do not apply to industrial discharges which are 
point sources subject to permits under section 402 of the Clean Water 
Act, as amended.
    (7) The criteria do not apply to source, special nuclear or 
byproduct material as defined by the Atomic Energy Act, as amended (68 
Stat. 923).
    (8) The criteria do not apply to hazardous waste disposal facilities 
which are subject to regulation under subtitle C of the Act.
    (9) The criteria do not apply to disposal of solid waste by 
underground well injection subject to the regulations (40 CFR part 146) 
for the Underground Injection Control Program (UICP) under the Safe 
Drinking Water Act, as amended, 42 U.S.C. 3007 et seq.
    (10) The criteria of this part do not apply to municipal solid waste 
landfill units, which are subject to the revised criteria contained in 
part 258 of this chapter.
    (11) The criteria do not apply to the use or disposal sewage sludge 
on the land when the sewage sludge is used or disposed in accordance 
with 40 CFR part 503.

[44 FR 53460, Sept. 13, 1979, as amended at 46 FR 47052, Sept. 23, 1981; 
56 FR 51016, Oct. 9, 1991; 58 FR 9385, Feb. 19, 1993; 61 FR 34269, July 
1, 1996]



Sec. 257.2  Definitions.

    The definitions set forth in section 1004 of the Act apply to this 
part. Special definitions of general concern to this part are provided 
below, and definitions especially pertinent to particular sections of 
this part are provided in those sections.
    Construction and demolition (C&D) landfill means a solid waste 
disposal facility subject to the requirements of subparts A or B of this 
part that receives construction and demolition waste and does not 
receive hazardous waste (defined in Sec. 261.3 of this chapter) or 
industrial solid waste (defined in Sec. 258.2 of this chapter). Only a 
C&D landfill that meets the requirements of subpart B of this part may 
receive conditionally exempt small quantity generator waste (defined in 
Sec. 261.5 of this chapter). A C&D landfill typically receives any one 
or more of the following types of solid wastes: roadwork material, 
excavated material, demolition waste, construction/renovation waste, and 
site clearance waste.
    Disposal means the discharge, deposit, injection, dumping, spilling, 
leaking, or placing of any solid waste or hazardous waste into or on any 
land or water so that such solid waste or hazardous waste or any 
constituent thereof may enter the environment or be emitted into the air 
or discharged into any waters, including ground waters.
    Domestic septage is either liquid or solid material removed from a 
septic tank, cesspool, portable toilet, Type III marine sanitation 
device, or similar treatment works that receives only domestic sewage. 
Domestic septage does not include liquid or solid material removed from 
a septic tank, cesspool, or similar treatment works that receives either 
commercial wastewater or industrial wastewater and does not include 
grease removed from a grease trap at a restaurant.
    Facility means all contiguous land and structures, other 
appurtenances, and improvements on the land used for the disposal of 
solid waste.
    Land application unit means an area where wastes are applied onto or 
incorporated into the soil surface (excluding manure spreading 
operations) for agricultural purposes or for treatment and disposal.
    Landfill means an area of land or an excavation in which wastes are 
placed for permanent disposal, and that is not a land application unit, 
surface impoundment, injection well, or waste pile.

[[Page 405]]

    Leachate means liquid that has passed through or emerged from solid 
waste and contains soluble, suspended or miscible materials removed from 
such wastes.
    Municipal solid waste landfill (MSWLF) unit means a discrete area of 
land or an excavation that receives household waste, and that is not a 
land application unit, surface impoundment, injection well, or waste 
pile, as those terms are defined in this section. A MSWLF unit also may 
receive other types of RCRA Subtitle D wastes, such as commercial solid 
waste, nonhazardous sludge, and industrial solid waste. Such a landfill 
may be publicly or privately owned. A MSWLF unit may be a new MSWLF 
unit, an existing MSWLF unit or a lateral expansion. A construction and 
demolition landfill that receives residential lead-based paint waste and 
does not receive any other household waste is not a MSWLF unit.
    Open dump means a facility for the disposal of solid waste which 
does not comply with this part.
    Practice means the act of disposal of solid waste.
    Residential lead-based paint waste means waste containing lead-based 
paint, which is generated as a result of activities such as abatement, 
rehabilitation, renovation and remodeling in homes and other residences. 
The term residential lead-based paint waste includes, but is not limited 
to, lead-based paint debris, chips, dust, and sludges.
    Sanitary landfill means a facility for the disposal of solid waste 
which complies with this part.
    Sewage sludge means solid, semi-solid, or liquid residue generated 
during the treatment of domestic sewage in a treatment works. Sewage 
sludge includes, but is not limited to, domestic septage; scum or solids 
removed in primary, secondary, or advanced wastewater treatment 
processes; and a material derived from sewage sludge. Sewage sludge does 
not include ash generated during the firing of sewage sludge in a sewage 
sludge incinerator or grit and screenings generated during preliminary 
treatment of domestic sewage in a treatment works.
    Sludge means any solid, semisolid, or liquid waste generated from a 
municipal, commercial, or industrial wastewater treatment plant, water 
supply treatment plant, or air pollution control facility or any other 
such waste having similar characteristics and effect.
    Solid waste means any garbage, refuse, sludge from a waste treatment 
plant, water supply treatment plant, or air pollution control facility 
and other discarded material, including solid, liquid, semisolid, or 
contained gaseous material resulting from industrial, commercial, 
mining, and agricultural operations, and from community activities, but 
does not include solid or dissolved materials in domestic sewage, or 
solid or dissolved material in irrigation return flows or industrial 
discharges which are point sources subject to permits under section 402 
of the Federal Water Pollution Control Act, as amended (86 Stat. 880), 
or source, special nuclear, or byproduct material as defined by the 
Atomic Energy Act of 1954, as amended (68 Stat. 923).
    State means any of the several States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, 
and the Commonwealth of the Northern Mariana Islands.
    Surface impoundment or impoundment means a facility or part of a 
facility that is a natural topographic depression, human-made 
excavation, or diked area formed primarily of earthen materials 
(although it may be lined with human-made materials), that is designed 
to hold an accumulation of liquid wastes or wastes containing free 
liquids and that is not an injection well. Examples of surface 
impoundments are holding storage, settling, and aeration pits, ponds, 
and lagoons.
    Waste pile or pile means any noncontainerized accumulation of solid, 
nonflowing waste that is used for treatment or storage.

[44 FR 53460, Sept. 13, 1979; 44 FR 58910, Oct. 12, 1979; 56 FR 51016, 
Oct. 9, 1991; 58 FR 9385, Feb. 19, 1993; 68 FR 36495, June 18, 2003]

[[Page 406]]



Sec. 257.3  Criteria for classification of solid waste disposal facilities and 

practices.

    Solid waste disposal facilities or practices which violate any of 
the following criteria pose a reasonable probability of adverse effects 
on health or the environment:



Sec. 257.3-1  Floodplains.

    (a) Facilities or practices in floodplains shall not restrict the 
flow of the base flood, reduce the temporary water storage capacity of 
the floodplain, or result in washout of solid waste, so as to pose a 
hazard to human life, wildlife, or land or water resources.
    (b) As used in this section:
    (1) Based flood means a flood that has a 1 percent or greater chance 
of recurring in any year or a flood of a magnitude equalled or exceeded 
once in 100 years on the average over a significantly long period.
    (2) Floodplain means the lowland and relatively flat areas adjoining 
inland and coastal waters, including flood-prone areas of offshore 
islands, which are inundated by the base flood.
    (3) Washout means the carrying away of solid waste by waters of the 
base flood.

[44 FR 53460, Sept. 13, 1979; 44 FR 54708, Sept. 21, 1979]



Sec. 257.3-2  Endangered species.

    (a) Facilities or practices shall not cause or contribute to the 
taking of any endangered or threatened species of plants, fish, or 
wildlife.
    (b) The facility or practice shall not result in the destruction or 
adverse modification of the critical habitat of endangered or threatened 
species as identified in 50 CFR part 17.
    (c) As used in this section:
    (1) Endangered or threatened species means any species listed as 
such pursuant to section 4 of the Endangered Species Act.
    (2) Destruction or adverse modification means a direct or indirect 
alteration of critical habitat which appreciably diminishes the 
likelihood of the survival and recovery of threatened or endangered 
species using that habitat.
    (3) Taking means harassing, harming, pursuing, hunting, wounding, 
killing, trapping, capturing, or collecting or attempting to engage in 
such conduct.



Sec. 257.3-3  Surface water.

    (a) For purposes of section 4004(a) of the Act, a facility shall not 
cause a discharge of pollutants into waters of the United States that is 
in violation of the requirements of the National Pollutant Discharge 
Elimination System (NPDES) under section 402 of the Clean Water Act, as 
amended.
    (b) For purposes of section 4004(a) of the Act, a facility shall not 
cause a discharge of dredged material or fill material to waters of the 
United States that is in violation of the requirements under section 404 
of the Clean Water Act, as amended.
    (c) A facility or practice shall not cause non-point source 
pollution of waters of the United States that violates applicable legal 
requirements implementing an areawide or Statewide water quality 
management plan that has been approved by the Administrator under 
section 208 of the Clean Water Act, as amended.
    (d) Definitions of the terms Discharge of dredged material, Point 
source, Pollutant, Waters of the United States, and Wetlands can be 
found in the Clean Water Act, as amended, 33 U.S.C. 1251 et seq., and 
implementing regulations, specifically 33 CFR part 323 (42 FR 37122, 
July 19, 1977).

[44 FR 53460, Sept. 13, 1979, as amended at 46 FR 47052, Sept. 23, 1981]



Sec. 257.3-4  Ground water.

    (a) A facility or practice shall not contaminate an underground 
drinking water source beyond the solid waste boundary or beyond an 
alternative boundary specified in accordance with paragraph (b) of this 
section.
    (b)(1) For purposes of section 1008(a)(3) of the Act or section 
405(d) of the CWA, a party charged with open dumping or a violation of 
section 405(e) with respect to sewage sludge that is not used or 
disposed through a practice regulated in 40 CFR part 503 may demonstrate 
that compliance should be determined at an alternative boundary in lieu 
of the solid waste boundary. The court shall establish an alternative 
boundary only if it finds that such a

[[Page 407]]

change would not result in contamination of ground water which may be 
needed or used for human consumption. This finding shall be based on 
analysis and consideration of all of the following factors that are 
relevant:
    (i) The hydrogeological characteristics of the facility and 
surrounding land, including any natural attenuation and dilution 
characteristics of the aquifer;
    (ii) The volume and physical and chemical characteristics of the 
leachate;
    (iii) The quantity, quality, and direction of flow of ground water 
underlying the facility;
    (iv) The proximity and withdrawal rates of ground-water users;
    (v) The availability of alternative drinking water supplies;
    (vi) The existing quality of the ground water, including other 
sources of contamination and their cumulative impacts on the ground 
water;
    (vii) Public health, safety, and welfare effects.
    (2) For purposes of sections 4004(a) and 1008(a)(3), the State may 
establish an alternative boundary for a facility to be used in lieu of 
the solid waste boundary only if it finds that such a change would not 
result in the contamination of ground water which may be needed or used 
for human consumption. Such a finding shall be based on an analysis and 
consideration of all of the factors identified in paragraph (b)(1) of 
this section that are relevant.
    (c) As used in this section:
    (1) Aquifer means a geologic formation, group of formations, or 
portion of a formation capable of yielding usable quantities of ground 
water to wells or springs.
    (2) Contaminate means introduce a substance that would cause:
    (i) The concentration of that substance in the ground water to 
exceed the maximum contaminant level specified in appendix I, or
    (ii) An increase in the concentration of that substance in the 
ground water where the existing concentration of that substance exceeds 
the maximum contaminant level specified in appendix I.
    (3) Ground water means water below the land surface in the zone of 
saturation.
    (4) Underground drinking water source means:
    (i) An aquifer supplying drinking water for human consumption, or
    (ii) An aquifer in which the ground water contains less than 10,000 
mg/1 total dissolved solids.
    (5) Solid waste boundary means the outermost perimeter of the solid 
waste (projected in the horizontal plane) as it would exist at 
completion of the disposal activity.

[44 FR 53460, Sept. 13, 1979, as amended at 46 FR 47052, Sept. 23, 1981; 
58 FR 9386, Feb. 19, 1993]



Sec. 257.3-5  Application to land used for the production of food-chain crops 

(interim final).

    (a) Cadmium. A facility or practice concerning application of solid 
waste to within one meter (three feet) of the surface of land used for 
the production of food-chain crops shall not exist or occur, unless in 
compliance with all requirements of paragraphs (a)(1) (i) through (iii) 
of this section or all requirements of paragraphs (a)(2) (i) through 
(iv) of this section.
    (1)(i) The pH of the solid waste and soil mixture is 6.5 or greater 
at the time of each solid waste application, except for solid waste 
containing cadmium at concentrations of 2 mg/kg (dry weight) or less.
    (ii) The annual application of cadmium from solid waste does not 
exceed 0.5 kilograms per hectare (kg/ha) on land used for production of 
tobacco, leafy vegetables or root crops grown for human consumption. For 
other food-chain crops, the annual cadmium application rate does not 
exceed:

------------------------------------------------------------------------
                                                              Annual Cd
                                                             application
                        Time period                           rate (kg/
                                                                 ha)
------------------------------------------------------------------------
Present to June 30, 1984...................................          2.0
July 1, 1984 to December 31, 1986..........................         1.25
Beginning January 1, 1987..................................          0.5
------------------------------------------------------------------------

    (iii) The cumulative application of cadmium from solid waste does 
not exceed the levels in either paragraph (a)(1)(iii)(A) or (B) of this 
section.
    (A)

[[Page 408]]



------------------------------------------------------------------------
                                                    Maximum cumulative
                                                    application (kg/ha)
                                                 -----------------------
    Soil cation exchange capacity (meq/100g)      Background  Background
                                                    soil pH     soil pH
                                                   less than   more than
                                                      6.5         6.5
------------------------------------------------------------------------
Less than 5.....................................           5           5
5 to 15.........................................           5          10
More than 15....................................           5          20
------------------------------------------------------------------------

    (B) For soils with a background pH of less than 6.5, the cumulative 
cadmium application rate does not exceed the levels below: Provided, 
That the pH of the solid waste and soil mixture is adjusted to and 
maintained at 6.5 or greater whenever food-chain crops are grown.

------------------------------------------------------------------------
                                                               Maximum
                                                              cumulative
          Soil cation exchange capacity (meq/100g)           application
                                                               (kg/ha)
------------------------------------------------------------------------
Less than 5................................................            5
5 to 15....................................................           10
More than 15...............................................           20
------------------------------------------------------------------------

    (2)(i) The only food-chain crop produced is animal feed.
    (ii) The pH of the solid waste and soil mixture is 6.5 or greater at 
the time of solid waste application or at the time the crop is planted, 
whichever occurs later, and this pH level is maintained whenever food-
chain crops are grown.
    (iii) There is a facility operating plan which demonstrates how the 
animal feed will be distributed to preclude ingestion by humans. The 
facility operating plan describes the measures to be taken to safeguard 
against possible health hazards from cadmium entering the food chain, 
which may result from alternative land uses.
    (iv) Future property owners are notified by a stipulation in the 
land record or property deed which states that the property has received 
solid waste at high cadmium application rates and that food-chain crops 
should not be grown, due to a possible health hazard.
    (b) Polychlorinated Biphenyls (PCBs). Solid waste containing 
concentrations of PCBs equal to or greater than 10 mg/kg (dry weight) is 
incorporated into the soil when applied to land used for producing 
animal feed, including pasture crops for animals raised for milk. 
Incorporation of the solid waste into the soil is not required if it is 
assured that the PCB content is less than 0.2 mg/kg (actual weight) in 
animal feed or less than 1.5 mg/kg (fat basis) in milk.
    (c) As used in this section:
    (1) Animal feed means any crop grown for consumption by animals, 
such as pasture crops, forage, and grain.
    (2) Background soil pH means the pH of the soil prior to the 
addition of substances that alter the hydrogen ion concentration.
    (3) Cation exchange capacity means the sum of exchangeable cations a 
soil can absorb expressed in milli-equivalents per 100 grams of soil as 
determined by sampling the soil to the depth of cultivation or solid 
waste placement, whichever is greater, and analyzing by the summation 
method for distinctly acid soils or the sodium acetate method for 
neutral, calcareous or saline soils (``Methods of Soil Analysis, 
Agronomy Monograph No. 9.'' C. A. Black, ed., American Society of 
Agronomy, Madison, Wisconsin. pp 891-901, 1965).
    (4) Food-chain crops means tobacco, crops grown for human 
consumption, and animal feed for animals whose products are consumed by 
humans.
    (5) Incorporated into the soil means the injection of solid waste 
beneath the surface of the soil or the mixing of solid waste with the 
surface soil.
    (6) Pasture crops means crops such as legumes, grasses, grain 
stubble and stover which are consumed by animals while grazing.
    (7) pH means the logarithm of the reciprocal of hydrogen ion 
concentration.
    (8) Root crops means plants whose edible parts are grown below the 
surface of the soil.
    (9) Soil pH is the value obtained by sampling the soil to the depth 
of cultivation or solid waste placement, whichever is greater, and 
analyzing by the electrometric method. (``Methods of Soil Analysis, 
Agronomy Monograph No. 9,'' C.A. Black, ed., American Society of 
Agronomy, Madison, Wisconsin, pp. 914-926, 1965.)

[44 FR 53460, Sept. 13, 1979; 44 FR 54708, Sept. 21, 1979]



Sec. 257.3-6  Disease.

    (a) Disease Vectors. The facility or practice shall not exist or 
occur unless the on-site population of disease vectors is minimized 
through the periodic

[[Page 409]]

application of cover material or other techniques as appropriate so as 
to protect public health.
    (b) Sewage sludge and septic tank pumpings (Interim Final). A 
facility or practice involving disposal of sewage sludge or septic tank 
pumpings shall not exist or occur unless in compliance with paragraphs 
(b) (1), (2) or (3) of this section.
    (1) Sewage sludge that is applied to the land surface or is 
incorporated into the soil is treated by a Process to Significantly 
Reduce Pathogens prior to application or incorporation. Public access to 
the facility is controlled for at least 12 months, and grazing by 
animals whose products are consumed by humans is prevented for at least 
one month. Processes to Significantly Reduce Pathogens are listed in 
appendix II, section A. (These provisions do not apply to sewage sludge 
disposed of by a trenching or burial operation.)
    (2) Septic tank pumpings that are applied to the land surface or 
incorporated into the soil are treated by a Process to Significantly 
Reduce Pathogens (as listed in appendix II, section A), prior to 
application or incorporation, unless public access to the facility is 
controlled for at least 12 months and unless grazing by animals whose 
products are consumed by humans is prevented for at least one month. 
(These provisions do not apply to septic tank pumpings disposed of by a 
trenching or burial operation.)
    (3) Sewage sludge or septic tank pumpings that are applied to the 
land surface or are incorporated into the soil are treated by a Process 
to Further Reduce Pathogens, prior to application or incorporation, if 
crops for direct human consumption are grown within 18 months subsequent 
to application or incorporation. Such treatment is not required if there 
is no contact between the solid waste and the edible portion of the 
crop; however, in this case the solid waste is treated by a Process to 
Significantly Reduce Pathogens, prior to application; public access to 
the facility is controlled for at least 12 months; and grazing by 
animals whose products are consumed by humans is prevented for at least 
one month. If crops for direct human consumption are not grown within 18 
months of application or incorporation, the requirements of paragraphs 
(b) (1) and (2) of this section apply. Processes to Further Reduce 
Pathogens are listed in appendix II, section B.
    (c) As used in this section:
    (1) Crops for direct human consumption means crops that are consumed 
by humans without processing to minimize pathogens prior to distribution 
to the consumer.
    (2) Disease vector means rodents, flies, and mosquitoes capable of 
transmitting disease to humans.
    (3) Incorporated into the soil means the injection of solid waste 
beneath the surface of the soil or the mixing of solid waste with the 
surface soil.
    (4) Periodic application of cover material means the application and 
compaction of soil or other suitable material over disposed solid waste 
at the end of each operating day or at such frequencies and in such a 
manner as to reduce the risk of fire and to impede vectors access to the 
waste.
    (5) Trenching or burial operation means the placement of sewage 
sludge or septic tank pumpings in a trench or other natural or man-made 
depression and the covering with soil or other suitable material at the 
end of each operating day such that the wastes do not migrate to the 
surface.

[44 FR 53460, Sept. 13, 1979; 44 FR 54708, Sept. 21, 1979]



Sec. 257.3-7  Air.

    (a) The facility or practice shall not engage in open burning of 
residential, commercial, institutional or industrial solid waste. This 
requirement does not apply to infrequent burning of agricultural wastes 
in the field, silvicultural wastes for forest management purposes, land-
clearing debris, diseased trees, debris from emergency clean-up 
operations, and ordnance.
    (b) For purposes of section 4004(a) of the Act, the facility shall 
not violate applicable requirements developed under a State 
Implementation Plan (SIP) approved or promulgated by the Administrator 
pursuant to section 110 of the Clean Air Act, as amended.
    (c) As used in this section ``open burning'' means the combustion of

[[Page 410]]

solid waste without (1) control of combustion air to maintain adequate 
temperature for efficient combustion, (2) containment of the combustion 
reaction in an enclosed device to provide sufficient residence time and 
mixing for complete combustion, and (3) control of the emission of the 
combustion products.

[44 FR 53460, Sept. 13, 1979; 44 FR 54708, Sept. 21, 1979, as amended at 
46 FR 47052, Sept. 23, 1981]



Sec. 257.3-8  Safety.

    (a) Explosive gases. The concentration of explosive gases generated 
by the facility or practice shall not exceed:
    (1) Twenty-five percent (25%) of the lower explosive limit for the 
gases in facility structures (excluding gas control or recovery system 
components); and
    (2) The lower explosive limit for the gases at the property 
boundary.
    (b) Fires. A facility or practice shall not pose a hazard to the 
safety of persons or property from fires. This may be accomplished 
through compliance with Sec. 257.3-7 and through the periodic 
application of cover material or other techniques as appropriate.
    (c) Bird hazards to aircraft. A facility or practice disposing of 
putrescible wastes that may attract birds and which occurs within 10,000 
feet (3,048 meters) of any airport runway used by turbojet aircraft or 
within 5,000 feet (1,524 meters) of any airport runway used by only 
piston-type aircraft shall not pose a bird hazard to aircraft.
    (d) Access. A facility or practice shall not allow uncontrolled 
public access so as to expose the public to potential health and safety 
hazards at the disposal site.
    (e) As used in this section:
    (1) Airport means public-use airport open to the public without 
prior permission and without restrictions within the physical capacities 
of available facilities.
    (2) Bird hazard means an increase in the likelihood of bird/aircraft 
collisions that may cause damage to the aircraft or injury to its 
occupants.
    (3) Explosive gas means methane (CH4).
    (4) Facility structures means any buildings and sheds or utility or 
drainage lines on the facility.
    (5) Lower explosive limit means the lowest percent by volume of a 
mixture of explosive gases which will propagate a flame in air at 25 
[deg]C and atmospheric pressure.
    (6) Periodic application of cover material means the application and 
compaction of soil or other suitable material over disposed solid waste 
at the end of each operating day or at such frequencies and in such a 
manner as to reduce the risk of fire and to impede disease vectors' 
access to the waste.
    (7) Putrescible wastes means solid waste which contains organic 
matter capable of being decomposed by microorganisms and of such a 
character and proportion as to be capable of attracting or providing 
food for birds.



Sec. 257.4  Effective date.

    These criteria become effective October 15, 1979.



  Subpart B_Disposal Standards for the Receipt of Conditionally Exempt 
 Small Quantity Generator (CESQG) Wastes at Non-Municipal Non-Hazardous 
                          Waste Disposal Units

    Source: 61 FR 34269, July 1, 1996, unless otherwise noted.



Sec. 257.5  Disposal standards for owners/operators of non-municipal non-

hazardous waste disposal units that receive Conditionally Exempt Small 

Quantity Generator (CESQG) waste.

    (a) Applicability. (1) The requirements in this section apply to 
owners/operators of any non-municipal non-hazardous waste disposal unit 
that receives CESQG hazardous waste, as defined in 40 CFR 261.5. Non-
municipal non-hazardous waste disposal units that meet the requirements 
of this section may receive CESQG wastes. Any owner/operator of a non-
municipal non-hazardous waste disposal unit that receives CESQG 
hazardous waste continues to be subject to the requirements in 
Sec. Sec. 257.3-2, 257.3-3, 257.3-5, 257.3-6, 257.3-7, and 257.3-8 (a), 
(b), and (d).
    (2) Any non-municipal non-hazardous waste disposal unit that is 
receiving

[[Page 411]]

CESQG hazardous waste as of January 1, 1998, must be in compliance with 
the requirements in Sec. Sec. 257.7 through 257.13 and Sec. 257.30 by 
January 1, 1998, and the requirements in Sec. Sec. 257.21 through 
257.28 by July 1, 1998.
    (3) Any non-municipal non-hazardous waste disposal unit that does 
not meet the requirements in this section may not receive CESQG wastes.
    (4) Any non-municipal non-hazardous waste disposal unit that is not 
receiving CESQG Hazardous waste as of January 1, 1998, continues to be 
subject to the requirements in Sec. Sec. 257.1 through 257.4.
    (5) Any non-municipal non-hazardous waste disposal unit that first 
receives CESQG hazardous waste after January 1, 1998, must be in 
compliance with Sec. Sec. 257.7 through 257.30 prior to the receipt of 
CESQG hazardous waste.
    (b) Definitions.
    Active life means the period of operation beginning with the initial 
receipt of solid waste and ending at the final receipt of solid waste.
    Existing unit means any non-municipal non-hazardous waste disposal 
unit that is receiving CESQG hazardous waste as of January 1, 1998.
    Facility means all contiguous land and structures, other 
appurtenances, and improvements on the land used for the disposal of 
non-municipal non-hazardous waste.
    Lateral expansion means a horizontal expansion of the waste 
boundaries of an existing non-municipal non-hazardous waste disposal 
unit.
    New unit means any non-municipal non-hazardous waste disposal unit 
that has not received CESQG hazardous waste prior to January 1, 1998.
    State means any of the several States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, 
and the Commonwealth of the Northern Mariana Islands.
    State Director means the chief administrative officer of the lead 
state agency responsible for implementing the state permit program for 
40 CFR part 257, subpart B and 40 CFR part 258 regulated facilities.
    Uppermost aquifer means the geologic formation nearest the natural 
ground surface that is an aquifer, as well as, lower aquifers that are 
hydraulically interconnected with this aquifer within the facility's 
property boundary.
    Waste management unit boundary means a vertical surface located at 
the hydraulically downgradient limit of the unit. This vertical surface 
extends down into the uppermost aquifer.

[61 FR 34269, July 1, 1996, as amended at 63 FR 57044, Oct. 23, 1998]

                          Location Restrictions



Sec. 257.7  [Reserved]



Sec. 257.8  Floodplains.

    (a) Owners or operators of new units, existing units, and lateral 
expansions located in 100-year floodplains must demonstrate that the 
unit will not restrict the flow of the 100-year flood, reduce the 
temporary water storage capacity of the floodplain, or result in washout 
of solid waste so as to pose a hazard to human health and the 
environment. The owner or operator must place the demonstration in the 
operating record and notify the State Director that it has been placed 
in the operating record.
    (b) For purposes of this section:
    (1) Floodplain means the lowland and relatively flat areas adjoining 
inland and coastal waters, including flood-prone areas of offshore 
islands, that are inundated by the 100-year flood.
    (2) 100-year flood means a flood that has a 1-percent or greater 
chance of recurring in any given year or a flood of a magnitude equalled 
or exceeded once in 100 years on the average over a significantly long 
period.
    (3) Washout means the carrying away of solid waste by waters of the 
base flood.



Sec. 257.9  Wetlands.

    (a) Owners or operators of new units and lateral expansions shall 
not locate such units in wetlands, unless the owner or operator can make 
the following demonstrations to the Director of an approved State:
    (1) Where applicable under section 404 of the Clean Water Act or 
applicable State wetlands laws, the presumption that a practicable 
alternative to the proposed landfill is available which

[[Page 412]]

does not involved wetlands is clearly rebutted:
    (2) The construction and operation of the unit will not:
    (i) Cause or contribute to violations of any applicable State water 
quality standard;
    (ii) Violate any applicable toxic effluent standard or prohibition 
under Section 307 of the Clean Water Act;
    (iii) Jeopardize the continued existence of endangered or threatened 
species or result in the destruction or adverse modification of a 
critical habitat, protected under the Endangered Species Act of 1973; 
and
    (iv) Violate any requirement under the Marine Protection, Research, 
and Sanctuaries Act of 1972 for the protection of a marine sanctuary;
    (3) The unit will not cause or contribute to significant degradation 
of wetlands. The owner/operator must demonstrate the integrity of the 
unit and its ability to protect ecological resources by addressing the 
following factors:
    (i) Erosion, stability, and migration potential of native wetland 
soils, muds and deposits used to support the unit;
    (ii) Erosion, stability, and migration potential of dredged and fill 
materials used to support the unit;
    (iii) The volume and chemical nature of the waste managed in the 
unit;
    (iv) Impacts on fish, wildlife, and other aquatic resources and 
their habitat from release of the waste;
    (v) The potential effects of catastrophic release of waste to the 
wetland and the resulting impacts on the environment; and
    (vi) Any additional factors, as necessary, to demonstrate that 
ecological resources in the wetland are sufficiently protected.
    (4) To the extent required under section 404 of the Clean Water Act 
or applicable State wetlands laws, steps have been taken to attempt to 
achieve no net loss of wetlands (as defined by acreage and function) by 
first avoiding impacts to wetlands to the maximum extent practicable as 
required by paragraph (a)(1) of this section, then minimizing 
unavoidable impacts to the maximum extent practicable, and finally 
offsetting remaining unavoidable wetland impacts through all appropriate 
and practicable compensatory mitigation actions (e.g., restoration of 
existing degraded wetlands or creation of man-made wetlands); and
    (5) Sufficient information is available to make a reasonable 
determination with respect to these demonstrations.
    (b) For purposes of this section, wetlands means those areas that 
are defined in 40 CFR 232.2(r).



Sec. Sec. 257.10-257.12  [Reserved]



Sec. 257.13  Deadline for making demonstrations.

    Existing units that cannot make the demonstration specified in Sec. 
257.8(a) pertaining to floodplains by January 1, 1998, must not accept 
CESQG hazardous waste for disposal.

              Ground-Water Monitoring and Corrective Action



Sec. 257.21  Applicability.

    (a) The requirements in this section apply to units identified in 
Sec. 257.5(a), except as provided in paragraph (b) of this section.
    (b) Ground-water monitoring requirements under Sec. Sec. 257.22 
through 257.25 may be suspended by the Director of an approved State for 
a unit identified in Sec. 257.5(a) if the owner or operator can 
demonstrate that there is no potential for migration of hazardous 
constituents from that unit to the uppermost aquifer during the active 
life of the unit plus 30 years. This demonstration must be certified by 
a qualified ground-water scientist and approved by the Director of an 
approved State, and must be based upon:
    (1) Site-specific field collected measurements, sampling, and 
analysis of physical, chemical, and biological processes affecting 
contaminant fate and transport; and
    (2) Contaminant fate and transport predictions that maximize 
contaminant migration and consider impacts on human health and 
environment.
    (c) Owners and operators of facilities identified in Sec. 257.5(a) 
must comply with the ground-water monitoring requirements of this 
section according to the following schedule unless an alternative 
schedule is specified under paragraph (d) of this section:

[[Page 413]]

    (1) Existing units and lateral expansions must be in compliance with 
the ground-water monitoring requirements specified in Sec. Sec. 257.22 
through 257.25 by July 1, 1998.
    (2) New units identified in Sec. 257.5(a) must be in compliance 
with the ground-water monitoring requirements specified in Sec. Sec. 
257.22 through 257.25 before waste can be placed in the unit.
    (d) The Director of an approved State may specify an alternative 
schedule for the owners or operators of existing units and lateral 
expansions to comply with the ground-water monitoring requirements 
specified in Sec. Sec. 257.22 through 257.25. This schedule must ensure 
that 50 percent of all existing units are in compliance by July 1, 1998, 
and all existing units are in compliance by July 1, 1999. In setting the 
compliance schedule, the Director of an approved State must consider 
potential risks posed by the unit to human health and the environment. 
The following factors should be considered in determining potential 
risk:
    (1) Proximity of human and environmental receptors;
    (2) Design of the unit;
    (3) Age of the unit;
    (4) The size of the unit; and
    (5) Resource value of the underlying aquifer, including:
    (i) Current and future uses;
    (ii) Proximity and withdrawal rate of users; and
    (iii) Ground-water quality and quantity.
    (e) Once established at a unit, ground-water monitoring shall be 
conducted throughout the active life plus 30 years. The Director of an 
approved State may decrease the 30 year period if the owner/operator 
demonstrates that a shorter period of time is adequate to protect human 
health and the environment and the Director approves the demonstration.
    (f) For the purposes of this section, a qualified ground-water 
scientist is a scientist or engineer who has received a baccalaureate or 
post-graduate degree in the natural sciences or engineering and has 
sufficient training and experience in ground-water hydrology and related 
fields as may be demonstrated by State registration, professional 
Certifications, or completion of accredited university programs that 
enable that individual to make sound professional judgments regarding 
ground-water monitoring, contaminant fate and transport, and corrective-
action.
    (g) The Director of an approved State may establish alternative 
schedules for demonstrating compliance with Sec. 257.22(d)(2), 
pertaining to notification of placement of certification in operating 
record; Sec. 257.24(c)(1), pertaining to notification that 
statistically significant increase (SSI) notice is in operating record; 
Sec. 257.24(c) (2) and (3), pertaining to an assessment monitoring 
program; Sec. 257.25(b), pertaining to sampling and analyzing appendix 
II of part 258 constituents; Sec. 257.25(d)(1), pertaining to placement 
of notice (appendix II of 40 CFR part 258 constituents detected) in 
record and notification of notice in record; Sec. 257.25(d)(2), 
pertaining to sampling for appendix I and II of 40 CFR part 258; Sec. 
257.25(g), pertaining to notification (and placement of notice in 
record) of SSI above ground-water protection standard; Sec. Sec. 
257.25(g)(1)(iv) and 257.26(a), pertaining to assessment of corrective 
measures; Sec. 257.27(a), pertaining to selection of remedy and 
notification of placement in record; Sec. 257.28(c)(4), pertaining to 
notification of placement in record (alternative corrective action 
measures); and Sec. 257.28(f), pertaining to notification of placement 
in record (certification of remedy completed).
    (h) Directors of approved States can use the flexibility in 
paragraph (i) of this section for any non-municipal non-hazardous waste 
disposal unit that receives CESQG waste, if the non-municipal non-
hazardous waste disposal unit:
    (1) Disposes of less than 20 tons of non-municipal waste daily, 
based on an annual average; and
    (2) Has no evidence of ground-water contamination; and either
    (3) Serves a community that experiences an annual interruption of at 
least three consecutive months of surface transportation that prevents 
access to a regional waste management facility; or
    (4) Serves a community that has no practicable waste management 
alternative and the non-municipal solid waste disposal facility is 
located in an

[[Page 414]]

area that annually receives less than or equal to 25 inches of 
precipitation.
    (5) Owners/operators of any non-municipal non-hazardous waste 
disposal unit that meets the criteria in paragraph (h) of this section 
must place in the operating record information demonstrating this.
    (i) Directors of approved States may allow any non-municipal non-
hazardous waste disposal unit meeting the criteria in paragraph (h) of 
this section to:
    (1) Use alternatives to the ground-water monitoring system 
prescribed in Sec. Sec. 257.22 through 257.25 so long as the 
alternatives will detect and, if necessary, assess the nature or extent 
of contamination from the non-municipal non-hazardous waste disposal 
unit on a site-specific basis; or establish and use, on a site-specific 
basis, an alternative list of indicator parameters for some or all of 
the constituents listed in appendix I (Appendix I of 40 CFR part 258. 
Alternative indicator parameters approved by the Director of an approved 
State under this section must ensure detection of contamination from the 
non-municipal non-hazardous waste disposal unit.
    (2) If contamination is detected through the use of any alternative 
to the ground-water monitoring system prescribed in Sec. Sec. 257.22 
through 257.25, the non-municipal non-hazardous waste disposal unit 
owner or operator must perform expanded monitoring to determine whether 
the detected contamination is an actual release from the non-municipal 
solid waste disposal unit and, if so, to determine the nature and extent 
of the contamination. The Director of the approved State shall establish 
a schedule for the non-municipal non-hazardous waste disposal unit owner 
or operator to submit results from expanded monitoring in a manner that 
ensures protection of human health and the environment.
    (i) If expanded monitoring indicates that contamination from the 
non-municipal non-hazardous waste disposal unit has reached the 
saturated zone, the owner or operator must install ground-water 
monitoring wells and sample these wells in accordance with Sec. Sec. 
257.22 through 257.25.
    (ii) If expanded monitoring indicates that contamination from the 
non-municipal non-hazardous waste disposal unit is present in the 
unsaturated zone or on the surface, the Director of an approved State 
shall establish a schedule for the owner or operator to submit a 
description of any necessary corrective measures. The schedule shall 
ensure corrective measures, where necessary, are undertaken in a timely 
manner that protects human health and the environment. The proposed 
corrective measures are subject to revision and approval by the Director 
of the approved State. The owner or operator must implement the 
corrective measures according to a schedule established by the Director 
of the approved State.
    (3) When considering whether to allow alternatives to a ground-water 
monitoring system prescribed in Sec. Sec. 257.22 through 257.25, 
including alternative indicator parameters, the Director of an approved 
State shall consider at least the following factors:
    (i) The geological and hydrogeological characteristics of the site;
    (ii) The impact of manmade and natural features on the effectiveness 
of an alternative technology;
    (iii) Climatic factors that may influence the selection, use, and 
reliability of alternative ground-water monitoring procedures; and
    (iv) The effectiveness of indicator parameters in detecting a 
release.
    (4) The Director of an approved State can require an owner or 
operator to comply with the requirements of Sec. Sec. 257.22 through 
257.25, where it is determined by the Director that using alternatives 
to ground-water monitoring approved under this paragraph are inadequate 
to detect contamination and, if necessary, to assess the nature and 
extent of contamination.



Sec. 257.22  Ground-water monitoring systems.

    (a) A ground-water monitoring system must be installed that consists 
of a sufficient number of wells, installed at appropriate locations and 
depths, to yield ground-water samples from the uppermost aquifer (as 
defined in Sec. 257.5(b)) that:

[[Page 415]]

    (1) Represent the quality of background ground water that has not 
been affected by leakage from a unit. A determination of background 
quality may include sampling of wells that are not hydraulically 
upgradient of the waste management area where:
    (i) Hydrogeologic conditions do not allow the owner or operator to 
determine what wells are hydraulically upgradient; or
    (ii) Sampling at other wells will provide an indication of 
background ground-water quality that is as representative or more 
representative than that provided by the upgradient wells; and
    (2) Represent the quality of ground water passing the relevant point 
of compliance specified by the Director of an approved State or at the 
waste management unit boundary in an unapproved State. The downgradient 
monitoring system must be installed at the relevant point of compliance 
specified by the Director of an approved State or at the waste 
management unit boundary in an unapproved State that ensures detection 
of ground-water contamination in the uppermost aquifer. The relevant 
point of compliance specified by the Director of an approved State shall 
be no more than 150 meters from the waste management unit boundary and 
shall be located on land owned by the owner of the facility. In 
determining the relevant point of compliance the State Director shall 
consider at least the following factors: the hydrogeologic 
characteristics of the unit and surrounding land, the volume and 
physical and chemical characteristics of the leachate, the quantity, 
quality and direction of flow of ground water, the proximity and 
withdrawal rate of the ground-water users, the availability of 
alternative drinking water supplies, the existing quality of the ground 
water, including other sources of contamination and their cumulative 
impacts on the ground water, and whether the ground water is currently 
used or reasonably expected to be used for drinking water, public 
health, safety, and welfare effects, and practicable capability of the 
owner or operator. When physical obstacles preclude installation of 
ground-water monitoring wells at the relevant point of compliance at 
existing units, the down-gradient monitoring system may be installed at 
the closest practicable distance hydraulically down-gradient from the 
relevant point of compliance specified by the Director of an approved 
State that ensures detection of groundwater contamination in the 
uppermost aquifer.
    (b) The Director of an approved State may approve a multi-unit 
ground-water monitoring system instead of separate ground-water 
monitoring systems for each unit when the facility has several units, 
provided the multi-unit ground-water monitoring system meets the 
requirement of Sec. 257.22(a) and will be as protective of human health 
and the environment as individual monitoring systems for each unit, 
based on the following factors:
    (1) Number, spacing, and orientation of the units;
    (2) Hydrogeologic setting;
    (3) Site history;
    (4) Engineering design of the units; and
    (5) Type of waste accepted at the units.
    (c) Monitoring wells must be cased in a manner that maintains the 
integrity of the monitoring well bore hole. This casing must be screened 
or perforated and packed with gravel or sand, where necessary, to enable 
collection of ground-water samples. The annular space (i.e., the space 
between the bore hole and well casing) above the sampling depth must be 
sealed to prevent contamination of samples and the ground water.
    (1) The owner or operator must notify the State Director that the 
design, installation, development, and decommission of any monitoring 
wells, piezometers and other measurement, sampling, and analytical 
devices documentation has been placed in the operating record; and
    (2) The monitoring wells, piezometers, and other measurement, 
sampling, and analytical devices must be operated and maintained so that 
they perform to design specifications throughout the life of the 
monitoring program.
    (d) The number, spacing, and depths of monitoring systems shall be:

[[Page 416]]

    (1) Determined based upon site-specific technical information that 
must include thorough characterization of:
    (i) Aquifer thickness, ground-water flow rate, ground-water flow 
direction including seasonal and temporal fluctuations in ground-water 
flow; and
    (ii) Saturated and unsaturated geologic units and fill materials 
overlying the uppermost aquifer, materials comprising the uppermost 
aquifer, and materials comprising the confining unit defining the lower 
boundary of the uppermost aquifer; including, but not limited to: 
thicknesses, stratigraphy, lithology, hydraulic conductivities, 
porosities and effective porosities.
    (2) Certified by a qualified ground-water scientist or approved by 
the Director of an approved State. Within 14 days of this certification, 
the owner or operator must notify the State Director that the 
certification has been placed in the operating record.



Sec. 257.23  Ground-water sampling and analysis requirements.

    (a) The ground-water monitoring program must include consistent 
sampling and analysis procedures that are designed to ensure monitoring 
results that provide an accurate representation of ground-water quality 
at the background and downgradient wells installed in compliance with 
Sec. 257.22(a). The owner or operator must notify the State Director 
that the sampling and analysis program documentation has been placed in 
the operating record and the program must include procedures and 
techniques for:
    (1) Sample collection;
    (2) Sample preservation and shipment;
    (3) Analytical procedures;
    (4) Chain of custody control; and
    (5) Quality assurance and quality control.
    (b) The ground-water monitoring program must include sampling and 
analytical methods that are appropriate for ground-water sampling and 
that accurately measure hazardous constituents and other monitoring 
parameters in ground-water samples. Ground-water samples shall not be 
field-filtered prior to laboratory analysis.
    (c) The sampling procedures and frequency must be protective of 
human health and the environment.
    (d) Ground-water elevations must be measured in each well 
immediately prior to purging, each time ground water is sampled. The 
owner or operator must determine the rate and direction of ground-water 
flow each time ground water is sampled. Ground-water elevations in wells 
which monitor the same waste management area must be measured within a 
period of time short enough to avoid temporal variations in ground-water 
flow which could preclude accurate determination of ground-water flow 
rate and direction.
    (e) The owner or operator must establish background ground-water 
quality in a hydraulically upgradient or background well(s) for each of 
the monitoring parameters or constituents required in the particular 
ground-water monitoring program that applies to the unit, as determined 
under Sec. 257.24(a), or Sec. 257.25(a). Background ground-water 
quality may be established at wells that are not located hydraulically 
upgradient from the unit if it meets the requirements of Sec. 
257.22(a)(1).
    (f) The number of samples collected to establish ground-water 
quality data must be consistent with the appropriate statistical 
procedures determined pursuant to paragraph (g) of this section. The 
sampling procedures shall be those specified under Sec. 257.24(b) for 
detection monitoring, Sec. 257.25 (b) and (d) for assessment 
monitoring, and Sec. 257.26(b) for corrective action.
    (g) The owner or operator must specify in the operating record one 
of the following statistical methods to be used in evaluating ground-
water monitoring data for each hazardous constituent. The statistical 
test chosen shall be conducted separately for each hazardous constituent 
in each well.
    (1) A parametric analysis of variance (ANOVA) followed by multiple 
comparisons procedures to identify statistically significant evidence of 
contamination. The method must include estimation and testing of the 
contrasts between each compliance well's mean and the background mean 
levels for each constituent.
    (2) An analysis of variance (ANOVA) based on ranks followed by 
multiple

[[Page 417]]

comparisons procedures to identify statistically significant evidence of 
contamination. The method must include estimation and testing of the 
contrasts between each compliance well's median and the background 
median levels for each constituent.
    (3) A tolerance or prediction interval procedure in which an 
interval for each constituent is established from the distribution of 
the background data, and the level of each constituent in each 
compliance well is compared to the upper tolerance or prediction limit.
    (4) A control chart approach that gives control limits for each 
constituent.
    (5) Another statistical test method that meets the performance 
standards of paragraph (h) of this section. The owner or operator must 
place a justification for this alternative in the operating record and 
notify the State Director of the use of this alternative test. The 
justification must demonstrate that the alternative method meets the 
performance standards of paragraph (h) of this section.
    (h) Any statistical method chosen under paragraph (g) of this 
section shall comply with the following performance standards, as 
appropriate:
    (1) The statistical method used to evaluate ground-water monitoring 
data shall be appropriate for the distribution of chemical parameters or 
hazardous constituents. If the distribution of the chemical parameters 
or hazardous constituents is shown by the owner or operator to be 
inappropriate for a normal theory test, then the data should be 
transformed or a distribution-free theory test should be used. If the 
distributions for the constituents differ, more than one statistical 
method may be needed.
    (2) If an individual well comparison procedure is used to compare an 
individual compliance well constituent concentration with background 
constituent concentrations or a ground-water protection standard, the 
test shall be done at a Type I error level no less than 0.01 for each 
testing period. If a multiple comparisons procedure is used, the Type I 
experiment wise error rate for each testing period shall be no less than 
0.05; however, the Type I error of no less than 0.01 for individual well 
comparisons must be maintained. This performance standard does not apply 
to tolerance intervals, prediction intervals, or control charts.
    (3) If a control chart approach is used to evaluate ground-water 
monitoring data, the specific type of control chart and its associated 
parameter values shall be protective of human health and the 
environment. The parameters shall be determined after considering the 
number of samples in the background data base, the data distribution, 
and the range of the concentration values for each constituent of 
concern.
    (4) If a tolerance interval or a predictional interval is used to 
evaluate ground-water monitoring data, the levels of confidence and, for 
tolerance intervals, the percentage of the population that the interval 
must contain, shall be protective of human health and the environment. 
These parameters shall be determined after considering the number of 
samples in the background data base, the data distribution, and the 
range of the concentration values for each constituent of concern.
    (5) The statistical method shall account for data below the limit of 
detection with one or more statistical procedures that are protective of 
human health and the environment. Any practical quantitation limit (pql) 
that is used in the statistical method shall be the lowest concentration 
level that can be reliably achieved within specified limits of precision 
and accuracy during routine laboratory operating conditions that are 
available to the facility.
    (6) If necessary, the statistical method shall include procedures to 
control or correct for seasonal and spatial variability as well as 
temporal correlation in the data.
    (i) The owner or operator must determine whether or not there is a 
statistically significant increase over background values for each 
parameter or constituent required in the particular ground-water 
monitoring program that applies to the unit, as determined under 
Sec. Sec. 257.24(a) or 257.25(a).
    (1) In determining whether a statistically significant increase has 
occurred, the owner or operator must compare the ground-water quality of

[[Page 418]]

each parameter or constituent at each monitoring well designated 
pursuant to Sec. 257.22(a)(2) to the background value of that 
constituent, according to the statistical procedures and performance 
standards specified under paragraphs (g) and (h) of this section.
    (2) Within a reasonable period of time after completing sampling and 
analysis, the owner or operator must determine whether there has been a 
statistically significant increase over background at each monitoring 
well.



Sec. 257.24  Detection monitoring program.

    (a) Detection monitoring is required at facilities identified in 
Sec. 257.5(a) at all ground-water monitoring wells defined under 
Sec. Sec. 257.22 (a)(1) and (a)(2). At a minimum, a detection 
monitoring program must include the monitoring for the constituents 
listed in appendix I of 40 CFR part 258.
    (1) The Director of an approved State may delete any of the appendix 
I (Appendix I of 40 CFR part 258) monitoring parameters for a unit if it 
can be shown that the removed constituents are not reasonably expected 
to be contained in or derived from the waste contained in the unit.
    (2) The Director of an approved State may establish an alternative 
list of indicator parameters for a unit, in lieu of some or all of the 
constituents in appendix I to 40 CFR part 258, if the alternative 
parameters provide a reliable indication of releases from the unit to 
the ground water. In determining alternative parameters, the Director 
shall consider the following factors:
    (i) The types, quantities, and concentrations of constituents in 
waste managed at the unit;
    (ii) The mobility, stability, and persistence of waste constituents 
or their reaction products in the unsaturated zone beneath the unit;
    (iii) The detectability of indicator parameters, waste constituents, 
and reaction products in the ground water; and
    (iv) The concentration or values and coefficients of variation of 
monitoring parameters or constituents in the groundwater background.
    (b) The monitoring frequency for all constituents listed in appendix 
I to 40 CFR part 258, or in the alternative list approved in accordance 
with paragraph (a)(2) of this section, shall be at least semiannual 
during the active life of the unit plus 30 years. A minimum of four 
independent samples from each well (background and downgradient) must be 
collected and analyzed for the appendix I (Appendix I of 40 CFR part 
258) constituents, or the alternative list approved in accordance with 
paragraph (a)(2) of this section, during the first semiannual sampling 
event. At least one sample from each well (background and downgradient) 
must be collected and analyzed during subsequent semiannual sampling 
events. The Director of an approved State may specify an appropriate 
alternative frequency for repeated sampling and analysis for appendix I 
(Appendix I of 40 CFR part 258) constituents, or the alternative list 
approved in accordance with paragraph (a)(2) of this section, during the 
active life plus 30 years. The alternative frequency during the active 
life shall be no less than annual. The alternative frequency shall be 
based on consideration of the following factors:
    (1) Lithology of the aquifer and unsaturated zone;
    (2) Hydraulic conductivity of the aquifer and unsaturated zone;
    (3) Ground-water flow rates;
    (4) Minimum distance between upgradient edge of the unit and 
downgradient monitoring well screen (minimum distance of travel); and
    (5) Resource value of the aquifer.
    (c) If the owner or operator determines, pursuant to Sec. 
257.23(g), that there is a statistically significant increase over 
background for one or more of the constituents listed in appendix I to 
40 CFR part 258, or in the alternative list approved in accordance with 
paragraph (a)(2) of this section, at any monitoring well at the boundary 
specified under Sec. 257.22(a)(2), the owner or operator:
    (1) Must, within 14 days of this finding, place a notice in the 
operating record indicating which constituents have shown statistically 
significant changes from background levels, and notify the State 
Director that this notice was placed in the operating record; and

[[Page 419]]

    (2) Must establish an assessment monitoring program meeting the 
requirements of Sec. 257.25 within 90 days except as provided for in 
paragraph (c)(3) of this section.
    (3) The owner/operator may demonstrate that a source other than the 
unit caused the contamination or that the statistically significant 
increase resulted from error in sampling, analysis, statistical 
evaluation, or natural variation in ground-water quality. A report 
documenting this demonstration must be certified by a qualified ground-
water scientist or approved by the Director of an approved State and be 
placed in the operating record. If a successful demonstration is made 
and documented, the owner or operator may continue detection monitoring 
as specified in this section. If, after 90 days, a successful 
demonstration is not made, the owner or operator must initiate an 
assessment monitoring program as required in Sec. 257.25.



Sec. 257.25  Assessment monitoring program.

    (a) Assessment monitoring is required whenever a statistically 
significant increase over background has been detected for one or more 
of the constituents listed in appendix I of 40 CFR part 258 or in the 
alternative list approved in accordance with Sec. 257.24(a)(2).
    (b) Within 90 days of triggering an assessment monitoring program, 
and annually thereafter, the owner or operator must sample and analyze 
the ground water for all constituents identified in appendix II of 40 
CFR part 258. A minimum of one sample from each downgradient well must 
be collected and analyzed during each sampling event. For any 
constituent detected in the downgradient wells as the result of the 
complete appendix II (Appendix II of 40 CFR part 258) analysis, a 
minimum of four independent samples from each well (background and 
downgradient) must be collected and analyzed to establish background for 
the new constituents. The Director of an approved State may specify an 
appropriate subset of wells to be sampled and analyzed for appendix II 
(Appendix II of 40 CFR part 258) constituents during assessment 
monitoring. The Director of an approved State may delete any of the 
appendix II (Appendix II of 40 CFR part 258) monitoring parameters for a 
unit if it can be shown that the removed constituents are not reasonably 
expected to be in or derived from the waste contained in the unit.
    (c) The Director of an approved State may specify an appropriate 
alternate frequency for repeated sampling and analysis for the full set 
of appendix II (Appendix II of 40 CFR part 258) constituents, or the 
alternative list approved in accordance with paragraph (b) of this 
section, during the active life plus 30 years considering the following 
factors:
    (1) Lithology of the aquifer and unsaturated zone;
    (2) Hydraulic conductivity of the aquifer and unsaturated zone;
    (3) Ground-water flow rates;
    (4) Minimum distance between upgradient edge of the unit and 
downgradient monitoring well screen (minimum distance of travel);
    (5) Resource value of the aquifer; and
    (6) Nature (fate and transport) of any constituents detected in 
response to this section.
    (d) After obtaining the results from the initial or subsequent 
sampling events required in paragraph (b) of this section, the owner or 
operator must:
    (1) Within 14 days, place a notice in the operating record 
identifying the appendix II (appendix II of 40 CFR part 258) 
constituents that have been detected and notify the State Director that 
this notice has been placed in the operating record;
    (2) Within 90 days, and on at least a semiannual basis thereafter, 
resample all wells specified by Sec. 257.22(a) to this section, conduct 
analyses for all constituents in appendix I (Appendix I of 40 CFR part 
258) to this part or in the alternative list approved in accordance with 
Sec. 257.24(a)(2), and for those constituents in appendix II to 40 CFR 
part 258 that are detected in response to paragraph (b) of this section, 
and record their concentrations in the facility operating record. At 
least one sample from each well (background and downgradient) must be 
collected and analyzed during these sampling events. The Director of an 
approved State may

[[Page 420]]

specify an alternative monitoring frequency during the active life plus 
30 years for the constituents referred to in this paragraph. The 
alternative frequency for appendix I (appendix I of 40 CFR part 258) 
constituents, or the alternative list approved in accordance with Sec. 
257.24(a)(2), during the active life shall be no less than annual. The 
alternative frequency shall be based on consideration of the factors 
specified in paragraph (c) of this section;
    (3) Establish background concentrations for any constituents 
detected pursuant to paragraphs (b) or (d)(2) of this section; and
    (4) Establish ground-water protection standards for all constituents 
detected pursuant to paragraph (b) or (d) of this section. The ground-
water protection standards shall be established in accordance with 
paragraphs (h) or (i) of this section.
    (e) If the concentrations of all appendix II (appendix II of 40 CFR 
part 258) constituents are shown to be at or below background values, 
using the statistical procedures in Sec. 257.23(g), for two consecutive 
sampling events, the owner or operator must notify the State Director of 
this finding and may return to detection monitoring.
    (f) If the concentrations of any appendix II (appendix II of part 
258) constituents are above background values, but all concentrations 
are below the ground-water protection standard established under 
paragraphs (h) or (i) of this section, using the statistical procedures 
in Sec. 257.23(g), the owner or operator must continue assessment 
monitoring in accordance with this section.
    (g) If one or more appendix II (appendix II of CFR part 258) 
constituents are detected at statistically significant levels above the 
ground-water protection standard established under paragraphs (h) or (i) 
of this section in any sampling event, the owner or operator must, 
within 14 days of this finding, place a notice in the operating record 
identifying the appendix II (appendix II of 40 CFR part 258) 
constituents that have exceeded the ground-water protection standard and 
notify the State Director and all appropriate local government officials 
that the notice has been placed in the operating record. The owner or 
operator also:
    (1)(i) Must characterize the nature and extent of the release by 
installing additional monitoring wells as necessary;
    (ii) Must install at least one additional monitoring well at the 
facility boundary in the direction of contaminant migration and sample 
this well in accordance with paragraph (d)(2) of this section;
    (iii) Must notify all persons who own the land or reside on the land 
that directly overlies any part of the plume of contamination if 
contaminants have migrated off-site if indicated by sampling of wells in 
accordance paragraph (g)(1) of this section; and
    (iv) Must initiate an assessment of corrective measures as required 
by Sec. 257.26 within 90 days; or
    (2) May demonstrate that a source other than the non-municipal non-
hazardous waste disposal unit caused the contamination, or that the 
statistically significant increase resulted from error in sampling, 
analysis, statistical evaluation, or natural variation in ground-water 
quality. A report documenting this demonstration must be certified by a 
qualified ground-water scientist or approved by the Director of an 
approved State and placed in the operating record. If a successful 
demonstration is made the owner or operator must continue monitoring in 
accordance with the assessment monitoring program pursuant to this Sec. 
257.25, and may return to detection monitoring if the appendix II 
(appendix II of 40 CFR part 258) constituents are at or below background 
as specified in paragraph (e) of this section. Until a successful 
demonstration is made, the owner or operator must comply with Sec. 
257.25(g) including initiating an assessment of corrective measures.
    (h) The owner or operator must establish a ground-water protection 
standard for each appendix II (appendix II of 40 CFR part 258) 
constituent detected in the ground-water. The ground-water protection 
standard shall be:
    (1) For constituents for which a maximum contaminant level (MCL) has 
been promulgated under section 1412 of the Safe Drinking Water Act 
(codified) under 40 CFR part 141, the MCL for that constituent;

[[Page 421]]

    (2) For constituents for which MCLs have not been promulgated, the 
background concentration for the constituent established from wells in 
accordance with Sec. 257.22(a)(1); or
    (3) For constituents for which the background level is higher than 
the MCL identified under subparagraph (h)(1) of this section or health 
based levels identified under paragraph (i)(1) of this section, the 
background concentration.
    (i) The Director of an approved State may establish an alternative 
ground-water protection standard for constituents for which MCLs have 
not been established. These ground-water protection standards shall be 
appropriate health based levels that satisfy the following criteria:
    (1) The level is derived in a manner consistent with Agency 
guidelines for assessing the health risks of environmental pollutants 
(51 FR 33992, 34006, 34014, 34028, September 24, 1986);
    (2) The level is based on scientifically valid studies conducted in 
accordance with the Toxic Substances Control Act Good Laboratory 
Practice Standards (40 CFR part 792) or equivalent;
    (3) For carcinogens, the level represents a concentration associated 
with an excess lifetime cancer risk level (due to continuous lifetime 
exposure) within the 1x10-4 to 1x10-6 range; and
    (4) For systemic toxicants, the level represents a concentration to 
which the human population (including sensitive subgroups) could be 
exposed to on a daily basis that is likely to be without appreciable 
risk of deleterious effects during a lifetime. For purposes of this 
subpart, systemic toxicants include toxic chemicals that cause effects 
other than cancer or mutation.
    (j) In establishing ground-water protection standards under 
paragraph (i) of this section, the Director of an approved State may 
consider the following:
    (1) Multiple contaminants in the ground water;
    (2) Exposure threats to sensitive environmental receptors; and
    (3) Other site-specific exposure or potential exposure to ground 
water.



Sec. 257.26  Assessment of corrective measures.

    (a) Within 90 days of finding that any of the constituents listed in 
appendix II (appendix II of 40 CFR Part 258) have been detected at a 
statistically significant level exceeding the ground-water protection 
standards defined under Sec. 257.25 (h) or (i), the owner or operator 
must initiate an assessment of corrective measures. Such an assessment 
must be completed within a reasonable period of time.
    (b) The owner or operator must continue to monitor in accordance 
with the assessment monitoring program as specified in Sec. 257.25.
    (c) The assessment shall include an analysis of the effectiveness of 
potential corrective measures in meeting all of the requirements and 
objectives of the remedy as described under Sec. 257.27, addressing at 
least the following:
    (1) The performance, reliability, ease of implementation, and 
potential impacts of appropriate potential remedies, including safety 
impacts, cross-media impacts, and control of exposure to any residual 
contamination;
    (2) The time required to begin and complete the remedy;
    (3) The costs of remedy implementation; and
    (4) The institutional requirements such as State or local permit 
requirements or other environmental or public health requirements that 
may substantially affect implementation of the remedy(s).
    (d) The owner or operator must discuss the results of the corrective 
measures assessment, prior to the selection of remedy, in a public 
meeting with interested and affected parties.



Sec. 257.27  Selection of remedy.

    (a) Based on the results of the corrective measures assessment 
conducted under Sec. 257.26, the owner or operator must select a remedy 
that, at a minimum, meets the standards listed in paragraph (b) of this 
section. The owner or operator must notify the State Director, within 14 
days of selecting a remedy, that a report describing the selected remedy 
has been placed in the operating record and how it meets the standards 
in paragraph (b) of this section.

[[Page 422]]

    (b) Remedies must:
    (1) Be protective of human health and the environment;
    (2) Attain the ground-water protection standard as specified 
pursuant to Sec. Sec. 257.25 (h) or (i);
    (3) Control the source(s) of releases so as to reduce or eliminate, 
to the maximum extent practicable, further releases of appendix II 
(appendix II of 40 CFR part 258) constituents into the environment that 
may pose a threat to human health or the environment; and
    (4) Comply with standards for management of wastes as specified in 
Sec. 257.28(d).
    (c) In selecting a remedy that meets the standards of Sec. 
257.27(b), the owner or operator shall consider the following evaluation 
factors:
    (1) The long- and short-term effectiveness and protectiveness of the 
potential remedy(s), along with the degree of certainty that the remedy 
will prove successful based on consideration of the following:
    (i) Magnitude of reduction of existing risks;
    (ii) Magnitude of residual risks in terms of likelihood of further 
releases due to waste remaining following implementation of a remedy;
    (iii) The type and degree of long-term management required, 
including monitoring, operation, and maintenance;
    (iv) Short-term risks that might be posed to the community, workers, 
or the environment during implementation of such a remedy, including 
potential threats to human health and the environment associated with 
excavation, transportation, and re-disposal or containment;
    (v) Time until full protection is achieved;
    (vi) Potential for exposure of humans and environmental receptors to 
remaining wastes, considering the potential threat to human health and 
the environment associated with excavation, transportation, re-disposal, 
or containment;
    (vii) Long-term reliability of the engineering and institutional 
controls; and
    (viii) Potential need for replacement of the remedy.
    (2) The effectiveness of the remedy in controlling the source to 
reduce further releases based on consideration of the following factors:
    (i) The extent to which containment practices will reduce further 
releases;
    (ii) The extent to which treatment technologies may be used.
    (3) The ease or difficulty of implementing a potential remedy(s) 
based on consideration of the following types of factors:
    (i) Degree of difficulty associated with constructing the 
technology;
    (ii) Expected operational reliability of the technologies;
    (iii) Need to coordinate with and obtain necessary approvals and 
permits from other agencies;
    (iv) Availability of necessary equipment and specialists; and
    (v) Available capacity and location of needed treatment, storage, 
and disposal services.
    (4) Practicable capability of the owner or operator, including a 
consideration of the technical and economic capability.
    (5) The degree to which community concerns are addressed by a 
potential remedy(s).
    (d) The owner or operator shall specify as part of the selected 
remedy a schedule(s) for initiating and completing remedial activities. 
Such a schedule must require the initiation of remedial activities 
within a reasonable period of time taking into consideration the factors 
set forth in paragraphs (d)(1) through (d)(8) of this section. The owner 
or operator must consider the following factors in determining the 
schedule of remedial activities:
    (1) Extent and nature of contamination;
    (2) Practical capabilities of remedial technologies in achieving 
compliance with ground-water protection standards established under 
Sec. Sec. 257.25 (g) or (h) and other objectives of the remedy;
    (3) Availability of treatment or disposal capacity for wastes 
managed during implementation of the remedy;
    (4) Desirability of utilizing technologies that are not currently 
available, but which may offer significant advantages over already 
available technologies in terms of effectiveness, reliability, safety, 
or ability to achieve remedial objectives;

[[Page 423]]

    (5) Potential risks to human health and the environment from 
exposure to contamination prior to completion of the remedy;
    (6) Resource value of the aquifer including:
    (i) Current and future uses;
    (ii) Proximity and withdrawal rate of users;
    (iii) Ground-water quantity and quality;
    (iv) The potential damage to wildlife, crops, vegetation, and 
physical structures caused by exposure to waste constituent;
    (v) The hydrogeologic characteristic of the unit and surrounding 
land;
    (vi) Ground-water removal and treatment costs; and
    (vii) The cost and availability of alternative water supplies.
    (7) Practicable capability of the owner or operator.
    (8) Other relevant factors.
    (e) The Director of an approved State may determine that remediation 
of a release of an appendix II (appendix II of 40 CFR part 258) 
constituent from the unit is not necessary if the owner or operator 
demonstrates to the Director of the approved state that:
    (1) The ground-water is additionally contaminated by substances that 
have originated from a source other than the unit and those substances 
are present in concentrations such that cleanup of the release from the 
unit would provide no significant reduction in risk to actual or 
potential receptors; or
    (2) The constituent(s) is present in ground water that:
    (i) Is not currently or reasonably expected to be a source of 
drinking water; and
    (ii) Is not hydraulically connected with waters to which the 
hazardous constituents are migrating or are likely to migrate in a 
concentration(s) that would exceed the ground-water protection standards 
established under Sec. 257.25 (h) or (i); or
    (3) Remediation of the release(s) is technically impracticable; or
    (4) Remediation results in unacceptable cross-media impacts.
    (f) A determination by the Director of an approved State pursuant to 
paragraph (e) of this section shall not affect the authority of the 
State to require the owner or operator to undertake source control 
measures or other measures that may be necessary to eliminate or 
minimize further releases to the ground-water, to prevent exposure to 
the ground-water, or to remediate the ground-water to concentrations 
that are technically practicable and significantly reduce threats to 
human health or the environment.



Sec. 257.28  Implementation of the corrective action program.

    (a) Based on the schedule established under Sec. 257.27(d) for 
initiation and completion of remedial activities the owner/operator 
must:
    (1) Establish and implement a corrective action ground-water 
monitoring program that:
    (i) At a minimum, meets the requirements of an assessment monitoring 
program under Sec. 257.25;
    (ii) Indicates the effectiveness of the corrective action remedy; 
and
    (iii) Demonstrates compliance with ground-water protection standard 
pursuant to paragraph (e) of this section.
    (2) Implement the corrective action remedy selected under Sec. 
257.27; and
    (3) Take any interim measures necessary to ensure the protection of 
human health and the environment. Interim measures should, to the 
greatest extent practicable, be consistent with the objectives of and 
contribute to the performance of any remedy that may be required 
pursuant to Sec. 257.27. The following factors must be considered by an 
owner or operator in determining whether interim measures are necessary:
    (i) Time required to develop and implement a final remedy;
    (ii) Actual or potential exposure of nearby populations or 
environmental receptors to hazardous constituents;
    (iii) Actual or potential contamination of drinking water supplies 
or sensitive ecosystems;
    (iv) Further degradation of the ground-water that may occur if 
remedial action is not initiated expeditiously;
    (v) Weather conditions that may cause hazardous constituents to 
migrate or be released;

[[Page 424]]

    (vi) Risks of fire or explosion, or potential for exposure to 
hazardous constituents as a result of an accident or failure of a 
container or handling system; and
    (vii) Other situations that may pose threats to human health and the 
environment.
    (b) An owner or operator may determine, based on information 
developed after implementation of the remedy has begun or other 
information, that compliance with requirements of Sec. 257.27(b) are 
not being achieved through the remedy selected. In such cases, the owner 
or operator must implement other methods or techniques that could 
practicably achieve compliance with the requirements, unless the owner 
or operator makes the determination under Sec. 257.28(c).
    (c) If the owner or operator determines that compliance with 
requirements under Sec. 257.27(b) cannot be practically achieved with 
any currently available methods, the owner or operator must:
    (1) Obtain certification of a qualified ground-water scientist or 
approval by the Director of an approved State that compliance with 
requirements under Sec. 257.27(b) cannot be practically achieved with 
any currently available methods;
    (2) Implement alternate measures to control exposure of humans or 
the environment to residual contamination, as necessary to protect human 
health and the environment; and
    (3) Implement alternate measures for control of the sources of 
contamination, or for removal or decontamination of equipment, units, 
devices, or structures that are:
    (i) Technically practicable; and
    (ii) Consistent with the overall objective of the remedy.
    (4) Notify the State Director within 14 days that a report 
justifying the alternative measures prior to implementing the 
alternative measures has been placed in the operating record.
    (d) All solid wastes that are managed pursuant to a remedy required 
under Sec. 257.27, or an interim measure required under Sec. 
257.28(a)(3), shall be managed in a manner:
    (1) That is protective of human health and the environment; and
    (2) That complies with applicable RCRA requirements.
    (e) Remedies selected pursuant to Sec. 257.27 shall be considered 
complete when:
    (1) The owner or operator complies with the ground-water protection 
standards established under Sec. Sec. 257.25 (h) or (i) at all points 
within the plume of contamination that lie beyond the ground-water 
monitoring well system established under Sec. 257.22(a).
    (2) Compliance with the ground-water protection standards 
established under Sec. Sec. 257.25 (h) or (i) has been achieved by 
demonstrating that concentrations of appendix II (appendix II of Part 
258) constituents have not exceeded the ground-water protection 
standard(s) for a period of three consecutive years using the 
statistical procedures and performance standards in Sec. 257.23 (g) and 
(h). The Director of an approved State may specify an alternative length 
of time during which the owner or operator must demonstrate that 
concentrations of appendix II (appendix II of 40 CFR part 258) 
constituents have not exceeded the ground-water protection standard(s) 
taking into consideration:
    (i) Extent and concentration of the release(s);
    (ii) Behavior characteristics of the hazardous constituents in the 
ground-water;
    (iii) Accuracy of monitoring or modeling techniques, including any 
seasonal, meteorological, or other environmental variabilities that may 
affect the accuracy; and
    (iv) Characteristics of the ground-water.
    (3) All actions required to complete the remedy have been satisfied.
    (f) Upon completion of the remedy, the owner or operator must notify 
the State Director within 14 days that a certification that the remedy 
has been completed in compliance with the requirements of Sec. 
257.28(e) has been placed in the operating record. The certification 
must be signed by the owner or operator and by a qualified ground-water 
scientist or approved by the Director of an approved State.

[[Page 425]]



Sec. 257.29  [Reserved]

                       Recordkeeping Requirements



Sec. 257.30  Recordkeeping requirements.

    (a) The owner/operator of a non-municipal non-hazardous waste 
disposal unit must record and retain near the facility in an operating 
record or in an alternative location approved by the Director of an 
approved State the following information as it becomes available:
    (1) Any location restriction demonstration required under Sec. Sec. 
257.7 through 257.12; and
    (2) Any demonstration, certification, finding, monitoring, testing, 
or analytical data required in Sec. Sec. 257.21 through 257.28.
    (b) The owner/operator must notify the State Director when the 
documents from paragraph (a) of this section have been placed or added 
to the operating record, and all information contained in the operating 
record must be furnished upon request to the State Director or be made 
available at all reasonable times for inspection by the State Director.
    (c) The Director of an approved State can set alternative schedules 
for recordkeeping and notification requirements as specified in 
paragraphs (a) and (b) of this section, except for the notification 
requirements in Sec. 257.25(g)(1)(iii).
    (d) The Director of an approved state program may receive electronic 
documents only if the state program includes the requirements of 40 CFR 
Part 3--(Electronic reporting).

[44 FR 53460, Sept. 13, 1979, as amended at 70 FR 59888, Oct. 13, 2005]



     Sec. Appendix I to Part 257--Maximum Contaminant Levels (MCLs)

  Maximum Contaminant Levels (MCLs) Promulgated Under the Safe Drinking
                                Water Act
------------------------------------------------------------------------
                                                                MCL (mg/
                     Chemical                         CAS No.      l)
------------------------------------------------------------------------
Arsenic...........................................   7440-38-2   0.05
Barium............................................   7440-39-3   1.0
Benzene...........................................    71-343-2   0.005
Cadmium...........................................   7440-43-9   0.01
Carbon tetrachloride..............................     56-23-5   0.005
Chromium (hexavalent).............................   7440-47-3   0.05
2,4-Dichlorophenoxy acetic acid...................     94-75-7   0.1
1,4-Dichlorobenzene...............................    106-46-7   0.075
1,2-Dichloroethane................................    107-06-2   0.005
1,1-Dichloroethylene..............................     75-35-4   0.007
Endrin............................................     75-20-8   0.0002
Fluoride..........................................           7   4.0
Lindane...........................................     58-89-9   0.004
Lead..............................................   7439-92-1   0.05
Mercury...........................................   7439-97-6   0.002
Methoxychlor......................................     72-43-5   0.1
Nitrate...........................................  ..........  10.0
Selenium..........................................   7782-49-2   0.01
Silver............................................   7440-22-4   0.05
Toxaphene.........................................   8001-35-2   0.005
1,1,1-Trichloroethane.............................     71-55-6   0.2
Trichloroethylene.................................     79-01-6   0.005
2,4,5-Trichlorophenoxy acetic acid................     93-76-5   0.01
Vinyl chloride....................................     75-01-4   0.002
------------------------------------------------------------------------


[56 FR 51016, Oct. 9, 1991]



                      Sec. Appendix II to Part 257

             A. Processes To Significantly Reduce Pathogens

    Aerobic digestion: The process is conducted by agitating sludge with 
air or oxygen to maintain aerobic conditions at residence times ranging 
from 60 days at 15 [deg]C to 40 days at 20 [deg]C, with a volatile 
solids reduction of at least 38 percent.
    Air Drying: Liquid sludge is allowed to drain and/or dry on under-
drained sand beds, or paved or unpaved basins in which the sludge is at 
a depth of nine inches. A minimum of three months is needed, two months 
of which temperatures average on a daily basis above 0 [deg]C.
    Anaerobic digestion: The process is conducted in the absence of air 
at residence times ranging from 60 days at 20 [deg]C to 15 days at 35 to 
55 [deg]C, with a volatile solids reduction of at least 38 percent.
    Composting: Using the within-vessel, static aerated pile or windrow 
composting methods, the solid waste is maintained at minimum operating 
conditions of 40 [deg]C for 5 days. For four hours during this period 
the temperature exceeds 55 [deg]C.
    Lime Stabilization: Sufficient lime is added to produce a pH of 12 
after 2 hours of contact.
    Other methods: Other methods or operating conditions may be 
acceptable if pathogens and vector attraction of the waste (volatile 
solids) are reduced to an extent equivalent to the reduction achieved by 
any of the above methods.

                B. Processes To Further Reduce Pathogens

    Composting: Using the within-vessel composting method, the solid 
waste is maintained at operating conditions of 55 [deg]C or

[[Page 426]]

greater for three days. Using the static aerated pile composting method, 
the solid waste is maintained at operating conditions of 55 [deg]C or 
greater for three days. Using the windrow composting method, the solid 
waste attains a temperature of 55 [deg]C or greater for at least 15 days 
during the composting period. Also, during the high temperature period, 
there will be a minimum of five turnings of the windrow.
    Heat drying: Dewatered sludge cake is dried by direct or indirect 
contact with hot gases, and moisture content is reduced to 10 percent or 
lower. Sludge particles reach temperatures well in excess of 80 [deg]C, 
or the wet bulb temperature of the gas stream in contact with the sludge 
at the point where it leaves the dryer is in excess of 80 [deg]C.
    Heat treatment: Liquid sludge is heated to temperatures of 180 
[deg]C for 30 minutes.
    Thermophilic Aerobic Digestion: Liquid sludge is agitated with air 
or oxygen to maintain aerobic conditions at residence times of 10 days 
at 55-60 [deg]C, with a volatile solids reduction of at least 38 
percent.
    Other methods: Other methods or operating conditions may be 
acceptable if pathogens and vector attraction of the waste (volatile 
solids) are reduced to an extent equivalent to the reduction achieved by 
any of the above methods.
    Any of the processes listed below, if added to the processes 
described in Section A above, further reduce pathogens. Because the 
processes listed below, on their own, do not reduce the attraction of 
disease vectors, they are only add-on in nature.
    Beta ray irradiation: Sludge is irradiated with beta rays from an 
accelerator at dosages of at least 1.0 megarad at room temperature (ca. 
20 [deg]C).
    Gamma ray irradiation: Sludge is irradiated with gamma rays from 
certain isotopes, such as \60\ Cobalt and \137\ Cesium, at dosages of at 
least 1.0 megarad at room temperature (ca. 20 [deg]C).
    Pasteurization: Sludge is maintained for at least 30 minutes at a 
minimum temperature of 70 [deg]C.
    Other methods: Other methods or operating conditions may be 
acceptable if pathogens are reduced to an extent equivalent to the 
reduction achieved by any of the above add-on methods.



PART 258_CRITERIA FOR MUNICIPAL SOLID WASTE LANDFILLS--Table of Contents




                            Subpart A_General

Sec.
258.1 Purpose, scope, and applicability.
258.2 Definitions.
258.3 Consideration of other Federal laws.
258.4 Research, development, and demonstration permits.
258.5-258.9 [Reserved]

                     Subpart B_Location Restrictions

258.10 Airport safety.
258.11 Floodplains.
258.12 Wetlands.
258.13 Fault areas.
258.14 Seismic impact zones.
258.15 Unstable areas.
258.16 Closure of existing municipal solid waste landfill units.
258.17-258.19 [Reserved]

                      Subpart C_Operating Criteria

258.20 Procedures for excluding the receipt of hazardous waste.
258.21 Cover material requirements.
258.22 Disease vector control.
258.23 Explosive gases control.
258.24 Air criteria.
258.25 Access requirements.
258.26 Run-on/run-off control systems.
258.27 Surface water requirements.
258.28 Liquids restrictions.
258.29 Recordkeeping requirements.
258.30-258.39 [Reserved]

                        Subpart D_Design Criteria

258.40 Design criteria.
258.41 Project XL Bioreactor Landfill Projects.
258.42-258.49 [Reserved]

         Subpart E_Ground-Water Monitoring and Corrective Action

258.50 Applicability.
258.51 Ground-water monitoring systems.
258.52 [Reserved]
258.53 Ground-water sampling and analysis requirements.
258.54 Detection monitoring program.
258.55 Assessment monitoring program.
258.56 Assessment of corrective measures.
258.57 Selection of remedy.
258.58 Implementation of the corrective action program.
258.59 [Reserved]

                 Subpart F_Closure and Post-Closure Care

258.60 Closure criteria.
258.61 Post-closure care requirements.
258.62-258.69 [Reserved]

                 Subpart G_Financial Assurance Criteria

258.70 Applicability and effective date.
258.71 Financial assurance for closure.
258.72 Financial assurance for post-closure care.
258.73 Financial assurance for corrective action.
258.74 Allowable mechanisms.
258.75 Discounting.

[[Page 427]]


Appendix I to Part 258--Constituents for Detection Monitoring
Appendix II to Part 258--List of Hazardous Inorganic and Organic 
          Constituents

    Authority: 33 U.S.C. 1345(d) and (e); 42 U.S.C. 6902(a), 6907, 
6912(a), 6944, 6945(c) and 6949a(c), 6981(a).

    Source: 56 FR 51016, Oct. 9, 1991, unless otherwise noted.



                            Subpart A_General



Sec. 258.1  Purpose, scope, and applicability.

    (a) The purpose of this part is to establish minimum national 
criteria under the Resource Conservation and Recovery Act (RCRA or the 
Act), as amended, for all municipal solid waste landfill (MSWLF) units 
and under the Clean Water Act, as amended, for municipal solid waste 
landfills that are used to dispose of sewage sludge. These minimum 
national criteria ensure the protection of human health and the 
environment.
    (b) These Criteria apply to owners and operators of new MSWLF units, 
existing MSWLF units, and lateral expansions, except as otherwise 
specifically provided in this part; all other solid waste disposal 
facilities and practices that are not regulated under subtitle C of RCRA 
are subject to the criteria contained in part 257 of this chapter.
    (c) These Criteria do not apply to municipal solid waste landfill 
units that do not receive waste after October 9, 1991.
    (d)(1) MSWLF units that meet the conditions of Sec. 258.1(e)(2) and 
receive waste after October 9, 1991 but stop receiving waste before 
April 9, 1994, are exempt from all the requirements of this part 258, 
except the final cover requirement specified in Sec. 258.60(a). The 
final cover must be installed by October 9, 1994. Owners or operators of 
MSWLF units described in this paragraph that fail to complete cover 
installation by October 9, 1994 will be subject to all the requirements 
of this part 258, unless otherwise specified.
    (2) MSWLF units that meet the conditions of Sec. 258.1(e)(3) and 
receive waste after October 9, 1991 but stop receiving waste before the 
date designated by the state pursuant to Sec. 258.1(e)(3), are exempt 
from all the requirements of this part 258, except the final cover 
requirement specified in Sec. 258.60(a). The final cover must be 
installed within one year after the date designated by the state 
pursuant to Sec. 258.1(e)(3). Owners or operators of MSWLF units 
described in this paragraph that fail to complete cover installation 
within one year after the date designated by the state pursuant to Sec. 
258.1(e)(3) will be subject to all the requirements of this part 258, 
unless otherwise specified.
    (3) MSWLF units that meet the conditions of paragraph (f)(1) of this 
section and receive waste after October 9, 1991 but stop receiving waste 
before October 9, 1997, are exempt from all the requirements of this 
part 258, except the final cover requirement specified in Sec. 
258.60(a). The final cover must be installed by October 9, 1998. Owners 
or operators of MSWLF units described in this paragraph that fail to 
complete cover installation by October 9, 1998 will be subject to all 
the requirements of this part 258, unless otherwise specified.
    (4) MSWLF units that do not meet the conditions of Sec. 258.1 
(e)(2), (e)(3), or (f) and receive waste after October 9, 1991 but stop 
receiving waste before October 9, 1993, are exempt from all the 
requirements this part 258, except the final cover requirement specified 
in Sec. 258.60(a). The final cover must be installed by October 9, 
1994. Owners or operators of MSWLF units described in this paragraph 
that fail to complete cover installation by October 9, 1994 will be 
subject to all the requirements of this part 258, unless otherwise 
specified.
    (e)(1) The compliance date for all requirements of this part 258, 
unless otherwise specified, is October 9, 1993 for all MSWLF units that 
receive waste on or after October 9, 1993, except those units that 
qualify for an extension under (e)(2), (3), or (4) of this section.
    (2) The compliance date for all requirements of this part 258, 
unless otherwise specified, is April 9, 1994 for an existing MSWLF unit 
or a lateral expansion of an existing MSWLF unit that meets the 
following conditions:

[[Page 428]]

    (i) The MSWLF unit disposed of 100 tons per day or less of solid 
waste during a representative period prior to October 9, 1993;
    (ii) The unit does not dispose of more than an average of 100 TPD of 
solid waste each month between October 9, 1993 and April 9, 1994;
    (iii) The MSWLF unit is located in a state that has submitted an 
application for permit program approval to EPA by October 9, 1993, is 
located in the state of Iowa, or is located on Indian Lands or Indian 
Country; and
    (iv) The MSWLF unit is not on the National Priorities List (NPL) as 
found in appendix B to 40 CFR part 300.
    (3) The compliance date for all requirements of this part 258, 
unless otherwise specified, for an existing MSWLF unit or lateral 
expansion of an existing MSWLF unit receiving flood-related waste from 
federally-designated areas within the major disasters declared for the 
states of Iowa, Illinois, Minnesota, Wisconsin, Missouri, Nebraska, 
Kansas, North Dakota, and South Dakota by the President during the 
summer of 1993 pursuant to 42 U.S.C. 5121 et seq., shall be designated 
by the state in which the MSWLF unit is located in accordance with the 
following:
    (i) The MSWLF unit may continue to accept waste up to April 9, 1994 
without being subject to part 258, if the state in which the MSWLF unit 
is located determines that the MSWLF unit is needed to receive flood-
related waste from a federally-designated disaster area as specified in 
(e)(3) of this section.
    (ii) The MSWLF unit that receives an extension under paragraph 
(e)(3)(i) of this section may continue to accept waste up to an 
additional six months beyond April 9, 1994 without being subject to part 
258, if the state in which the MSWLF unit is located determines that the 
MSWLF unit is needed to receive flood-related waste from a federally-
designated disaster area specified in (e)(3) of this section.
    (iii) In no case shall a MSWLF unit receiving an extension under 
paragraph (e)(3) (i) or (ii) of this section accept waste beyond October 
9, 1994 without being subject to part 258.
    (4) For a MSWLF unit that meets the conditions for the exemption in 
paragraph (f)(1) of this section, the compliance date for all applicable 
requirements of part 258, unless otherwise specified, is October 9, 
1997.
    (f)(1) Owners or operators of new MSWLF units, existing MSWLF units, 
and lateral expansions that dispose of less than twenty (20) tons of 
municipal solid waste daily, based on an annual average, are exempt from 
subparts D and E of this part, so long as there is no evidence of 
ground-water contamination from the MSWLF unit, and the MSWLF unit 
serves:
    (i) A community that experiences an annual interruption of at least 
three consecutive months of surface transportation that prevents access 
to a regional waste management facility, or
    (ii) A community that has no practicable waste management 
alternative and the landfill unit is located in an area that annually 
receives less than or equal to 25 inches of precipitation.
    (2) Owners or operators of new MSWLF units, existing MSWLF units, 
and lateral expansions that meet the criteria in paragraph (f)(1)(i) or 
(f)(1)(ii) of this section must place in the operating record 
information demonstrating this.
    (3) If the owner or operator of a new MSWLF unit, existing MSWLF 
unit, or lateral expansion has knowledge of ground-water contamination 
resulting from the unit that has asserted the exemption in paragraph 
(f)(1)(i) or (f)(1)(ii) of this section, the owner or operator must 
notify the state Director of such contamination and, thereafter, comply 
with subparts D and E of this part.
    (g) Municipal solid waste landfill units failing to satisfy these 
criteria are considered open dumps for purposes of State solid waste 
management planning under RCRA.
    (h) Municipal solid waste landfill units failing to satisfy these 
criteria constitute open dumps, which are prohibited under section 4005 
of RCRA.
    (i) Municipal solid waste landfill units containing sewage sludge 
and failing to satisfy these Criteria violate sections 309 and 405(e) of 
the Clean Water Act.
    (j) Subpart G of this part is effective April 9, 1995, except for 
MSWLF units meeting the requirements of paragraph

[[Page 429]]

(f)(1) of this section, in which case the effective date of subpart G is 
October 9, 1995.

[56 FR 51016, Oct. 9, 1991, as amended at 58 FR 51546, Oct. 1, 1993; 60 
FR 52342, Oct. 6, 1995; 61 FR 50413, Sept. 25, 1996]



Sec. 258.2  Definitions.

    Unless otherwise noted, all terms contained in this part are defined 
by their plain meaning. This section contains definitions for terms that 
appear throughout this part; additional definitions appear in the 
specific sections to which they apply.
    Active life means the period of operation beginning with the initial 
receipt of solid waste and ending at completion of closure activities in 
accordance with Sec. 258.60 of this part.
    Active portion means that part of a facility or unit that has 
received or is receiving wastes and that has not been closed in 
accordance with Sec. 258.60 of this part.
    Aquifer means a geological formation, group of formations, or porton 
of a formation capable of yielding significant quantities of ground 
water to wells or springs.
    Commercial solid waste means all types of solid waste generated by 
stores, offices, restaurants, warehouses, and other nonmanufacturing 
activities, excluding residential and industrial wastes.
    Construction and demolition (C&D) landfill means a solid waste 
disposal facility subject to the requirements in part 257, subparts A or 
B of this chapter that receives construction and demolition waste and 
does not receive hazardous waste (defined in Sec. 261.3 of this 
chapter) or industrial solid waste (defined in Sec. 258.2 of this 
chapter). Only a C&D landfill that meets the requirements of 40 CFR part 
257, subpart B may receive conditionally exempt small quantity generator 
waste (defined in Sec. 261.5 of this chapter). A C&D landfill typically 
receives any one or more of the following types of solid wastes: 
roadwork material, excavated material, demolition waste, construction/
renovation waste, and site clearance waste.
    Director of an Approved State means the chief administrative officer 
of a state agency responsible for implementing the state permit program 
that is deemed to be adequate by EPA under regulations published 
pursuant to sections 2002 and 4005 of RCRA.
    Existing MSWLF unit means any municipal solid waste landfill unit 
that is receiving solid waste as of the appropriate dates specified in 
Sec. 258.1(e). Waste placement in existing units must be consistent 
with past operating practices or modified practices to ensure good 
management.
    Facility means all contiguous land and structures, other 
appurtenances, and improvements on the land used for the disposal of 
solid waste.
    Ground water means water below the land surface in a zone of 
saturation.
    Household waste means any solid waste (including garbage, trash, and 
sanitary waste in septic tanks) derived from households (including 
single and multiple residences, hotels and motels, bunkhouses, ranger 
stations, crew quarters, campgrounds, picnic grounds, and day-use 
recreation areas).
    Indian lands or Indian country means:
    (1) All land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and including rights-of-way running throughout 
the reservation;
    (2) All dependent Indian communities within the borders of the 
United States whether within the original or subsequently acquired 
territory thereof, and whether within or without the limits of the 
State; and
    (3) All Indian allotments, the Indian titles to which have not been 
extinguished, including rights of way running through the same.
    Indian Tribe or Tribe means any Indian tribe, band, nation, or 
community recognized by the Secretary of the Interior and exercising 
substantial governmental duties and powers on Indian lands.
    Industrial solid waste means solid waste generated by manufacturing 
or industrial processes that is not a hazardous waste regulated under 
subtitle C of RCRA. Such waste may include, but is not limited to, waste 
resulting from the following manufacturing processes: Electric power 
generation; fertilizer/agricultural chemicals; food

[[Page 430]]

and related products/by-products; inorganic chemicals; iron and steel 
manufacturing; leather and leather products; nonferrous metals 
manufacturing/foundries; organic chemicals; plastics and resins 
manufacturing; pulp and paper industry; rubber and miscellaneous plastic 
products; stone, glass, clay, and concrete products; textile 
manufacturing; transportation equipment; and water treatment. This term 
does not include mining waste or oil and gas waste.
    Lateral expansion means a horizontal expansion of the waste 
boundaries of an existing MSWLF unit.
    Leachate means a liquid that has passed through or emerged from 
solid waste and contains soluble, suspended, or miscible materials 
removed from such waste.
    Municipal solid waste landfill (MSWLF) unit means a discrete area of 
land or an excavation that receives household waste, and that is not a 
land application unit, surface impoundment, injection well, or waste 
pile, as those terms are defined under Sec. 257.2 of this chapter. A 
MSWLF unit also may receive other types of RCRA Subtitle D wastes, such 
as commercial solid waste, nonhazardous sludge, conditionally exempt 
small quantity generator waste and industrial solid waste. Such a 
landfill may be publicly or privately owned. A MSWLF unit may be a new 
MSWLF unit, an existing MSWLF unit or a lateral expansion. A 
construction and demolition landfill that receives residential lead-
based paint waste and does not receive any other household waste is not 
a MSWLF unit.
    New MSWLF unit means any municipal solid waste landfill unit that 
has not received waste prior to October 9, 1993, or prior to October 9, 
1997 if the MSWLF unit meets the conditions of Sec. 258.1(f)(1).
    Open burning means the combustion of solid waste without:
    (1) Control of combustion air to maintain adequate temperature for 
efficient combustion,
    (2) Containment of the combustion reaction in an enclosed device to 
provide sufficient residence time and mixing for complete combustion, 
and
    (3) Control of the emission of the combustion products.
    Operator means the person(s) responsible for the overall operation 
of a facility or part of a facility.
    Owner means the person(s) who owns a facility or part of a facility.
    Residential lead-based paint waste means waste containing lead-based 
paint, which is generated as a result of activities such as abatement, 
rehabilitation, renovation and remodeling in homes and other residences. 
The term residential lead-based paint waste includes, but is not limited 
to, lead-based paint debris, chips, dust, and sludges.
    Run-off means any rainwater, leachate, or other liquid that drains 
over land from any part of a facility.
    Run-on means any rainwater, leachate, or other liquid that drains 
over land onto any part of a facility.
    Saturated zone means that part of the earth's crust in which all 
voids are filled with water.
    Sludge means any solid, semi-solid, or liquid waste generated from a 
municipal, commercial, or industrial wastewater treatment plant, water 
supply treatment plant, or air pollution control facility exclusive of 
the treated effluent from a wastewater treatment plant.
    Solid waste means any garbage, or refuse, sludge from a wastewater 
treatment plant, water supply treatment plant, or air pollution control 
facility and other discarded material, including solid, liquid, semi-
solid, or contained gaseous material resulting from industrial, 
commercial, mining, and agricultural operations, and from community 
activities, but does not include solid or dissolved materials in 
domestic sewage, or solid or dissolved materials in irrigation return 
flows or industrial discharges that are point sources subject to permit 
under 33 U.S.C. 1342, or source, special nuclear, or by-product material 
as defined by the Atomic Energy Act of 1954, as amended (68 Stat. 923).
    State means any of the several States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, 
and the Commonwealth of the Northern Mariana Islands.
    State Director means the chief administrative officer of the lead 
state agency responsible for implementing the

[[Page 431]]

state permit program for 40 CFR part 257, subpart B and 40 CFR part 258 
regulated facilities.
    Uppermost aquifer means the geologic formation nearest the natural 
ground surface that is an aquifer, as well as, lower aquifers that are 
hydraulically interconnected with this aquifer within the facility's 
property boundary.
    Waste management unit boundary means a vertical surface located at 
the hydraulically downgradient limit of the unit. This vertical surface 
extends down into the uppermost aquifer.

[56 FR 51016, Oct. 9, 1991; 57 FR 28627, June 26, 1992, as amended at 58 
FR 51547, Oct. 1, 1993; 60 FR 52342, Oct. 6, 1995; 63 FR 57044, Oct. 23, 
1998; 68 FR 36495, June 18, 2003]



Sec. 258.3  Consideration of other Federal laws.

    The owner or operator of a municipal solid waste landfill unit must 
comply with any other applicable Federal rules, laws, regulations, or 
other requirements.



Sec. 258.4  Research, development, and demonstration permits.

    (a) Except as provided in paragraph (f) of this section, the 
Director of an approved State may issue a research, development, and 
demonstration permit for a new MSWLF unit, existing MSWLF unit, or 
lateral expansion, for which the owner or operator proposes to utilize 
innovative and new methods which vary from either or both of the 
following criteria provided that the MSWLF unit has a leachate 
collection system designed and constructed to maintain less than a 30-cm 
depth of leachate on the liner:
    (1) The run-on control systems in Sec. 258.26(a)(1); and
    (2) The liquids restrictions in Sec. 258.28(a).
    (b) The Director of an approved State may issue a research, 
development, and demonstration permit for a new MSWLF unit, existing 
MSWLF unit, or lateral expansion, for which the owner or operator 
proposes to utilize innovative and new methods which vary from the final 
cover criteria of Sec. 258.60(a)(1), (a)(2) and (b)(1), provided the 
MSWLF unit owner/operator demonstrates that the infiltration of liquid 
through the alternative cover system will not cause contamination of 
groundwater or surface water, or cause leachate depth on the liner to 
exceed 30-cm.
    (c) Any permit issued under this section must include such terms and 
conditions at least as protective as the criteria for municipal solid 
waste landfills to assure protection of human health and the 
environment. Such permits shall:
    (1) Provide for the construction and operation of such facilities as 
necessary, for not longer than three years, unless renewed as provided 
in paragraph (e) of this section;
    (2) Provide that the MSWLF unit must receive only those types and 
quantities of municipal solid waste and non-hazardous wastes which the 
State Director deems appropriate for the purposes of determining the 
efficacy and performance capabilities of the technology or process;
    (3) Include such requirements as necessary to protect human health 
and the environment, including such requirements as necessary for 
testing and providing information to the State Director with respect to 
the operation of the facility;
    (4) Require the owner or operator of a MSWLF unit permitted under 
this section to submit an annual report to the State Director showing 
whether and to what extent the site is progressing in attaining project 
goals. The report will also include a summary of all monitoring and 
testing results, as well as any other operating information specified by 
the State Director in the permit; and
    (5) Require compliance with all criteria in this part, except as 
permitted under this section.
    (d) The Director of an approved State may order an immediate 
termination of all operations at the facility allowed under this section 
or other corrective measures at any time the State Director determines 
that the overall goals of the project are not being attained, including 
protection of human health or the environment.
    (e) Any permit issued under this section shall not exceed three 
years and each renewal of a permit may not exceed three years.

[[Page 432]]

    (1) The total term for a permit for a project including renewals may 
not exceed twelve years; and
    (2) During permit renewal, the applicant shall provide a detailed 
assessment of the project showing the status with respect to achieving 
project goals, a list of problems and status with respect to problem 
resolutions, and other any other requirements that the Director 
determines necessary for permit renewal.
    (f) Small MSWLF units. (1) An owner or operator of a MSWLF unit 
operating under an exemption set forth in Sec. 258.1(f)(1) is not 
eligible for any variance from Sec. Sec. 258.26(a)(1) and 258.28(a) of 
the operating criteria in subpart C of this part.
    (2) An owner or operator of a MSWLF unit that disposes of 20 tons of 
municipal solid waste per day or less, based on an annual average, is 
not eligible for a variance from Sec. 258.60 (b)(1),except in 
accordance with Sec. 258.60(b)(3).

[69 FR 13255, Mar. 22, 2004]



Sec. Sec. 258.5-258.9  [Reserved]



                     Subpart B_Location Restrictions



Sec. 258.10  Airport safety.

    (a) Owners or operators of new MSWLF units, existing MSWLF units, 
and lateral expansions that are located within 10,000 feet (3,048 
meters) of any airport runway end used by turbojet aircraft or within 
5,000 feet (1,524 meters) of any airport runway end used by only piston-
type aircraft must demonstrate that the units are designed and operated 
so that the MSWLF unit does not pose a bird hazard to aircraft.
    (b) Owners or operators proposing to site new MSWLF units and 
lateral expansions within a five-mile radius of any airport runway end 
used by turbojet or piston-type aircraft must notify the affected 
airport and the Federal Aviation Administration (FAA).
    (c) The owner or operator must place the demonstration in paragraph 
(a) of this section in the operating record and notify the State 
Director that it has been placed in the operating record.
    (d) For purposes of this section:
    (1) Airport means public-use airport open to the public without 
prior permission and without restrictions within the physical capacities 
of available facilities.
    (2) Bird hazard means an increase in the likelihood of bird/aircraft 
collisions that may cause damage to the aircraft or injury to its 
occupants.

    Note to Sec. 258.10: A prohibition on locating a new MSWLF near 
certain airports was enacted in Section 503 of the Wendell H. Ford 
Aviation Investment and Reform Act for the 21st Century (Ford Act), Pub. 
L. 106-181 (49 U.S.C. 44718 note). Section 503 prohibits the 
``construction or establishment'' of new MSWLFs after April 5, 2000 
within six miles of certain smaller public airports. The Federal 
Aviation Administration (FAA) administers the Ford Act and has issued 
guidance in FAA Advisory Circular 150/5200-34, dated August 26, 2000. 
For further information, please contact the FAA.

[56 FR 51016, Oct. 9, 1991, as amended at 68 FR 59335, Oct. 15, 2003]



Sec. 258.11  Floodplains.

    (a) Owners or operators of new MSWLF units, existing MSWLF units, 
and lateral expansions located in 100-year floodplains must demonstrate 
that the unit will not restrict the flow of the 100-year flood, reduce 
the temporary water storage capacity of the floodplain, or result in 
washout of solid waste so as to pose a hazard to human health and the 
environment. The owner or operator must place the demonstration in the 
operating record and notify the State Director that it has been placed 
in the operating record.
    (b) For purposes of this section:
    (1) Floodplain means the lowland and relatively flat areas adjoining 
inland and coastal waters, including flood-prone areas of offshore 
islands, that are inundated by the 100-year flood.
    (2) 100-year flood means a flood that has a 1-percent or greater 
chance of recurring in any given year or a flood of a magnitude equalled 
or exceeded once in 100 years on the average over a significantly long 
period.
    (3) Washout means the carrying away of solid waste by waters of the 
base flood.



Sec. 258.12  Wetlands.

    (a) New MSWLF units and lateral expansions shall not be located in 
wetlands, unless the owner or operator can make the following 
demonstrations to the Director of an approved State:

[[Page 433]]

    (1) Where applicable under section 404 of the Clean Water Act or 
applicable State wetlands laws, the presumption that practicable 
alternative to the proposed landfill is available which does not involve 
wetlands is clearly rebutted;
    (2) The construction and operation of the MSWLF unit will not:
    (i) Cause or contribute to violations of any applicable State water 
quality standard,
    (ii) Violate any applicable toxic effluent standard or prohibition 
under Section 307 of the Clean Water Act,
    (iii) Jeopardize the continued existence of endangered or threatened 
species or result in the destruction or adverse modification of a 
critical habitat, protected under the Endangered Species Act of 1973, 
and
    (iv) Violate any requirement under the Marine Protection, Research, 
and Sanctuaries Act of 1972 for the protection of a marine sanctuary;
    (3) The MSWLF unit will not cause or contribute to significant 
degradation of wetlands. The owner or operator must demonstrate the 
integrity of the MSWLF unit and its ability to protect ecological 
resources by addressing the following factors:
    (i) Erosion, stability, and migration potential of native wetland 
soils, muds and deposits used to support the MSWLF unit;
    (ii) Erosion, stability, and migration potential of dredged and fill 
materials used to support the MSWLF unit;
    (iii) The volume and chemical nature of the waste managed in the 
MSWLF unit;
    (iv) Impacts on fish, wildlife, and other aquatic resources and 
their habitat from release of the solid waste;
    (v) The potential effects of catastrophic release of waste to the 
wetland and the resulting impacts on the environment; and
    (vi) Any additional factors, as necessary, to demonstrate that 
ecological resources in the wetland are sufficiently protected.
    (4) To the extent required under section 404 of the Clean Water Act 
or applicable State wetlands laws, steps have been taken to attempt to 
achieve no net loss of wetlands (as defined by acreage and function) by 
first avoiding impacts to wetlands to the maximum extent practicable as 
required by paragraph (a)(1) of this section, then minimizing 
unavoidable impacts to the maximum extent practicable, and finally 
offsetting remaining unavoidable wetland impacts through all appropriate 
and practicable compensatory mitigation actions (e.g., restoration of 
existing degraded wetlands or creation of man-made wetlands); and
    (5) Sufficient information is available to make a reasonable 
determination with respect to these demonstrations.
    (b) For purposes of this section, wetlands means those areas that 
are defined in 40 CFR 232.2(r).



Sec. 258.13  Fault areas.

    (a) New MSWLF units and lateral expansions shall not be located 
within 200 feet (60 meters) of a fault that has had displacement in 
Holocene time unless the owner or operator demonstrates to the Director 
of an approved State that an alternative setback distance of less than 
200 feet (60 meters) will prevent damage to the structural integrity of 
the MSWLF unit and will be protective of human health and the 
environment.
    (b) For the purposes of this section:
    (1) Fault means a fracture or a zone of fractures in any material 
along which strata on one side have been displaced with respect to that 
on the other side.
    (2) Displacement means the relative movement of any two sides of a 
fault measured in any direction.
    (3) Holocene means the most recent epoch of the Quaternary period, 
extending from the end of the Pleistocene Epoch to the present.



Sec. 258.14  Seismic impact zones.

    (a) New MSWLF units and lateral expansions shall not be located in 
seismic impact zones, unless the owner or operator demonstrates to the 
Director of an approved State/Tribe that all containment structures, 
including liners, leachate collection systems, and surface water control 
systems, are designed to resist the maximum horizontal acceleration in 
lithified earth material for the site. The owner or operator must place 
the demonstration in the operating record and notify the

[[Page 434]]

State Director that it has been placed in the operating record.
    (b) For the purposes of this section:
    (1) Seismic impact zone means an area with a ten percent or greater 
probability that the maximum horizontal acceleration in lithified earth 
material, expressed as a percentage of the earth's gravitational pull 
(g), will exceed 0.10g in 250 years.
    (2) Maximum horizontal acceleration in lithified earth material 
means the maximum expected horizontal acceleration depicted on a seismic 
hazard map, with a 90 percent or greater probability that the 
acceleration will not be exceeded in 250 years, or the maximum expected 
horizontal acceleration based on a site-specific seismic risk 
assessment.
    (3) Lithified earth material means all rock, including all naturally 
occurring and naturally formed aggregates or masses of minerals or small 
particles of older rock that formed by crystallization of magma or by 
induration of loose sediments. This term does not include man-made 
materials, such as fill, concrete, and asphalt, or unconsolidated earth 
materials, soil, or regolith lying at or near the earth surface.

[56 FR 51016, Oct. 9, 1991; 57 FR 28627, June 26, 1992]



Sec. 258.15  Unstable areas.

    (a) Owners or operators of new MSWLF units, existing MSWLF units, 
and lateral expansions located in an unstable area must demonstrate that 
engineering measures have been incorporated into the MSWLF unit's design 
to ensure that the integrity of the structural components of the MSWLF 
unit will not be disrupted. The owner or operator must place the 
demonstration in the operating record and notify the State Director that 
it has been placed in the operating record. The owner or operator must 
consider the following factors, at a minimum, when determining whether 
an area is unstable:
    (1) On-site or local soil conditions that may result in significant 
differential settling;
    (2) On-site or local geologic or geomorphologic features; and
    (3) On-site or local human-made features or events (both surface and 
subsurface).
    (b) For purposes of this section:
    (1) Unstable area means a location that is susceptible to natural or 
human-induced events or forces capable of impairing the integrity of 
some or all of the landfill structural components responsible for 
preventing releases from a landfill. Unstable areas can include poor 
foundation conditions, areas susceptible to mass movements, and Karst 
terranes.
    (2) Structural components means liners, leachate collection systems, 
final covers, run-on/run-off systems, and any other component used in 
the construction and operation of the MSWLF that is necessary for 
protection of human health and the environment.
    (3) Poor foundation conditions means those areas where features 
exist which indicate that a natural or man-induced event may result in 
inadequate foundation support for the structural components of an MSWLF 
unit.
    (4) Areas susceptible to mass movement means those areas of 
influence (i.e., areas characterized as having an active or substantial 
possibility of mass movement) where the movement of earth material at, 
beneath, or adjacent to the MSWLF unit, because of natural or man-
induced events, results in the downslope transport of soil and rock 
material by means of gravitational influence. Areas of mass movement 
include, but are not limited to, landslides, avalanches, debris slides 
and flows, soil fluction, block sliding, and rock fall.
    (5) Karst terranes means areas where karst topography, with its 
characteristic surface and subterranean features, is developed as the 
result of dissolution of limestone, dolomite, or other soluble rock. 
Characteristic physiographic features present in karst terranes include, 
but are not limited to, sinkholes, sinking streams, caves, large 
springs, and blind valleys.



Sec. 258.16  Closure of existing municipal solid waste landfill units.

    (a) Existing MSWLF units that cannot make the demonstration 
specified in Sec. 258.10(a), pertaining to airports, Sec. 258.11(a), 
pertaining to floodplains, or

[[Page 435]]

Sec. 258.15(a), pertaining to unstable areas, must close by October 9, 
1996, in accordance with Sec. 258.60 of this part and conduct post-
closure activities in accordance with Sec. 258.61 of this part.
    (b) The deadline for closure required by paragraph (a) of this 
section may be extended up to two years if the owner or operator 
demonstrates to the Director of an approved State that:
    (1) There is no available alternative disposal capacity;
    (2) There is no immediate threat to human health and the 
environment.

    Note to Subpart B: Owners or operators of MSWLFs should be aware 
that a State in which their landfill is located or is to be located, may 
have adopted a state wellhead protection program in accordance with 
section 1428 of the Safe Drinking Water Act. Such state wellhead 
protection programs may impose additional requirements on owners or 
operators of MSWLFs than those set forth in this part.



Sec. Sec. 258.17-258.19  [Reserved]



                      Subpart C_Operating Criteria



Sec. 258.20  Procedures for excluding the receipt of hazardous waste.

    (a) Owners or operators of all MSWLF units must implement a program 
at the facility for detecting and preventing the disposal of regulated 
hazardous wastes as defined in part 261 of this chapter and 
polychlorinated biphenyls (PCB) wastes as defined in part 761 of this 
chapter. This program must include, at a minimum:
    (1) Random inspections of incoming loads unless the owner or 
operator takes other steps to ensure that incoming loads do not contain 
regulated hazardous wastes or PCB wastes;
    (2) Records of any inspections;
    (3) Training of facility personnel to recognize regulated hazardous 
waste and PCB wastes; and
    (4) Notification of State Director of authorized States under 
Subtitle C of RCRA or the EPA Regional Administrator if in an 
unauthorized State if a regulated hazardous waste or PCB waste is 
discovered at the facility.
    (b) For purposes of this section, regulated hazardous waste means a 
solid waste that is a hazardous waste, as defined in 40 CFR 261.3, that 
is not excluded from regulation as a hazardous waste under 40 CFR 
261.4(b) or was not generated by a conditionally exempt small quantity 
generator as defined in Sec. 261.5 of this chapter.



Sec. 258.21  Cover material requirements.

    (a) Except as provided in paragraph (b) of this section, the owners 
or operators of all MSWLF units must cover disposed solid waste with six 
inches of earthen material at the end of each operating day, or at more 
frequent intervals if necessary, to control disease vectors, fires, 
odors, blowing litter, and scavenging.
    (b) Alternative materials of an alternative thickness (other than at 
least six inches of earthen material) may be approved by the Director of 
an approved State if the owner or operator demonstrates that the 
alternative material and thickness control disease vectors, fires, 
odors, blowing litter, and scavenging without presenting a threat to 
human health and the environment.
    (c) The Director of an approved State may grant a temporary waiver 
from the requirement of paragraph (a) and (b) of this section if the 
owner or operator demonstrates that there are extreme seasonal climatic 
conditions that make meeting such requirements impractical.
    (d) The Director of an Approved State may establish alternative 
frequencies for cover requirements in paragraphs (a) and (b) of this 
section, after public review and comment, for any owners or operators of 
MSWLFs that dispose of 20 tons of municipal solid waste per day or less, 
based on an annual average. Any alternative requirements established 
under this paragraph must:
    (1) Consider the unique characteristics of small communities;
    (2) Take into account climatic and hydrogeologic conditions; and
    (3) Be protective of human health and the environment.

[56 FR 51016, Oct. 9, 1991, as amended at 62 FR 40713, July 29, 1997]



Sec. 258.22  Disease vector control.

    (a) Owners or operators of all MSWLF units must prevent or control 
on-site populations of disease vectors using techniques appropriate for 
the

[[Page 436]]

protection of human health and the environment.
    (b) For purposes of this section, disease vectors means any rodents, 
flies, mosquitoes, or other animals, including insects, capable of 
transmitting disease to humans.



Sec. 258.23  Explosive gases control.

    (a) Owners or operators of all MSWLF units must ensure that:
    (1) The concentration of methane gas generated by the facility does 
not exceed 25 percent of the lower explosive limit for methane in 
facility structures (excluding gas control or recovery system 
components); and
    (2) The concentration of methane gas does not exceed the lower 
explosive limit for methane at the facility property boundary.
    (b) Owners or operators of all MSWLF units must implement a routine 
methane monitoring program to ensure that the standards of paragraph (a) 
of this section are met.
    (1) The type and frequency of monitoring must be determined based on 
the following factors:
    (i) Soil conditions;
    (ii) The hydrogeologic conditions surrounding the facility;
    (iii) The hydraulic conditions surrounding the facility; and
    (iv) The location of facility structures and property boundaries.
    (2) The minimum frequency of monitoring shall be quarterly.
    (c) If methane gas levels exceeding the limits specified in 
paragraph (a) of this section are detected, the owner or operator must:
    (1) Immediately take all necessary steps to ensure protection of 
human health and notify the State Director;
    (2) Within seven days of detection, place in the operating record 
the methane gas levels detected and a description of the steps taken to 
protect human health; and
    (3) Within 60 days of detection, implement a remediation plan for 
the methane gas releases, place a copy of the plan in the operating 
record, and notify the State Director that the plan has been 
implemented. The plan shall describe the nature and extent of the 
problem and the proposed remedy.
    (4) The Director of an approved State may establish alternative 
schedules for demonstrating compliance with paragraphs (c) (2) and (3) 
of this section.
    (d) For purposes of this section, lower explosive limit means the 
lowest percent by volume of a mixture of explosive gases in air that 
will propagate a flame at 25[deg] C and atmospheric pressure.
    (e) The Director of an approved State may establish alternative 
frequencies for the monitoring requirement of paragraph (b)(2) of this 
section, after public review and comment, for any owners or operators of 
MSWLFs that dispose of 20 tons of municipal solid waste per day or less, 
based on an annual average. Any alternative monitoring frequencies 
established under this paragraph must:
    (1) Consider the unique characteristics of small communities;
    (2) Take into account climatic and hydrogeologic conditions; and
    (3) Be protective of human health and the environment.

[56 FR 51016, Oct. 9, 1991, as amended at 62 FR 40713, July 29, 1997]



Sec. 258.24  Air criteria.

    (a) Owners or operators of all MSWLFs must ensure that the units not 
violate any applicable requirements developed under a State 
Implementation Plan (SIP) approved or promulgated by the Administrator 
pursuant to section 110 of the Clean Air Act, as amended.
    (b) Open burning of solid waste, except for the infrequent burning 
of agricultural wastes, silvicultural wastes, landclearing debris, 
diseased trees, or debris from emergency cleanup operations, is 
prohibited at all MSWLF units.



Sec. 258.25  Access requirements.

    Owners or operators of all MSWLF units must control public access 
and prevent unauthorized vehicular traffic and illegal dumping of wastes 
by using artificial barriers, natural barriers, or both, as appropriate 
to protect human health and the environment.

[[Page 437]]



Sec. 258.26  Run-on/run-off control systems.

    (a) Owners or operators of all MSWLF units must design, construct, 
and maintain:
    (1) A run-on control system to prevent flow onto the active portion 
of the landfill during the peak discharge from a 25-year storm;
    (2) A run-off control system from the active portion of the landfill 
to collect and control at least the water volume resulting from a 24-
hour, 25-year storm.
    (b) Run-off from the active portion of the landfill unit must be 
handled in accordance with Sec. 258.27(a) of this part.

[56 FR 51016, Oct. 9, 1991; 57 FR 28627, June 26, 1992]



Sec. 258.27  Surface water requirements.

    MSWLF units shall not:
    (a) Cause a discharge of pollutants into waters of the United 
States, including wetlands, that violates any requirements of the Clean 
Water Act, including, but not limited to, the National Pollutant 
Discharge Elimination System (NPDES) requirements, pursuant to section 
402.
    (b) Cause the discharge of a nonpoint source of pollution to waters 
of the United States, including wetlands, that violates any requirement 
of an area-wide or State-wide water quality management plan that has 
been approved under section 208 or 319 of the Clean Water Act, as 
amended.



Sec. 258.28  Liquids restrictions.

    (a) Bulk or noncontainerized liquid waste may not be placed in MSWLF 
units unless:
    (1) The waste is household waste other than septic waste;
    (2) The waste is leachate or gas condensate derived from the MSWLF 
unit and the MSWLF unit, whether it is a new or existing MSWLF, or 
lateral expansion, is designed with a composite liner and leachate 
collection system as described in Sec. 258.40(a)(2) of this part. The 
owner or operator must place the demonstration in the operating record 
and notify the State Director that it has been placed in the operating 
record; or
    (3) The MSWLF unit is a Project XL MSWLF and meets the applicable 
requirements of Sec. 258.41. The owner or operator must place 
documentation of the landfill design in the operating record and notify 
the State Director that it has been placed in the operating record.
    (b) Containers holding liquid waste may not be placed in a MSWLF 
unit unless:
    (1) The container is a small container similar in size to that 
normally found in household waste;
    (2) The container is designed to hold liquids for use other than 
storage; or
    (3) The waste is household waste.
    (c) For purposes of this section:
    (1) Liquid waste means any waste material that is determined to 
contain ``free liquids'' as defined by Method 9095B (Paint Filter 
Liquids Test), included in ``Test Methods for Evaluating Solid Waste, 
Physical/Chemical Methods'' (EPA Publication SW-846) which is 
incorporated by reference. A suffix of ``B'' in the method number 
indicates revision two (the method has been revised twice). Method 9095B 
is dated November 2004. This incorporation by reference was approved by 
the Director of the Federal Register pursuant to 5 U.S.C. 552(a) and 1 
CFR part 51. This material is incorporated as it exists on the date of 
approval and a notice of any change in this material will be published 
in the Federal Register. A copy may be inspected at the Library, U.S. 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW. (3403T), 
Washington, DC 20460, [email protected]; or at the National Archives and 
Records Administration (NARA). For information on the availability of 
this material at NARA, call 202-741-6030, or go to: http://
www.archives.gov/federal--register/code--of--federal--regulations/ibr--
locations.html.
    (2) Gas condensate means the liquid generated as a result of gas 
recovery process(es) at the MSWLF unit.

[56 FR 51016, Oct. 9, 1991, as amended at 66 FR 42449, Aug. 13, 2001; 70 
FR 34555, June 14, 2005]



Sec. 258.29  Recordkeeping requirements.

    (a) The owner or operator of a MSWLF unit must record and retain 
near the facility in an operating record or in an alternative location 
approved by the Director of an approved State

[[Page 438]]

the following information as it becomes available:
    (1) Any location restriction demonstration required under subpart B 
of this part;
    (2) Inspection records, training procedures, and notification 
procedures required in Sec. 258.20 of this part;
    (3) Gas monitoring results from monitoring and any remediation plans 
required by Sec. 258.23 of this part;
    (4) Any MSWLF unit design documentation for placement of leachate or 
gas condensate in a MSWLF unit as required under Sec. 258.28(a)(2) of 
this part;
    (5) Any demonstration, certification, finding, monitoring, testing, 
or analytical data required by subpart E of this part;
    (6) Closure and post-closure care plans and any monitoring, testing, 
or analytical data as required by Sec. Sec. 258.60 and 258.61 of this 
part; and
    (7) Any cost estimates and financial assurance documentation 
required by subpart G of this part.
    (8) Any information demonstrating compliance with small community 
exemption as required by Sec. 258.1(f)(2).
    (b) The owner/operator must notify the State Director when the 
documents from paragraph (a) of this section have been placed or added 
to the operating record, and all information contained in the operating 
record must be furnished upon request to the State Director or be made 
available at all reasonable times for inspection by the State Director.
    (c) The Director of an approved State can set alternative schedules 
for recordkeeping and notification requirements as specified in 
paragraphs (a) and (b) of this section, except for the notification 
requirements in Sec. 258.10(b) and Sec. 258.55(g)(1)(iii).
    (d) The Director of an approved state program may receive electronic 
documents only if the state program includes the requirements of 40 CFR 
Part 3--(Electronic reporting).

[56 FR 51016, Oct. 9, 1991, as amended at 70 FR 59888, Oct. 13, 2005]



Sec. Sec. 258.30-258.39  [Reserved]



                        Subpart D_Design Criteria



Sec. 258.40  Design criteria.

    (a) New MSWLF units and lateral expansions shall be constructed:
    (1) In accordance with a design approved by the Director of an 
approved State or as specified in Sec. 258.40(e) for unapproved States. 
The design must ensure that the concentration values listed in Table 1 
of this section will not be exceeded in the uppermost aquifer at the 
relevant point of compliance, as specified by the Director of an 
approved State under paragraph (d) of this section, or
    (2) With a composite liner, as defined in paragraph (b) of this 
section and a leachate collection system that is designed and 
constructed to maintain less than a 30-cm depth of leachate over the 
liner.
    (b) For purposes of this section, composite liner means a system 
consisting of two components; the upper component must consist of a 
minimum 30-mil flexible membrane liner (FML), and the lower component 
must consist of at least a two-foot layer of compacted soil with a 
hydraulic conductivity of no more than 1x10-7 cm/sec. FML 
components consisting of high density polyethylene (HDPE) shall be at 
least 60-mil thick. The FML component must be installed in direct and 
uniform contact with the compacted soil com ponent.
    (c) When approving a design that complies with paragraph (a)(1) of 
this section, the Director of an approved State shall consider at least 
the following factors:
    (1) The hydrogeologic characteristics of the facility and 
surrounding land;
    (2) The climatic factors of the area; and
    (3) The volume and physical and chemical characteristics of the 
leachate.
    (d) The relevant point of compliance specified by the Director of an 
approved State shall be no more than 150 meters from the waste 
management unit boundary and shall be located on land owned by the owner 
of the

[[Page 439]]

MSWLF unit. In determining the relevant point of compliance State 
Director shall consider at least the following factors:
    (1) The hydrogeologic characteristics of the facility and 
surrounding land;
    (2) The volume and physical and chemical characteristics of the 
leachate;
    (3) The quantity, quality, and direction, of flow of ground water;
    (4) The proximity and withdrawal rate of the ground-water users;
    (5) The availability of alternative drinking water supplies;
    (6) The existing quality of the ground water, including other 
sources of contamination and their cumulative impacts on the ground 
water, and whether the ground water is currently used or reasonably 
expected to be used for drinking water;
    (7) Public health, safety, and welfare effects; and
    (8) Practicable capability of the owner or operator.
    (e) If EPA does not promulgate a rule establishing the procedures 
and requirements for State compliance with RCRA section 4005(c)(1)(B) by 
October 9, 1993, owners and operators in unapproved States may utilize a 
design meeting the performance standard in Sec. 258.40(a)(1) if the 
following conditions are met:
    (1) The State determines the design meets the performance standard 
in Sec. 258.40(a)(1);
    (2) The State petitions EPA to review its determination; and
    (3) EPA approves the State determination or does not disapprove the 
determination within 30 days.

    Note to subpart D: 40 CFR part 239 is reserved to establish the 
procedures and requirements for State compliance with RCRA section 
4005(c)(1)(B).

                                 Table 1
------------------------------------------------------------------------
                                                                MCL (mg/
                           Chemical                                l)
------------------------------------------------------------------------
Arsenic.......................................................   0.05
Barium........................................................   1.0
Benzene.......................................................   0.005
Cadmium.......................................................   0.01
Carbon tetrachloride..........................................   0.005
Chromium (hexavalent).........................................   0.05
2,4-Dichlorophenoxy acetic acid...............................   0.1
1,4-Dichlorobenzene...........................................   0.075
1,2-Dichloroethane............................................   0.005
1,1-Dichloroethylene..........................................   0.007
Endrin........................................................   0.0002
Fluoride......................................................   4
Lindane.......................................................   0.004
Lead..........................................................   0.05
Mercury.......................................................   0.002
Methoxychlor..................................................   0.1
Nitrate.......................................................  10
Selenium......................................................   0.01
Silver........................................................   0.05
Toxaphene.....................................................   0.005
1,1,1-Trichloromethane........................................   0.2
Trichloroethylene.............................................   0.005
2,4,5-Trichlorophenoxy acetic acid............................   0.01
Vinyl Chloride................................................   0.002
------------------------------------------------------------------------



Sec. 258.41  Project XL Bioreactor Landfill Projects.

    (a) Buncombe County, North Carolina Project XL Bioreactor Landfill 
Requirements. Paragraph (a) of this section applies to Cells 1, 2, 3, 4, 
and 5 of the Buncombe County Solid Waste Management Facility located in 
the County of Buncombe, North Carolina, owned and operated by the 
Buncombe County Solid Waste Authority, or its successors. This paragraph 
(a) will also apply to Cells 6, 7, 8, 9, and 10, provided that the EPA 
Regional Administrator for Region 4 and the State Director determine 
that the pilot project in Cells 3, 4, and 5 is performing as expected 
and that the pilot project has not exhibited detrimental environmental 
results.
    (1) The Buncombe County Solid Waste Authority is allowed to place 
liquid waste in the Buncombe County Solid Waste Management Facility, 
provided that the provisions of paragraphs (a)(2) through (9) of this 
section are met.
    (2) The only liquid waste allowed under this section is leachate or 
gas condensate derived from the MSWLF, which may be supplemented with 
water from the French Broad River. The owner or operator shall control 
any liquids to the landfill to assure that the average moisture content 
of the landfill does not exceed 50% by weight. Liquid addition and 
recirculation is allowed only to the extent that the integrity of the 
landfill including its liner system is maintained, as determined by the 
State Director.
    (3) The MSWLF unit shall be designed and constructed with a liner 
and

[[Page 440]]

leachate collection system as described in Sec. 258.40(a)(2) or 
paragraphs (a)(4) and (5) of this section. The owner or operator must 
place documentation of the landfill design in the operating record and 
notify the State Director that it has been placed in operating record;
    (4) Cells 3-10 shall be constructed with a liner system consisting 
of the components described in paragraphs (a)(4)(i) through (v) of this 
section, or an equivalent or superior liner system as determined by the 
State Director:
    (i) A lower component consisting of at least 18 inches of compacted 
soil with a hydraulic conductivity of no more than 1x10-5 cm/
sec., and
    (ii) An upper component consisting of a minimum 30-millimeter 
(``mil'') flexible membrane liner (FML) or 60-mil if High Density 
Polyethylene (``HDPE'') is used, and
    (iii) A geosynthetic clay liner (GCL) overlaying and in direct 
contact with the 18 inches of compacted soil in paragraph (a)(4) of this 
section and having the following properties:
    (A) The GCL shall be formulated and manufactured from polypropylene 
geotextiles and high swelling containment resistant sodium bentonite. 
The bentonite-geotextile liner shall be manufactured using a minimum of 
one pound per square foot as determined using the Standard Test Method 
for Measuring Mass per Unit Area of Geotextiles, ASTM D-5261-92 
(reapproved in 1996). The high swelling sodium montmorillonite clay 
shall be at 12% moisture content as determined by the Standard Test 
Method for Laboratory Determination of Water (Moisture) Content of Soil 
and Rock by Mass, ASTM D2216-98. The Director of the Federal Register 
approves this incorporation by reference with 5 U.S.C. 552(a) and 1 CFR 
part 51. These methods are available from The American Society for 
Testing and Materials, 100 Barr Harbor Drive, West Conshohocken, PA 
19428-2959. These methods may be inspected at EPA's docket office 
located at Crystal Gateway, 1235 Jefferson Davis Highway, First Floor, 
Arlington, Virginia, or at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, call 202-741-6030, or go to: http://www.archives.gov/
federal--register/code--of--federal--regulations/ibr--locations.html.
    (B) The encapsulating geotextile shall be polypropylene and shall 
have a minimum weight of 6 oz./square yard.
    (iv) The upper component shall be installed in direct and uniform 
contact with an overlaying soil cushioning component.
    (v) Underlying the above liner system, there shall also be installed 
a leak detection system consisting of a 60-mil HDPE liner placed on a 
prepared subgrade.
    (A) A 4 inch capped pipe will drain liquid collected in the sump out 
beyond the footprint of the landfill cell.
    (B) Water collected on the leak detection liner shall be monitored 
at least semi-annually as directed by the State Director to determine 
whether any leachate escaped the liner system.
    (5) Cells 3-10 shall be designed and constructed with a leachate 
collection system to maintain less than 30 centimeters depth of leachate 
is present at the sump location. The leachate collection system shall 
include a continuous monitoring system to monitor depth of leachate.
    (6) The owner/operator shall keep the Federally Enforceable State 
Operating Permit (FESOP) issued by the Western North Carolina Air 
Quality Agency for the Buncombe County Solid Waste Management Facility 
in effect, and shall comply with the provisions of the FESOP, during the 
entire period of leachate recirculation and the post closure period. The 
FESOP was issued on November 13, 2000 and contains the air quality 
requirements for the Buncombe County Landfill XL project.
    (7) Monitoring and Reporting Requirements. The owner or operator of 
the Buncombe County Solid Waste Management Facility shall monitor for 
the parameters listed in paragraphs (a)(7)(i) through (xiii) of this 
section and submit an annual report on the XL project to the EPA 
Regional Administrator for Region 4 and the State Director. The first 
report is due coincident with the October 2001 report to the state. The 
report should state what progress has been made toward the superior 
environmental performance and other commitments as stated in the

[[Page 441]]

Final Project Agreement. The report shall include, at a minimum, the 
following data:
    (i) Amount of landfill gas generated;
    (ii) Percent capture of landfill gas, if known;
    (iii) Quality of the landfill gas, amount and type of liquids 
applied to the landfill;
    (iv) Method of liquids application to the landfill;
    (v) Quantity of waste placed in the landfill;
    (vi) Quantity and quality of leachate collected;
    (vii) Quantity of leachate recirculated back into the landfill;
    (viii) Information on the pretreatment of waste applied to the 
landfill;
    (ix) Data collected on landfill temperature and moisture content;
    (x) Data on the leachate pressure (head) on the liner;
    (xi) Observations, information, and studies made on the physical 
stability of the MSWLF units that are developed during the project term, 
if any.
    (xii) The above data may be summarized, and, at a minimum shall 
contain, the minimum, maximum, median, and average data points as well 
as the frequency of monitoring as applicable.
    (xiii) The method and frequency of monitoring shall be specified by 
the State Director.
    (8) Termination and Withdrawal.
    (i) Paragraph (a) of this section will terminate August 22, 2026, 
unless a subsequent rulemaking is issued or terminated earlier pursuant 
to paragraph (a)(8)(ii) of this section.
    (ii) In the event of noncompliance with paragraph (a) of this 
section, EPA may terminate the authority under paragraph (a) of this 
section and the authority to add liquid wastes to all or part of cells 
3-10 under Sec. 258.28(a)(3). The EPA Regional Administrator will 
provide written notice of intent to terminate to the Buncombe County 
Solid Waste Authority with a copy to the State Director. The notice will 
state EPA's intent to terminate under the rules and will include a brief 
statement of EPA's reasons for its action. The termination will take 
effect 60 days from the date of the notice, unless the EPA Regional 
Administrator for Region 4 issues a written notice rescinding the 
termination.
    (9) Compliance requirements in the event of termination or 
withdrawal. The Buncombe County Solid Waste Management Facility will be 
subject to all regulatory provisions applicable to MSWLFs upon 
termination of authority under this section. In the event of early 
termination of this section, the EPA Regional Administrator for Region 4 
may provide an interim period of compliance to allow Buncombe County a 
reasonable period of time for transition following cessation of liquids 
addition.
    (b) This section applies solely to Module D of the Yolo County 
Central Landfill owned and operated by the County of Yolo, California, 
or its successors. It allows the Yolo County Central Landfill to add 
bulk or noncontainerized liquid wastes to Module D under the following 
conditions:
    (1) Module D shall be designed and constructed with a composite 
liner as defined in Sec. 258.40(b) and a leachate collection system 
that functions and continuously monitors to ensure that less than 30 
centimeters depth of leachate is maintained over the liner.
    (2) The owner or operator of the Yolo County Central Landfill must 
ensure that the concentration values listed in Table 1 of Sec. 258.40 
are not exceeded in the uppermost aquifer at the relevant point of 
compliance for the landfill as specified by the State Director under 
Sec. 258.40(d).
    (3) The owner or operator of the Yolo County Central Landfill shall 
demonstrate that the addition of any liquids to Module D does not result 
in an increased leakage rate, and does not result in liner slippage, or 
otherwise compromise the integrity of the landfill and its liner system, 
as determined by the State Director.
    (4) The owner or operator of the Yolo County Central Landfill must 
ensure that Module D is operated in such a manner so as to prevent any 
landfill fires from occurring.
    (5) The owner or operator of the Yolo County Central Landfill shall 
submit an annual report to the EPA Regional Administrator and the State 
Director. The first report is due within 18

[[Page 442]]

months after August 13, 2001. The report shall state what progress the 
Project is making towards the superior environmental performance as 
stated in the Final Project Agreement. The data in paragraphs (b)(5)(i) 
through (xvi) of this section may be summarized, but, at a minimum, 
shall contain the minimum, maximum, median, and average data points as 
well as the frequency of monitoring, as applicable. These reporting 
provisions shall remain in effect for as long as the owner or operator 
of the Yolo County Central Landfill continues to add liquid waste to 
Module D. Additional monitoring, record keeping and reporting 
requirements related to landfill gas will be contained in a permit 
executed by the local air quality management district pursuant to the 
Clean Air Act, 42 U.S.C. 7401 et seq. Application of this site-specific 
rule to the Yolo County Central Landfill is conditioned upon the 
issuance of such permit. The annual report will include, at a minimum, 
the following data:
    (i) Amount of landfill gas generated;
    (ii) Percent capture of landfill gas;
    (iii) Quality of the landfill gas;
    (iv) Amount and type of liquids applied to the landfill;
    (v) Method of liquids application to the landfill;
    (vi) Quantity of waste placed in the landfill;
    (vii) Quantity and quality of leachate collected, including at least 
the following parameters, monitored, at a minimum, on an annual basis:
    (A) pH;
    (B) Conductivity;
    (C) Dissolved oxygen;
    (D) Dissolved solids;
    (E) Biochemical oxygen demand;
    (F) Chemical oxygen demand;
    (G) Organic carbon;
    (H) Nutrients, (including ammonia [``NH3''], total 
kjeldahl nitrogen [``TKN''], and total phosphorus [``TP'']);
    (I) Common ions;
    (J) Heavy metals;
    (K) Organic priority pollutants; and
    (L) Flow rate;
    (viii) Quantity of leachate recirculated back into the landfill;
    (ix) Information on the pretreatment of solid and liquid waste 
applied to the landfill;
    (x) Landfill temperature;
    (xi) Landfill moisture content;
    (xii) Data on the leachate pressure (head) on the liner;
    (xiii) The amount of aeration of the waste;
    (xiv) Data on landfill settlement;
    (xv) Any information on the performance of the landfill cover; and
    (xvi) Observations, information, or studies made on the physical 
stability of the landfill.
    (6) This section will remain in effect until August 13, 2006. By 
August 13, 2006, Yolo County Central Landfill shall return to compliance 
with the regulatory requirements which would have been in effect absent 
the flexibility provided through this Project XL site-specific rule. 
This section applies to Phase I of Module D. This section also will 
apply to any phase of Module D beyond Phase I only if a second Final 
Project Agreement that describes the additional phase has been signed by 
representatives of EPA Region 9, Yolo County, and the State of 
California. Phase I of Module D is defined as the operation of twelve 
acres of the twenty acre Module D.
    (c) Virginia Landfills XL Project Requirements. Paragraph (c) of 
this section applies solely to two Virginia landfills operated by the 
Waste Management, Inc. or its successors: The Maplewood Recycling and 
Waste Disposal Facility, located in Amelia County, Virginia (``Maplewood 
Landfill''); and the King George County Landfill and Recycling Facility, 
located in King George County, Virginia (``King George Landfill'') 
collectively hereinafter, ``the VA Project XL Landfills or landfill.'' 
The VA Project XL Landfills are allowed to add non-hazardous bulk or 
non-containerized liquids including, leachate, storm water and truck 
wash water, hereinafter, ``liquid or liquids'', to Cell 3 of the King 
George Landfill (hereinafter ``Cell 3'') and Phases 1 and 2 of the 
Maplewood Landfill (hereinafter ``Phases 1 and 2'') under the following 
conditions:
    (1) The operator of the landfill shall maintain the liners 
underlying Cell 3

[[Page 443]]

and Phases 1 and 2, which were designed and constructed with an 
alternative liner as defined in Sec. 258.40(a)(1) in accord with their 
current installed design in order to maintain the integrity of the liner 
system and keep it and the leachate collection system in good operating 
order. The operator of the landfill shall ensure that the addition of 
any liquids does not result in an increased leakage rate, and does not 
result in liner slippage, or otherwise compromise the integrity of the 
landfill and its liner system, as determined by the State Director. In 
addition, the leachate collection system shall be operated, monitored 
and maintained to ensure that less than 30 cm depth of leachate is 
maintained over the liner.
    (2) The operator of the landfill shall ensure that the concentration 
values listed in Table 1 of Sec. 258.40 are not exceeded in the 
uppermost aquifer at the relevant point of compliance for the landfill, 
as specified by the State Director, under Sec. 258.40(d).
    (3) The operator of the landfill shall monitor and report whether 
surface seeps are occurring and determine whether they are attributable 
to operation of the liquid application system. EPA and VADEQ shall be 
notified in the semi-annual report of the occurrence of any seeps.
    (4) The operator of the landfill shall determine on a monthly basis 
the leachate quality in test and control areas with and without liquid 
addition. The operator of the landfill shall collect monthly samples of 
the landfill leachate and analyze them for the following parameters: pH, 
Conductivity, Dissolved Oxygen, Dissolved Solids, Biochemical Oxygen 
Demand, Chemical Oxygen Demand, Organic Carbon, Nutrients (ammonia, 
total kjeldahl nitrogen, total phosphorus), Common Ions, Heavy Metals 
and Organic Priority Pollutants.
    (5) The operator of the landfill shall determine on a semi-annual 
basis the total quantity of leachate collected in test and control 
areas; the total quantity of liquids applied in the test areas and 
determination of any changes in this quantity over time; the total 
quantity of leachate in on-site storage structures and any leachate 
taken for offsite disposal.
    (6) Prior to the addition of any liquid to the landfill, the 
operator of the landfill shall perform an initial characterization of 
the liquid and notify EPA and VADEQ of the liquid proposed to be added. 
The parameters for the initial characterization of liquids shall be the 
same as the monthly parameters for the landfill leachate specified in 
paragraph (c)(4) of this section. The operator shall annually test all 
liquids added to the landfill and compare these results to the initial 
characterization.
    (7) The operator of the landfill shall ensure that Cell 3 and Phases 
1 and 2 are operated in such a manner so as to prevent any landfill 
fires from occurring. The operator of the landfill shall monitor the gas 
temperature at well heads, at a minimum, on a monthly basis.
    (8) The operator of the landfill shall perform an annual surface 
topographic survey to determine the rate of the settlement of the waste 
in the test and control areas.
    (9) The operator of the landfill shall monitor and record the 
frequency of odor complaints during and after liquid application events. 
EPA and VADEQ shall be notified of the occurrence of any odor complaints 
in the semi-annual report.
    (10) The operator of the landfill shall collect representative 
samples of the landfill waste in the test areas on an annual basis and 
analyze the samples for the following solid waste stabilization and 
decomposition parameters: Moisture Content, Biochemical Methane 
Potential, Cellulose, Lignin, Hemi-cellulose, Volatile Solids and pH.
    (11) The operator of the landfill shall report to the EPA Regional 
Administrator and the State Director on the information described in 
paragraphs (c)(1) through (10) of this section on a semi-annual basis. 
The first report is due within 6 months after the effective date of this 
section. These reporting provisions shall remain in effect for the 
duration of the project term.
    (12) Additional monitoring, record keeping and reporting 
requirements related to landfill gas will be contained in a Federally 
Enforceable State Operating Permit (``FESOP'') for the VA Project XL 
Landfills issued pursuant to the Clean Air Act, 42 U.S.C. 7401 et

[[Page 444]]

seq. Application of this site-specific rule to the VA Project XL 
Landfills is conditioned upon the issuance of such a FESOP.
    (13) This section applies until July 18, 2012. By July 18, 2012, the 
VA Project XL Landfills must return to compliance with the regulatory 
requirements which would have been in effect absent the flexibility 
provided through this section. If EPA Region 3's Regional Administrator, 
the Commonwealth of Virginia and Waste Management agree to an amendment 
of the project term, the parties must enter into an amended or new Final 
Project Agreement for any such amendment.
    (14) The authority provided by this section may be terminated before 
the end of the 10 year period in the event of noncompliance with the 
requirements of paragraph (c) of this section, the determination by the 
EPA Region 3's Regional Administrator that the project has failed to 
achieve the expected level of environmental performance, or the 
promulgation of generally applicable requirements that would apply to 
all landfills that meet or exceed the performance standard set forth in 
Sec. 258.40(a)(1). In the event of early termination EPA in 
consultation with the Commonwealth of Virginia will determine an interim 
compliance period to provide sufficient time for the operator to return 
the landfills to compliance with the regulatory requirements which would 
have been in effect absent the authority provided by this section. The 
interim compliance period shall not exceed six months.

[66 FR 42449, Aug. 13, 2001, as amended at 66 FR 44069, Aug. 22, 2001; 
67 FR 47319, July 18, 2002; 69 FR 18803, Apr. 9, 2004]



Sec. Sec. 258.42-258.49  [Reserved]



         Subpart E_Ground-Water Monitoring and Corrective Action



Sec. 258.50  Applicability.

    (a) The requirements in this part apply to MSWLF units, except as 
provided in paragraph (b) of this section.
    (b) Ground-water monitoring requirements under Sec. 258.51 through 
Sec. 258.55 of this part may be suspended by the Director of an 
approved State for a MSWLF unit if the owner or operator can demonstrate 
that there is no potential for migration of hazardous constituents from 
that MSWLF unit to the uppermost aquifer (as defined in Sec. 258.2) 
during the active life of the unit and the post-closure care period. 
This demonstration must be certified by a qualified ground-water 
scientist and approved by the Director of an approved State, and must be 
based upon:
    (1) Site-specific field collected measurements, sampling, and 
analysis of physical, chemical, and biological processes affecting 
contaminant fate and transport, and
    (2) Contaminant fate and transport predictions that maximize 
contaminant migration and consider impacts on human health and 
environment.
    (c) Owners and operators of MSWLF units, except those meeting the 
conditions of Sec. 258.1(f), must comply with the ground-water 
monitoring requirements of this part according to the following schedule 
unless an alternative schedule is specified under paragraph (d) of this 
section:
    (1) Existing MSWLF units and lateral expansions less than one mile 
from a drinking water intake (surface or subsurface) must be in 
compliance with the ground-water monitoring requirements specified in 
Sec. Sec. 258.51-258.55 by October 9, 1994;
    (2) Existing MSWLF units and lateral expansions greater than one 
mile but less than two miles from a drinking water intake (surface or 
subsurface) must be in compliance with the ground-water monitoring 
requirements specified in Sec. Sec. 258.51-258.55 by October 9, 1995;
    (3) Existing MSWLF units and lateral expansions greater than two 
miles from a drinking water intake (surface or subsurface) must be in 
compliance with the ground-water monitoring requirements specified in 
Sec. Sec. 258.51-258.55 by October 9, 1996.
    (4) New MSWLF units must be in compliance with the ground-water 
monitoring requirements specified in Sec. Sec. 258.51-258.55 before 
waste can be placed in the unit.
    (d) The Director of an approved State may specify an alternative 
schedule for the owners or operators of existing MSWLF units and lateral 
expansions

[[Page 445]]

to comply with the ground-water monitoring requirements specified in 
Sec. Sec. 258.51-258.55. This schedule must ensure that 50 percent of 
all existing MSWLF units are in compliance by October 9, 1994 and all 
existing MSWLF units are in compliance by October 9, 1996. In setting 
the compliance schedule, the Director of an approved State must consider 
potential risks posed by the unit to human health and the environment. 
The following factors should be considered in determining potential 
risk:
    (1) Proximity of human and environmental receptors;
    (2) Design of the MSWLF unit;
    (3) Age of the MSWLF unit;
    (4) The size of the MSWLF unit; and
    (5) Types and quantities of wastes disposed including sewage sludge; 
and
    (6) Resource value of the underlying aquifer, including:
    (i) Current and future uses;
    (ii) Proximity and withdrawal rate of users; and
    (iii) Ground-water quality and quantity.
    (e) Owners and operators of all MSWLF units that meet the conditions 
of Sec. 258.1(f)(1) must comply with all applicable ground-water 
monitoring requirements of this part by October 9, 1997.
    (f) Once established at a MSWLF unit, ground-water monitoring shall 
be conducted throughout the active life and post-closure care period of 
that MSWLF unit as specified in Sec. 258.61.
    (g) For the purposes of this subpart, a qualified ground-water 
scientist is a scientist or engineer who has received a baccalaureate or 
post-graduate degree in the natural sciences or engineering and has 
sufficient training and experience in groundwater hydrology and related 
fields as may be demonstrated by State registration, professional 
Certifications, or completion of accredited university programs that 
enable that individual to make sound professional judgements regarding 
ground-water monitoring, contaminant fate and transport, and corrective-
action.
    (h) The Director of an approved State may establish alternative 
schedules for demonstrating compliance with Sec. 258.51(d)(2), 
pertaining to noti fi ca tion of placement of certification in operating 
record; Sec. 258.54(c)(1), per tain ing to notification that 
statistically significant increase (SSI) notice is in operating record; 
Sec. 258.54(c) (2) and (3), pertaining to an assessment monitoring 
program; Sec. 258.55(b), pertaining to sampling and analyzing appendix 
II constituents; Sec. 258.55(d)(1), pertaining to placement of notice 
(appendix II constituents detected) in record and notification of notice 
in record; Sec. 258.55(d)(2), pertaining to sampling for appendix I and 
II to this part; Sec. 258.55(g), pertaining to notification (and 
placement of notice in record) of SSI above ground-water protection 
standard; Sec. Sec. 258.55(g)(1)(iv) and 258.56(a), pertaining to 
assessment of corrective measures; Sec. 258.57(a), pertaining to 
selection of remedy and notification of placement in record; Sec. 
258.58(c)(4), pertaining to notification of placement in record 
(alternative corrective action measures); and Sec. 258.58(f), 
pertaining to notification of placement in record (certification of 
remedy completed).

[56 FR 51016, Oct. 9, 1991; 57 FR 28628, June 26, 1992, as amended at 58 
FR 51547, Oct. 1, 1993; 60 FR 52342, Oct. 6, 1995]



Sec. 258.51  Ground-water monitoring systems.

    (a) A ground-water monitoring system must be installed that consists 
of a sufficient number of wells, installed at appropriate locations and 
depths, to yield ground-water samples from the uppermost aquifer (as 
defined in Sec. 258.2) that:
    (1) Represent the quality of background ground water that has not 
been affected by leakage from a unit. A determination of background 
quality may include sampling of wells that are not hydraulically 
upgradient of the waste management area where:
    (i) Hydrogeologic conditions do not allow the owner or operator to 
determine what wells are hydraulically upgradient; or
    (ii) Sampling at other wells will provide an indication of 
background ground-water quality that is as representative or more 
representative than that provided by the upgradient wells; and
    (2) Represent the quality of ground water passing the relevant point 
of compliance specified by Director of an

[[Page 446]]

approved State under Sec. 258.40(d) or at the waste management unit 
boundary in unapproved States. The down gradient monitoring system must 
be installed at the relevant point of compliance specified by the 
Director of an approved State under Sec. 258.40(d) or at the waste 
management unit boundary in unapproved States that ensures detection of 
ground-water contamination in the uppermost aquifer. When physical 
obstacles preclude installation of ground-water monitoring wells at the 
relevant point of compliance at existing units, the down-gradient 
monitoring system may be installed at the closest practicable distance 
hydraulically down-gradient from the relevant point of compliance 
specified by the Director of an approved State under Sec. 258.40 that 
ensure detection of groundwater contamination in the uppermost aquifer.
    (b) The Director of an approved State may approve a multiunit 
ground-water monitoring system instead of separate ground-water 
monitoring systems for each MSWLF unit when the facility has several 
units, provided the multi-unit ground-water monitoring system meets the 
requirement of Sec. 258.51(a) and will be as protective of human health 
and the environment as individual monitoring systems for each MSWLF 
unit, based on the following factors:
    (1) Number, spacing, and orientation of the MSWLF units;
    (2) Hydrogeologic setting;
    (3) Site history;
    (4) Engineering design of the MSWLF units, and
    (5) Type of waste accepted at the MSWLF units.
    (c) Monitoring wells must be cased in a manner that maintains the 
integrity of the monitoring well bore hole. This casing must be screened 
or perforated and packed with gravel or sand, where necessary, to enable 
collection of ground-water samples. The annular space (i.e., the space 
between the bore hole and well casing) above the sampling depth must be 
sealed to prevent contamination of samples and the ground water.
    (1) The owner or operator must notify the State Director that the 
design, installation, development, and decommission of any monitoring 
wells, piezo meters and other measurement, sampling, and analytical 
devices documentation has been placed in the operating record; and
    (2) The monitoring wells, piezometers, and other measurement, 
sampling, and analytical devices must be operated and maintained so that 
they perform to design specifications throughout the life of the 
monitoring program.
    (d) The number, spacing, and depths of monitoring systems shall be:
    (1) Determined based upon site-specific technical information that 
must include thorough characterization of:
    (i) Aquifer thickness, ground-water flow rate, ground-water flow 
direction including seasonal and temporal fluctuations in ground-water 
flow; and
    (ii) Saturated and unsaturated geologic units and fill materials 
overlying the uppermost aquifer, materials comprising the uppermost 
aquifer, and materials comprising the confining unit defining the lower 
boundary of the uppermost aquifer; including, but not limited to: 
Thicknesses, stratigraphy, lithology, hydraulic conductivities, 
porosities and effective porosities.
    (2) Certified by a qualified ground-water scientist or approved by 
the Director of an approved State. Within 14 days of this certification, 
the owner or operator must notify the State Director that the 
certification has been placed in the operating record.



Sec. 258.52  [Reserved]



Sec. 258.53  Ground-water sampling and analysis requirements.

    (a) The ground-water monitoring program must include consistent 
sampling and analysis procedures that are designed to ensure monitoring 
results that provide an accurate representation of ground-water quality 
at the background and downgradient wells installed in compliance with 
Sec. 258.51(a) of this part. The owner or operator must notify the 
State Director that the sampling and analysis program documentation has 
been placed in the operating record and the program must include 
procedures and techniques for:
    (1) Sample collection;
    (2) Sample preservation and shipment;

[[Page 447]]

    (3) Analytical procedures;
    (4) Chain of custody control; and
    (5) Quality assurance and quality control.
    (b) The ground-water monitoring program must include sampling and 
analytical methods that are appropriate for ground-water sampling and 
that accurately measure hazardous constituents and other monitoring 
parameters in ground-water samples. Ground-water samples shall not be 
field-filtered prior to laboratory analysis.
    (c) The sampling procedures and frequency must be protective of 
human health and the environment.
    (d) Ground-water elevations must be measured in each well 
immediately prior to purging, each time ground water is sampled. The 
owner or operator must determine the rate and direction of ground-water 
flow each time ground water is sampled. Ground-water elevations in wells 
which monitor the same waste management area must be measured within a 
period of time short enough to avoid temporal variations in ground-water 
flow which could preclude accurate determination of ground-water flow 
rate and direction.
    (e) The owner or operator must establish background ground-water 
quality in a hydraulically upgradient or background well(s) for each of 
the monitoring parameters or constituents required in the particular 
ground-water monitoring program that applies to the MSWLF unit, as 
determined under Sec. 258.54(a) or Sec. 258.55(a) of this part. 
Background ground-water quality may be established at wells that are not 
located hydraulically upgradient from the MSWLF unit if it meets the 
requirements of Sec. 258.51(a)(1).
    (f) The number of samples collected to establish ground-water 
quality data must be consistent with the appropriate statistical 
procedures determined pursuant to paragraph (g) of this section. The 
sampling procedures shall be those specified under Sec. 258.54(b) for 
detection monitoring, Sec. 258.55 (b) and (d) for assessment 
monitoring, and Sec. 258.56(b) of corrective action.
    (g) The owner or operator must specify in the operating record one 
of the following statistical methods to be used in evaluating ground-
water monitoring data for each hazardous constituent. The statistical 
test chosen shall be conducted separately for each hazardous constituent 
in each well.
    (1) A parametric analysis of variance (ANOVA) followed by multiple 
comparisons procedures to identify statistically significant evidence of 
contamination. The method must include estimation and testing of the 
contrasts between each compliance well's mean and the background mean 
levels for each constituent.
    (2) An analysis of variance (ANOVA) based on ranks followed by 
multiple comparisons procedures to identify statistically significant 
evidence of contamination. The method must include estimation and 
testing of the contrasts between each compliance well's median and the 
background median levels for each constituent.
    (3) A tolerance or prediction interval procedure in which an 
interval for each constituent is established from the distribution of 
the background data, and the level of each constituent in each 
compliance well is compared to the upper tolerance or prediction limit.
    (4) A control chart approach that gives control limits for each 
constituent.
    (5) Another statistical test method that meets the performance 
standards of Sec. 258.53(h). The owner or operator must place a 
justification for this alternative in the operating record and notify 
the State Director of the use of this alternative test. The 
justification must demonstrate that the alternative method meets the 
performance standards of Sec. 258.53(h).
    (h) Any statistical method chosen under Sec. 258.53(g) shall comply 
with the following performance standards, as appropriate:
    (1) The statistical method used to evaluate ground-water monitoring 
data shall be appropriate for the distribution of chemical parameters or 
hazardous constituents. If the distribution of the chemical parameters 
or hazardous constituents is shown by the owner or operator to be 
inappropriate for a normal theory test, then the data should be 
transformed or a distribution-free theory test should be used. If the 
distributions for the constituents differ, more than one statistical 
method may be needed.

[[Page 448]]

    (2) If an individual well comparison procedure is used to compare an 
individual compliance well constituent concentration with background 
constituent concentrations or a ground-water protection standard, the 
test shall be done at a Type I error level no less than 0.01 for each 
testing period. If a multiple comparisons procedure is used, the Type I 
experiment wise error rate for each testing period shall be no less than 
0.05; however, the Type I error of no less than 0.01 for individual well 
comparisons must be maintained. This performance standard does not apply 
to tolerance intervals, prediction intervals, or control charts.
    (3) If a control chart approach is used to evaluate ground-water 
monitoring data, the specific type of control chart and its associated 
parameter values shall be protective of human health and the 
environment. The parameters shall be determined after considering the 
number of samples in the background data base, the data distribution, 
and the range of the concentration values for each constituent of 
concern.
    (4) If a tolerance interval or a predictional interval is used to 
evaluate ground-water monitoring data, the levels of confidence and, for 
tolerance intervals, the percentage of the population that the interval 
must contain, shall be protective of human health and the environment. 
These parameters shall be determined after considering the number of 
samples in the background data base, the data distribution, and the 
range of the concentration values for each constituent of concern.
    (5) The statistical method shall account for data below the limit of 
detection with one or more statistical procedures that are protective of 
human health and the environment. Any practical quantitation limit (pql) 
that is used in the statistical method shall be the lowest concentration 
level that can be reliably achieved within specified limits of precision 
and accuracy during routine laboratory operating conditions that are 
available to the facility.
    (6) If necessary, the statistical method shall include procedures to 
control or correct for seasonal and spatial variability as well as 
temporal correlation in the data.
    (i) The owner or operator must determine whether or not there is a 
statistically significant increase over background values for each 
parameter or constituent required in the particular ground-water 
monitoring program that applies to the MSWLF unit, as determined under 
Sec. Sec. 258.54(a) or 258.55(a) of this part.
    (1) In determining whether a statistically significant increase has 
occurred, the owner or operator must compare the ground-water quality of 
each parameter or constituent at each monitoring well designated 
pursuant to Sec. 258.51(a)(2) to the background value of that 
constituent, according to the statistical procedures and performance 
standards specified under paragraphs (g) and (h) of this section.
    (2) Within a reasonable period of time after completing sampling and 
analysis, the owner or operator must determine whether there has been a 
statistically significant increase over background at each monitoring 
well.



Sec. 258.54  Detection monitoring program.

    (a) Detection monitoring is required at MSWLF units at all ground-
water monitoring wells defined under Sec. Sec. 258.51 (a)(1) and (a)(2) 
of this part. At a minimum, a detection monitoring program must include 
the monitoring for the constituents listed in appendix I to this part.
    (1) The Director of an approved State may delete any of the appendix 
I monitoring parameters for a MSWLF unit if it can be shown that the 
removed constituents are not reasonably expected to be in or derived 
from the waste contained in the unit.
    (2) The Director of an approved State may establish an alternative 
list of inorganic indicator parameters for a MSWLF unit, in lieu of some 
or all of the heavy metals (constituents 1-15 in appendix I to this 
part), if the alternative parameters provide a reliable indication of 
inorganic releases from the MSWLF unit to the ground water. In 
determining alternative parameters, the Director shall consider the 
following factors:

[[Page 449]]

    (i) The types, quantities, and concentrations of constituents in 
wastes managed at the MSWLF unit;
    (ii) The mobility, stability, and persistence of waste constituents 
or their reaction products in the unsaturated zone beneath the MSWLF 
unit;
    (iii) The detectability of indicator parameters, waste constituents, 
and reaction products in the ground water; and
    (iv) The concentration or values and coefficients of variation of 
monitoring parameters or constituents in the groundwater background.
    (b) The monitoring frequency for all constituents listed in appendix 
I to thispart, or in the alternative list approved in accordance with 
paragraph (a)(2) of this section, shall be at least semiannual during 
the active life of the facility (including closure) and the post-closure 
period. A minimum of four independent samples from each well (background 
and downgradient) must be collected and analyzed for the appendix I 
constituents, or the alternative list approved in accordance with 
paragraph (a)(2) of this section, during the first semiannual sampling 
event. At least one sample from each well (background and downgradient) 
must be collected and analyzed during subsequent semiannual sampling 
events. The Director of an approved State may specify an appropriate 
alternative frequency for repeated sampling and analysis for appendix I 
constituents, or the alternative list approved in accordance with 
paragraph (a)(2) of this section, during the active life (including 
closure) and the post-closure care period. The alternative frequency 
during the active life (including closure) shall be no less than annual. 
The alternative frequency shall be based on consideration of the 
following factors:
    (1) Lithology of the aquifer and unsaturated zone;
    (2) Hydraulic conductivity of the aquifer and unsaturated zone;
    (3) Ground-water flow rates;
    (4) Minimum distance between upgradient edge of the MSWLF unit and 
downgradient monitoring well screen (minimum distance of travel); and
    (5) Resource value of the aquifer.
    (c) If the owner or operator determines, pursuant to Sec. 258.53(g) 
of this part, that there is a statistically significant increase over 
background for one or more of the constituents listed in appendix I to 
this part or in the alternative list approved in accordance with 
paragraph (a)(2) of this section, at any monitoring well at the boundary 
specified under Sec. 258.51(a)(2), the owner or operator:
    (1) Must, within 14 days of this finding, place a notice in the 
operating record indicating which constituents have shown statistically 
significant changes from background levels, and notify the State 
director that this notice was placed in the operating record; and
    (2) Must establish an assessment monitoring program meeting the 
requirements of Sec. 258.55 of this part within 90 days except as 
provided for in paragraph (c)(3) of this section.
    (3) The owner/operator may demonstrate that a source other than a 
MSWLF unit caused the contamination or that the statistically 
significant increase resulted from error in sampling, analysis, 
statistical evaluation, or natural variation in ground-water quality. A 
report documenting this demonstration must be certified by a qualified 
ground-water scientist or approved by the Director of an approved State 
and be placed in the operating record. If a successful demonstration is 
made and documented, the owner or operator may continue detection 
monitoring as specified in this section. If, after 90 days, a successful 
demonstration is not made, the owner or operator must initiate an 
assessment monitoring program as required in Sec. 258.55.



Sec. 258.55  Assessment monitoring program.

    (a) Assessment monitoring is required whenever a statistically 
significant increase over background has been detected for one or more 
of the constituents listed in the appendix I to this part or in the 
alternative list approved in accordance with Sec. 258.54(a)(2).
    (b) Within 90 days of triggering an assessment monitoring program, 
and annually thereafter, the owner or operator must sample and analyze 
the

[[Page 450]]

ground water for all constituents identified in appendix II to this 
part. A minimum of one sample from each downgradient well must be 
collected and analyzed during each sampling event. For any constituent 
detected in the downgradient wells as a result of the complete appendix 
II analysis, a minimum of four independent samples from each well 
(background and downgradient) must be collected and analyzed to 
establish background for the constituents. The Director of an approved 
State may specify an appropriate subset of wells to be sampled and 
analyzed for appendix II constituents during assessment monitoring. The 
Director of an approved State may delete any of the appendix II 
monitoring parameters for a MSWLF unit if it can be shown that the 
removed constituents are not reasonably expected to be in or derived 
from the waste contained in the unit.
    (c) The Director of an approved State may specify an appropriate 
alternate frequency for repeated sampling and analysis for the full set 
of appendix II constituents required by Sec. 258.55(b) of this part, 
during the active life (including closure) and post-closure care of the 
unit considering the following factors:
    (1) Lithology of the aquifer and unsaturated zone;
    (2) Hydraulic conductivity of the aquifer and unsaturated zone;
    (3) Ground-water flow rates;
    (4) Minimum distance between upgradient edge of the MSWLF unit and 
downgradient monitoring well screen (minimum distance of travel);
    (5) Resource value of the aquifer; and
    (6) Nature (fate and transport) of any constituents detected in 
response to this section.
    (d) After obtaining the results from the initial or subsequent 
sampling events required in paragraph (b) of this section, the owner or 
operator must:
    (1) Within 14 days, place a notice in the operating record 
identifying the appendix II constituents that have been detected and 
notify the State Director that this notice has been placed in the 
operating record;
    (2) Within 90 days, and on at least a semiannual basis thereafter, 
resample all wells specified by Sec. 258.51(a), conduct analyses for 
all constituents in appendix I to this part or in the alternative list 
approved in accordance with Sec. 258.54(a)(2), and for those 
constituents in appendix II to this part that are detected in response 
to paragraph (b) of this section, and record their concentrations in the 
facility operating record. At least one sample from each well 
(background and downgradient) must be collected and analyzed during 
these sampling events. The Director of an approved State may specify an 
alternative monitoring frequency during the active life (including 
closure) and the post-closure period for the constituents referred to in 
this paragraph. The alternative frequency for appendix I constituents, 
or the alternative list approved in accordance with Sec. 258.54(a)(2), 
during the active life (including closure) shall be no less than annual. 
The alternative frequency shall be based on consideration of the factors 
specified in paragraph (c) of this section;
    (3) Establish background concentrations for any constituents 
detected pursuant to paragraph (b) or (d)(2) of this section; and
    (4) Establish ground-water protection standards for all constituents 
detected pursuant to paragraph (b) or (d) of this section. The ground-
water protection standards shall be established in accordance with 
paragraphs (h) or (i) of this section.
    (e) If the concentrations of all appendix II constituents are shown 
to be at or below background values, using the statistical procedures in 
Sec. 258.53(g), for two consecutive sampling events, the owner or 
operator must notify the State Director of this finding and may return 
to detection monitoring.
    (f) If the concentrations of any appendix II constituents are above 
background values, but all concentrations are below the ground-water 
protection standard established under paragraphs (h) or (i) of this 
section, using the statistical procedures in Sec. 258.53(g), the owner 
or operator must continue assessment monitoring in accordance with this 
section.
    (g) If one or more appendix II constituents are detected at 
statistically significant levels above the ground-water protection 
standard established

[[Page 451]]

under paragraphs (h) or (i) of this section in any sampling event, the 
owner or operator must, within 14 days of this finding, place a notice 
in the operating record identifying the appendix II constituents that 
have exceeded the ground-water protection standard and notify the State 
Director and all appropriate local government officials that the notice 
has been placed in the operating record. The owner or operator also:
    (1)(i) Must characterize the nature and extent of the release by 
installing additional monitoring wells as necessary;
    (ii) Must install at least one additional monitoring well at the 
facility boundary in the direction of contaminant migration and sample 
this well in accordance with Sec. 258.55(d)(2);
    (iii) Must notify all persons who own the land or reside on the land 
that directly overlies any part of the plume of contamination if 
contaminants have migrated off-site if indicated by sampling of wells in 
accordance with Sec. 258.55 (g)(1); and
    (iv) Must initiate an assessment of corrective measures as required 
by Sec. 255.56 of this part within 90 days; or
    (2) May demonstrate that a source other than a MSWLF unit caused the 
contamination, or that the SSI increase resulted from error in sampling, 
analysis, statistical evaluation, or natural variation in ground-water 
quality. A report documenting this demonstration must be certified by a 
qualified ground-water scientist or approved by the Director of an 
approved State and placed in the operating record. If a successful 
demonstration is made the owner or operator must continue monitoring in 
accordance with the assessment monitoring program pursuant to Sec. 
258.55, and may return to detection monitoring if the appendix II 
constituents are at or below background as specified in Sec. 258.55(e). 
Until a successful demonstration is made, the owner or operator must 
comply with Sec. 258.55(g) including initiating an assessment of 
corrective measures.
    (h) The owner or operator must establish a ground-water protection 
standard for each appendix II constituent detected in the ground-water. 
The ground-water protection standard shall be:
    (1) For constituents for which a maximum contaminant level (MCL) has 
been promulgated under section 1412 of the Safe Drinking Water Act 
(codified) under 40 CFR part 141, the MCL for that constituent;
    (2) For constituents for which MCLs have not been promulgated, the 
background concentration for the constituent established from wells in 
accordance with Sec. 258.51(a)(1); or
    (3) For constituents for which the background level is higher than 
the MCL identified under paragraph (h)(1) of this section or health 
based levels identified under Sec. 258.55(i)(1), the background 
concentration.
    (i) The Director of an approved State may establish an alternative 
ground-water protection standard for constituents for which MCLs have 
not been established. These ground-water protection standards shall be 
appropriate health based levels that satisfy the following criteria:
    (1) The level is derived in a manner consistent with Agency 
guidelines for assessing the health risks of environmental pollutants 
(51 FR 33992, 34006, 34014, 34028, Sept. 24, 1986);
    (2) The level is based on scientifically valid studies conducted in 
accordance with the Toxic Substances Control Act Good Laboratory 
Practice Standards (40 CFR part 792) or equivalent;
    (3) For carcinogens, the level represents a concentration associated 
with an excess lifetime cancer risk level (due to continuous lifetime 
exposure) with the 1x10-4 to 1x10-6 range; and
    (4) For systemic toxicants, the level represents a concentration to 
which the human population (including sensitive subgroups) could be 
exposed to on a daily basis that is likely to be without appreciable 
risk of deleterious effects during a lifetime. For purposes of this 
subpart, systemic toxicants include toxic chemicals that cause effects 
other than cancer or mutation.
    (ii) [Reserved]
    (j) In establishing ground-water protection standards under 
paragraph (i) of this section, the Director of an approved State may 
consider the following:

[[Page 452]]

    (1) Multiple contaminants in the ground water;
    (2) Exposure threats to sensitive environmental receptors; and
    (3) Other site-specific exposure or potential exposure to ground 
water.



Sec. 258.56  Assessment of corrective measures.

    (a) Within 90 days of finding that any of the constituents listed in 
appendix II to this part have been detected at a statistically 
significant level exceeding the ground-water protection standards 
defined under Sec. 258.55 (h) or (i) of this part, the owner or 
operator must initiate an assessment of corrective measures. Such an 
assessment must be completed within a reasonable period of time.
    (b) The owner or operator must continue to monitor in accordance 
with the assessment monitoring program as specified in Sec. 258.55.
    (c) The assessment shall include an analysis of the effectiveness of 
potential corrective measures in meeting all of the requirements and 
objectives of the remedy as described under Sec. 258.57, addressing at 
least the following:
    (1) The performance, reliability, ease of implementation, and 
potential impacts of appropriate potential remedies, including safety 
impacts, cross-media impacts, and control of exposure to any residual 
contamination;
    (2) The time required to begin and complete the remedy;
    (3) The costs of remedy implementation; and
    (4) The institutional requirements such as State or local permit 
requirements or other environmental or public health requirements that 
may substantially affect implementation of the remedy(s).
    (d) The owner or operator must discuss the results of the corrective 
measures assessment, prior to the selection of remedy, in a public 
meeting with interested and affected parties.



Sec. 258.57  Selection of remedy.

    (a) Based on the results of the corrective measures assessment 
conducted under Sec. 258.56, the owner or operator must select a remedy 
that, at a minimum, meets the standards listed in paragraph (b) of this 
section. The owner or operator must notify the State Director, within 14 
days of selecting a remedy, a report describing the selected remedy has 
been placed in the operating record and how it meets the standards in 
paragraph (b) of this section.
    (b) Remedies must:
    (1) Be protective of human health and the environment;
    (2) Attain the ground-water protection standard as specified 
pursuant to Sec. Sec. 258.55 (h) or (i);
    (3) Control the source(s) of releases so as to reduce or eliminate, 
to the maximum extent practicable, further releases of appendix II 
constituents into the environment that may pose a threat to human health 
or the environment; and
    (4) Comply with standards for management of wastes as specified in 
Sec. 258.58(d).
    (c) In selecting a remedy that meets the standards of Sec. 
258.57(b), the owner or operator shall consider the following evaluation 
factors:
    (1) The long- and short-term effectiveness and protectiveness of the 
potential remedy(s), along with the degree of certainty that the remedy 
will prove successful based on consideration of the following:
    (i) Magnitude of reduction of existing risks;
    (ii) Magnitude of residual risks in terms of likelihood of further 
releases due to waste remaining following implementation of a remedy;
    (iii) The type and degree of long-term management required, 
including monitoring, operation, and maintenance;
    (iv) Short-term risks that might be posed to the community, workers, 
or the environment during implementation of such a remedy, including 
potential threats to human health and the environment associated with 
excavation, transportation, and redisposal of containment;
    (v) Time until full protection is achieved;
    (vi) Potential for exposure of humans and environmental receptors to 
remaining wastes, considering the potential threat to human health and 
the environment associated with excavation, transportation, redisposal, 
or containment;

[[Page 453]]

    (vii) Long-term reliability of the engineering and institutional 
controls; and
    (viii) Potential need for replacement of the remedy.
    (2) The effectiveness of the remedy in controlling the source to 
reduce further releases based on consideration of the following factors:
    (i) The extent to which containment practices will reduce further 
releases;
    (ii) The extent to which treatment technologies may be used.
    (3) The ease or difficulty of implementing a potential remedy(s) 
based on consideration of the following types of factors:
    (i) Degree of difficulty associated with constructing the 
technology;
    (ii) Expected operational reliability of the technologies;
    (iii) Need to coordinate with and obtain necessary approvals and 
permits from other agencies;
    (iv) Availability of necessary equipment and specialists; and
    (v) Available capacity and location of needed treatment, storage, 
and disposal services.
    (4) Practicable capability of the owner or operator, including a 
consideration of the technical and economic capability.
    (5) The degree to which community concerns are addressed by a 
potential remedy(s).
    (d) The owner or operator shall specify as part of the selected 
remedy a schedule(s) for initiating and completing remedial activities. 
Such a schedule must require the initiation of remedial activities 
within a reasonable period of time taking into consideration the factors 
set forth in paragraphs (d) (1)-(8) of this section. The owner or 
operator must consider the following factors in determining the schedule 
of remedial activities:
    (1) Extent and nature of contamination;
    (2) Practical capabilities of remedial technologies in achieving 
compliance with ground-water protection standards established under 
Sec. 258.55 (g) or (h) and other objectives of the remedy;
    (3) Availability of treatment or disposal capacity for wastes 
managed during implementation of the remedy;
    (4) Desirability of utilizing technologies that are not currently 
available, but which may offer significant advantages over already 
available technologies in terms of effectiveness, reliability, safety, 
or ability to achieve remedial objectives;
    (5) Potential risks to human health and the environment from 
exposure to contamination prior to completion of the remedy;
    (6) Resource value of the aquifer including:
    (i) Current and future uses;
    (ii) Proximity and withdrawal rate of users;
    (iii) Ground-water quantity and quality;
    (iv) The potential damage to wildlife, crops, vegetation, and 
physical structures caused by exposure to waste constituent;
    (v) The hydrogeologic characteristic of the facility and surrounding 
land;
    (vi) Ground-water removal and treatment costs; and
    (vii) The cost and availability of alternative water supplies.
    (7) Practicable capability of the owner or operator.
    (8) Other relevant factors.
    (e) The Director of an approved State may determine that remediation 
of a release of an appendix II constituent from a MSWLF unit is not 
necessary if the owner or operator demonstrates to the satisfaction of 
the Director of the approved State that:
    (1) The ground-water is additionally contaminated by substances that 
have originated from a source other than a MSWLF unit and those 
substances are present in concentrations such that cleanup of the 
release from the MSWLF unit would provide no significant reduction in 
risk to actual or potential receptors; or
    (2) The constituent(s) is present in ground water that:
    (i) Is not currently or reasonably expected to be a source of 
drinking water; and
    (ii) Is not hydraulically connected with waters to which the 
hazardous constituents are migrating or are likely to migrate in a 
concentration(s) that would exceed the ground-water protection standards 
established under Sec. 258.55 (h) or (i); or

[[Page 454]]

    (3) Remediation of the release(s) is technically impracticable; or
    (4) Remediation results in unacceptable cross-media impacts.
    (f) A determination by the Director of an approved State pursuant to 
paragraph (e) of this section shall not affect the authority of the 
State to require the owner or operator to undertake source control 
measures or other measures that may be necessary to eliminate or 
minimize further releases to the ground-water, to prevent exposure to 
the ground-water, or to remediate the ground-water to concentrations 
that are technically practicable and significantly reduce threats to 
human health or the environment.



Sec. 258.58  Implementation of the corrective action program.

    (a) Based on the schedule established under Sec. 258.57(d) for 
initiation and completion of remedial activities the owner/operator 
must:
    (1) Establish and implement a corrective action ground-water 
monitoring program that:
    (i) At a minimum, meet the requirements of an assessment monitoring 
program under Sec. 258.55;
    (ii) Indicate the effectiveness of the corrective action remedy; and
    (iii) Demonstrate compliance with ground-water protection standard 
pursuant to paragraph (e) of this section.
    (2) Implement the corrective action remedy selected under Sec. 
258.57; and
    (3) Take any interim measures necessary to ensure the protection of 
human health and the environment. Interim measures should, to the 
greatest extent practicable, be consistent with the objectives of and 
contribute to the performance of any remedy that may be required 
pursuant to Sec. 258.57. The following factors must be considered by an 
owner or operator in determining whether interim measures are necessary:
    (i) Time required to develop and implement a final remedy;
    (ii) Actual or potential exposure of nearby populations or 
environmental receptors to hazardous constituents;
    (iii) Actual or potential contamination of drinking water supplies 
or sensitive ecosystems;
    (iv) Further degradation of the ground-water that may occur if 
remedial action is not initiated expeditiously;
    (v) Weather conditions that may cause hazardous constituents to 
migrate or be released;
    (vi) Risks of fire or explosion, or potential for exposure to 
hazardous constituents as a result of an accident or failure of a 
container or handling system; and
    (vii) Other situations that may pose threats to human health and the 
environment.
    (b) An owner or operator may determine, based on information 
developed after implementation of the remedy has begun or other 
information, that compliance with requirements of Sec. 258.57(b) are 
not being achieved through the remedy selected. In such cases, the owner 
or operator must implement other methods or techniques that could 
practicably achieve compliance with the requirements, unless the owner 
or operator makes the determination under Sec. 258.58(c).
    (c) If the owner or operator determines that compliance with 
requirements under Sec. 258.57(b) cannot be practically achieved with 
any currently available methods, the owner or operator must:
    (1) Obtain certification of a qualified ground-water scientist or 
approval by the Director of an approved State that compliance with 
requirements under Sec. 258.57(b) cannot be practically achieved with 
any currently available methods;
    (2) Implement alternate measures to control exposure of humans or 
the environment to residual contamination, as necessary to protect human 
health and the environment; and
    (3) Implement alternate measures for control of the sources of 
contamination, or for removal or decontamination of equipment, units, 
devices, or structures that are:
    (i) Technically practicable; and
    (ii) Consistent with the overall objective of the remedy.
    (4) Notify the State Director within 14 days that a report 
justifying the alternative measures prior to implementing the 
alternative measures has been placed in the operating record.

[[Page 455]]

    (d) All solid wastes that are managed pursuant to a remedy required 
under Sec. 258.57, or an interim measure required under Sec. 
258.58(a)(3), shall be managed in a manner:
    (1) That is protective of human health and the environment; and
    (2) That complies with applicable RCRA requirements.
    (e) Remedies selected pursuant to Sec. 258.57 shall be considered 
complete when:
    (1) The owner or operator complies with the ground-water protection 
standards established under Sec. Sec. 258.55(h) or (i) at all points 
within the plume of contamination that lie beyond the ground-water 
monitoring well system established under Sec. 258.51(a).
    (2) Compliance with the ground-water protection standards 
established under Sec. Sec. 258.55(h) or (i) has been achieved by 
demonstrating that concentrations of appendix II constituents have not 
exceeded the ground-water protection standard(s) for a period of three 
consecutive years using the statistical procedures and performance 
standards in Sec. 258.53(g) and (h). The Director of an approved State 
may specify an alternative length of time during which the owner or 
operator must demonstrate that concentrations of appendix II 
constituents have not exceeded the ground-water protection standard(s) 
taking into consideration:
    (i) Extent and concentration of the release(s);
    (ii) Behavior characteristics of the hazardous constituents in the 
ground-water;
    (iii) Accuracy of monitoring or modeling techniques, including any 
seasonal, meteorological, or other environmental variabilities that may 
affect the accuracy; and
    (iv) Characteristics of the ground-water.
    (3) All actions required to complete the remedy have been satisfied.
    (f) Upon completion of the remedy, the owner or operator must notify 
the State Director within 14 days that a certification that the remedy 
has been completed in compliance with the requirements of Sec. 
258.58(e) has been placed in the operating record. The certification 
must be signed by the owner or operator and by a qualified ground-water 
scientist or approved by the Director of an approved State.
    (g) When, upon completion of the certification, the owner or 
operator determines that the corrective action remedy has been completed 
in accordance with the requirements under paragraph (e) of this section, 
the owner or operator shall be released from the requirements for 
financial assurance for corrective action under Sec. 258.73.



Sec. 258.59  [Reserved]



                 Subpart F_Closure and Post-Closure Care



Sec. 258.60  Closure criteria.

    (a) Owners or operators of all MSWLF units must install a final 
cover system that is designed to minimize infiltration and erosion. The 
final cover system must be designed and constructed to:
    (1) Have a permeability less than or equal to the permeability of 
any bottom liner system or natural subsoils present, or a permeability 
no greater than 1x10-5 cm/sec, whichever is less, and
    (2) Minimize infiltration through the closed MSWLF by the use of an 
infiltration layer that contains a minimum 18-inches of earthen 
material, and
    (3) Minimize erosion of the final cover by the use of an erosion 
layer that contains a minimum 6-inches of earthen material that is 
capable of sustaining native plant growth.
    (b) The Director of an approved State may approve an alternative 
final cover design that includes:
    (1) An infiltration layer that achieves an equivalent reduction in 
infiltration as the infiltration layer specified in paragraphs (a)(1) 
and (a)(2) of this section, and
    (2) An erosion layer that provides equivalent protection from wind 
and water erosion as the erosion layer specified in paragraph (a)(3) of 
this section.
    (3) The Director of an approved State may establish alternative 
requirements for the infiltration barrier in a paragraph (b)(1) of this 
section, after public review and comment, for any owners or operators of 
MSWLFs that dispose of 20 tons of municipal solid

[[Page 456]]

waste per day or less, based on an annual average. Any alternative 
requirements established under this paragraph must:
    (i) Consider the unique characteristics of small communities;
    (ii) Take into account climatic and hydrogeologic conditions; and
    (iii) Be protective of human health and the environment.
    (c) The owner or operator must prepare a written closure plan that 
describes the steps necessary to close all MSWLF units at any point 
during their active life in accordance with the cover design 
requirements in Sec. 258.60(a) or (b), as applicable. The closure plan, 
at a minimum, must include the following information:
    (1) A description of the final cover, designed in accordance with 
Sec. 258.60(a) and the methods and procedures to be used to install the 
cover;
    (2) An estimate of the largest area of the MSWLF unit ever requiring 
a final cover as required under Sec. 258.60(a) at any time during the 
active life;
    (3) An estimate of the maximum inventory of wastes ever on-site over 
the active life of the landfill facility; and
    (4) A schedule for completing all activities necessary to satisfy 
the closure criteria in Sec. 258.60.
    (d) The owner or operator must notify the State Director that a 
closure plan has been prepared and placed in the operating record no 
later than the effective date of this part, or by the initial receipt of 
waste, whichever is later.
    (e) Prior to beginning closure of each MSWLF unit as specified in 
Sec. 258.60(f), an owner or operator must notify the State Director 
that a notice of the intent to close the unit has been placed in the 
operating record.
    (f) The owner or operator must begin closure activities of each 
MSWLF unit no later than 30 days after the date on which the MSWLF unit 
receives the known final receipt of wastes or, if the MSWLF unit has 
remaining capacity and there is a reasonable likelihood that the MSWLF 
unit will receive additional wastes, no later than one year after the 
most recent receipt of wastes. Extensions beyond the one-year deadline 
for beginning closure may be granted by the Director of an approved 
State if the owner or operator demonstrates that the MSWLF unit has the 
capacity to receive additional wastes and the owner or operator has 
taken and will continue to take all steps necessary to prevent threats 
to human health and the environmental from the unclosed MSWLF unit.
    (g) The owner or operator of all MSWLF units must complete closure 
activities of each MSWLF unit in accordance with the closure plan within 
180 days following the beginning of closure as specified in paragraph 
(f) of this section. Extensions of the closure period may be granted by 
the Director of an approved State if the owner or operator demonstrates 
that closure will, of necessity, take longer than 180 days and he has 
taken and will continue to take all steps to prevent threats to human 
health and the environment from the unclosed MSWLF unit.
    (h) Following closure of each MSWLF unit, the owner or operator must 
notify the State Director that a certification, signed by an independent 
registered professional engineer or approved by Director of an approved 
State, verifying that closure has been completed in accordance with the 
closure plan, has been placed in the operating record.
    (i)(1) Following closure of all MSWLF units, the owner or operator 
must record a notation on the deed to the landfill facility property, or 
some other instrument that is normally examined during title search, and 
notify the State Director that the notation has been recorded and a copy 
has been placed in the operating record.
    (2) The notation on the deed must in perpetuity notify any potential 
purchaser of the property that:
    (i) The land has been used as a landfill facility; and
    (ii) Its use is restricted under Sec. 258.61(c)(3).
    (j) The owner or operator may request permission from the Director 
of an approved State to remove the notation from the deed if all wastes 
are removed from the facility.

[56 FR 51016, Oct. 9, 1991; 57 FR 28628, June 26, 1992, as amended at 62 
FR 40713, July 29, 1997]

[[Page 457]]



Sec. 258.61  Post-closure care requirements.

    (a) Following closure of each MSWLF unit, the owner or operator must 
conduct post-closure care. Post-closure care must be conducted for 30 
years, except as provided under paragraph (b) of this section, and 
consist of at least the following:
    (1) Maintaining the integrity and effectiveness of any final cover, 
including making repairs to the cover as necessary to correct the 
effects of settlement, subsidence, erosion, or other events, and 
preventing run-on and run-off from eroding or otherwise damaging the 
final cover;
    (2) Maintaining and operating the leachate collection system in 
accordance with the requirements in Sec. 258.40, if applicable. The 
Director of an approved State may allow the owner or operator to stop 
managing leachate if the owner or operator demonstrates that leachate no 
longer poses a threat to human health and the environment;
    (3) Monitoring the ground water in accordance with the requirements 
of subpart E of this part and maintaining the ground-water monitoring 
system, if applicable; and
    (4) Maintaining and operating the gas monitoring system in 
accordance with the requirements of Sec. 258.23.
    (b) The length of the post-closure care period may be:
    (1) Decreased by the Director of an approved State if the owner or 
operator demonstrates that the reduced period is sufficient to protect 
human health and the environment and this demonstration is approved by 
the Director of an approved State; or
    (2) Increased by the Director of an approved State if the Director 
of an approved State determines that the lengthened period is necessary 
to protect human health and the environment.
    (c) The owner or operator of all MSWLF units must prepare a written 
post-closure plan that includes, at a minimum, the following 
information:
    (1) A description of the monitoring and maintenance activities 
required in Sec. 258.61(a) for each MSWLF unit, and the frequency at 
which these activities will be performed;
    (2) Name, address, and telephone number of the person or office to 
contact about the facility during the post-closure period; and
    (3) A description of the planned uses of the property during the 
post-closure period. Post-closure use of the property shall not disturb 
the integrity of the final cover, liner(s), or any other components of 
the containment system, or the function of the monitoring systems unless 
necessary to comply with the requirements in this part 258. The Director 
of an approved State may approve any other disturbance if the owner or 
operator demonstrates that disturbance of the final cover, liner or 
other component of the containment system, including any removal of 
waste, will not increase the potential threat to human health or the 
environment.
    (d) The owner or operator must notify the State Director that a 
post-closure plan has been prepared and placed in the operating record 
no later than the effective date of this part, October 9, 1993, or by 
the initial receipt of waste, whichever is later.
    (e) Following completion of the post-closure care period for each 
MSWLF unit, the owner or operator must notify the State Director that a 
certification, signed by an independent registered professional engineer 
or approved by the Director of an approved State, verifying that post-
closure care has been completed in accordance with the post-closure 
plan, has been placed in the operating record.

[56 FR 51016, Oct. 9, 1991; 57 FR 28628, June 26, 1992]



Sec. Sec. 258.62-258.69  [Reserved]



                 Subpart G_Financial Assurance Criteria

    Source: 56 FR 51029, Oct. 9, 1991, unless otherwise noted.



Sec. 258.70  Applicability and effective date.

    (a) The requirements of this section apply to owners and operators 
of all MSWLF units, except owners or operators who are State or Federal 
government entities whose debts and liabilities are the debts and 
liabilities of a State or the United States.

[[Page 458]]

    (b) The requirements of this section are effective April 9, 1997 
except for MSWLF units meeting the conditions of Sec. 258.1(f)(1), in 
which case the effective date is October 9, 1997.
    (c) The Director of an approved State may waive the requirements of 
this section for up to one year until April 9, 1998 for good cause if an 
owner or operator demonstrates to the Director's satisfaction that the 
April 9, 1997 effective date for the requirements of this section does 
not provide sufficient time to comply with these requirements and that 
such a waiver will not adversely affect human health and the 
environment.

[56 FR 51029, Oct. 9, 1991, as amended at 60 FR 52342, Oct. 6, 1995; 61 
FR 60337, Nov. 27, 1996]



Sec. 258.71  Financial assurance for closure.

    (a) The owner or operator must have a detailed written estimate, in 
current dollars, of the cost of hiring a third party to close the 
largest area of all MSWLF units ever requiring a final cover as required 
under Sec. 258.60 at any time during the active life in accordance with 
the closure plan. The owner or operator must notify the State Director 
that the estimate has been placed in the operating record.
    (1) The cost estimate must equal the cost of closing the largest 
area of all MSWLF unit ever requiring a final cover at any time during 
the active life when the extent and manner of its operation would make 
closure the most expensive, as indicated by its closure plan (see Sec. 
258.60(c)(2) of this part).
    (2) During the active life of the MSWLF unit, the owner or operator 
must annually adjust the closure cost estimate for inflation.
    (3) The owner or operator must increase the closure cost estimate 
and the amount of financial assurance provided under paragraph (b) of 
this section if changes to the closure plan or MSWLF unit conditions 
increase the maximum cost of closure at any time during the remaining 
active life.
    (4) The owner or operator may reduce the closure cost estimate and 
the amount of financial assurance provided under paragraph (b) of this 
section if the cost estimate exceeds the maximum cost of closure at any 
time during the remaining life of the MSWLF unit. The owner or operator 
must notify the State Director that the justification for the reduction 
of the closure cost estimate and the amount of financial assurance has 
been placed in the operating record.
    (b) The owner or operator of each MSWLF unit must establish 
financial assurance for closure of the MSWLF unit in compliance with 
Sec. 258.74. The owner or operator must provide continuous coverage for 
closure until released from financial assurance requirements by 
demonstrating compliance with Sec. 258.60 (h) and (i).

[56 FR 51029, Oct. 9, 1991; 57 FR 28628, June 26, 1992]



Sec. 258.72  Financial assurance for post-closure care.

    (a) The owner or operator must have a detailed written estimate, in 
current dollars, of the cost of hiring a third party to conduct post-
closure care for the MSWLF unit in compliance with the post-closure plan 
developed under Sec. 258.61 of this part. The post-closure cost 
estimate used to demonstrate financial assurance in paragraph (b) of 
this section must account for the total costs of conducting post-closure 
care, including annual and periodic costs as described in the post-
closure plan over the entire post-closure care period. The owner or 
operator must notify the State Director that the estimate has been 
placed in the operating record.
    (1) The cost estimate for post-closure care must be based on the 
most expensive costs of post-closure care during the post-closure care 
period.
    (2) During the active life of the MSWLF unit and during the post-
closure care period, the owner or operator must annually adjust the 
post-closure cost estimate for inflation.
    (3) The owner or operator must increase the post-closure care cost 
estimate and the amount of financial assurance provided under paragraph 
(b) of this section if changes in the post-closure plan or MSWLF unit 
conditions increase the maximum costs of post-closure care.
    (4) The owner or operator may reduce the post-closure cost estimate 
and the amount of financial assurance provided under paragraph (b) of 
this section if

[[Page 459]]

the cost estimate exceeds the maximum costs of post-closure care 
remaining over the post-closure care period. The owner or operator must 
notify the State Director that the justification for the reduction of 
the post-closure cost estimate and the amount of financial assurance has 
been placed in the operating record.
    (b) The owner or operator of each MSWLF unit must establish, in a 
manner in accordance with Sec. 258.74, financial assurance for the 
costs of post-closure care as required under Sec. 258.61 of this part. 
The owner or operator must provide continuous coverage for post-closure 
care until released from financial assurance requirements for post-
closure care by demonstrating compliance with Sec. 258.61(e).



Sec. 258.73  Financial assurance for corrective action.

    (a) An owner or operator of a MSWLF unit required to undertake a 
corrective action program under Sec. 258.58 of this part must have a 
detailed written estimate, in current dollars, of the cost of hiring a 
third party to perform the corrective action in accordance with the 
program required under Sec. 258.58 of this part. The corrective action 
cost estimate must account for the total costs of corrective action 
activities as described in the corrective action plan for the entire 
corrective action period. The owner or operator must notify the State 
Director that the estimate has been placed in the operating record.
    (1) The owner or operator must annually adjust the estimate for 
inflation until the corrective action program is completed in accordance 
with Sec. 258.58(f) of this part.
    (2) The owner or operator must increase the corrective action cost 
estimate and the amount of financial assurance provided under paragraph 
(b) of this section if changes in the corrective action program or MSWLF 
unit conditions increase the maximum costs of corrective action.
    (3) The owner or operator may reduce the amount of the corrective 
action cost estimate and the amount of financial assurance provided 
under paragraph (b) of this section if the cost estimate exceeds the 
maximum remaining costs of corrective action. The owner or operator must 
notify the State Director that the justification for the reduction of 
the corrective action cost estimate and the amount of financial 
assurance has been placed in the operating record.
    (b) The owner or operator of each MSWLF unit required to undertake a 
corrective action program under Sec. 258.58 of this part must 
establish, in a manner in accordance with Sec. 258.74, financial 
assurance for the most recent corrective action program. The owner or 
operator must provide continuous coverage for corrective action until 
released from financial assurance requirements for corrective action by 
demonstrating compliance with Sec. 258.58 (f) and (g).



Sec. 258.74  Allowable mechanisms.

    The mechanisms used to demonstrate financial assurance under this 
section must ensure that the funds necessary to meet the costs of 
closure, post-closure care, and corrective action for known releases 
will be available whenever they are needed. Owners and operators must 
choose from the options specified in paragraphs (a) through (j) of this 
section.
    (a) Trust Fund. (1) An owner or operator may satisfy the 
requirements of this section by establishing a trust fund which conforms 
to the requirements of this paragraph. The trustee must be an entity 
which has the authority to act as a trustee and whose trust operations 
are regulated and examined by a Federal or State agency. A copy of the 
trust agreement must be placed in the facility's operating record.
    (2) Payments into the trust fund must be made annually by the owner 
or operator over the term of the initial permit or over the remaining 
life of the MSWLF unit, whichever is shorter, in the case of a trust 
fund for closure or post-closure care, or over one-half of the estimated 
length of the corrective action program in the case of corrective action 
for known releases. This period is referred to as the pay-in period.
    (3) For a trust fund used to demonstrate financial assurance for 
closure and post-closure care, the first payment into the fund must be 
at least equal to the current cost estimate for

[[Page 460]]

closure or post-closure care, except as provided in paragraph (k) of 
this section, divided by the number of years in the pay-in period as 
defined in paragraph (a)(2) of this section. The amount of subsequent 
payments must be determined by the following formula:

Next Payment = [CE - CV]/Y

where CE is the current cost estimate for closure or post-closure care 
(updated for inflation or other changes), CV is the current value of the 
trust fund, and Y is the number of years remaining in the pay-in period.

    (4) For a trust fund used to demonstrate financial assurance for 
corrective action, the first payment into the trust fund must be at 
least equal to one-half of the current cost estimate for corrective 
action, except as provided in paragraph (k) of this section, divided by 
the number of years in the corrective action pay-in period as defined in 
paragraph (a)(2) of this section. The amount of subsequent payments must 
be determined by the following formula:

Next Payment = [RB - CV]/Y

where RB is the most recent estimate of the required trust fund balance 
for corrective action (i.e., the total costs that will be incurred 
during the second half of the corrective action period), CV is the 
current value of the trust fund, and Y is the number of years remaining 
in the pay-in period.

    (5) The initial payment into the trust fund must be made before the 
initial receipt of waste or before the effective date of the 
requirements of this section (April 9, 1997, or October 9, 1997 for 
MSWLF units meeting the conditions of Sec. 258.1(f)(1)), whichever is 
later, in the case of closure and post-closure care, or no later than 
120 days after the corrective action remedy has been selected in 
accordance with the requirements of Sec. 258.58.
    (6) If the owner or operator establishes a trust fund after having 
used one or more alternate mechanisms specified in this section, the 
initial payment into the trust fund must be at least the amount that the 
fund would contain if the trust fund were established initially and 
annual payments made according to the specifications of this paragraph 
and paragraph (a) of this section, as applicable.
    (7) The owner or operator, or other person authorized to conduct 
closure, post-closure care, or corrective action activities may request 
reimbursement from the trustee for these expenditures. Requests for 
reimbursement will be granted by the trustee only if sufficient funds 
are remaining in the trust fund to cover the remaining costs of closure, 
post-closure care, or corrective action, and if justification and 
documentation of the cost is placed in the operating record. The owner 
or operator must notify the State Director that the documentation of the 
justification for reimbursement has been placed in the operating record 
and that reimbursement has been received.
    (8) The trust fund may be terminated by the owner or operator only 
if the owner or operator substitutes alternate financial assurance as 
specified in this section or if he is no longer required to demonstrate 
financial responsibility in accordance with the requirements of 
Sec. Sec. 258.71(b), 258.72(b), or 258.73(b).
    (b) Surety Bond Guaranteeing Payment or Performance. (1) An owner or 
operator may demonstrate financial assurance for closure or post-closure 
care by obtaining a payment or performance surety bond which conforms to 
the requirements of this paragraph. An owner or operator may demonstrate 
financial assurance for corrective action by obtaining a performance 
bond which conforms to the requirements of this paragraph. The bond must 
be effective before the initial receipt of waste or before the effective 
date of the requirements of this section (April 9, 1997, or October 9, 
1997 for MSWLF units meeting the conditions of Sec. 258.1(f)(1)), 
whichever is later, in the case of closure and post-closure care, or no 
later than 120 days after the corrective action remedy has been selected 
in accordance with the requirements of Sec. 258.58. The owner or 
operator must notify the State Director that a copy of the bond has been 
placed in the operating record. The surety company issuing the bond 
must, at a minimum, be among those listed as acceptable sureties on 
Federal bonds in Circular 570 of the U.S. Department of the Treasury.
    (2) The penal sum of the bond must be in an amount at least equal to 
the

[[Page 461]]

current closure, post-closure care or corrective action cost estimate, 
whichever is applicable, except as provided in Sec. 258.74(k).
    (3) Under the terms of the bond, the surety will become liable on 
the bond obligation when the owner or operator fails to perform as 
guaranteed by the bond.
    (4) The owner or operator must establish a standby trust fund. The 
standby trust fund must meet the requirements of Sec. 258.74(a) except 
the requirements for initial payment and subsequent annual payments 
specified in Sec. 258.74 (a)(2), (3), (4) and (5).
    (5) Payments made under the terms of the bond will be deposited by 
the surety directly into the standby trust fund. Payments from the trust 
fund must be approved by the trustee.
    (6) Under the terms of the bond, the surety may cancel the bond by 
sending notice of cancellation by certified mail to the owner and 
operator and to the State Director 120 days in advance of cancellation. 
If the surety cancels the bond, the owner or operator must obtain 
alternate financial assurance as specified in this section.
    (7) The owner or operator may cancel the bond only if alternate 
financial assurance is substituted as specified in this section or if 
the owner or operator is no longer required to demonstrate financial 
responsibility in accordance with Sec. 258.71(b), Sec. 258.72(b) or 
Sec. 258.73(b).
    (c) Letter of credit. (1) An owner or operator may satisfy the 
requirements of this section by obtaining an irrevocable standby letter 
of credit which conforms to the requirements of this paragraph. The 
letter of credit must be effective before the initial receipt of waste 
or before the effective date of the requirements of this section (April 
9, 1997, or October 9, 1997 for MSWLF units meeting the conditions of 
Sec. 258.1(f)(1)), whichever is later, in the case of closure and post-
closure care, or no later than 120 days after the corrective action 
remedy has been selected in accordance with the requirements of Sec. 
258.58. The owner or operator must notify the State Director that a copy 
of the letter of credit has been placed in the operating record. The 
issuing institution must be an entity which has the authority to issue 
letters of credit and whose letter-of-credit operations are regulated 
and examined by a Federal or State agency.
    (2) A letter from the owner or operator referring to the letter of 
credit by number, issuing institution, and date, and providing the 
following information: Name, and address of the facility, and the amount 
of funds assured, must be included with the letter of credit in the 
operating record.
    (3) The letter of credit must be irrevocable and issued for a period 
of at least one year in an amount at least equal to the current cost 
estimate for closure, post-closure care or corrective action, whichever 
is applicable, except as provided in paragraph (k) of this section. The 
letter of credit must provide that the expiration date will be 
automatically extended for a period of at least one year unless the 
issuing institution has cancelled the letter of credit by sending notice 
of cancellation by certified mail to the owner and operator and to the 
State Director 120 days in advance of cancellation. If the letter of 
credit is cancelled by the issuing institution, the owner or operator 
must obtain alternate financial assurance.
    (4) The owner or operator may cancel the letter of credit only if 
alternate financial assurance is substituted as specified in this 
section or if the owner or operator is released from the requirements of 
this section in accordance with Sec. 258.71(b), Sec. 258.72(b) or 
Sec. 258.73(b).
    (d) Insurance. (1) An owner or operator may demonstrate financial 
assurance for closure and post-closure care by obtaining insurance which 
conforms to the requirements of this paragraph. The insurance must be 
effective before the initial receipt of waste or before the effective 
date of the requirements of this section (April 9, 1997, or October 9, 
1997 for MSWLF units meeting the conditions of Sec. 258.1(f)(1)), 
whichever is later, in the case of closure and post-closure care, or no 
later than 120 days after the corrective action remedy has been selected 
in accordance with the requirements of Sec. 258.58. At a minimum, the 
insurer must be licensed to transact the business of insurance, or 
eligible to provide insurance as an excess or surplus lines insurer, in 
one or more

[[Page 462]]

States. The owner or operator must notify the State Director that a copy 
of the insurance policy has been placed in the operating record.
    (2) The closure or post-closure care insurance policy must guarantee 
that funds will be available to close the MSWLF unit whenever final 
closure occurs or to provide post-closure care for the MSWLF unit 
whenever the post-closure care period begins, whichever is applicable. 
The policy must also guarantee that once closure or post-closure care 
begins, the insurer will be responsible for the paying out of funds to 
the owner or operator or other person authorized to conduct closure or 
post-closure care, up to an amount equal to the face amount of the 
policy.
    (3) The insurance policy must be issued for a face amount at least 
equal to the current cost estimate for closure or post-closure care, 
whichever is applicable, except as provided in paragraph (k) of this 
section. The term face amount means the total amount the insurer is 
obligated to pay under the policy. Actual payments by the insurer will 
not change the face amount, although the insurer's future liability will 
be lowered by the amount of the payments.
    (4) An owner or operator, or any other person authorized to conduct 
closure or post-closure care, may receive reimbursements for closure or 
post-closure expenditures, whichever is applicable. Requests for 
reimbursement will be granted by the insurer only if the remaining value 
of the policy is sufficient to cover the remaining costs of closure or 
post-closure care, and if justification and documentation of the cost is 
placed in the operating record. The owner or operator must notify the 
State Director that the documentation of the justification for 
reimbursement has been placed in the operating record and that 
reimbursement has been received.
    (5) Each policy must contain a provision allowing assignment of the 
policy to a successor owner or operator. Such assignment may be 
conditional upon consent of the insurer, provided that such consent is 
not unreasonably refused.
    (6) The insurance policy must provide that the insurer may not 
cancel, terminate or fail to renew the policy except for failure to pay 
the premium. The automatic renewal of the policy must, at a minimum, 
provide the insured with the option of renewal at the face amount of the 
expiring policy. If there is a failure to pay the premium, the insurer 
may cancel the policy by sending notice of cancellation by certified 
mail to the owner and operator and to the State Director 120 days in 
advance of cancellation. If the insurer cancels the policy, the owner or 
operator must obtain alternate financial assurance as specified in this 
section.
    (7) For insurance policies providing coverage for post-closure care, 
commencing on the date that liability to make payments pursuant to the 
policy accrues, the insurer will thereafter annually increase the face 
amount of the policy. Such increase must be equivalent to the face 
amount of the policy, less any payments made, multiplied by an amount 
equivalent to 85 percent of the most recent investment rate or of the 
equivalent coupon-issue yield announced by the U.S. Treasury for 26-week 
Treasury securities.
    (8) The owner or operator may cancel the insurance policy only if 
alternate financial assurance is substituted as specified in this 
section or if the owner or operator, is no longer required to 
demonstrate financial responsibility in accordance with the requirements 
of Sec. 258.71(b), Sec. 258.72(b) or Sec. 258.73(b).
    (e) Corporate financial test. An owner or operator that satisfies 
the requirements of this paragraph (e) may demonstrate financial 
assurance up to the amount specified in this paragraph (e):
    (1) Financial component. (i) The owner or operator must satisfy one 
of the following three conditions:
    (A) A current rating for its senior unsubordinated debt of AAA, AA, 
A, or BBB as issued by Standard and Poor's or Aaa, Aa, A or Baa as 
issued by Moody's; or
    (B) A ratio of less than 1.5 comparing total liabilities to net 
worth; or
    (C) A ratio of greater than 0.10 comparing the sum of net income 
plus depreciation, depletion and amortization, minus $10 million, to 
total liabilities.
    (ii) The tangible net worth of the owner or operator must be greater

[[Page 463]]

than: (A) The sum of the current closure, post-closure care, corrective 
action cost estimates and any other environmental obligations, including 
guarantees, covered by a financial test plus $10 million except as 
provided in paragraph (e)(1)(ii)(B) of this section.
    (B) $10 million in net worth plus the amount of any guarantees that 
have not been recognized as liabilities on the financial statements 
provided all of the current closure, post-closure care, and corrective 
action costs and any other environmental obligations covered by a 
financial test are recognized as liabilities on the owner's or 
operator's audited financial statements, and subject to the approval of 
the State Director.
    (iii) The owner or operator must have assets located in the United 
States amounting to at least the sum of current closure, post-closure 
care, corrective action cost estimates and any other environmental 
obligations covered by a financial test as described in paragraph (e)(3) 
of this section.
    (2) Recordkeeping and reporting requirements. (i) The owner or 
operator must place the following items into the facility's operating 
record:
    (A) A letter signed by the owner's or operator's chief financial 
officer that:
    (1) Lists all the current cost estimates covered by a financial 
test, including, but not limited to, cost estimates required for 
municipal solid waste management facilities under this part 258, cost 
estimates required for UIC facilities under 40 CFR part 144, if 
applicable, cost estimates required for petroleum underground storage 
tank facilities under 40 CFR part 280, if applicable, cost estimates 
required for PCB storage facilities under 40 CFR part 761, if 
applicable, and cost estimates required for hazardous waste treatment, 
storage, and disposal facilities under 40 CFR parts 264 and 265, if 
applicable; and
    (2) Provides evidence demonstrating that the firm meets the 
conditions of either paragraph (e)(1)(i)(A) or (e)(1)(i)(B) or 
(e)(1)(i)(C) of this section and paragraphs (e)(1)(ii) and (e)(1)(iii) 
of this section.
    (B) A copy of the independent certified public accountant's 
unqualified opinion of the owner's or operator's financial statements 
for the latest completed fiscal year. To be eligible to use the 
financial test, the owner's or operator's financial statements must 
receive an unqualified opinion from the independent certified public 
accountant. An adverse opinion, disclaimer of opinion, or other 
qualified opinion will be cause for disallowance, with the potential 
exception for qualified opinions provided in the next sentence. The 
Director of an approved State may evaluate qualified opinions on a case-
by-case basis and allow use of the financial test in cases where the 
Director deems that the matters which form the basis for the 
qualification are insufficient to warrant disallowance of the test. If 
the Director of an approved State does not allow use of the test, the 
owner or operator must provide alternate financial assurance that meets 
the requirements of this section.
    (C) If the chief financial officer's letter providing evidence of 
financial assurance includes financial data showing that owner or 
operator satisfies paragraph (e)(1)(i)(B) or (e)(1)(i)(C) of this 
section that are different from data in the audited financial statements 
referred to in paragraph (e)(2)(i)(B) of this section or any other 
audited financial statement or data filed with the SEC, then a special 
report from the owner's or operator's independent certified public 
accountant to the owner or operator is required. The special report 
shall be based upon an agreed upon procedures engagement in accordance 
with professional auditing standards and shall describe the procedures 
performed in comparing the data in the chief financial officer's letter 
derived from the independently audited, year-end financial statements 
for the latest fiscal year with the amounts in such financial 
statements, the findings of that comparison, and the reasons for any 
differences.
    (D) If the chief financial officer's letter provides a demonstration 
that the firm has assured for environmental obligations as provided in 
paragraph (e)(1)(ii)(B) of this section, then the letter shall include a 
report from the

[[Page 464]]

independent certified public accountant that verifies that all of the 
environmental obligations covered by a financial test have been 
recognized as liabilities on the audited financial statements, how these 
obligations have been measured and reported, and that the tangible net 
worth of the firm is at least $10 million plus the amount of any 
guarantees provided.
    (ii) An owner or operator must place the items specified in 
paragraph (e)(2)(i) of this section in the operating record and notify 
the State Director that these items have been placed in the operating 
record before the initial receipt of waste or before the effective date 
of the requirements of this section (April 9, 1997 or October 9, 1997 
for MSWLF units meeting the conditions of Sec. 258.1(f)(1)), whichever 
is later in the case of closure, and post-closure care, or no later than 
120 days after the corrective action remedy has been selected in 
accordance with the requirements of Sec. 258.58.
    (iii) After the initial placement of items specified in paragraph 
(e)(2)(i) of this section in the operating record, the owner or operator 
must annually update the information and place updated information in 
the operating record within 90 days following the close of the owner or 
operator's fiscal year. The Director of a State may provide up to an 
additional 45 days for an owner or operator who can demonstrate that 90 
days is insufficient time to acquire audited financial statements. The 
updated information must consist of all items specified in paragraph 
(e)(2)(i) of this section.
    (iv) The owner or operator is no longer required to submit the items 
specified in this paragraph (e)(2) or comply with the requirements of 
this paragraph (e) when:
    (A) He substitutes alternate financial assurance as specified in 
this section that is not subject to these recordkeeping and reporting 
requirements; or
    (B) He is released from the requirements of this section in 
accordance with Sec. 258.71(b), Sec. 258.72(b), or Sec. 258.73(b).
    (v) If the owner or operator no longer meets the requirements of 
paragraph (e)(1) of this section, the owner or operator must, within 120 
days following the close of the owner or operator's fiscal year, obtain 
alternative financial assurance that meets the requirements of this 
section, place the required submissions for that assurance in the 
operating record, and notify the State Director that the owner or 
operator no longer meets the criteria of the financial test and that 
alternate assurance has been obtained.
    (vi) The Director of an approved State may, based on a reasonable 
belief that the owner or operator may no longer meet the requirements of 
paragraph (e)(1) of this section, require at any time the owner or 
operator to provide reports of its financial condition in addition to or 
including current financial test documentation as specified in paragraph 
(e)(2) of this section. If the Director of an approved State finds that 
the owner or operator no longer meets the requirements of paragraph 
(e)(1) of this section, the owner or operator must provide alternate 
financial assurance that meets the requirements of this section.
    (3) Calculation of costs to be assured. When calculating the current 
cost estimates for closure, post-closure care, corrective action, or the 
sum of the combination of such costs to be covered, and any other 
environmental obligations assured by a financial test referred to in 
this paragraph (e), the owner or operator must include cost estimates 
required for municipal solid waste management facilities under this 
part, as well as cost estimates required for the following environmental 
obligations, if it assures them through a financial test: obligations 
associated with UIC facilities under 40 CFR part 144, petroleum 
underground storage tank facilities under 40 CFR part 280, PCB storage 
facilities under 40 CFR part 761, and hazardous waste treatment, 
storage, and disposal facilities under 40 CFR parts 264 and 265.
    (f) Local government financial test. An owner or operator that 
satisfies the requirements of paragraphs (f)(1) through (3) of this 
section may demonstrate financial assurance up to the amount specified 
in paragraph (f)(4) of this section:
    (1) Financial component. (i) The owner or operator must satisfy 
paragraph (f)(1)(i)(A) or (B) of this section as applicable:

[[Page 465]]

    (A) If the owner or operator has outstanding, rated, general 
obligation bonds that are not secured by insurance, a letter of credit, 
or other collateral or guarantee, it must have a current rating of Aaa, 
Aa, A, or Baa, as issued by Moody's, or AAA, AA, A, or BBB, as issued by 
Standard and Poor's on all such general obligation bonds; or
    (B) The owner or operator must satisfy each of the following 
financial ratios based on the owner or operator's most recent audited 
annual financial statement:
    (1) A ratio of cash plus marketable securities to total expenditures 
greater than or equal to 0.05; and
    (2) A ratio of annual debt service to total expenditures less than 
or equal to 0.20.
    (ii) The owner or operator must prepare its financial statements in 
conformity with Generally Accepted Accounting Principles for governments 
and have its financial statements audited by an independent certified 
public accountant (or appropriate State agency).
    (iii) A local government is not eligible to assure its obligations 
under Sec. 258.74(f) if it:
    (A) Is currently in default on any outstanding general obligation 
bonds; or
    (B) Has any outstanding general obligation bonds rated lower than 
Baa as issued by Moody's or BBB as issued by Standard and Poor's; or
    (C) Operated at a deficit equal to five percent or more of total 
annual revenue in each of the past two fiscal years; or
    (D) Receives an adverse opinion, disclaimer of opinion, or other 
qualified opinion from the independent certified public accountant (or 
appropriate State agency) auditing its financial statement as required 
under paragraph (f)(1)(ii) of this section. However, the Director of an 
approved State may evaluate qualified opinions on a case-by-case basis 
and allow use of the financial test in cases where the Director deems 
the qualification insufficient to warrant disallowance of use of the 
test.
    (iv) The following terms used in this paragraph are defined as 
follows:
    (A) Deficit equals total annual revenues minus total annual 
expenditures;
    (B) Total revenues include revenues from all taxes and fees but does 
not include the proceeds from borrowing or asset sales, excluding 
revenue from funds managed by local government on behalf of a specific 
third party;
    (C) Total expenditures include all expenditures excluding capital 
outlays and debt repayment;
    (D) Cash plus marketable securities is all the cash plus marketable 
securities held by the local government on the last day of a fiscal 
year, excluding cash and marketable securities designated to satisfy 
past obligations such as pensions; and
    (E) Debt service is the amount of principal and interest due on a 
loan in a given time period, typically the current year.
    (2) Public notice component. The local government owner or operator 
must place a reference to the closure and post-closure care costs 
assured through the financial test into its next comprehensive annual 
financial report (CAFR) after the effective date of this section or 
prior to the initial receipt of waste at the facility, whichever is 
later. Disclosure must include the nature and source of closure and 
post-closure care requirements, the reported liability at the balance 
sheet date, the estimated total closure and post-closure care cost 
remaining to be recognized, the percentage of landfill capacity used to 
date, and the estimated landfill life in years. A reference to 
corrective action costs must be placed in the CAFR not later than 120 
days after the corrective action remedy has been selected in accordance 
with the requirements of Sec. 258.58. For the first year the financial 
test is used to assure costs at a particular facility, the reference may 
instead be placed in the operating record until issuance of the next 
available CAFR if timing does not permit the reference to be 
incorporated into the most recently issued CAFR or budget. For closure 
and post-closure costs, conformance with Government Accounting Standards 
Board Statement 18 assures compliance with this public notice component.
    (3) Recordkeeping and reporting requirements. (i) The local 
government

[[Page 466]]

owner or operator must place the following items in the facility's 
operating record:
    (A) A letter signed by the local government's chief financial 
officer that:
    (1) Lists all the current cost estimates covered by a financial 
test, as described in paragraph (f)(4) of this section;
    (2) Provides evidence and certifies that the local government meets 
the conditions of paragraphs (f)(1)(i), (f)(1)(ii), and (f)(1)(iii) of 
this section; and
    (3) Certifies that the local government meets the conditions of 
paragraphs (f)(2) and (f)(4) of this section.
    (B) The local government's independently audited year-end financial 
statements for the latest fiscal year (except for local governments 
where audits are required every two years where unaudited statements may 
be used in years when audits are not required), including the 
unqualified opinion of the auditor who must be an independent, certified 
public accountant or an appropriate State agency that conducts 
equivalent comprehensive audits;
    (C) A report to the local government from the local government's 
independent certified public accountant (CPA) or the appropriate State 
agency based on performing an agreed upon procedures engagement relative 
to the financial ratios required by paragraph (f)(1)(i)(B) of this 
section, if applicable, and the requirements of paragraphs (f)(1)(ii) 
and (f)(1)(iii) (C) and (D) of this section. The CPA or State agency's 
report should state the procedures performed and the CPA or State 
agency's findings; and
    (D) A copy of the comprehensive annual financial report (CAFR) used 
to comply with paragraph (f)(2) of this section or certification that 
the requirements of General Accounting Standards Board Statement 18 have 
been met.
    (ii) The items required in paragraph (f)(3)(i) of this section must 
be placed in the facility operating record as follows:
    (A) In the case of closure and post-closure care, either before the 
effective date of this section, which is April 9, 1997, or prior to the 
initial receipt of waste at the facility, whichever is later, or
    (B) In the case of corrective action, not later than 120 days after 
the corrective action remedy is selected in accordance with the 
requirements of Sec. 258.58.
    (iii) After the initial placement of the items in the facility's 
operating record, the local government owner or operator must update the 
information and place the updated information in the operating record 
within 180 days following the close of the owner or operator's fiscal 
year.
    (iv) The local government owner or operator is no longer required to 
meet the requirements of paragraph (f)(3) of this section when:
    (A) The owner or operator substitutes alternate financial assurance 
as specified in this section; or
    (B) The owner or operator is released from the requirements of this 
section in accordance with Sec. 258.71(b), 258.72(b), or 258.73(b).
    (v) A local government must satisfy the requirements of the 
financial test at the close of each fiscal year. If the local government 
owner or operator no longer meets the requirements of the local 
government financial test it must, within 210 days following the close 
of the owner or operator's fiscal year, obtain alternative financial 
assurance that meets the requirements of this section, place the 
required submissions for that assurance in the operating record, and 
notify the State Director that the owner or operator no longer meets the 
criteria of the financial test and that alternate assurance has been 
obtained.
    (vi) The Director of an approved State, based on a reasonable belief 
that the local government owner or operator may no longer meet the 
requirements of the local government financial test, may require 
additional reports of financial condition from the local government at 
any time. If the Director of an approved State finds, on the basis of 
such reports or other information, that the owner or operator no longer 
meets the requirements of the local government financial test, the local 
government must provide alternate financial assurance in accordance with 
this section.

[[Page 467]]

    (4) Calculation of costs to be assured. The portion of the closure, 
post-closure, and corrective action costs for which an owner or operator 
can assure under this paragraph is determined as follows:
    (i) If the local government owner or operator does not assure other 
environmental obligations through a financial test, it may assure 
closure, post-closure, and corrective action costs that equal up to 43 
percent of the local government's total annual revenue.
    (ii) If the local government assures other environmental obligations 
through a financial test, including those associated with UIC facilities 
under 40 CFR 144.62, petroleum underground storage tank facilities under 
40 CFR Part 280, PCB storage facilities under 40 CFR Part 761, and 
hazardous waste treatment, storage, and disposal facilities under 40 CFR 
Parts 264 and 265, it must add those costs to the closure, post-closure, 
and corrective action costs it seeks to assure under this paragraph. The 
total that may be assured must not exceed 43 percent of the local 
government's total annual revenue.
    (iii) The owner or operator must obtain an alternate financial 
assurance instrument for those costs that exceed the limits set in 
paragraphs (f)(4) (i) and (ii) of this section.
    (g) Corporate Guarantee. (1) An owner or operator may meet the 
requirements of this section by obtaining a written guarantee. The 
guarantor must be the direct or higher-tier parent corporation of the 
owner or operator, a firm whose parent corporation is also the parent 
corporation of the owner or operator, or a firm with a ``substantial 
business relationship'' with the owner or operator. The guarantor must 
meet the requirements for owners or operators in paragraph (e) of this 
section and must comply with the terms of the guarantee. A certified 
copy of the guarantee must be placed in the facility's operating record 
along with copies of the letter from the guarantor's chief financial 
officer and accountants' opinions. If the guarantor's parent corporation 
is also the parent corporation of the owner or operator, the letter from 
the guarantor's chief financial officer must describe the value received 
in consideration of the guarantee. If the guarantor is a firm with a 
``substantial business relationship'' with the owner or operator, this 
letter must describe this ``substantial business relationship'' and the 
value received in consideration of the guarantee.
    (2) The guarantee must be effective and all required submissions 
placed in the operating record before the initial receipt of waste or 
before the effective date of the requirements of this section (April 9, 
1997 or October 9, 1997 for MSWLF units meeting the conditions of Sec. 
258.1(f)(1), whichever is later, in the case of closure and post-closure 
care, or in the case of corrective action no later than 120 days after 
the corrective action remedy has been selected in accordance with the 
requirements of Sec. 258.58.
    (3) The terms of the guarantee must provide that:
    (i) If the owner or operator fails to perform closure, post-closure 
care, and/or corrective action of a facility covered by the guarantee, 
the guarantor will:
    (A) Perform, or pay a third party to perform, closure, post-closure 
care, and/or corrective action as required (performance guarantee); or
    (B) Establish a fully funded trust fund as specified in paragraph 
(a) of this section in the name of the owner or operator (payment 
guarantee).
    (ii) The guarantee will remain in force for as long as the owner or 
operator must comply with the applicable financial assurance 
requirements of this Subpart unless the guarantor sends prior notice of 
cancellation by certified mail to the owner or operator and to the State 
Director. Cancellation may not occur, however, during the 120 days 
beginning on the date of receipt of the notice of cancellation by both 
the owner or operator and the State Director, as evidenced by the return 
receipts.
    (iii) If notice of cancellation is given, the owner or operator 
must, within 90 days following receipt of the cancellation notice by the 
owner or operator and the State Director, obtain alternate financial 
assurance, place evidence of that alternate financial assurance in the 
facility operating record, and notify the State Director. If the

[[Page 468]]

owner or operator fails to provide alternate financial assurance within 
the 90-day period, the guarantor must provide that alternate assurance 
within 120 days of the cancellation notice, obtain alternative 
assurance, place evidence of the alternate assurance in the facility 
operating record, and notify the State Director.
    (4) If a corporate guarantor no longer meets the requirements of 
paragraph (e)(1) of this section, the owner or operator must, within 90 
days, obtain alternative assurance, place evidence of the alternate 
assurance in the facility operating record, and notify the State 
Director. If the owner or operator fails to provide alternate financial 
assurance within the 90-day period, the guarantor must provide that 
alternate assurance within the next 30 days.
    (5) The owner or operator is no longer required to meet the 
requirements of this paragraph (g) when:
    (i) The owner or operator substitutes alternate financial assurance 
as specified in this section; or
    (ii) The owner or operator is released from the requirements of this 
section in accordance with Sec. 258.71(b), Sec. 258.72(b), or Sec. 
258.73(b).
    (h) Local government guarantee. An owner or operator may demonstrate 
financial assurance for closure, post-closure, and corrective action, as 
required by Sec. Sec. 258.71, 258.72, and 258.73, by obtaining a 
written guarantee provided by a local government. The guarantor must 
meet the requirements of the local government financial test in 
paragraph (f) of this section, and must comply with the terms of a 
written guarantee.
    (1) Terms of the written guarantee. The guarantee must be effective 
before the initial receipt of waste or before the effective date of this 
section, whichever is later, in the case of closure, post-closure care, 
or no later than 120 days after the corrective action remedy has been 
selected in accordance with the requirements of Sec. 258.58. The 
guarantee must provide that:
    (i) If the owner or operator fails to perform closure, post-closure 
care, and/or corrective action of a facility covered by the guarantee, 
the guarantor will:
    (A) Perform, or pay a third party to perform, closure, post-closure 
care, and/or corrective action as required; or
    (B) Establish a fully funded trust fund as specified in paragraph 
(a) of this section in the name of the owner or operator.
    (ii) The guarantee will remain in force unless the guarantor sends 
notice of cancellation by certified mail to the owner or operator and to 
the State Director. Cancellation may not occur, however, during the 120 
days beginning on the date of receipt of the notice of cancellation by 
both the owner or operator and the State Director, as evidenced by the 
return receipts.
    (iii) If a guarantee is cancelled, the owner or operator must, 
within 90 days following receipt of the cancellation notice by the owner 
or operator and the State Director, obtain alternate financial 
assurance, place evidence of that alternate financial assurance in the 
facility operating record, and notify the State Director. If the owner 
or operator fails to provide alternate financial assurance within the 
90-day period, the guarantor must provide that alternate assurance 
within 120 days following the guarantor's notice of cancellation, place 
evidence of the alternate assurance in the facility operating record, 
and notify the State Director.
    (2) Recordkeeping and reporting. (i) The owner or operator must 
place a certified copy of the guarantee along with the items required 
under paragraph (f)(3) of this section into the facility's operating 
record before the initial receipt of waste or before the effective date 
of this section, whichever is later, in the case of closure, post-
closure care, or no later than 120 days after the corrective action 
remedy has been selected in accordance with the requirements of Sec. 
258.58.
    (ii) The owner or operator is no longer required to maintain the 
items specified in paragraph (h)(2) of this section when:
    (A) The owner or operator substitutes alternate financial assurance 
as specified in this section; or
    (B) The owner or operator is released from the requirements of this 
section in accordance with Sec. 258.71(b), 258.72(b), or 258.73(b).

[[Page 469]]

    (iii) If a local government guarantor no longer meets the 
requirements of paragraph (f) of this section, the owner or operator 
must, within 90 days, obtain alternative assurance, place evidence of 
the alternate assurance in the facility operating record, and notify the 
State Director. If the owner or operator fails to obtain alternate 
financial assurance within that 90-day period, the guarantor must 
provide that alternate assurance within the next 30 days.
    (i) State-Approved mechanism. An owner or operator may satisfy the 
requirements of this section by obtaining any other mechanism that meets 
the criteria specified in Sec. 258.74(1), and that is approved by the 
Director of an approved State.
    (j) State assumption of responsibility. If the State Director either 
assumes legal responsibility for an owner or operator's compliance with 
the closure, post-closure care and/or corrective action requirements of 
this part, or assures that the funds will be available from State 
sources to cover the requirements, the owner or operator will be in 
compliance with the requirements of this section. Any State assumption 
of responsibility must meet the criteria specified in Sec. 258.74(l).
    (k) Use of multiple mechanisms. An owner or operator may demonstrate 
financial assurance for closure, post-closure, and corrective action, as 
required by Sec. Sec. 258.71, 258.72, and 258.73 by establishing more 
than one mechanism per facility, except that mechanisms guaranteeing 
performance rather than payment, may not be combined with other 
instruments. The mechanisms must be as specified in paragraphs (a), (b), 
(c), (d), (e), (f), (g), (h), (i), and (j) of this section, except that 
financial assurance for an amount at least equal to the current cost 
estimate for closure, post-closure care, and/or corrective action may be 
provided by a combination of mechanisms rather than a single mechanism.
    (l) The language of the mechanisms listed in paragraphs (a), (b), 
(c), (d), (e), (f), (g), (h), (i), and (j) of this section must ensure 
that the instruments satisfy the following criteria:
    (1) The financial assurance mechanisms must ensure that the amount 
of funds assured is sufficient to cover the costs of closure, post-
closure care, and corrective action for known releases when needed;
    (2) The financial assurance mechanisms must ensure that funds will 
be available in a timely fashion when needed;
    (3) The financial assurance mechanisms must be obtained by the owner 
or operator by the effective date of these requirements or prior to the 
initial receipt of solid waste, whichever is later, in the case of 
closure and post-closure care, and no later that 120 days after the 
corrective action remedy has been selected in accordance with the 
requirements of Sec. 258.58, until the owner or operator is released 
from the financial assurance requirements under Sec. Sec. 258.71, 
258.72 and 258.73.
    (4) The financial assurance mechanisms must be legally valid, 
binding, and enforceable under State and Federal law.

[56 FR 51029, Oct. 9, 1991, as amended at 58 FR 51547, Oct. 1, 1993; 60 
FR 40105, Aug. 7, 1995; 60 FR 52342, Oct. 6, 1995; 61 FR 60337, Nov. 27, 
1996; 63 FR 17729, Apr. 10, 1998]



Sec. 258.75  Discounting.

    The Director of an approved State may allow discounting of closure 
cost estimates in Sec. 258.71(a), post-closure cost estimates in Sec. 
258.72(a), and/or corrective action costs in Sec. 258.73(a) up to the 
rate of return for essentially risk free investments, net of inflation, 
under the following conditions:
    (a) The State Director determines that cost estimates are complete 
and accurate and the owner or operator has submitted a statement from a 
Registered Professional Engineer so stating;
    (b) The State finds the facility in compliance with applicable and 
appropriate permit conditions;
    (c) The State Director determines that the closure date is certain 
and the owner or operator certifies that there are no foreseeable 
factors that will change the estimate of site life; and
    (d) Discounted cost estimates must be adjusted annually to reflect 
inflation and years of remaining life.

[61 FR 60339, Nov. 27, 1996]

[[Page 470]]



   Sec. Appendix I to Part 258--Constituents for Detection Monitoring

------------------------------------------------------------------------
              Common name \1\                        CAS RN \2\
------------------------------------------------------------------------
Inorganic Constituents:
    (1) Antimony..........................  (Total)
    (2) Arsenic...........................  (Total)
    (3) Barium............................  (Total)
    (4) Beryllium.........................  (Total)
    (5) Cadmium...........................  (Total)
    (6) Chromium..........................  (Total)
    (7) Cobalt............................  (Total)
    (8) Copper............................  (Total)
    (9) Lead..............................  (Total)
    (10) Nickel...........................  (Total)
    (11) Selenium.........................  (Total)
    (12) Silver...........................  (Total)
    (13) Thallium.........................  (Total)
    (14) Vanadium.........................  (Total)
    (15) Zinc.............................  (Total)
Organic Constituents:
    (16) Acetone..........................  67-64-1
    (17) Acrylonitrile....................  107-13-1
    (18) Benzene..........................  71-43-2
    (19) Bromochloromethane...............  74-97-5
    (20) Bromodichloromethane.............  75-27-4
    (21) Bromoform; Tribromomethane.......  75-25-2
    (22) Carbon disulfide.................  75-15-0
    (23) Carbon tetrachloride.............  56-23-5
    (24) Chlorobenzene....................  108-90-7
    (25) Chloroethane; Ethyl chloride.....  75-00-3
    (26) Chloroform; Trichloromethane.....  67-66-3
    (27) Dibromochloromethane;              124-48-1
     Chlorodibromomethane.
    (28) 1,2-Dibromo-3-chloropropane; DBCP  96-12-8
    (29) 1,2-Dibromoethane; Ethylene        106-93-4
     dibromide; EDB.
    (30) o-Dichlorobenzene; 1,2-            95-50-1
     Dichlorobenzene.
    (31) p-Dichlorobenzene; 1,4-            106-46-7
     Dichlorobenzene.
    (32) trans-1, 4-Dichloro-2-butene.....  110-57-6
    (33) 1,1-Dichlorethane; Ethylidene      75-34-3
     chloride.
    (34) 1,2-Dichlorethane; Ethylene        107-06-2
     dichloride.
    (35) 1,1-Dichloroethylene; 1,1-         75-35-4
     Dichloroethene; Vinylidene chloride.
    (36) cis-1,2-Dichloroethylene; cis-1,2- 156-59-2
     Dichloroethene.
    (37) trans-1, 2-Dichloroethylene;       156-60-5
     trans-1,2-Dichloroethene.
    (38) 1,2-Dichloropropane; Propylene     78-87-5
     dichloride.
    (39) cis-1,3-Dichloropropene..........  10061-01-5
    (40) trans-1,3-Dichloropropene........  10061-02-6
    (41) Ethylbenzene.....................  100-41-4
    (42) 2-Hexanone; Methyl butyl ketone..  591-78-6
    (43) Methyl bromide; Bromomethane.....  74-83-9
    (44) Methyl chloride; Chloromethane...  74-87-3
    (45) Methylene bromide; Dibromomethane  74-95-3
    (46) Methylene chloride;                75-09-2
     Dichloromethane.
    (47) Methyl ethyl ketone; MEK; 2-       78-93-3
     Butanone.
    (48) Methyl iodide; Idomethane........  74-88-4
    (49) 4-Methyl-2-pentanone; Methyl       108-10-1
     isobutyl ketone.
    (50) Styrene..........................  100-42-5
    (51) 1,1,1,2-Tetrachloroethane........  630-20-6
    (52) 1,1,2,2-Tetrachloroethane........  79-34-5
    (53) Tetrachloroethylene;               127-18-4
     Tetrachloroethene; Perchloroethylene.
    (54) Toluene..........................  108-88-3
    (55) 1,1,1-Trichloroethane;             71-55-6
     Methylchloroform.
    (56) 1,1,2-Trichloroethane............  79-00-5
    (57) Trichloroethylene;                 79-01-6
     Trichloroethene.
    (58) Trichlorofluoromethane; CFC-11...  75-69-4
    (59) 1,2,3-Trichloropropane...........  96-18-4
    (60) Vinyl acetate....................  108-05-4
    (61) Vinyl chloride...................  75-01-4
    (62) Xylenes..........................  1330-20-7
------------------------------------------------------------------------
\1\ Common names are those widely used in government regulations,
  scientific publications, and commerce; synonyms exist for many
  chemicals.
\2\ Chemical Abstract Service registry number. Where ``Total'' is
  entered, all species in the ground water that contain this element are
  included.


[70 FR 34555, June 14, 2005; 70 FR 44150, Aug. 1, 2005]

[[Page 471]]



 Sec. Appendix II to Part 258--List of Hazardous Inorganic and Organic 
                              Constituents

------------------------------------------------------------------------
                                                    Chemical abstracts
         Common name \1\            CAS RN \2\    service index name \3\
------------------------------------------------------------------------
Acenaphthene....................  83-32-9......  Acenaphthylene, 1,2-
                                                  dihydro-
Acenaphthylene..................  208-96-8.....  Acenaphthylene
Acetone.........................  67-64-1......  2-Propanone
Acetonitrile; Methyl cyanide....  75-05-8......  Acetonitrile
Acetophenone....................  98-86-2......  Ethanone, 1-phenyl-
2-Acetylaminofluorene; 2-AAF....  53-96-3......  Acetamide, N-9H-fluoren-
                                                  2-yl-
Acrolein........................  107-02-8.....  2-Propenal
Acrylonitrile...................  107-13-1.....  2-Propenenitrile
Aldrin..........................  309-00-2.....  1,4:5,8-
                                                  Dimethanonaphthalene,
                                                  1,2,3,4,10,10-
                                                  hexachloro-
                                                  1,4,4a,5,8,8a-
                                                  hexahydro-
                                                  (1,4,4a,5,8,8a)-
Allyl chloride..................  107-05-1.....  1-Propene, 3-chloro-
4-Aminobiphenyl.................  92-67-1......  [1,1'-Biphenyl]-4-amine
Anthracene......................  120-12-7.....  Anthracene
Antimony........................  (Total)......  Antimony
Arsenic.........................  (Total)......  Arsenic
Barium..........................  (Total)......  Barium
Benzene.........................  71-43-2......  Benzene
Benzo[a]anthracene;               56-55-3......  Benz[a]anthracene
 Benzanthracene.
Benzo[b]fluoranthene............  205-99-2.....  Benz[e]acephenanthrylen
                                                  e
Benzo[k]fluoranthene............  207-08-9.....  Benzo[k]fluoranthene
Benzo[ghi]perylene..............  191-24-2.....  Benzo[ghi]perylene
Benzo[a]pyrene..................  50-32-8......  Benzo[a]pyrene
Benzyl alcohol..................  100-51-6.....  Benzenemethanol
Beryllium.......................  (Total)......  Beryllium
alpha-BHC.......................  319-84-6.....  Cyclohexane,
                                                  1,2,3,4,5,6-hexachloro-
                                                  ,(1[alpha],2[alpha],3[
                                                  beta],4[alpha],5[beta]
                                                  ,6[beta])-
beta-BHC........................  319-85-7.....  Cyclohexane,
                                                  1,2,3,4,5,6-hexachloro-
                                                  ,(1[alpha],2[beta],3[a
                                                  lpha],4[beta],5[alpha]
                                                  ,6[beta])-
delta-BHC.......................  319-86-8.....  Cyclohexane,
                                                  1,2,3,4,5,6-hexachloro-
                                                  ,(1[alpha],2[alpha],3[
                                                  alpha],4[beta],5[alpha
                                                  ],6[beta])-
gamma-BHC; Lindane..............  58-89-9......  Cyclohexane,
                                                  1,2,3,4,5,6-
                                                  hexachloro-
                                                  ,(1[alpha],2[alpha],
                                                  3[beta],
                                                  4[alpha],5[alpha],6[be
                                                  ta])-
Bis(2-chloroethoxy)methane......  111-91-1.....  Ethane, 1,1'-
                                                  [methylenebis
                                                  (oxy)]bis [2-chloro-
Bis(2-chloroethyl)ether;          111-44-4.....  Ethane, 1,1'-oxybis[2-
 Dichloroethyl ether.                             chloro-
Bis(2-chloro-1-methylethyl)       108-60-1.....  Propane, 2,2'-oxybis[1-
 ether; 2,2'-Dichlorodiisopropyl                  chloro-
 ether; DCIP, See footnote 4.
Bis(2-ethylhexyl) phthalate.....  117-81-7.....  1,2-Benzenedicarboxylic
                                                  acid, bis(2-
                                                  ethylhexyl)ester
Bromochloromethane;               74-97-5......  Methane, bromochloro-
 Chlorobromethane.
Bromodichloromethane;             75-27-4......  Methane, bromodichloro-
 Dibromochloromethane.
Bromoform; Tribromomethane......  75-25-2......  Methane, tribromo-
4-Bromophenyl phenyl ether......  101-55-3.....  Benzene, 1-bromo-4-
                                                  phenoxy-
Butyl benzyl phthalate; Benzyl    85-68-7......  1,2-Benzenedicarboxylic
 butyl phthalate.                                 acid, butyl
                                                  phenylmethyl ester
Cadmium.........................  (Total)......  Cadmium
Carbon disulfide................  75-15-0......  Carbon disulfide
Carbon tetrachloride............  56-23-5......  Methane, tetrachloro-
Chlordane.......................  See footnote   4,7-Methano-1H-indene,
                                   5.             1,2,4,5,6,7,8,8-
                                                  octachloro-
                                                  2,3,3a,4,7,7a-
                                                  hexahydro-
p-Chloroaniline.................  106-47-8.....  Benzenamine, 4-chloro-
Chlorobenzene...................  108-90-7.....  Benzene, chloro-
Chlorobenzilate.................  510-15-6.....  Benzeneacetic acid, 4-
                                                  chloro-
                                                 -(4-chlorophenyl)-
                                                 -hydroxy-, ethyl ester.
p-Chloro-m-cresol; 4-Chloro-3-    59-50-7......  Phenol, 4-chloro-3-
 methylphenol.                                    methyl-
Chloroethane; Ethyl chloride....  75-00-3......  Ethane, chloro-
Chloroform; Trichloromethane....  67-66-3......  Methane, trichloro-
2-Chloronaphthalene.............  91-58-7......  Naphthalene, 2-chloro-
2-Chlorophenol..................  95-57-8......  Phenol, 2-chloro-
4-Chlorophenyl phenyl ether.....  7005-72-3....  Benzene, 1-chloro-4-
                                                  phenoxy-
Chloroprene.....................  126-99-8.....  1,3-Butadiene, 2-chloro-
 
Chromium........................  (Total)......  Chromium
Chrysene........................  218-01-9.....  Chrysene
Cobalt..........................  (Total)......  Cobalt
Copper..........................  (Total)......  Copper
m-Cresol; 3-Methylphenol........  108-39-4.....  Phenol, 3-methyl-
o-Cresol; 2-Methylphenol........  95-48-7......  Phenol, 2-methyl-
p-Cresol; 4-Methylphenol........  106-44-5.....  Phenol, 4-methyl-
Cyanide.........................  57-12-5......  Cyanide
2,4-D; 2,4-Dichlorophenoxyacetic  94-75-7......  Acetic acid, (2,4-
 acid.                                            dichlorophenoxy)-
4,4'-DDD........................  72-54-8......  Benzene 1,1'-(2,2-
                                                  dichloroethylidene)
                                                  bis[4-chloro-
4,4'-DDE........................  72-55-9......  Benzene, 1,1'-
                                                  (dichloroethenylidene)
                                                  bis[4-chloro-

[[Page 472]]

 
4,4'-DDT........................  50-29-3......  Benzene, 1,1'-(2,2,2-
                                                  trichloroethylidene)
                                                  bis[4-chloro-
Diallate........................  2303-16-4....  Carbamothioic acid,
                                                  bis(1-methylethyl)-, S-
                                                   (2,3-dichloro-2-
                                                  propenyl) ester.
Dibenz[a,h]anthracene...........  53-70-3......  Dibenz[a,h]anthracene
Dibenzofuran....................  132-64-9.....  Dibenzofuran
Dibromochloromethane;             124-48-1.....  Methane, dibromochloro-
 Chlorodibromomethane.
1,2-Dibromo-3-chloropropane;      96-12-8......  Propane, 1,2-dibromo-3-
 DBCP.                                            chloro-
1,2-Dibromoethane; Ethylene       106-93-4.....  Ethane, 1,2-dibromo-
 dibromide; EDB.
Di-n-butyl phthalate............  84-74-2......  1,2-Benzenedicarboxylic
                                                  acid, dibutyl ester
o-Dichlorobenzene; 1,2-           95-50-1......  Benzene, 1,2-dichloro-
 Dichlorobenzene.
m-Dichlorobenzene; 1,3-           541-73-1.....  Benzene, 1,3-dichloro-
 Dichlorobenzene.
p-Dichlorobenzene; 1,4-           106-46-7.....  Benzene, 1,4-dichloro-
 Dichlorobenzene.
3,3'-Dichlorobenzidine..........  91-94-1......  [1,1'-Biphenyl]-4,4'-
                                                  diamine, 3,3'-dichloro-
 
trans-1,4-Dichloro-2-butene.....  110-57-6.....  2-Butene, 1,4-dichloro-
                                                  , (E)-
Dichlorodifluoromethane; CFC 12.  75-71-8......  Methane,
                                                  dichlorodifluoro-
1,1-Dichloroethane; Ethyldidene   75-34-3......  Ethane, 1,1-dichloro-
 chloride.
1,2-Dichloroethane; Ethylene      107-06-2.....  Ethane, 1,2-dichloro-
 dichloride.
1,1-Dichloroethylene; 1,1-        75-35-4......  Ethene, 1,1-dichloro-
 Dichloroethene;
Vinylidene chloride cis-1,2-      156-59-2.....  Ethene, 1,2-dichloro-
 Dichloroethylene; cis-1,2-                       (Z)-
 Dichloroethene.
trans-1,2-Dichloroethylene;       156-60-5.....  Ethene, 1,2-dichloro-,
 trans-1,2-Dichloroethene.                        (E)-
2,4-Dichlorophenol..............  120-83-2.....  Phenol, 2,4-dichloro-
2,6-Dichlorophenol..............  87-65-0......  Phenol, 2,6-dichloro-
1,2-Dichloropropane.............  78-87-5......  Propane, 1,2-dichloro-
1,3-Dichloropropane;              142-28-9.....  Propane, 1,3-dichloro-
 Trimethylene dichloride.
2,2-Dichloropropane;              594-20-7.....  Propane, 2,2-dichloro-
 Isopropylidene chloride.
1,1-Dichloropropene.............  563-58-6.....  1-Propene, 1,1-dichloro-
 
cis-1,3-Dichloropropene.........  10061-01-5...  1-Propene, 1,3-dichloro-
                                                  , (Z)-
trans-1,3-Dichloropropene.......  10061-02-6...  1-Propene, 1,3-dichloro-
                                                  , (E)-
Dieldrin........................  60-57-1......  2,7:3,6-Dimethanonaphth
                                                  [2,3-b]oxirene,
                                                  3,4,5,6,9,9-hexachloro-
                                                  1a,2,2a,3,6,6a,7,7a-
                                                  octahydro-,
                                                  (1a[alpha],2[beta],2a[
                                                  alpha],3[beta],6[beta]
                                                  ,6a[alpha],7[beta],7a[
                                                  alpha])-
Diethyl phthalate...............  84-66-2......  1,2-Benzenedicarboxylic
                                                  acid, diethyl ester
O,O-Diethyl O-2-pyrazinyl         297-97-2.....  Phosphorothioic acid,
 phosphorothioate; Thionazin.                     O,O-diethyl O-
                                                  pyrazinyl ester.
Dimethoate......................  60-51-5......  Phosphorodithioic acid,
                                                  O,O-dimethyl S-[2-
                                                  (methylamino)-2-
                                                  oxoethyl] ester
p-(Dimethylamino)azobenzene.....  60-11-7......  Benzenamine, N,N-
                                                  dimethyl-4-(phenylazo)-
 
7,12-Dimethylbenz[a]anthracene..  57-97-6......  Benz[a]anthracene, 7,12-
                                                  dimethyl-
3,3'-Dimethylbenzidine..........  119-93-7.....  [1,1'-Biphenyl]-4,4'-
                                                  diamine, 3,3'-dimethyl-
 
alpha, alpha-                     122-09-8.....  Benzeneethanamine,
 Dimethylphenethylamine.                          [alpha],[alpha]-
                                                  dimethyl-
2,4-Dimethylphenol; m-Xylenol...  105-67-9.....  Phenol, 2,4-dimethyl-
Dimethyl phthalate..............  131-11-3.....  1,2-Benzenedicarboxylic
                                                  acid, dimethyl ester
m-Dinitrobenzene................  99-65-0......  Benzene, 1,3-dinitro-
4,6-Dinitro-o-cresol; 4,6-        534-52-1.....  Phenol, 2-methyl-4,6-
 Dinitro-2-methylphenol.                          dinitro-
2,4-Dinitrophenol...............  51-28-5......  Phenol, 2,4-dinitro-
2,4-Dinitrotoluene..............  121-14-2.....  Benzene, 1-methyl-2,4-
                                                  dinitro-
2,6-Dinitrotoluene..............  606-20-2.....  Benzene, 2-methyl-1,3-
                                                  dinitro-
Dinoseb; DNBP; 2-sec-Butyl-4,6-   88-85-7......  Phenol, 2-(1-
 dinitrophenol.                                   methylpropyl)-4,6-
                                                  dinitro-
Di-n-octyl phthalate............  117-84-0.....  1,2-Benzenedicarboxylic
                                                  acid, dioctyl ester
Diphenylamine...................  122-39-4.....  Benzenamine, N-phenyl-
Disulfoton......................  298-04-4.....  Phosphorodithioic acid,
                                                  O,O-diethyl S-[2-
                                                  (ethylthio)ethyl]
                                                  ester
Endosulfan I....................  959-98-8.....  6,9-Methano-2,4,3-
                                                  benzodiox-athiepin,
                                                  6,7,8,9,10,10-
                                                  hexachloro-
                                                  1,5,5a,6,9,9a-
                                                  hexahydro-, 3-oxide,
Endosulfan II...................  33213-65-9...  6,9-Methano-2,4,3-
                                                  benzodioxathiepin,
                                                  6,7,8,9,10,10-
                                                  hexachloro-
                                                  1,5,5a,6,9,9a-
                                                  hexahydro-, 3-oxide,
                                                  (3[alpha],5a[alpha],6[
                                                  beta],9[beta],
                                                  9a[alpha])-
Endosulfan sulfate..............  1031-07-8....  6,9-Methano-2,4,3-
                                                  benzodioxathiepin,
                                                  6,7,8,9,10,10-
                                                  hexachloro-
                                                  1,5,5a,6,9,9a-
                                                  hexahydro-, 3,3-
                                                  dioxide
Endrin..........................  72-20-8......  2,7:3,6-
                                                  Dimethanonaphth[2,3-
                                                  b]oxirene, 3,4,5,6,9,9-
                                                  hexachloro-
                                                  1a,2,2a,3,6,6a,7,7a-
                                                  octahydro-,
                                                  (1a[alpha],
                                                  2[beta],2a[beta],
                                                  3[alpha],6[alpha],6a[b
                                                  eta],7[beta],7a[alpha]
                                                  )-
Endrin aldehyde.................  7421-93-4....  1,2,4-Methenocyclo-
                                                  penta[cd]pentalene-5-
                                                  carboxaldehyde,2,2a,3,
                                                  3,4,7-
                                                  hexachlorodecahydro-
                                                  (1[alpha],2[beta],2a[b
                                                  eta],4[beta],4a[beta],
                                                  5[beta],6a[beta],6b[be
                                                  ta],7R*)-
Ethylbenzene....................  100-41-4.....  Benzene, ethyl-
Ethyl methacrylate..............  97-63-2......  2-Propenoic acid, 2-
                                                  methyl-, ethyl ester
Ethyl methanesulfonate..........  62-50-0......  Methanesulfonic acid,
                                                  ethyl ester
Famphur.........................  52-85-7......  Phosphorothioic acid, O-
                                                  [4-
                                                  [(dimethylamino)sulfon
                                                  yl]phenyl]-O,O-
                                                  dimethyl ester
Fluoranthene....................  206-44-0.....  Fluoranthene

[[Page 473]]

 
Fluorene........................  86-73-7......  9H-Fluorene
Heptachlor......................  76-44-8......  4,7-Methano-1H-
                                                  indene,1,4,5,6,7,8,8-
                                                  heptachloro-3a,4,7,7a-
                                                  tetrahydro-
Heptachlor epoxide..............  1024-57-3....  2,5-Methano-2H-
                                                  indeno[1,2-b]oxirene,
                                                 2,3,4,5,6,7,7-
                                                  heptachloro-
                                                  1a,1b,5,5a,6,6a,-
                                                  hexahydro-
                                                  ,(1a[alpha],1b[beta],2
                                                  [alpha],5[alpha],5a[be
                                                  ta],6[beta],6a[alpha])
Hexachlorobenzene...............  118-74-1.....  Benzene, hexachloro-
Hexachlorobutadiene.............  87-68-3......  1,3-Butadiene,
                                                  1,1,2,3,4,4-hexachloro-
 
Hexachlorocyclopentadiene.......  77-47-4......  1,3-Cyclopentadiene,
                                                  1,2,3,4,5,5-hexachloro-
 
Hexachloroethane................  67-72-1......  Ethane, hexachloro-
Hexachloropropene...............  1888-71-7....  1-Propene, 1,1,2,3,3,3-
                                                  hexachloro-
2-Hexanone; Methyl butyl ketone.  591-78-6.....  2-Hexanone
Indeno(1,2,3-cd)pyrene..........  193-39-5.....  Indeno[1,2,3-cd]pyrene
Isobutyl alcohol................  78-83-1......  1-Propanol, 2-methyl-
Isodrin.........................  465-73-6.....  1,4,5,8-
                                                  Dimethanonaphthalene,1
                                                  ,2,3,4,1 0,10-
                                                  hexachloro-
                                                  1,4,4a,5,8,8a
                                                  hexahydro-(1[alpha],
                                                  4[alpha],
                                                  4a[beta],5[beta],8[bet
                                                  a],8a[beta])-
Isophorone......................  78-59-1......  2-Cyclohexen-1-one,
                                                  3,5,5-trimethyl-
Isosafrole......................  120-58-1.....  1,3-Benzodioxole, 5-(1-
                                                  propenyl)-
Kepone..........................  143-50-0.....  1,3,4-Metheno-2H-
                                                  cyclobuta-[cd]pentalen-
                                                  2-one,
                                                  1,1a,3,3a,4,5,5,5a,5b,
                                                  6-decachlorooctahydro-
Lead............................  (Total)......  Lead
Mercury.........................  (Total)......  Mercury
Methacrylonitrile...............  126-98-7.....  2-Propenenitrile, 2-
                                                  methyl-
Methapyrilene...................  91-80-5......  1,2,Ethanediamine, N,N-
                                                  dimethyl-N'-2-
                                                  pyridinyl-N'-(2-
                                                  thienylmethyl)-
Methoxychlor....................  72-43-5......  Benzene, 1,1'-
                                                  (2,2,2,trichloroethyli
                                                  dene)bis [4-methoxy-
Methyl bromide; Bromomethane....  74-83-9......  Methane, bromo-
Methyl chloride; Chloromethane..  74-87-3......  Methane, chloro-
3-Methylcholanthrene............  56-49-5......  Benz[j]aceanthrylene,
                                                  1,2-dihydro-3-methyl-
Methyl ethyl ketone; MEK; 2-      78-93-3......  2-Butanone
 Butanone.
Methyl iodide; Iodomethane......  74-88-4......  Methane, iodo-
Methyl methacrylate.............  80-62-6......  2-Propenoic acid, 2-
                                                  methyl-, methyl ester
Methyl methanesulfonate.........  66-27-3......  Methanesulfonic acid,
                                                  methyl ester
2-Methylnaphthalene.............  91-57-6......  Naphthalene, 2-methyl-
Methyl parathion; Parathion       298-00-0.....  Phosphorothioic acid,
 methyl.                                          O,O-dimethyl
4-Methyl-2-pentanone; Methyl      108-10-1.....  2-Pentanone, 4-methyl-
 isobutyl ketone.
Methylene bromide;                74-95-3......  Methane, dibromo-
 Dibromomethane.
Methylene chloride;               75-09-2......  Methane, dichloro-
 Dichloromethane.
Naphthalene.....................  91-20-3......  Naphthalene
1,4-Naphthoquinone..............  130-15-4.....  1,4-Naphthalenedione
1-Naphthylamine.................  134-32-7.....  1-Naphthalenamine
2-Naphthylamine.................  91-59-8......  2-Naphthalenamine
Nickel..........................  (Total)......  Nickel
o-Nitroaniline; 2-Nitroaniline..  88-74-4......  Benzenamine, 2-nitro-
m-Nitroaniline; 3-Nitroaniline..  99-09-2......  Benzenamine, 3-nitro-
p-Nitroaniline; 4-Nitroaniline..  100-01-6.....  Benzenamine, 4-nitro-
Nitrobenzene....................  98-95-3......  Benzene, nitro-
o-Nitrophenol; 2-Nitrophenol....  88-75-5......  Phenol, 2-nitro-
p-Nitrophenol; 4-Nitrophenol....  100-02-7.....  Phenol, 4-nitro-
N-Nitrosodi-n-butylamine........  924-16-3.....  1-Butanamine, N-butyl-N-
                                                  nitroso-
N-Nitrosodiethylamine...........  55-18-5......  Ethanamine, N-ethyl-N-
                                                  nitroso-
N-Nitrosodimethylamine..........  62-75-9......  Methanamine, N-methyl-N-
                                                  nitroso-
N-Nitrosodiphenylamine..........  86-30-6......  Benzenamine, N-nitroso-
                                                  N-phenyl-
N-Nitrosodipropylamine; N-        621-64-7.....  1-Propanamine, N-
 Nitroso-N-dipropylamine; Di-n-                   nitroso-N-propyl-
 propylnitrosamine.
N-Nitrosomethylethalamine.......  10595-95-6...  Ethanamine, N-methyl-N-
                                                  nitroso-
N-Nitrosopiperidine.............  100-75-4.....  Piperidine, 1-nitroso-
N-Nitrosopyrrolidine............  930-55-2.....  Pyrrolidine, 1-nitroso-
5-Nitro-o-toluidine.............  99-55-8......  Benzenamine, 2-methyl-5-
                                                  nitro-
Parathion.......................  56-38-2......  Phosphorothioic acid,
                                                  O,O-diethyl-O-(4-
                                                  nitrophenyl) ester
Pentachlorobenzene..............  608-93-5.....  Benzene, pentachloro-
Pentachloronitrobenzene.........  82-68-8......  Benzene,
                                                  pentachloronitro-
Pentachlorophenol...............  87-86-5......  Phenol, pentachloro-
Phenacetin......................  62-44-2......  Acetamide, N-(4-
                                                  ethoxyphenyl)
Phenanthrene....................  85-01-8......  Phenanthrene
Phenol..........................  108-95-2.....  Phenol
p-Phenylenediamine..............  106-50-3.....  1,4-Benzenediamine
Phorate.........................  298-02-2.....  Phosphorodithioic acid,
                                                  O,O-diethyl S-
                                                  [(ethylthio)methyl]
                                                  ester
Polychlorinated biphenyls; PCBs.  See footnote   1,1'-Biphenyl, chloro
                                   6.             derivatives

[[Page 474]]

 
Pronamide.......................  23950-58-5...  Benzamide, 3,5-dichloro-
                                                  N-(1,1-dimethyl-2-
                                                  propynyl)-
Propionitrile; Ethyl cyanide....  107-12-0.....  Propanenitrile
Pyrene..........................  129-00-0.....  Pyrene
Safrole.........................  94-59-7......  1,3-Benzodioxole, 5-(2-
                                                  propenyl)-
Selenium........................  (Total)......  Selenium
Silver..........................  (Total)......  Silver
Silvex; 2,4,5-TP................  93-72-1......  Propanoic acid, 2-
                                                  (2,4,5-
                                                  trichlorophenoxy)-
Styrene.........................  100-42-5.....  Benzene, ethenyl-
Sulfide.........................  18496-25-8...  Sulfide
2,4,5-T; 2,4,5-                   93-76-5......  Acetic acid, (2,4,5-
 Trichlorophenoxyacetic acid.                     trichlorophenoxy)-
2,3,7,8-TCDD; 2,3,7,8-            1746-01-6....  Dibenzo[b,e][1,4]dioxin
 Tetrachlorodibenzo- p-dioxin.                    , 2,3,7,8-tetrachloro-
1,2,4,5-Tetrachlorobenzene......  95-94-3......  Benzene, 1,2,4,5-
                                                  tetrachloro-
1,1,1,2-Tetrachloroethane.......  630-20-6.....  Ethane, 1,1,1,2-
                                                  tetrachloro-
1,1,2,2-Tetrachloroethane.......  79-34-5......  Ethane, 1,1,2,2-
                                                  tetrachloro-
Tetrachloroethylene;              127-18-4.....  Ethene, tetrachloro-
 Tetrachloroethene;
 Perchloroethylene.
2,3,4,6-Tetrachlorophenol.......  58-90-2......  Phenol, 2,3,4,6-
                                                  tetrachloro-
Thallium........................  (Total)......  Thallium
Tin.............................  (Total)......  Tin
Toluene.........................  108-88-3.....  Benzene, methyl-
o-Toluidine.....................  95-53-4......  Benzenamine, 2-methyl-
Toxaphene.......................  See footnote   Toxaphene
                                   7.
1,2,4-Trichlorobenzene..........  120-82-1.....  Benzene, 1,2,4-
                                                  trichloro-
1,1,1-Trichloroethane;            71-55-6......  Ethane, 1,1,1-trichloro-
 Methylchloroform.
1,1,2-Trichloroethane...........  79-00-5......  Ethane, 1,1,2-trichloro-
 
Trichloroethylene;                79-01-6......  Ethene, trichloro-
 Trichloroethene.
Trichlorofluoromethane; CFC-11..  75-69-4......  Methane,
                                                  trichlorofluoro-
2,4,5-Trichlorophenol...........  95-95-4......  Phenol, 2,4,5-trichloro-
 
2,4,6-Trichlorophenol...........  88-06-2......  Phenol, 2,4,6-trichloro-
 
1,2,3-Trichloropropane..........  96-18-4......  Propane, 1,2,3-
                                                  trichloro-
O,O,O-Triethyl phosphorothioate.  126-68-1.....  Phosphorothioic acid,
                                                  O,O,O-triethyl ester
sym-Trinitrobenzene.............  99-35-4......  Benzene, 1,3,5-trinitro-
 
Vanadium........................  (Total)......  Vanadium
Vinyl acetate...................  108-05-4.....  Acetic acid, ethenyl
                                                  ester
Vinyl chloride; Chloroethene....  75-01-4......  Ethene, chloro-
Xylene (total)..................  See footnote   Benzene, dimethyl-
                                   8.
Zinc............................  (Total)......  Zinc
------------------------------------------------------------------------
\1\ Common names are those widely used in government regulations,
  scientific publications, and commerce; synonyms exist for many
  chemicals.
\2\ Chemical Abstracts Service registry number. Where ``Total'' is
  entered, all species in the ground water that contain this element are
  included.
\3\ CAS index names are those used in the 9th Cumulative Index.
\4\ This substance is often called bis(2-chloroisopropyl) ether, the
  name Chemical Abstracts Service applies to its noncommercial isomer,
  propane, 2,2[sec]-oxybis[2-chloro-(CAS RN 39638-32-9).
\5\ Chlordane: This entry includes alpha-chlordane (CAS RN 5103-71-9),
  beta-chlordane (CAS RN 5103-74-2), gamma-chlordane (CAS RN 5566-34-7),
  and constituents of chlordane (CAS RN 57-74-9 and CAS RN 12789-03-6).
\6\ Polychlorinated biphenyls (CAS RN 1336-36-3); this category contains
  congener chemicals, including constituents of Aroclor-1016 (CAS RN
  12674-11-2), Aroclor-1221 (CAS RN 11104-28-2), Aroclor-1232 (CAS RN
  11141-16-5), Aroclor-1242 (CAS RN 53469-21-9), Aroclor-1248 (CAS RN
  12672-29-6), Aroclor-1254 (CAS RN 11097-69-1), and Aroclor-1260 (CAS
  RN 11096-82-5).
\7\ Toxaphene: This entry includes congener chemicals contained in
  technical toxaphene (CAS RN 8001-35-2), i.e., chlorinated camphene.
\8\ Xylene (total): This entry includes o-xylene (CAS RN 96-47-6), m-
  xylene (CAS RN 108-38-3), p-xylene (CAS RN 106-42-3), and unspecified
  xylenes (dimethylbenzenes) (CAS RN 1330-20-7).


[70 FR 34556, June 14, 2005; 70 FR 44150, Aug. 1, 2005]

                           PART 259 [RESERVED]


[[Page 475]]



                              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 477]]

            Material Approved for Incorporation by Reference

                      (Revised as of July 1, 2008)

  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 190 TO 259):

ENVIRONMENTAL PROTECTION AGENCY
                                                                  40 CFR


American National Standards Institute, Waste Equipment Technology 
Association

  25 West 43rd Street, Fourth floor, New York, NY 
  10036
ANSI Z245.30-1994, Standard for Refuse Collection,          243.200-1(e)
  Processing, and Disposal Equipment-Waste 
  Containers-Safety Requirements.
ANSI Z245.60-1996, Standard for Refuse Collection,          243.200-1(e)
  Processing, and Disposal Equipment-Waste 
  Containers-Compatibility Dimensions.
Z245.1-1992, Standard for Refuse Collection,                243.202-1(d)
  Processing, and Disposal Equipment-Mobile Refuse 
  Collection and Compaction Equipment-Safety 
  Requirements.
Z245.2-1997, Standard for Refuse Collection,                243.202-1(d)
  Processing, and Disposal Equipment-Stationary 
  Compactors-Safety Requirements.


American Society of Mechanical Engineers (ASME)

  Three Park Avenue, New York, NY 10016-5990; 
  Order inquiries: 22 Law Drive, P.O. Box 2900, 
  Fairfield, New Jersey 07007; Phone: 1-800-843-
  2763
ASME NQA-1-1989 ed., Quality Assurance Program                    194.22
  Requirements for Nuclear Facilities.
ASME NQA-2a-1990 addenda, part 2.7, to ASME NQA-2-        194.22; 194.23
  1989 ed., Quality Assurance Requirements for 
  Nuclear Facility Applications.
ASME NQA-3-1989 ed., Quality Assurance Program                    194.22
  Requirements for the Collection of Scientific 
  and Technical Information for Site 
  Characterization of High-Level Nuclear Waste 
  Repositories (excluding section 2.1(b) and (c)).


American Society for Testing and Materials

  100 Barr Harbor Drive, West Conshohocken, PA 
  19428-2959
ASTM D 2216-98, Standard Test Method for                          258.41
  Laboratory Determination of Water (Moisture) 
  Content of Soil and Rock by Mass.
ASTM D 3826-91, Standard Practice for Determining                 238.30
  Degradation End Point in Degradable Polyolefins 
  Using a Tensile Test.
ASTM D 5208-91, Standard Practice for Operating                   238.30
  Fluorescent Ultraviolet (UV) and Condensation 
  Apparatus for Exposure of Photogradable 
  Plastics.
ASTM D 5261-92 (Reapproved 1996), Standard Test                   258.41
Method for Measuring Mass per Unit Area of 
[[Page 478]].

National Technical Information Service

  5285 Port Royal Road, Springfield, VA 22161; 
  Also available for the Superintendent of 
  Documents, U.S. Government Printing Office, 
  Washington DC, 20402
    Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, 
    EPA Publication SW-846 Third Edition. A suffix of ``A'' in the 
    method number indicates revision one (the method has been revised 
    once); a suffix of ``B'' in the method number indicates revision two 
    (the method has been revised twice); a suffix of ``C'' in the method 
    number indicates revision three (the method has been revised three 
    times); a suffix of ``D'' in the method number indicates revision 
    four (the method has been revised four times).
Method 9095B: ``Paint Filter Liquids Test,''                      258.28
  November 2004.


Nuclear Regulatory Commission (NRC)

  2120 L St., NW., Washington, DC 20555
NUREG 1297, Peer Review for High Level Nuclear          194.22; 194.23; 
  Waste Repositories, Feb. 1988.                                  194.27


State Statutes and Regulations (PART 233): OCEAN DUMPING

Michigan: (1) The Great Lakes Submerged Lands Act,                233.70
  MCL 322.701 et seq.,  reprinted in Michigan 1983 
  Natural Resources Law; (2) The Water Resources 
  Commission Act, MCL 323.1 et seq., reprinted in 
  Michigan 1983 Natural Resources Law; (3) The 
  Goemaere-Anderson Wetland Protection Act, MCL 
  281.701 et seq., reprinted in Michigan 1983 
  Natural Resources Law; (4) The Inland Lakes and 
  Stream Act, MCL 281.951 et seq., reprinted in 
  Michigan 1983 Natural Resources Law; (5) 
  Michigan Administrative Procedures Act of 1969, 
  MCL 24.201 et seq.; (6) An act concerning the 
  Erection of Dams, MCL 281.131 et seq., reprinted 
  in Michigan 1983 Natural Resources Law; (7) R 
  281.811 through R 281.819 inclusive, R 281.821, 
  R 281.823, R 281.824, R 281.832 through R 
  281.839 inclusive, and R 281.841 through R 
  281.845 inclusive of the Michigan Administrative 
  Code (1979 ed., 1982 Supp.).
New Jersey Statutory Requirements Applicable to                   233.71
  the Freshwater Wetlands Program, 1994.
New Jersey Regulatory Requirements Applicable to                  233.71
  the Freshwater Wetlands Program, 1994.

[[Page 479]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2008)

                      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--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 100--
                199)
        II  Office of Management and Budget Circulars and Guidance 
                (200--299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300-- 
                399)
        VI  Department of State (Parts 600--699)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1880--1899)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Housing and Urban Development (Parts 2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)
     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
    XXXVII  Peace Corps (Parts 3700--3799)

[[Page 480]]

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--99)

                   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)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Parts 2100--2199)
       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)
      XXII  Federal Deposit Insurance Corporation (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600-- 3699)
    XXVIII  Department of Justice (Parts 3800--3899)
      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 (Parts 4300--
                4399)
      XXXV  Office of Personnel Management (Parts 4500--4599)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)

[[Page 481]]

       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
    LXXIII  Department of Agriculture (Parts 8300--8399)
     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
      XCIX  Department of Defense Human Resources Management and 
                Labor Relations Systems (Department of Defense--
                Office of Personnel Management) (Parts 9900--9999)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)
         X  Privacy and Civil Liberties Oversight Board (Parts 
                1000--1099)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         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)

[[Page 482]]

       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)
       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)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
      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 Policy and New Uses, 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)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)

[[Page 483]]

      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  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 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)
      XIII  Nuclear Waste Technical Review Board (Parts 1303--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      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)

[[Page 484]]

       III  Federal Deposit Insurance Corporation (Parts 300--399)
        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)
        IV  Emergency Steel Guarantee Loan Board, Department of 
                Commerce (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board, 
                Department of Commerce (Parts 500--599)

                    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)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 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)

[[Page 485]]

       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      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  Bureau of Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)

[[Page 486]]

       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Bureau of Immigration and Customs Enforcement, 
                Department of Homeland Security (Parts 400--599)

                     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 Service, 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  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board (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  Millenium Challenge Corporation (Parts 1300--1399)

[[Page 487]]

       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)

                          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 
                HousingCommissioner, 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 Housing and 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--1699)

[[Page 488]]

         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)

                           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 (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       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)

[[Page 489]]

      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            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)
       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  Employee Benefits Security 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)
       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)

[[Page 490]]

            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)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

                      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)
       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)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       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)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (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)

[[Page 491]]

            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 Improvmeent, 
                Department of Education [Reserved]
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             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)
        VI  [Reserved]
       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)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                301--399)

[[Page 492]]

        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 Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       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
        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 Service, Department of 
                Labor (Parts 61-1--61-999)
            Chapters 62--100 [Reserved]
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
            Chapters 103--104 [Reserved]
       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)

[[Page 493]]

            Chapters 129--200 [Reserved]
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System [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 (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, 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)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10010)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (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

[[Page 494]]

        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) 
                [Reserved]
         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)
     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)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (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)

[[Page 495]]

       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  Defense Acquisition Regulations System, 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  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  Broadcasting Board of Governors (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)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        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 [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)

[[Page 496]]

        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  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (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  Research and Innovative Technology Administration, 
                Department of Transportation [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        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)

[[Page 497]]

        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 499]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2008)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            5, LXXIII
  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                               2, IX; 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
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
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 500]]

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
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
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
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
Civil Rights, Commission on                       5, LXVIII; 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
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  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, United States      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
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 501]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 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
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
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
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
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                   2, XV; 5, LIV; 40, I, IV, 
                                                  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                5, III, LXXVII; 14, VI; 
                                                  48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3

[[Page 502]]

  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 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               31, IX
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 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
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 Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
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 Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102

[[Page 503]]

  Federal Property Management Regulations         41, 101
  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 Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          2, III; 5, XLV; 45, 
                                                  Subtitle A,
  Centers for Medicare & Medicaid Services        42, IV
  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
  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
Homeland Security, Department of                  6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
Housing and Urban Development, Department of      2, XXIV; 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
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  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
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
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
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
   Archives and Records Administration
[[Page 504]]

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
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
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  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 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                                2, XXVII; 5, XXVIII; 28, 
                                                  I, XI; 40, IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  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
  Employee Benefits Security Administration       29, XXV
  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
  Public Contracts                                41, 50

[[Page 505]]

  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of 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
  Copyright Royalty Board                         37, III
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Millenium Challenge Corporation                   22, XIII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
National Aeronautics and Space Administration     2, XVIII; 5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
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 Intelligence, Office of Director of      32, XVII
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                       2, XXV; 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
Natural Resources Conservation Service            7, VI

[[Page 506]]

Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
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
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Patent and Trademark Office, United States        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 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
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory 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 Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Privacy and Civil Liberties Oversight Board       6, X
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
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
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                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 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                                  2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III

[[Page 507]]

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                     2, XII; 5, L
  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
  Federal Motor Carrier Safety Administration     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
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  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 Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection Bureau            19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  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                       2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the 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 509]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations that were 
made by documents published in the Federal Register since January 1, 
2001, 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, 2001, see the ``List of CFR Sections Affected, 1964-
1972, 1973-1985, and 1986-2000'' which is published in ten separate 
volumes.

                                  2001

40 CFR
                                                                   66 FR
                                                                    Page
Chapter I
197 Added..........................................................32131
    Technical correction...........................................38374
232.2 Amended.......................................................4574
    Regulation at 66 FR 4574 eff. date delayed.....................10367
238.30 (b) amended.................................................34376
257 Authority citation revised.....................................53542
    Regulation at 66 FR 53542 withdrawn............................67108
257.2 Amended......................................................53542
    Regulation at 66 FR 53542 withdrawn............................67108
258.2 Amended......................................................53542
    Regulation at 66 FR 53542 withdrawn............................67108
258.28 (a)(1) and (2) amended; (a)(3) added........................42449
258.41 Added.......................................................42449
    (a) added......................................................44069

                                  2002

40 CFR
                                                                   67 FR
                                                                    Page
Chapter I
194 Comment request.................................................6661
228.15 (h)(5) heading, (v) and (vi) revised........................30599
    (h)(20) added..................................................44773
232.2 Amended......................................................31142
258.10 (e) added...................................................45920
    Regulation at 67 FR 45920 withdraw.............................62647
258.41 (c) added...................................................47319

                                  2003

40 CFR
                                                                   68 FR
                                                                    Page
Chapter I
228.15 (d)(6)(v)(E) added..........................................12602
239 Policy statement...............................................57824
257 Authority citation revised.....................................36495
257.2 Amended......................................................36495
257.5 Corrected; CFR correction....................................60856
258 Policy statement...............................................57824
258.2 Amended......................................................36495
258.10 Note added..................................................59335

                                  2004

40 CFR
                                                                   69 FR
                                                                    Page
Chapter I
194.2 Amended......................................................42580
194.6 Revised......................................................42581
194.8 (b) redesignated as (c); new (b) added; new (c) revised......42581
194.12 Revised.....................................................42582
194.13 Revised.....................................................42582
194.24 (c)(3) revised..............................................42583
228.15 (b)(3) added................................................75266
239 Policy statement........................................42583, 54756
    Regulation at 69 FR 54756 withdrawn............................65381
247 Authority citation revised; eff. 5-2-05........................24038
247.3 Amended; eff. 5-2-05.........................................24038
247.11 (d) added; eff. 5-2-05......................................24038
247.12 (c), (d) and (j) revised; (k), (l) and (m) added; eff. 5-2-
        05.........................................................24038
247.16 (l) added; eff. 5-2-05......................................24038
247.17 (h) and (i) added; eff. 5-2-05..............................24038

[[Page 510]]

257 Policy statement........................................17308, 42583
258 Policy statement...............................................54756
    Regulation at 69 FR 54756 withdrawn............................65381
    Authority citation revised.....................................13255
258.4 Added........................................................13255

                                  2005

40 CFR
                                                                   70 FR
                                                                    Page
Chapter I
228.14 (h)(3), (4) and (5) removed..................................2817
228.15 (h)(21) and (22) added.......................................2817
    (n)(6), (7) and (9) removed; (n)(8) revised; new (n)(9) added 
                                                                   10055
    (b)(4) and (5) added; eff. 7-5-05..............................32518
    (n)(8)(i) correctly revised....................................37698
    (l)(11) added..................................................53736
    (h)(23) added..................................................55774
233.39 Added.......................................................59888
239 Policy statement................................................7658
257.30 (d) added...................................................59888
258 Policy statement................................................7658
258.28 (c)(1) revised; eff. 7-14-05................................34555
258.29 (d) added...................................................59888
258 Appendix I revised; eff. 7-14-05...............................34555
Appendix II revised; eff. 7-14-05..................................34556
258 Appendices I and II corrected..................................44150

                                  2006

40 CFR
                                                                   71 FR
                                                                    Page
Chapter I
194 Policy statement...............................................18010
228.15 (n)(4)(i) through (vi) revised..............................27405
239 Policy statement..................................3779, 66685, 66686
    Eff. date corrected............................................71241
257 Policy statement................................................3779
258 Policy statement..................................3779, 66685, 66686
    Eff. date corrected............................................71241

                                  2007

40 CFR
                                                                   72 FR
                                                                    Page
Chapter I
239 Regulation at 71 FR 66686 withdrawn.............................1671
247 Authority citation revised.....................................52488
247.3 Amended, eff. 9-15-2008......................................52488
247.15 (b) revised; (f) added, eff. 9-15-2008......................52488
258 Policy statement................................................1671
    Regulation at 71 FR 66686 withdrawn.............................1671

                                  2008

   (Regulations published from January 1, 2008, through July 1, 2008)

40 CFR
                                                                   73 FR
                                                                    Page
Chapter I
230.12 (a)(2) amended..............................................19687
230.70--230.77 (Subpart H) Note amended............................19687
230.75 (d) amended.................................................19687
230.91--230.98 (Subpart J) Added...................................19687
239 State municipal solid waste landfill programs...................5751
258 State municipal solid waste landfill programs...................5751


                                  [all]